Foilsiú
50785 (13 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 incident: [ ]
Date application received: [ ]
Case reference: 50785
Solicitors on record: [ ]
Determination: Applying Paragraphs 16 of the Scheme in place at the time of the application no award of compensation will be made.
1. By way of application form to the Criminal Injuries Compensation Tribunal (“The Tribunal”) and dated [ ], [ ] (“the applicant”) has made a claim for compensation from the Tribunal for injuries arising out of a crime of violence which took place on [ ].
2. The applicant stated that he was injured in [ ], [ ], [ ] where he was [ ]. There was a scuffle and blows were exchanged.
3. The applicant stated that he was attacked by [ ] who [ ] physically taken from the [ ] and mauled and [ ] violently from the [ ].
4. The applicant stated that, as a result of this altercation with [ ], he sustained serious facial injuries and damage to a number of his front teeth. The applicant attended accident and emergency in [ ] Hospital and received further care from his GP and dental surgeon.
5. At the time of the application, civil proceedings against [ ] had been commenced.
6. The Tribunal has had the benefit of a Garda Report to the Tribunal prepared by Garda [ ] of [ ] Garda Station which repeats the central facts of the case, as presented by the applicant. The Garda Report states that proceedings were brought against [ ] who was convicted in [ ] Court and ordered to pay [ ] to the applicant by way of compensation.
7. On [ ], the solicitor on record for the applicant informed the secretariat of the Tribunal that the applicant would require ongoing dental treatment and that a request had been made of a dental surgeon for a dental report and costing of any future dental work.
8. On [ ], the secretariat of the Tribunal wrote to the solicitor on record for the applicant requesting further particulars of the dental treatment which the applicant would require into the future as a result of the attack on him in [ ] in the form of a dental report from the applicant’s treating dentist.
9. On [ ], the solicitor for the applicant wrote to the secretariat of the Tribunal stating that the applicant had pursued a civil claim against [ ], before the Injuries Board which had awarded the applicant the sum of [ ], but that the applicant had been unable to enforce the Order to Pay made against [ ].
10. On [ ], the solicitor for the applicant wrote to the secretariat of the Tribunal stating that the applicant was unable to recover the award of compensation assessed by the Injuries Board at [ ]. The Tribunal was informed that the applicant had incurred significant special damages arising from the crime of violence which he sought to recover from the Tribunal.
11. On [ ], the secretariat of the Tribunal wrote to the solicitor on record for the applicant stating that the award of [ ] received by the applicant by way of compensation would be deductible from any award granted by the Tribunal, pursuant to Paragraph 16 of the Scheme.
12. On [ ], the secretariat of the Tribunal wrote again to the applicant asking if the applicant intended to pursue his claim and to submit vouching information of any outstanding expenses, in the form of original receipts, before the file was sent to a Member of the Tribunal for determination.
13. No response was received to the letters of [ ] or [ ].
14. The following documents were furnished to the Tribunal Member for decision:
a. Application form dated [ ], with personal statement and cover letter;
b. Correspondence between secretariat of Tribunal and Superintendent, [ ] Garda Station regarding a Garda Report of the incident giving rise to this application, including a statement of Garda [ ] dated [ ];
c. Garda Report of Garda [ ] dated [ ];
d. Letter from solicitor on record for applicant dated [ ];
e. Letter from Tribunal to solicitor on record for applicant dated [ ] seeking dental report;
f. Letter from solicitor on record for applicant dated [ ];
g. Letter from solicitor on record for applicant dated [ ];
h. Letter from Tribunal secretariat to solicitor on record for applicant dated [ ] setting out particulars of the Scheme and noting the [ ] compensation received by the applicant.
i. Letter from Tribunal secretariat to solicitor on record for the applicant dated [ ] seeking further documentation of the applicant’s case noting in the absence of same, the file would be sent to a member of the Tribunal for determination.
15. I am satisfied that the applicant was the victim of a crime of violence which took place in [ ], [ ] on [ ]. The solicitor on record for the applicant submitted the application to the Tribunal within the required three-month time limit, and I am therefore satisfied that the application is validly before the Tribunal for determination.
16. In his Report to the Tribunal dated [ ], Garda [ ] of [ ] Garda Station stated that the applicant had received [ ] compensation from his assailant.
17. As the solicitor on record for the applicant was informed by the secretariat of the Tribunal in the letter of [ ], such compensation would be deducted from any award of compensation made by the Tribunal.
18. Article 16 of the Scheme provides: “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.”
19. On [ ], the secretariat of the Tribunal sought from the solicitor on record for the applicant a dental report from the applicant’s treating dentist outlining the nature of the injuries received by the applicant, as well as the cost of past dental treatment and cost of (any) future dental treatment. No response was received to this letter, and no such dental report is before the Tribunal.
19 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.”
20. 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 encourage applicants to give the Tribunal reasonable assistance.
21. 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.
22. It is observed that without evidence of the expenses incurred or likely to be incurred into the future by way of a dental report, there is no information upon which the Tribunal can base an assessment of compensation, having regard to any future costs to be incurred by the applicant.
23. The documents in question are integral to the formation of any determination.
24. The secretariat of the Tribunal wrote to the applicant’s legal representatives on a number of occasions inviting the applicant to provide information relating to his dental treatment and other costs, and asking the applicant to submit any vouching documentation to support the application for compensation.
25. No substantive response was received to these requests and no medical report is before the Tribunal.
26. 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.
27. The applicant and his legal advisor have not submitted any vouched documents relating to any dental treatment received by the applicant or for any other out-of-pocket expenses incurred by the applicant as a result of the injuries he received on [ ].
28. The applicant received compensation amounting to [ ] through the courts, and as there are no receipts or vouched expenses before the Tribunal, no compensation can be awarded in this case.
Peter Stafford BL
13 May 2022