Foilsiú
53742 (2 October 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
Name of applicant: [ ]
Application number: 53742
Date of incident: [ ]
Date of application: [ ]
Final Decision of the Tribunal sitting at First Instance:
A total award of €1,428,341.10
Less an interim payment of €250,000
Award now payable: €1,178,341.10
1. [ ] (“the applicant”) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. In his application for compensation under the Scheme, completed with the assistance of his mother, [ ], dated [ ], it is stated that the applicant suffered severe and life changing injuries following an unprovoked assault which occurred outside the [ ] on [ ] on the [ ].
3. By way of a preliminary decision issued on the [ ] the Tribunal at first instance made an interim award of €250,000. The Tribunal has already determined that the application is this case is admissible and has extended time for the making of same. It now falls to the Tribunal to issue a final decision and award based on the heads of loss as put forward by the applicant.
4. A detail overview of the factual background to this matter, the injuries sustained, and the chronology of medical treatment afforded the applicant is contained in the tribunal preliminary decision in this matter.
5. As is apparent from the reports submitted, the injuries sustained in the incident, had and will continue to have, a severe and adverse effect on the applicant and in particular upon his ability to work as [ ] thereby impacting his future earning capacity and his ability to live independently.
6. The applicant has put forward a total claim of €4,782,350 which is comprised of past and future loss of earnings, lost future pension contributions, past and future care costs, and the estimated future costs of a hip replacement. In addition to this sum, the applicant has also presented invoices for treatment and medical reports, other medical expenses, [ ] expenses and other out of pocket expenses.
7. The foregoing calculation is based on a projected life expectancy (See report [ ]) of 83 years. This projection is based on a projected improvement in the applicant’s general health due to medical treatment and aids. The Tribunal notes however that the evidence before the Tribunal (as proffered by the Applicant) projects a reduction in the Applicants life expectancy of four years. The Tribunal therefore will proceed to assess the Applicants future loss based on a life expectancy of 77 years being four years less than the average life expectancy of an Irish Adult Male as set out in Table 17 of the Irish Life Table of Mortality (based on 2015-2017).
8. The Tribunal has been provided with expert reports from Ms. [ ], Occupational Therapist, dated [ ]; [ ], Nursing Consultant, dated [ ], and [ ] Actuaries dated [ ]. On the [ ] the Tribunal received the report of [ ] Actuaries Ltd which was requisitioned by the panel at first instance. A copy of this report was provided by the Tribunal Secretariat to the Applicants legal representatives for comment.
9. It is universally acknowledged that prior to the incident, the applicant worked as a [ ] with [ ], commencing employment in [ ], acting in the area of [ ] and as a direct consequence of his cognitive impairments and mental fatigue, the applicant, has been unable to work as a [ ] since the date of the incident. It is noted that in [ ], the applicant returned to work on a phased basis with [ ], in the capacity of a [ ]. In [ ], the applicant was able to work 3 days per week in this capacity.
10. [ ]. It is noted that because of his financial position the Applicant has necessarily made application to the [ ] funds for a grant of financial aid and the Applicant has personally and through his solicitor’s corresponded with the Tribunal Secretariat seeking a final award in this case.
11. It is noted that at the date of injury the Applicant was in receipt of a gross salary from [ ] of €65,000 per annum. The Applicant continued to receive this level of recoupment from his employer until his redundancy which the Tribunal understands occurred in [ ].
12. Regarding his future earning capacity the report of [ ], Occupational Therapist places the average income for [ ] within the [ ] in Ireland at 10 years PQE at €93,000 (this is set against a projected earning potential for the Applicant at the height of his career above €150,000). The Tribunal must therefore determine ‘but for’ the injuries sustained, the Applicant’s likely earnings at this time.
13. The Tribunal determines that ‘but for’ the injuries sustained, the Applicant would currently be earning a gross salary of no less that €80,000 per annum (a figure supported and suggested in the actuarial report of [ ], as submitted by the Applicant).
14. Thereafter the Tribunal must consider the likely progression in the Applicant’s earning capacity as he moved forward in his career. It is noted the actuarial report of [ ] suggests an increase in the Applicant’s earnings over a 15-year period to €145,000. The Tribunal in assessing the appropriate figure has considered the following issues (in addition to the totality of the evidence currently before it):
A) The relative stability of employment within the [ ].
B) The level of growth and retraction within the [ ].
C) The relative youth of the Applicant in respect of his ability to obtain employment outside the [ ] should such retraction occur.
D) The average earning capacity within the sector at 10 years PQE.
E) The overall position of the [ ] in Ireland vis a [ ] current earning capacity.
Ultimately, the Tribunal determines that an appropriate figure to ascribe in this regard is €90,000 per annum over the next five years with an increase to €100,000 per annum thereafter and for the remainder of the Applicants working life. A retirement age has been ascribed to the Applicant of 66 years (currently the State Pension age).
15. The Tribunal must also consider whether the Applicant is likely to enter any form of alternative employment over the course of his working life. The Panel has before it the report of Ms. [ ] which does note that an option may be available to the Applicant to return to some form of [ ] whereby he could control his own workload, work remotely etc. In this regard and with a view to similar employment projections on a remote, albeit limited basis, the Tribunal has ascribed a future earning potential to the applicant of €200 gross per week.
16. Based on these findings, the capitalised value of the Applicant’s future loss of earnings amounts to the sum of €836,876. The tribunal now awards this sum in respect of future loss of earnings.
17. In regard to past loss of earnings ([ ]) and noting the Applicants earnings from [ ] prior to [ ] the Panel awards the sum of €22,196. This figure is capitalised upon the Applicants actual earnings of €65,000 per annum as against a projected increase in earnings of €2,000 years 2 through 8 and a final increase of €3,000 in year 8.
18. Based upon the same differential analysis, a capitalised figure for the Applicants future loss of pension contributions is awarded in the sum of €6,688. This is based upon a continuing employer pension contribution of 15 percent of the Applicants overall salary.
19. Regarding loss of future pension contributions, the Tribunal has already found that but for the incident the Applicant would currently have earned a gross salary of €80,000, increasing to €90,000 in five years, to €100,000 in ten years and remaining at €100,000 for each year thereafter. Accordingly, based on an employer pension contribution of 15 percent and assuming the Applicant will not be in a position to avail of a future employer pension scheme, the tribunal awards a capitalised figure in respect of this future loss of pension contributions to 66 years of €237,934.
20. The total sums award to the Applicant in regard to loss of earnings and pension contributions is set out as follows:
Loss of earnings to date: €22,196
Loss of pension contributions to date: €6,688
Loss of future earnings to 66 years: €836,876
Loss of future pension contributions to 66 years: €237,934
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 10 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.
Applying a 10 percent deduction, the total figure for future loss of earnings and pension contributions amounts to €996,213.
21. The Tribunal has carefully considered the expert reports received from [ ] and [ ] and awards as follows:
a) Cost of future aids and appliances:
Neuropsychologist (€900 per annum) capitalised following multiplier at €22,259
Physiotherapy (€450 per annum) capitalised following multiplier at €11,129
Occupational Therapy (€450 per annum) capitalised following multiplier at €11,129
Domestic Assistance (€1,560 per annum) capitalised following multiplier at €38,581
The total award under this heading is €83,098 at a real rate of return of 1.5 percent.
The above allowances are drawn from the recommendations contained in the report of [ ] and amount to the entirety of the assistance which the Panel considers the Applicant will require to be afforded on an annual basis following receipt of this award.
22. It is noted a claim has been made for a hip replacement – in the absence of a supportive report in this regard the Tribunal does not allow any head of loss relating to same.
b) Cost of past care:
23. In this regard the Tribunal awards the sum of €61,561. This is based on the figures contained in the report of Ms. [ ] which provide a figure of €56,983 to the [ ] ([ ] months post incident) and this figure is now projected forward to the present date.
24. It is noted that the figure for past care can be roughly calculated on the basis of 6 years (a discount of one month during which time the applicant was hospitalised etc.) at €9,497.17 per annum.
c) Cost of future care:
25. In this regard the Tribunal notes an annual recommended care cost (Report of Ms. [ ]) of €39,754 to include a figure for case management. Bearing in mind the sum actually arrived at for past care and noting the potential for the applicant’s health to improve into the future the Tribunal, such as may be required, awards the sum of €9,948.50 per annum. This amounts to a total capitalised figure of €265,358 at a real rate of return of 1 percent.
26. The Tribunal has received receipts and is agreeable to reimbursing the following expenditure duly incurred:
[ ] €4,428
Dr. [ ] €350
[ ] €492, €1,168.50, €492, €1,168.50, €492, €2,154.20
[ ] €900
[ ] €1,331
[ ] €1,331
[ ] €250
[ ] €30, €350, €50, €220, €50
[ ] €184
[ ] €550, €150, €150
[ ] €225, €525
[ ] Hospital €90, €125, €90, €70
[ ] €861, €847
[ ] €150, €150, €200, €552
[ ] Hospital €200
[ ] Psychotherapy €564.30 plus further sessions €1,170.60
Total expenditure outlay allowed: €22,111.10
27. No allowance has been made for a replacement laptop given property damage is not recoverable under the terms of the Scheme. Further the Panel notes correspondence received from [ ] referring to a [ ] invoice in the sum of €34,496.33. The Panel with reference to the Scheme finds that this [ ] invoice should not form part of the Tribunal award in circumstances whereby the sum does not amount to an outlay actually incurred by the Applicant.
28. A total award is now made in the sum of €1,458,848.10.
29. The interim payment of €250,000 previously advanced to the Applicant must be deducted from the overall award. In addition, Paragraph 15 of the (pre-2021) Scheme stipulates that social welfare payments must be deducted from the award. It is noted however that Mr. [ ] continued in employment despite his significant injuries until [ ] at which point, he would have been in receipt of redundancy payments. The Tribunal is therefore satisfied that no further deduction applies in this case.
30. The final award now payable to the Applicant is €1,178,341.10 and the panel members wish the Applicant well for the future.
Dated this 2nd day of October 2023
Georgina Robinson, Solicitor, Member of the Criminal Injuries Compensation Tribunal
Roderick Maguire, Barrister and Member of the Criminal Injuries Compensation Tribunal
Marc Murphy, Barrister and Member of the Criminal Injuries Compensation Tribunal