Foilsiú
52462 (11 June 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.
The Criminal Injuries Compensation Tribunal
In the matter of an application under the Scheme of Compensation for Personal Injuries Criminally Inflicted
Decision of a Single Member
Name of applicant: [ ]
Application number: 52462
Date of incident: [ ]
Date of application: [ ]
Decision/outcome: No award.
1. Mr [ ] (‘the applicant’) has made a claim for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (‘the Scheme’).
2. On the night of the [ ], the applicant claims that he was the victim of a vicious assault by Mr [ ] (“offender”) at or near [ ].
3. The applicant sustained very significant and life changing injuries, including a significant brain injury and significant psychiatric injuries. He received extensive treatment including treatment and rehabilitation in [ ] General Hospital, [ ] Hospital and [ ] Hospital.
4. The Applicant cannot recall the incident. Mr [ ], a witness to the events noted that the applicant and a number of people had been drinking in the apartment at the time of the incident. A number of the men in the apartment were [ ] immediately before the incident, then, Ms [ ] recalled that the assailant jumped on the applicant and punched him in the head on several occasions.
5. The incident was reported to [ ] Garda Station. Unfortunately, the assailant was not prosecuted [ ].
6. The applicant’s claim is late having been received outside the three-month time limit stipulated at paragraph 21 of the (pre-April 2021) Scheme. Paragraph 21 of the Scheme states that “Applications should be made as soon as possible but, except in circumstances determined by the Tribunal to justify exceptional treatment, not later than three months after the event giving rise to the injury”. The applicant was invited to make submissions in the application form outlining the reason(s) for the delay as required under paragraph 21 of the Scheme.
7. he applicant explained the delay by stating that he was medically incapable of completing the application due to the profound nature and extent of his physical and psychiatric injuries. The applicant has provided a very helpful and detailed report from the applicant’s GP, Dr [ ], which confirms that the applicant was incapable of lodging the complaint until [ ].
8. The applicant solicitor has engaged in protracted correspondence with the Secretariat of the Tribunal with a view towards obtaining a preliminary decision on the issue of the late application, on foot of the reasons and medical report provided to the Tribunal. The applicant’s solicitor did not wish to incur the expense or costly experts reports for neurosurgeons, psychologists, actuary’s and vocational consultants if the claim was ultimately going to be rejected by the Tribunal. The applicant’s solicitors were advised by the Secretariat that the Tribunal has no power to issue preliminary or advance rulings, rather a file will be submitted to a single member for a decision after the Secretariat is presented with all of the relevant documentation and completed all relevant investigations.
9. Unfortunately, the applicant has not put forward any vouched out-of-pocket expenses or verifying expert evidence to support and finalise any claim for past or future out of pocket losses. By letter dated the [ ], the applicant’s solicitor confirmed that the file should be submitted to a member for a decision.
10. Unfortunately, it is not within the remit of the Tribunal to issue preliminary decisions on the matter of the late application under paragraph 21 of the Scheme or indeed on any other pre-requite qualifying criteria or rule. There is no provision in either the pre-2021 Scheme or indeed in the post-April 2021 Scheme to make such adjudications. The Tribunal can only issue one decision at first instance, which the applicant has the right to appeal.
11. Although, the offender was not prosecuted, this member of the Tribunal is entirely satisfied that the applicant was the victim of an assault. Although, the applicant was engaged [ ] there is no evidence to suggest that the applicant was in any manner the author of his own misfortune, and even if there was a provocation or otherwise, the vicious nature of the attack went well beyond anything that could be justified on grounds of self-defence.
12. This member accepts the evidence put forward by the applicant’s solicitor and the applicant’s GP. It is quite clear that the applicant was physically and mentally incapable of making the application or seeking legal advice until [ ]. The applicant progressed the claim as soon as he possibly could. Therefore, the applicant’s circumstances are determined by this member of the Tribunal to justify exceptional treatment.
13. However, in the event of an appeal, this member of the Tribunal reminds the applicant that all appeals are conducted on a de nova basis and the appeal panel of three members could arrive at a very different decision on the qualifying criteria and rules of the Scheme which have been decided in favour of an applicant by this single member at first instance. Thus, in the event of an appeal, a single member’s decision at first instance does not constitute a final decision on a preliminary issue. Therefore, it could be very unwise to put incomplete claims in front of a single member to gauge or test the Tribunals reaction to a specific preliminary issue or rule.
14. Ultimately, the applicant has failed to sufficiently vouch and prove that he incurred any past or future out-of-pocket expenses. Regrettably, in such circumstances, it is not possible to make any award to the applicant.
David Culleton
Member of the Criminal Injuries Compensation Tribunal
11 June 2022