Foilsiú
50419 (4 May 2022)
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.
The 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: 50419
Date of incident: [ ]
Date of application: [ ]
Decision outcome: The Claim is unsubstantiated and is dismissed under Paragraph 10 of the Scheme.
1. [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. In his application for compensation under the Scheme, dated [ ], the applicant stated that he had suffered a broken foot following an assault at the [ ] on [ ] in [ ] on [ ].
3. Paragraph 21 of the Scheme sets out a timeline for making applications under the Scheme. It reads:
“Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury”.
4. The incident in this case occurred on [ ]. In normal course it should have been submitted on or before [ ]. It was submitted over a month later than that date. The Tribunal must consider whether there are circumstances which can justify exceptional treatment of the application, albeit that it was late.
5. Circumstances that arise in this case include that the form supplied to the applicant did not enquire as to the circumstances of any late application, and the applicant is a [ ] of the [ ] who does not live in this jurisdiction. No correspondence from the Tribunal since [ ] has enquired why his application was late. It would be unjust in these circumstances to now require the applicant to set out his circumstances over [ ] years ago to explain a one-month delay. There are therefore circumstances which warrant the exceptional treatment of considering it out of time.
6. In his application the applicant describes being assaulted in a [ ] when a [ ] of the [ ] was told to leave the premises. According to the applicant that person, while he was leaving, “[ ]”. He was later heard to make derogatory comments about the [ ] and in that context brag about hurting the applicant.
7. Initial correspondence from Garda [ ] to the Garda-in-Charge dated [ ] states that he believes the applicant’s application form to be accurate, and that neither the applicant nor the alleged assailant have criminal convictions, and that some thirteen witnesses were interviewed in the course of the investigations and their statements could be made available on request. It appears that these were not furnished to the Tribunal.
8. Garda [ ] however encloses his own statement. It states in the relevant parts that he entered [ ] on [ ] as the [ ] indicated that [ ] wished to report an assault. Garda [ ] records that the applicant “alleges he was pushed to the ground by [ ] and broke his foot. I recorded a statement from [ ] and from a witness [ ]”. He stated that he and a colleague took statements from [ ]. He records “[ ] admitted to injuring [ ] but claimed it was not intentional just horseplay. The statements of [ ] corroborated this. On the same day I interviewed [ ]. He had been standing next to [ ] at the time of the incident. I later interviewed [ ]. He was also present at the time of the alleged assault. Both men informed me that it just appeared to be a bit of horseplay gone wrong”. Garda [ ] signed this statement on [ ].
9. The Garda Report of [ ] describes a social occasion at a pub in which all parties were in high spirits and which resulted in an injury in circumstances whereby “a lot of alcohol had been consumed by both sides and it was agreed by both sides to have been just a bit of horse play gone wrong”. No prosecutions were pursued by the Gardaí.
10. The applicant in a letter of [ ] disputed this account. He said that his assailant had lashed out while being thrown out of the bar and that he was unfortunately the person in the way. He said that after the incident his assailant was heard to have shouted that he had sorted out [ ]’. He said that he had witnesses to the event on his side, and finally that he had not agreed that it was horseplay gone wrong. He expressed the view that people were [ ] and that the Gardaí had not responded to his communications.
11. The Scheme applies where an injury stems from a crime of violence. In this case the gardaí appear not to have prosecuted because they were of the view that the assailant was engaged in horseplay. However the garda also states that the applicant’s version is ‘accurate’ and there is no statement to the effect that the applicant was engaged in horseplay.
12. An assault under section 2 of the Non Fatal Offences Against the Person Act, 1997 occurs where a person applies force or an impact to the body or another “without lawful excuse, either intentionally or recklessly”. In this case there is no evidence that what occurred was an accident: it was horseplay on the part of the assailant, but which horseplay there is no evidence that the applicant engaged in. In my view the horseplay by sweeping the applicant’s legs out from under him, appears to have caused an impact to the applicant’s body as a consequence of his assailant engaging in reckless force on his body. It is my view, on the balance of probabilities (rather than the criminal standard) that an assault occurred and the applicant is a victim of a crime of violence.
13. In light of the foregoing, the file setting out the documents pertinent to the claim can be further assessed.
14. On [ ] the Tribunal Secretariat wrote to the applicant seeking documents to substantiate his claim for loss of earnings. This information was also sought in a letter from the Tribunal Secretariat dated [ ]. A follow-up letter, seeking a statement from the applicant’s employers outlining his loss of earnings, issued on [ ]. No such documents have been supplied by the applicant, and indeed the letter of [ ] was not responded to at all.
15. On the [ ] the Tribunal Secretariat wrote to the applicant asking whether he wished to pursue his claim, and if so to furnish the documents vouching his claim. It asked him to respond before [ ]. No response has been received.
16. The Tribunal’s role is to assess compensation payable under the framework of the Civil Liabilities Act, with some exceptions. The largest exception is that it does not award damages for pain and suffering: it is an expenses-only scheme. A further relevant exception specific to the Scheme is that under paragraph 14 whereby compensation is reduced by the amount of social welfare payments or sick pay received by the applicant. The position is that awards of compensation are assessed on evidence. The Tribunal can only award compensation on the evidence that it receives.
17. Much of the evidence substantiating loss are in applicants’ possession or can be accessed by them. Accordingly, applicants are obliged under paragraph 10 of the Scheme to give the Tribunal all reasonable assistance, by way of medical reports or otherwise. If this obligation is not met the Scheme provides that no compensation is payable to the applicant.
18. In this case the applicant has not supplied the Tribunal with basic information in respect of his loss of earnings (by way of letter from his employers or income tax receipts or otherwise). This information is required for the applicant to make out his claim; failing to supply it to the Tribunal is a failure to give the Tribunal reasonable assistance.
19. In the circumstances, the application must be dismissed on the basis that the applicant has not proved his claim, and/or that he has failed to give the Tribunal reasonable assistance under paragraph 10 of the Scheme.
20. From the foregoing, while I am satisfied that the applicant was injured, and on the balance of probabilities, that he was a victim of a crime of violence, he has not substantiated his claim in a manner which permits its proper assessment. The claim must therefore be dismissed under paragraph 10 of the Scheme.
Tricia Sheehy Skeffington
Member, Criminal Injuries Compensation Tribunal
4 May 2022