Foilsiú
53444 (6 September 2023)
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Criminal Injuries Compensation Scheme
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of a Single Member
Name of applicant: [ ]
Application number: 53444
Date of incident: [ ]
Date of application: [ ] (application form signed on the [ ])
Decision outcome: The Applicant is awarded the sum of €8,517.43 (taking into consideration the application of the provisions of paragraph 12 of the scheme).
1. Garda [ ] of An Garda Siochana, [ ] Garda Station has provided the Tribunal with a precis of the circumstances surrounding his claim. This report is dated as having been received by the Criminal Injuries Compensation Tribunal on the [ ].
2. It records that on the [ ] Garda [ ] took a report from the Applicant reporting that he had been assaulted on the [ ] at a [ ] Takeaway, on [ ]. He alleged that two males assaulted him. Garda [ ] indicated that the incident occurred at approximately [ ] on [ ].
3. The background to the incident was that on the evening of the [ ] and into the early morning of the [ ] the Applicant was socialising in [ ] with friends. Having left a nightclub with his friends he walked to the local takeaway. When the Applicant and his friends entered the takeaway it is alleged that there was a male sitting inside the door with his legs stretched out. The Applicant ordered food and sat down. Apparently this male kept looking at the Applicant and his friends. Apparently he was muttering. It is alleged that one of the males said “watch yourself when you go outside”. It would appear that the Applicant and his friends obtained their food and started to exit, not dwelling there. Matters progressed insofar as one of the males allegedly said something to one of the Applicant’s friend’s girlfriend. This male friend confronted the aggressor over the comments made to his girlfriend. They then started pushing each other. The Applicant then tried to intervene and at that point the second male got involved. The Applicant alleges that he was struck on the nose and that put him into a daze. Garda [ ] indicates that all four males, the Applicant and his friend and the two other unnamed persons shared blows outside the [ ] takeaway on the street. The Applicant asserts that he was on the ground and that one of the aggressors, in a [ ], supposedly kicked him in the head, commenting “[ ]”.
4. Garda [ ] confirmed that the case was before Judge [ ] of [ ] Circuit Court on the [ ], going on to indicate that a Court date would be set between the [ ] and the [ ]. The outcome of the criminal proceedings has not been provided to the Tribunal.
5. Under paragraph 30 of the scheme the standard of proof which the Tribunal will apply to the determination of any claim will be the balance of probabilities.
6. Whilst the outcome of the Trial is unknown, the Tribunal is willing to accept that the Applicant is the victim of a crime and, for the reasons identified in the medical report, which will be dealt with later in the decision, incurred personal injuries which arose through the criminal actions of others.
7. In arriving at this conclusion the Tribunal accept the Applicant’s version of events as to what occurred as recorded by Garda [ ]. In doing so the Tribunal takes into consideration that it was the Applicant who reported the commission of a crime and that following on from same an investigation of same by Garda [ ], the Director of Public Prosecutions saw fit to accept the Applicant’s version of events and proceed to charge third parties for crimes associated with the incident.
8. From the foregoing I am satisfied that the Applicant has established on the balance of probabilities that he was the victim of a crime of violence and sustained personal injury which was directly attributable to that crime of violence and accordingly I admit the application for consideration under the scheme.
9. The incident is recorded as having occurred on the [ ]. The application was received by the Tribunal on the [ ], just shy of six months after the incident, well outside the three month limitation period for applications under the scheme.
10. By way of letter dated the [ ], [ ] Solicitors of [ ] wrote to the Tribunal outlining that “it should be noted that our client was not aware that he was in a position to make a claim to the Injuries Compensation Tribunal until he contacted our offices regarding the matter…. It should also be noted that our client has had ongoing difficulties as a result of the injuries sustained in this incident and is not in a position to return to work. He has had antibiotics due to the plate becoming infected in his jaw and has not been in a position mentally or physically to deal with this matter before now”.
11. Bearing in mind the nature of the injuries sustained by the Plaintiff as outlined in the medical report of Dr [ ], [ ], the Tribunal accepts the rationale advanced in [ ] letter of the [ ] as amounting to exceptional circumstances such that the limitation period of three months will not be applied in this instance.
12. The report of Dr [ ] dated the [ ] records that the Applicant sustained an injury to his left jaw on the [ ]. He required a plate to be inserted for mandibular fracture. Following on from the insertion of the plate he suffered from recurrent infections of his jaw. He thus underwent a second operation to have the plate removed on the [ ]. She has certified that he was unfit for work due to this injury from the [ ] until the [ ].
13. Sufficient documentation has been received to satisfy the Tribunal that at the time of his involvement in this incident the Applicant was an employee of [ ] and that at that time he was in receipt of a net weekly income of €403.98. Documentation received by the Tribunal satisfies the Tribunal that during the period when the Applicant was unable to work he received social welfare payments totalling €6,971.70.
14. The period identified by Dr [ ] from the [ ] to the [ ] is an amount of 39 weeks and 2 days. Bearing in mind the salary identified of €403.98 per week this equates to an amount of €15,916.74 as a gross loss of earnings (after the deduction of tax). Social welfare to be deducted from that figure comes to €6,971.70 giving a net loss of earnings following the deduction of social welfare and tax of €8,945.04.
15. A schedule of special damages has been received which I would assume has come from [ ]. It identifies medical expenses of €75 in respect of attendances to [ ] Hospital as an inpatient for the insertion of a plate, €100 payable to [ ] Hospital for attendance at Accident & Emergency and various pharmacy receipts which total €94.70.
16. Thereafter a generalised claim was made for travel expenses at 95 cent per kilometre for one trip to [ ] to [ ] Accident & Emergency and 10 trips to [ ] Hospital. The nature of the generalised travel expense claim reflects travel by private car and the associated costs with travel by private car including fuel, insurance, tax and maintenance. This is at variance with the application form filed on behalf of the Applicant. At paragraph 6, the mode of transport identified for expenses arising from travel is identified as public transport. The Tribunal is inclined to accept that this is a case where the Applicant travelled predominantly by public transport and in particular takes cognisance of the vouchers provided which include bus tickets from Bus Eireann and tickets for use of the Luas. On the basis of the necessity for an emergency visit to [ ] the Tribunal is willing to allow the amount claimed as it is likely that in a case of an emergency the Applicant was driven to the hospital, however in respect of the attendances at [ ] the allowances were made in respect of public transport only.
17. It is noted that the unit cost of each Luas journey appears to be €2.20 and that the Applicant attended [ ] on 10 occasions thus the amount allowed for Luas journeys is €22. The amounts for each Bus Eireann ticket are unclear from the vouchers provided and in the absence of confirmation of the price the Tribunal is allowing €10 per ticket per journey giving a sum total of €100 by way of allowance for Bus Eireann journeys from [ ] Hospital.
18. Paragraph 12 of the scheme says that no compensation will be payable where the Tribunal is satisfied that the victim was responsible either because of provocation or otherwise for the offence giving rise to his injuries and the Tribunal may reduce the amount of an award where, in its opinion the victim has been partially responsible for the offence.
19. Paragraph 13 of the scheme indicates that no compensation will be payable where the Tribunal is satisfied that the conduct of the victim, his character or his way of life, will make it inappropriate that he should be granted an award and the Tribunal may reduce the amount of an award where, in its opinion, it is appropriate to do so having regard to the conduct, character or way of life of the victim.
20. Having considered the report compiled by Garda [ ] outlining the nature of the occurrences which led to the Applicant’s injury on the [ ] the Tribunal is of the opinion that there is some application of paragraph 12 of the scheme. In particular, while it is accepted that the Applicant was the victim of a crime it is noted that Garda [ ] describes the four persons involved being the two assailants, the Applicant and his friend as having “shared blows”. This leads the Tribunal to the conclusion that whilst the Applicant was not the aggressor in this instance and intervened with a view to assisting and possibly diffusing the situation, he did not take every opportunity to retreat and ultimately ended up sharing blows with the two aggressors. It is accepted that in no way can the Applicant be perceived to be anything other than the victim of a crime here, however the Tribunal feels that a 10% reduction in the award is appropriate to meet the facts of the case.
21. With regard to the provisions of paragraph 13 of the scheme, the Tribunal notes that the Applicant is a gentleman who is not recorded as having any previous convictions or having conducted himself in a fashion or carried on a life in a way which would result in any reduction being made in the award to him. Thus the Tribunal concludes that there is no application of paragraph 13 of the scheme.
22. Arising from the Applicant’s loss of earnings an award is made of €8,945.04.
23. Arising from the Pharmacy costs incurred the Tribunal makes an award of €94.70.
24. Arising from the necessity to travel to [ ] Hospital the Tribunal makes an award of €127.
25. In respect of Bus Eireann travel to and from [ ] Hospital the Tribunal makes an award of €100.
26. In respect of journeys on the Luas to get to [ ] Hospital the Tribunal makes an Order for €22.
27. The Tribunal awards €100 in respect of the Accident & Emergency fee for [ ].
28. The Tribunal makes an award of €75 for the inpatient charge for attendance at [ ] Hospital.
29. The sum of the awards made is €9.463.81.
30. From this figure a 10% amounting to €946.38 is deducted in accordance with the Tribunal’s findings arising from the provisions of paragraph 12 of the scheme.
31. The net final award being an amount of €8,517.43.
Name of Tribunal Member: Damian Sheridan B.L.
Criminal Injuries Compensation Tribunal
6 September 2023