Foilsiú
23653 (18 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.
Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of one member of the Tribunal pursuant to section 25 of the Scheme
Applicant: [ ]
Date of injury: [ ]
Date of application: [ ]
Case reference: 23653
Decision: Pursuant to Paragraphs 11 and 15, no award of compensation will be granted.
1. By way of application form submitted to the Tribunal by his solicitor, [ ], the applicant claims compensation for expenses arising from injuries which occurred on [ ] when he was [ ] [ ] on [ ].
2. The applicant attended [ ] Hospital where he was treated for his injuries which resulted in permanent scarring to his stomach. The applicant claims loss of earnings arising from his injuries, which at the time of his injury were ongoing.
3. The Tribunal has had the benefit of a Garda Report by Detective Garda [ ] of An Garda Siochana which confirms that the applicant was leaving a private residence when he was shot [ ] by a person known to him. The Garda Report states that, at the time of the event, the applicant had [ ] previous convictions, [ ] criminal and, [ ] under the road traffic act.
4. On [ ], the secretariat of the Tribunal wrote to the applicant’s solicitor stating that, in order to process their claim for loss and damage, the Tribunal would require documentary evidence to substantiate the particulars of the applicant’s loss, including original receipts and details of loss of earnings. No response to this letter is on file.
5. On [ ], the secretariat of the Tribunal wrote to the solicitor on record for the applicant enclosing the Garda Report and alerting the solicitor to Article 14 in respect of the applicant’s previous convictions, and inviting comments. No response was received to this letter.
6. On [ ], the secretariat of the Tribunal wrote to the applicant’s solicitor asking if the applicant still wished to pursue his application, and seeking any documentation including original receipts and vouching documentation in regard to any out-of-pocket expenses arising from any personal injuries, and that the file would be sent to a member of the Tribunal for decision in the absence of same on [ ].
7. On [ ], the solicitor on record wrote to the Tribunal to state that the solicitor and sole practitioner of the firm which represented the applicant had died. and that the practice was now closed. The secretariat of the Tribunal was requested to correspond directly with the applicant.
8. On [ ], the secretariat of the Tribunal wrote directly to the applicant asking him whether he intended to pursue the application and to inform the Tribunal before the file was sent to a member of the Tribunal for determination.
9. No response was received to this correspondence.
10. The following documents were furnished to the Tribunal Member for determination:
a. Completed application form;
b. Garda Report dated [ ];
c. Correspondence with the applicant’s solicitor, and directly with the applicant.
11. Arising from the foregoing a number of issues arise, which will be dealt with in turn.
12. Paragraph 11 of the Scheme reads:
“No compensation will be payable to an applicant who has not, in the opinion of the Tribunal, given the Tribunal all reasonable assistance, in relation to any medical report that it may require, and otherwise.”
13. In determining whether a lack of reasonable assistance has been given such that compensation is not payable, consideration must be given to the scope and purpose of Paragraph 11. It effectively cuts applicants off from compensation and is thus a far-reaching provision. Its purpose is to serve as a sanction against those who do not co-operate with the Tribunal – its secondary purpose is to encourages applicants to give the Tribunal reasonable assistance.
14. The Tribunal should not rely on paragraph 11 to deny an applicant the potential for compensation in an irrational or arbitrary way. It seems logical to take into account two main factors: (i) the nature of the information or assistance sought by the Tribunal (and in particular whether its absence prevents a proper decision being made) and (ii) the frequency of requests and time elapsed wherein no adequate response has been received by the Tribunal.
15. It is noted that Paragraph 15 of the scheme which was in place at the time of the events which gave rise to this application:
“Compensation will be reduced by the value of the entitlement of the victim or claimant to social welfare benefits payable as a result of the injury and will be reduced, to the extent determined by the Tribunal, in respect of the entitlement of the victim to receive, under his conditions of employment, wages or salary while on sick leave.”
16. It is observed that without evidence of the expenses incurred, particulars of miscellaneous expenses or any documentation relating to employment-related income since the incident, there is no information upon which the Tribunal can base an assessment of compensation, having regard to the value of any social welfare benefits or employer benefits received by the applicant.
17. The documents in question are integral to the formation of any determination.
18. On [ ] and [ ], the secretariat of the Tribunal wrote to the applicant’s solicitor inviting particulars of any injuries arising from the incident, and asking the applicant to submit any vouching documentation to support the application for compensation.
19. In [ ], the secretariat wrote again to the solicitor on record for the applicant, and directly with the applicant asking whether the applicant intended to pursue his claim. No response was received from the applicant to the letter sent to him on [ ].
20. The Tribunal finds that because of the integral nature of the documentation sought to the decision-making process, and the elapse of time with no communication from the Applicant (despite request), that there has been a failure to give reasonable assistance to the Tribunal.
21. The application is refused.
Peter Stafford BL
18 May 2022