Foilsiú
F/53887 (9 August 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
Fatal Injuries Application
Single Member Decision
The Deceased: [ ], late of [ ], who died on the [ ] ("the Deceased")
Applicant: [ ], partner of the Deceased
Application ref: F/53887
Date of incident: [ ]
Date of receipt of application: [ ]
Decision outcome: Award of €19,750.
[ ] (“the Applicant”) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“the Scheme”), as a result of the fatal injuries sustained by her partner and father of [ ] [ ] (“the Deceased”).
The Deceased died on the night of the [ ] following an altercation involving three other males at a [ ] in [ ]. In a Garda Report, received by the Tribunal on the [ ], the Gardaí set out the circumstances which led to the death of the Deceased. According to the Gardaí, the Deceased and his friend had been drinking all day and then went to [ ] where a conversation they had with two male [ ] turned sour. The Deceased and his friend returned to [ ] and continued to drink, but later returned to the [ ] armed [ ]. Following a struggle with the two [ ], the Deceased received a blow to his head with [ ] resulting in his death. The Deceased’s friend notified the Gardaí by telephone following the incident. [ ]
The Applicant submitted her claim to the Tribunal on the [ ].
Applications for compensation under the Scheme can be made where a crime of violence results in injuries, including fatal injuries (paragraph 1 of the Scheme). The first issue to address in the instant case is whether, in circumstances where persons have been found [ ], notwithstanding a violent act having led to the death of another, if such an application can come within the ambit of the Scheme. The Tribunal is of the view that it is uncontroversial to conclude that the Deceased met his death as a result of a violent act, and is therefore prepared to accept that as the Scheme expressly operates on the civil standard of proof, that is, on the balance of probabilities, that the violent act which led to the death of the Deceased brings this application within the ambit of the Scheme.
Secondly the Tribunal notes from the Gardaí’s Report that the Deceased’s friend contacted the Gardaí following the attack (satisfying paragraph 22 of the Scheme).
Thirdly, there is the issue of delay in the Applicant submitting her application. Paragraph 20 (formerly paragraph 21) of the Scheme states:
"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 …"
It is clear from the above provision that when applications are received by the Tribunal outside of the prescribed three-month time period, that the Tribunal can determine if the circumstances for delay in submitting that application justify exceptional treatment and so accept that late application for further consideration. By reason of paragraph 20, the Applicant’s application ought, in normal course, to have been lodged on or before the [ ], which was three months after the date of the incident.
The Tribunal notes that this application was signed by the Applicant on the [ ], which was just two weeks after the death of the Applicant’s partner in violent and unexpected circumstances, and was then received by the Tribunal on the [ ], which was one month after the time period allowed in normal course under the Scheme. The Tribunal further notes that the Applicant was diagnosed with a serious illness in [ ] and upon the death of the Deceased, lost her partner who was also her carer, as well as the father of [ ]. The Tribunal therefore accepts that the circumstances for the delay in submitting this application by just one month justifies exceptional treatment, and will accept this application for further consideration.
The Applicant has made a claim for the Deceased’s funeral expenses, for which a receipt for payment to [ ] Funeral Directors, [ ] in the sum of €6,500 has been received by the Tribunal. The Tribunal notes that, as part of this payment, the sum of €2,000 has been paid by the Department of Social Protection, presumably on foot of an application made by the Applicant to it for a Bereavement Grant (as stated on her application form). An application was also made by the Applicant for a grant from the local Community Welfare Officer, but as the file is silent on the outcome of that application, this leaves the amount paid by the Applicant for the funeral expenses of the Deceased at €4,500. No other receipts relevant to the Applicant’s expenses claim has been furnished to the Tribunal.
The Applicant states that the Deceased was working until she herself fell ill in [ ], and after that he had become the Applicant’s carer and was in receipt of carer’s allowance up to and at the time of his death. On that basis no loss of earnings claim is considered.
As this is a fatal injuries application, the Applicant is also entitled under paragraph 6 (e) of the Scheme and pursuant to section 49 of the Civil Liability Act, 1961 as amended, to apply on behalf of the Deceased’s statutory dependants who have suffered emotional distress as result of the wrongful death of the Deceased, for solatium, a payment that is currently capped in law at €35,000. In aid of her application the Applicant has provided the Tribunal with [ ] birth certificates, for herself and for [ ] Deceased, [ ]. Additionally, the Tribunal has received [ ] further birth certificates from the Deceased’s [ ], on behalf of herself, the Deceased’s, [ ] and the Deceased’s, [ ].
While an application for solatium can be made by only one dependant for an on behalf of all other statutory dependants, in the instant case, as [ ] of the Deceased have joined in this application and have provided their requisite birth certificates, they should be included for consideration for an award of solatium.
The Tribunal is of the view that solatium is to be divided between the statutory dependants of the Deceased as follows:
[ ] - €20,000
[ ] - €6,000
[ ] - €6,000
[ ] - €1,000
[ ] - €1,000
[ ] - €1,000
But that is not the end of the matter: the Tribunal is obliged to apply the terms of the Scheme, and notably paragraph 12 of the Scheme provides:
“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 the award where, in its opinion, the victim has been partially responsible for the offence.”
The Tribunal cannot ignore the circumstances which gave rise to the death of the Deceased, which the Gardaí have outlined in their Report of the [ ], as set out above. It is clear that the Deceased together with his friend, having consumed alcohol during the day prior to his death, and having left his assailants following an initial encounter with them at [ ], continued to consume alcohol [ ] and then returned to [ ] armed with [ ]. The Deceased died as a result of a fatal blow from [ ].
The Tribunal is of the view that pursuant to paragraph 12 of the Scheme, compensation awarded should be reduced by 50% on account of the Deceased’s own actions which led to his death.
The Tribunal therefore makes the following compensatory awards:
To the Applicant and partner of the Deceased, [ ]:
Total: €12,250
To [ ] Deceased, [ ] and [ ] - €3,000 each
To [ ] of the Deceased: [ ]; [ ]; and, [ ] - €500 each
Total sum awarded: €19,750
The Tribunal extends its sympathy to the Applicant and her family on the loss of the Deceased.
Nora Pat Stewart
9 August 2022