Foilsiú
54191 (5 July 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
Decision of a Panel of the Tribunal at First Instance
Name of applicant: Ns. [ ] (applying through her sister [ ])
Application number: 54191
Date of incident: [ ]
Date of application: [ ]
Decision outcome: Total award in the sum of €2,762,453.12
1. Ms. [ ] (‘the Applicant’) with the assistance of her sister [ ] has made an application for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’). (1)
(1) Although lodged with the Tribunal on [ ], the application was considered under the Scheme which was effective from 20 April 2021.
2. As a result of the debilitating and enduring injuries which the Applicant has sustained, following the section 4 assault upon her, the Tribunal understands that legal arrangements for the Applicant will likely necessitate an application pursuant to the provisions of the Assisted Decision-making Capacity Act 2015 (as amended).
3. In a Garda report prepared for the Tribunal, dated 30 January 2019, it is stated as follows:
‘[ ] [ ] sustained serious brain injuries as a result of this assault.’
‘The Applicant in this case is [ ] who is the sister of [ ]. [ ] is in the full-time care of [ ]. Due to the injuries sustained by [ ], she would not be in a position to progress the application by herself.’
4. In the course of the application for compensation, an extensive number of expert reports were assembled. This was fitting given the complicated nature of the claim and the seriousness of the injuries sustained by the Applicant during the course of a horrific assault.
5. The Tribunal considered the paper file which was sent to it by the Secretariat to the Tribunal. In particular, the Tribunal had regard to the following:
a. Expert reports commissioned on the Applicant’s behalf by her solicitors:
i. Nursing Report: Ms [ ], Nursing Consultant dated [ ];
ii. Occupational Therapy Assessment Report: Ms [ ], Occupational Therapist dated [ ];
iii. Report [ ], Consulting Actuaries dated [ ];
iv. Supplementary Report of [ ] dated [ ]
b. Report prepared on behalf of the Tribunal:
i. Nursing Report: Mc. [ ], Nursing Consultant dated [ ];
ii. Occupational Therapy Assessment Report: Ms [ ], Occupational Therapist dated [ ];
iii. Report [ ] Actuaries, Consulting Actuaries dated [ ].
6. [ ] sustained a serious acquired brain injury. She was treated initially at [ ] Hospital and subsequently transferred to [ ] Hospital where she underwent surgery. Post surgery she returned to [ ] Hospital for a period of six weeks. She was transferred to the [ ] Hospital, [ ] from where she was then transferred to the [ ] in [ ].
7. Ms. [ ] was [ ] at the date of the assault and following her course of treatment at the [ ] she was admitted for [ ] care at the [ ] Hospital [ ]. [ ], [ ], in [ ].
8. Ms. [ ] and [ ] were discharged home under the care of her sister [ ] in [ ]. She was referred to the [ ] for rehabilitation however full recovery of her pre-assault levels of functioning were not anticipated.
9. [ ]. She has no relevant medical or psychiatric history prior to this assault. She worked as a [ ] in a [ ] and lived an independent life with many friends, pastimes, and activities. As a result of her injuries Ms. [ ] is no longer in a position to conduct an independent lifestyle and will not be in a position to return to employment.
10. The application is now considered by a three-member panel of the Tribunal under paragraph 24 of the Scheme. This was because it was considered by the Tribunal that any award to the Applicant could be in the sum of €75,000 or more.
11. The Applicant, by her sister, made an application for compensation to the Tribunal which was date stamped as having been received by the Tribunal on [ ]. The date of the subject incident was [ ]. While the application was received slightly outside of the three-month period allowed for the making of such applications to the Scheme, the Tribunal was satisfied that the circumstances of this application with particular regard to the severity of Ms. [ ] injuries that an extension of time for the making of this application to the Scheme was justified as set out at paragraph 21 of the Scheme. The Tribunal was also satisfied that paragraph 10 of the Scheme has no application and accordingly the application is admitted for determination under the terms of the Scheme.
12. Under this heading, the Tribunal accepts the reasoning as set out in the updated report of [ ] dated [ ] and notes same in the sum of €37,644 however it is highly likely that sums received since the injury from the Department of Social Protection likely exceed this figure. Accordingly, under paragraph 14 of the Scheme, the Tribunal finds that such sums advanced by the Department of Social Protection as they be subtracted from the past loss of earnings figure results in a “nil” award under this heading. The Tribunal does accept however that no social welfare deduction shall apply to the Applicant’s entitlement to future loss of earnings as set out below. This is due to the reasoning that due to the level of award made in this case the Applicant will likely lose any future entitlement to benefit from the Department of Social Protection.
13. Under this heading, the Tribunal accepts that given her prior level of independence but for the assault Ms. [ ] would likely have continued in employment until 70 years. The Tribunal notes the calculation, as set out in the supplementary report of [ ], dated [ ], for future loss of earnings. The said actuarial calculation makes no allowance for a Reddy v Bates contingency deduction. The Tribunal notes the nature of the Applicant’s employment pre injury was unskilled and the Tribunal also notes the Applicant’s relative youth at the date thereof. Therefore, the Tribunal considers it necessary to make a contingency allowance in this case as regards future 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 in the recently 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% 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. Accordingly, the Tribunal awards the sum of €124,150.50.
14. Under this heading, the Tribunal considered the reports of Ms [ ] and the report of Ms. [ ].
15. Ms. [ ] calculates the retrospective cost of care in the sum of €170,424.20 at the date of reporting. For her part, Ms. [ ] calculates the figure for retrospective care in the sum of €64,214.22 at the date of her reporting. As a substantial deficient emerges between the two reports the Tribunal has carefully considered the quantification methodology employed by each expert.
16. As noted by Ms. [ ] at paragraph 4.1 of her report “estimated past care costs are based on HSE home-help/carer rates (now referred to as Health Care Support Assistant – non pathway). These rates are based on the first point of said pay scale at a rate of €13.51 per hour. However, full appreciation is given to the fact that as the care provided to date comprises of family care, that these cost allocations are subject to discounting, at the discretion of the Court.”
From the [ ] to the [ ] Ms. [ ] notes [ ] family provided 24 hour round the clock bedside care to [ ] over this 11 day period. Accordingly, she allows a figure of €3,566.64 (Schedule 1).
Ms. [ ] records a figure in Schedule 1 (for the period [ ] to [ ]) of €4,977.60 and thus appears to discount the period whereby the Applicant was cared for in hospital. In Schedule II noting the Applicant had been returned to the care of her family, Ms. [ ] allows a nightly rate of €43.92 per hour in addition to a weekly rate of €14.64 per hour.
By contrast Ms. [ ] applies an hourly rate throughout her calculations for retrospective care of €13.51 per hour as quoted above. For the scheduled periods outlined in her report she allows respectively 12, 8, 8 and 8 hours per day.
In her scheduled periods as outlined in her report Ms. [ ] has allowed respectively, on a weekly basis, 20, 40, 12, 12, and 12 at a variant daily and nightly rate as noted above.
It is therefore on the basis on the significantly increased nightly rate that Ms. [ ] has returned a far greater quantified sum that Ms. [ ]. Ms. [ ] has also made allowance for the period whereby [ ] became in receipt of carers allowance in respect of her sister.
17. Noting that Ms. [ ] had sight of Ms. [ ] report prior to conducting her own assessment on behalf of the Tribunal and noting that in any case care provided to date such as it is provided by family is ultimately subject to the assessment of this Tribunal. The Tribunal prefers the evidence of Ms. [ ] in this regard and adopts the total figure assessed by Ms. [ ] as to respective care of €64,214.22. The Tribunal applies no reduction to this figure as assessment by Ms. [ ] and notes the cost of care provided since the [ ] at €27 per week. Approximating an additional 72 weeks to the date of this decision the Tribunal awards an additional sum of €1,944. Accordingly, the award in regard to retrospective care is €66,158.22.
18. Ms [ ] calculates the total cost of future care in the sum of €214,581.12 per annum. She also notes cases management charges will be incurred at €17,000 in year 1 and a cost of €12,000 per annum thereafter. This amounts to a total capitalised value of €8,786,358
19. Ms. [ ] as capitalised in the report of [ ] Actuaries records a total sum for the future care of [ ] as €1,978,755. This figure reflects a real rate of return of 1.5 percent. In addition to this sum Ms. [ ] recommends a figure of €221,000 in respect of childcare provided to [ ] until his attainment of 18 years. Again, this figure reflects a real rate of return of 1.5 percent per annum.
20. As noted, there is a remarkable difference in the figures reached by the respective nursing consultants as regards to future care. Having considered both reports the Tribunal prefers and elects to proceed on the basis of the report of Ms. [ ].
21. In respect of the cost of future care, the Tribunal therefore awards the following sums:
Future Care in respect of [ ] - €1,978,755.
Future Childcare for [ ] - €221,000
Total: €2,199,755
22. Under this heading, the Tribunal notes the proposals as set out in the report of Ms [ ] and the capital value assuming a 1.5% actuarial basis as set out in the updated report of [ ] Actuaries. The Tribunal has considered each category recommended under this heading and makes an award in respect of same as follows:
Support Worker per annum €6,240 – capitalised per life expectancy €210,475
Physiotherapy per annum €450 - capitalised per life expectancy €15,179
Orthopaedic mattress (one per 5 years) €1,500 -capitalised per life expectancy €10,119
Orthopaedic Chair (one per 5 years) €2,500-capitalised per life expectancy €16,874.40
23. No further allowances are made pursuant to this heading as the Tribunal is of the view that the remainder of the recommendations are duly provided for throughout the body of this decision. Further, in regard to the heading ‘case management’ the Tribunal is of the view that this costing is no longer applicable in circumstances whereby should the Applicant be deemed unfit to manage her own affairs the introduction of the Assisted Decision Making Capacity Act and associated supports negates the requirement for such an outlay.
The Tribunal makes a total award under this heading of €252,647.40
24. Ms. [ ] also recommends the following yearly allowances – personal alarm system ([ ]) and Child Psychotherapist. The Tribunal accepts the above two recommendations and notes the total capitalised value of same as per the report of [ ] Actuaries as €119,742. The Tribunal awards this further loss accordingly noting same has been capitalised pursuant to a real rate of return of 1.5 percent.
25. The Tribunal therefore identified the applicant’s losses under the following heads:
Loss of earnings to date: €NIL
Future loss of earnings: €124,150.50
Retrospective cost of care: €66,158.22.
Cost of future care [ ]: €1,978,755
Costs of future childcare [ ]: €221,000
Costs of future aids and appliances: €252,647.40
Personal Alarm System and Child Psychologist: €119,742
Total Award: € 2,762,453.12
Delivered this 5th day of July 2023
Georgina Robinson Solicitor and Chair of the Sitting Division, Roderick Maguire BL, Martin Lawlor Solicitor
Criminal Injuries Compensation Tribunal