Foilsiú
54105 (13 November 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: [ ]
Application number: 54105
Date of incident: [ ]
Date of application: [ ]
Decision outcome: Total award in the sum of €251,922
1. Mr. [ ] (‘the Applicant’) with the assistance of his Solicitor 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 moderate traumatic brain injury, which the Applicant has sustained following an assault upon him, the Tribunal presumes 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). The latter however will be a matter ultimately for the Applicant’s legal advisors following the determination of this application.
3. The Applicant states that he was walking to an [ ] to [ ] when he was set upon from behind. The Applicant states that he has no recollection of events following this incident. He was found by a passerby and taken to hospital. An Garda Siochana state the Applicant’s version of events are incorrect insofar as he was traversing the [ ] when he entered into a verbal altercation with a group of youths who were in possession of weapons. That verbal altercation escalated into a physical altercation in the course of which the Applicant was struck to the head. The youths in question were known to the offender according to An Garda Siochana as he had been drinking with same earlier in the evening. For the purpose of this application the Scheme the Tribunal accepts that the Applicant suffered injury as a result of a crime of violence.
A second issue then arises insofar as the Applicant in the presence of his then solicitor formally withdrew his statement of criminal complaint against the alleged offenders. Given however the nature of the Applicant’s injuries the application in this case continues to fall for consideration under the terms of the Scheme.
4. A further and final preliminary issue arises in relation to the late submission of this application (the application was submitted significantly outside the three-month period allowed under the Scheme). Paragraph 20 of the Scheme however provides that a late application may be admitted in justified exceptional circumstances. The matter of what constitutes exceptional circumstances was considered by the High Court in Bowes v The Criminal Injuries Compensation Tribunal. In accordance with that guidance the Tribunal is satisfied that the serious nature of the injuries suffered by the Applicant (a serious acquired brain injury) and his extended recovery from same are such in this case as to justify the admission of this late application for consideration under the Terms of the Scheme.
5. In the course of this application for compensation, an extensive number of expert reports were assembled. This was fitting given the seriousness of the injuries sustained by the Applicant.
6. The application is now considered by a three-member panel of the Tribunal under paragraph 24 of the Scheme. This is because it was considered by the Tribunal that any award to the Applicant would likely be in the sum of €75,000 or more.
7. 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 his solicitors:
i. Medical Report of Prof. [ ] dated [ ]
ii. Medical Report of Prof. [ ] dated [ ]
iii. Report of [ ]. dated [ ]
iv. Report of [ ] dated [ ]
v. Report of [ ], Nursing Consultant dated [ ]
8. The Applicant sustained a traumatic brain injury. He was treated initially at [ ] Hospital for maxillofacial injuries and subsequently referred for neurological assessment and treatment.
9. At the date of incident, he was not employed, his neurologist Mr. [ ] notes he was, at the date of incident, already in receipt of disability allowance. Accordingly, no claim has been made for past loss of earnings. Neither is there any reference in the application form to the Applicant’s position prior to this incident viz his ability to work. It is noted that in order to qualify for disability allowance an application must fulfil the following criteria:
a) An Applicant must have an injury, disease disability or mental disability that has continued or is projected to continue for a period in excess of one year.
b) An Applicant must be restricted due to the above from being able to work in a job to which his age, skill and qualifications would be suited.
10. Under this heading, the Tribunal notes the reasoning as set out in the reports of [ ] which is clearly based on the following assumptions.
a) The Applicant is unfit for work (even light work) and will not return to employment.
b) But for the injury the Applicant would have remained in the workforce until 68 years
c) The Applicant’s employment would be uninterrupted throughout the calendar year.
11. Based on the evidence before it the Tribunal is not satisfied that the Applicant has suffered a future loss of earnings as claimed. Prior to this incident the Applicant was in receipt of disability benefit, no evidence has been presented to the Tribunal that the Applicant would have returned to full time employment as claimed but for the injury sustained.
12. The Tribunal notes the Applicant has failed to present any evidence to reflect a history of continuous weekly earnings as claimed. Rather the Applicant appears to have been in receipt of disability benefit at [ ] years.
13. Accordingly, as the Applicant shall continue to receive Social Welfare benefit should he not return to employment – no award is made for loss of earnings in this case.
14. In regard to the cost of care past and future the Tribunal has before it the report of Ms. [ ]. This report must be read in conjunction with the medical evidence before the Tribunal. As noted previously in this decision Professor [ ] notes the Applicant sustained a ‘moderate’ traumatic brain injury. On the [ ], he reports that the Applicant ‘has made a good physical recovery’ from his TBI.
15. Mr. [ ] reports on the [ ] “The Patient continues to re-habilitate and will continue to recover over the next number of years. It is unlikely that he will return fully to his normal pre-injury levels of functioning.”
16. No further medical evidence is presented in relation to the Applicant’s recovery process and level of function. Nor has any occupational therapy report been produced.
17. In regard to the report of Ms [ ] while the Tribunal notes same it is not satisfied that the figures as set out in this report are grounded by the medical evidence adduced at this time.
18. Accordingly, the Tribunal does not propose to award the substantial sums in respect of past and future care as set out therein. The Tribunal will instead award a lump sum payment to the Applicant in regard to past and future care which the panel deems an appropriate sum in all the circumstances.
19. Under this heading, the Tribunal has noted the vouching documents submitted by the Applicant’s solicitors and directs that the total sum be refunded to same from this award.
Report of [ ]
Report of [ ]
Report of [ ]
That sum amounts to €1,922.
20. The Tribunal therefore identified the Applicant’s losses under the following heads:
Loss of Earnings: €Nil
Past and future care: A lump sum payment of €250,000
Expenditure Incurred - €1,922
Total Award: € 251,922
Georgina Robinson Solicitor, Peter Stafford BL, David Culleton Solicitor
Criminal Injuries Compensation Tribunal
13 November 2023