Foilsiú
54652 (6 April 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.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme (1) of Compensation for Personal Injuries Criminally Inflicted
Appeal
(1) The Scheme in operation at the time application was received by the Tribunal.
Applicant/Appellant: [ ] Ref: #54652
Present:
For the Tribunal:
For the Applicant/Appellant:
[ ], Appellant/Appellant (hereinafter “the Applicant”)
Date: [ ]
1. [ ] (“the Applicant”) has made a claim for compensation under the Scheme for Personal Injuries Criminally Inflicted (“the Scheme”) arising out of an incident which occurred on [ ], as a result of which he claims he sustained personal injuries.
2. A first instance decision issued from the Criminal Injuries Compensation Tribunal (“the Tribunal”) on [ ]. The Applicant appealed that decision and, pursuant to paragraph 25 of the Scheme, a three Member panel of the Tribunal was constituted to consider his application on a de novo (afresh) basis. The Appeal hearing was held remotely with the agreement of the Applicant on [ ]. The Tribunal had the benefit of the Applicant’s 40-page application file, in addition to receiving his direct oral evidence.
3. The Applicant’s claim is that he had been attending an [ ] in a public house in [ ] for presentations to a [ ] of which he was a member, and as he left to go home he saw a number of persons, one of whom was known to him, attempt to take [ ] from another [ ] and when he attempted to explain that the [ ] members did not want trouble and were leaving, he himself was set upon and violently assaulted.
4. The Applicant’s claim is that he lost consciousness as he fell on the ground following the attack and that he suffered very bad facial injuries, including a broken nose and two black eyes as well as severe dental injuries in this assault. At the time of submitting his application the Applicant was awaiting an ENT appointment at [ ] Hospital and reported that his teeth were still painful, that he could not bite with his front teeth, that he suffered from hearing issues and also from ongoing mental stress.
5. The assault was reported to the Gardaí by the staff of the public house and in a Garda Report, received by the Tribunal on [ ], the Gardaí confirmed that the assault had been captured on CCTV and that the Applicant had suffered extensive facial injuries. The Gardaí further noted that all [ ] aggressors had been arrested at the scene and that the CCTV clearly showed the Applicant acting as a peacemaker, that he was never considered a suspect or aggressor in any way during this incident. The Gardaí also confirmed that the Applicant’s assailants were charged with crimes of violent disorder and assault causing harm, that [ ] of the Applicant’s assailants had pleaded guilty and received custodial sentences, and that a bench warrant had issued for [ ] who had fled the jurisdiction. At sentencing, on [ ], who had entered a guilty plea, paid the Applicant €5,000 in compensation.
6. An application, made to the Tribunal on the Applicant’s behalf by his legal advisors, was received by the Tribunal on [ ].
7. The Tribunal accepts that the Applicant was the victim of a crime of violence arising out of the incident which occurred on [ ] and that he suffered personal injuries directly attributable to that crime of violence (satisfying paragraph 1 of the Scheme). The Tribunal also accepts that the assault was reported to the Gardaí without delay (satisfying paragraph 22 of the Scheme).
8. As noted above, this application was received by the Tribunal on [ ], which was 26 months after the incident the subject matter of the Applicant’s claim and 23 months after the time allowed, in normal course, for submission of applications.
9. Paragraph 21 of the Scheme states that:
“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.”
10. It is clear from paragraph 21 that the Tribunal is not completely bound by the prescribed three-month period for receipt of applications where it finds that circumstances for the delay in submitting an application exist in a particular case such as to justify exceptional treatment of that application, it can deem that application eligible for further consideration.
11. Furthermore, the Scheme’s application form provides applicants with an opportunity at s. 2 (f) to set out their reasons for late submission of an application, where there has been a delay in furnishing same to the Tribunal. In the instant case, the Applicant has stated, at s. 2 (f):
“I suffered very bad facial injuries that left me out of work. I had looked for information about the application to the criminal injuries board at the time and was misinformed, about the time limits etc. It took me a long time to build up the mental strength to seek legal advice as I was very stressed and mentally drained after the attack. This was the point at which I realised there was a time limit. I was in fear for my safety and also that of my family as the attackers were known to me as very dangerous people.”
12. The Tribunal notes that later in his application, at 7 (b), where applicants are invited to set out any further matters that they wish to bring to the attention of the Tribunal, the Applicant has stated:
“This whole ordeal has been very traumatic for me on some many occasions, it has effected my life greatly. I was a very outgoing person and this has knocked all my confidence. It has affected work and social hobbies like [ ]. I had plans to travel and do different things, but this has prevented me from doing what I wished. I suffered greatly mentally [ ] and terrified me which was the main reason my recovery stalled for a long time…”
13. At hearing the Applicant gave evidence pertaining to the circumstances for the delay in submitting his application including:
(i) that his father knew a local solicitor who was actually from the area and that he was taken by his father to see this solicitor in [ ] in relation to whether he should press charges against his assailants; that he and his family was aware that the people who had attacked him were involved in a life that he had avoided up to then; that by virtue of this attack, he found, by being in the wrong place at the wrong time, that he was now involved with these people and he was very frightened by that; that he had suffered from great anguish about what had happened and whether he should press charges, which would by necessity involve him having to be a witness in criminal proceedings; that despite his father’s solicitor having informed him that whilst his assailants were dangerous, they were not the most dangerous in [ ], nonetheless the Applicant continued to suffer great fear and trauma. At this meeting, the solicitor also advised the Applicant to “get the ball rolling” with an application to the Tribunal for compensation;
(ii) that he had called the Tribunal in [ ] and explained the incident and that the woman he had spoken to on the phone told him to gather up his information, complete his treatment and to send in his documentation. The Applicant took this to be the case;
(iii) that he attended the solicitor again, maybe six months or so later, at which point he was told that he was probably outside of the time limit, but to put in his application to the Tribunal anyway. The Applicant gave evidence that once he set about filling in the application form, he saw that it required a Garda statement to be attached and that he had attempted many times to get that statement from the Garda, including calling and phoning the Garda station many [ ] evenings for same, to no avail, and that COVID then intervened. The Applicant gave evidence that he ended up emailing the Garda Station on a number of occasions seeking the statement. Following the hearing of the appeal, the Applicant furnished the Tribunal with copy correspondence of the said emails, which substantiated his claim. The application was finally submitted, without the Garda statement, via the solicitor on the Applicant’s behalf on [ ].
14. Having considered the clear direct evidence given by the Applicant at hearing, including inter alia; that following this attack, apart from the extensive physical injuries he had suffered, he had also suffered prolonged anxiety and fear in finding himself somehow involved with persons in his neighbourhood that he had managed to avoid all of his life, and that this fear was compounded by the fact that [ ] which caused him further great distress; that he had relied upon, it transpired, incorrect information, following his telephone conversation with the Tribunal in [ ]; that once he set about filling in the application form, he had attempted to fully comply with the requirements of same and to that end he had made many attempts to obtain a Garda statement, but was unsuccessful; the Tribunal determines that the totality of the reasons for the delay in submitting this application by the Applicant, coupled with the fact that society was effectively shut down by COVID from [ ] onwards, justifies exceptional treatment of this application. Accordingly, the Tribunal accepts that this application is eligible for further consideration.
15. The Applicant’s claim is that he was taken by ambulance to A & E at [ ] Hospital and was admitted overnight for treatment. Upon discharge, he was in such fear of his aggressors, that he went to stay in his [ ] house for five/six nights. The Applicant attended his own GP Dr [ ] some days after the attack and in a Medical Report furnished to the Tribunal from Dr [ ], dated [ ], it confirms the injuries as suffered by the Applicant. Dr [ ] also noted that the Applicant had previously suffered from tinnitus and that this was reactivated because of the assault.
16. The Applicant has also furnished the Tribunal with a dental report from Dr [ ], dated [ ]. Dr [ ] noted that after the Applicant had initial treatment carried out at [ ] Hospital and had then attended five different dentists within the [ ] practice, for treatments between [ ] and [ ]. Dr [ ] also set out the treatment he envisaged would be required for the Applicant’s three upper front teeth in the future, including implants, a bone graft and root canal treatment, as a result of the damage sustained in the attack. On his application form the Applicant noted that prior to this assault he had worn braces for his teeth, which, he stated, had made the injuries he suffered “much more devastating.”
17. The Applicant gave evidence that he had subsequently attended an orthodontist at [ ] Clinic to get braces which he continues to wear, prior to embarking on any further dental works as outlined and envisaged by Dr [ ]. Following hearing the Applicant provided the Tribunal with vouching for the said orthodontal works.
18. The Applicant also gave extensive evidence that he had suffered from panic and trauma in the aftermath of the attack. Although he did not take medication, having started an apprenticeship as an [ ] with the [ ] in the [ ] prior to the incident, they had been very supportive he said, and he had been given the opportunity to avail of counselling, he noted. The Applicant confirmed that he had taken eight counselling sessions over three to four months, and that these had greatly assisted him in dealing with his trauma and anxiety.
19. The Applicant told the Tribunal that he had been passionate about [ ] prior to the assault but with his damaged teeth, he no longer felt comfortable [ ] whilst he occasionally met up with the [ ], that was the extent of his involvement, he found that difficult emotionally he said, i.e., the changes to his life following this attack.
20. The Applicant stated that he was still waiting for an ENT appointment, as his tinnitus/hearing issues which had returned after the attack and were much worse.
21. Out of Pocket Expenses:
a) Initial Dental Treatment: €720 (vouched)
b) Dental Report, Dr [ ] - €200 (vouched)
c) Orthodontic treatment, [ ] Clinic - €3,150 (vouched)
d) Future treatment for ENT private appointment - €300
e) Future Dental works as set out the Dental Report of Dr [ ] at an estimated cost in [ ] of €4,450 - €5,450 per set of treatments.
22. The Tribunal acknowledges the detrimental effect this assault had upon the Applicant. The Tribunal found the Applicant to be an honest and compelling witness. To that end the Tribunal awards the Applicant the following compensation:
a) Initial Dental Treatment: €720 (vouched)
b) Dental Report, Dr [ ] - €200 (vouched)
c) Orthodontic treatment, [ ] Clinic - €3,150 (vouched)
d) Future treatment for ENT private appointment - €250
e) Future dental work, taking into account inflation, the Tribunal determines that the upper cost level, as envisaged by Dr [ ], is the most appropriate to award in this instance. Therefore, the Tribunal the Applicant the costs for two sets of future dental works - €5,450 x 2 = €10,900
Total: €15,270
23. The Applicant acknowledges that he received compensation of €5,000 from his assailants’ following conviction. Paragraph 16 of the Scheme states:
“The Tribunal will deduct from the amount of an award under this Scheme any sums paid to or for the benefit of the victim or his dependants by way of compensation or damages from the offender or any person on the offender’s behalf following the injury.”
24. In the instant case, paragraph 16 of the Scheme is engaged. Consequently, the award of €15,270 as set out above, must be reduced accordingly.
Total award: €10,270
The Tribunal wishes the Applicant well into the future.
Dated the 6th day of April 2023
Nora Pat Stewart BL
For and on behalf of the sitting members of the Tribunal.