Foilsiú
54772 (18 December 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 of Compensation for Personal Injuries Criminally Inflicted
First Instance Decision
Applicant: [ ]
Case number: 54772
Tribunal: Roderick Maguire, BL (CICT Member), Elizabeth Davey (CICT Member), David Culleton (CICT Member)
1. [ ] (“the Applicant”) has made a claim for compensation under the Scheme for Personal Injuries Criminally Inflicted (“the Scheme”) in respect of an incident which occurred [ ] during which he was injured. The form was received by the Tribunal on [ ] from solicitors acting on his behalf and signed by his mother. The Applicant suffered a brain injury in the assault. He was born on [ ] and was therefore [ ] at the time of the assault.
2. In the report from Detective Garda [ ] dated [ ] he states that on [ ] [ ] and the Applicant [ ] continued drinking throughout the day and night at [ ] continued drinking through the day and night. In the early hours of [ ], the Applicant and [ ] were making their way home through the [ ], [ ]. They crossed paths by chance with [ ]. People in the two groups were acquainted and they engaged in conversation, but this quickly devolved into a verbal altercation and then into a physical altercation. This resulted in [ ] punching [ ] and knocking him back into the ground. [ ] He was later convicted of assault causing serious harm under s. 4 of the Non-Fatal Offences Against the Person Act, 1997 and sentenced to [ ] years.
3. The Applicant has been convicted of [ ] public order offences in [ ] and [ ] under the Criminal Justice (Public Order) Act 1994, being [ ] and [ ].
4. The Applicant was an in-patient from [ ] for [ ] months in hospital in [ ], and then spent [ ] months in the [ ] Hospital in [ ] from [ ], returning home at weekends. He still receives out-patient treatment. He has not worked since the assault. His family attended him three times daily during his stay in hospital in [ ]. His brother’s victim impact statement, prepared for the prosecution of his assailant but contained in the case file, outlined the horrendous nature of his injuries and the devastating impact on the Applicant.
5. The Applicant suffered a horrendous assault with life-changing injuries. While the Tribunal notes that in this case, the Applicant had punched Mr. [ ] prior to the attack by his assailant, the Tribunal notes that he was not charged with any crime, and the Tribunal does not deduct any amount on the basis that he was in some way responsible for his injuries and there is no deduction under para. 13 of the Scheme. In addition, the Tribunal notes that while the Applicant had minor previous convictions, these do not amount in the circumstances to a basis for a deduction of any award under para. 14 of the Scheme as his conduct, character or way of life do not impact on this award.
6. The Tribunal notes that while this assault took place on [ ], the application was only made under cover of letter dated [ ]. This was far outside the three-month timeframe. However, the Tribunal notes the correspondence of the solicitors for the Applicant dated [ ], and that the Applicant suffered life-changing [ ] injuries that required an extensive period of in-patient treatment and residential rehabilitation. In the circumstances, given the nature of the injuries and their severity and impact, the Tribunal finds that there are circumstances that justify exceptional treatment. Therefore, the Tribunal admits the application for consideration.
7. The Applicant’s G.P. Dr. [ ] in a report dated [ ] outlined the impact of the assault on the Applicant. He suffered a [ ] injury due to [ ]. He suffers from [ ] sided arm and leg weakness with [ ] due to injury to his [ ], having suffered a [ ]. The applicant’s health was set out in detail in the report, and in the report from Professor [ ] Consultant Neurological Surgeon in a report dated [ ] and a nursing report of [ ] [ ]. It was set out that the Applicant will require a carer of some form for his life and while his [ ] may improve it is likely that he will suffer some degree of [ ] for the rest of his life. He may learn to work around it and describe what he wants but is likely to always have word-finding difficulty.
8. A report from Professor [ ] Consultant Neurologist was obtained by the Tribunal, dated [ ] set out that the Applicant had likely reached the maximum recovery that could be expected in terms of brain and motor function.
9. It is not proposed to set out the medical position of the Applicant other than as necessary for the purposes of the decision in this case.
10. A vocational assessor’s report of [ ] dated [ ] outlined an employment history taken from the Applicant’s mother. He has not been able to return to working as a [ ] in the [ ] he was working in prior to the injury. He was completing an [ ] course in [ ] to equip himself to find employment in a [ ] setting. He is in receipt of disability allowance. He is unlikely to return to a competitive work environment, but may work in supported employment through a CE Scheme or a supported work placement.
11. An actuarial report dated [ ] set out that he earned €450 per week gross in [ ], being €399 net. His net past loss of earnings are set out at €58,014 up to the date of that report. His social welfare benefit to date has to be deducted from this amount. The disability allowance from [ ] to [ ] was €28,916. It is therefore estimated that the amount paid up to the date of the actuarial report was 2/3 of this amount, being €19,277. Therefore, the net loss of income was €38,737.
12. No evidence in relation to the life expectancy of the Applicant was adduced. There was no evidence in relation to any reduction of life expectancy because of the traumatic brain injury that the Applicant suffered, though no report addresses this directly.
13. The actuarial report states that a “1.5% actuarial basis” has been used to calculate the loss of earnings. The Tribunal assumes that this refers to the real rate of return over inflation and the caselaw of the Irish Courts, and in particular the judgment of Cross J. in Russell v. HSE [2014] IEHC 590. On this basis, the Tribunal understands that the multiplier used has been appropriately adjusted.
14. However, the calculation of the costs outlined by [ ], nurse, in relation to future costs is not entirely clear as the life expectancy of the Applicant is not stated. The Tribunal assumes again that the calculation of the costs is based on the Irish Population Mortality Statistics as referred to earlier in the report.
15. The Tribunal accepts the cost of beard maintenance at €7,566. The annual amount of €500 for house maintenance would appear to be an expense that the Applicant would have incurred if he had not been injured, and therefore is not recoverable as a special damage. Therefore, the Tribunal deducts the amounts of €22,252 from the valuation of other costs set out in the actuarial report.
16. As to the rates of costs of assistance, the nursing report refers to the rates advised by the Irish Wheelchair Association in [ ]. On the Irish Wheelchair Association website, rates for Homecare/ Health care assistance are lower than this, being €14.23 – €15.82 per hour depending on experience, and Sunday rate of €21.34 per hour, and a public holiday rate of €28.46. This results in an amount of €1,645.28 per year in costs of shopping assistance and an estimated €121.78 per week in relation to drop-in care (calculating weekends at the Sunday rate on the Irish Wheelchair Association website and an hourly rate at the top of the scale of €15.82), being approximately €6,332.56 in relation to the daily check ins.
17. Therefore, the Tribunal reduces by one third the amount in the actuarial report for daily check-ins to €277,704, and reduces the amount for assistance with shopping by one third also to €75,598.
18. In relation to the PA assistance with social activities, though there is reference to an IWA rate from [ ], the full reference was not available and the rates on the website are lower than that suggested of €30 for 3 hours per week. At the Sunday rate on the website, of €21.34 quoted above, that would be €64.02 for 3 hours per week, or €3,329 per year, being again just over two thirds of the costs estimated in Schedule 1 to the report. Therefore, the Tribunal deducts the amount in the actuarial report to €145,000 being over two thirds of the previous amount calculated. In relation to the costs of PA assistance in relation to weekend trips away, the Tribunal has accepted that rate and the figure of €137,072.
19. In addition, the Tribunal notes that the threshold for the Drug Payments Scheme continues to be reduced and since [ ] has been €80, so that the maximum that an individual is required to spend on medication each month is €80 whereas at the time that the actuarial report was prepared it was €114. Therefore, applying this reduction to the amount calculated in the actuarial report as being required, the amount of €60,253 is reduced to €42,282 for future medication.
20. The Tribunal therefore awards the following:
Beard grooming: 7,566
PA assistance with shopping: €75,598
Medication: €42,282
Sleep therapy: €650
PA Assistance with weekend trips: €137,072
PA assistance with social activities: €145,000
Life Skills coaching: €5,960
Daily check-ins: €277,704
Total: €691,832.
21. In relation to loss of earnings, in light of the range of matters that were set out by Irvine J. (as she then was) in Walsh v Tesco Ireland Limited [2017] IECA 64 and quoted with approval by Noonan J. in Twomey v. Jeral Ltd. & Ors [2022] IECA 177 at 58 et seq., which show the various matters that may disrupt a lifetime of earning, the Tribunal finds that there should be a 25 percent deduction in line with the principles outlined in Reddy v. Bates and subsequent caselaw to reflect the uncertainty in the Appellant’s work prospects and the other factors outlined in the caselaw. In this regard, the Tribunal in particular notes that while the Applicant was in employment at the time of the injury, he had a period of unemployment previously, further that he was not highly qualified and would therefore be more open to the vagaries of the market in the future, and that he was very young at the time of his injury and many matters may otherwise have interrupted his employment over his lifetime.
22. Applying a 25 percent deduction, the total figure for future loss of earnings amounts to €483,887.25.
23. The Tribunal is not awarding courts act interest as claimed.
24. A schedule of Special Damages was submitted in [ ], with the heading of a Circuit Court case against the assailant [ ]. The solicitors for the Applicant confirmed in correspondence that no civil proceedings were taken or are pending in relation to the assault.
25. That included a “value of past care costs” at €61,222. No evidence in the nursing report or the actuarial report was advanced in relation to this claim or the basis on which this is recoverable under the terms of the Scheme. The Tribunal therefore does not award this amount.
26. An amount of special damages for €75,000 was also submitted without documentary support for the construction of a [ ]. It is not clear that accommodation cost such as this would not have been incurred for the Applicant in any event had he not been injured. He would in any event have had to provide for his accommodation from his earnings. Therefore, the Tribunal does not award this amount.
27. The Tribunal awards the actuary’s fee in the amount of €2,952 including VAT.
28. Invoices were submitted in relation to the reports prepared by the Applicant under cover of letter dated [ ], and the Tribunal awards these amounts:
Prof. [ ]: €676.50 including VAT;
[ ] Legal Nurse Consulting: €1,965 including VAT;
[ ] vocational assessment and report: €1,291.50 including VAT.
In all of the circumstances the Tribunal makes the following award, under the headings set out in the actuarial report of [ ]:
Future loss of earnings: €483,887.25
Past loss of earnings: €38,737
Future costs referred to in the report of [ ], nursing consultant: €691,832
Costs of reports: €2,952, €676.50, €1,965, €1,291.50 = €6,885
Total: € 1,221,341.25
Roderick Maguire BL
18 December 2023
For and on behalf of the sitting members of the Tribunal.