Foilsiú
50153 (15 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: 50153
Date of incident: [ ]
Date of application: [ ]
Decision outcome: Application refused under Para 10 of the Scheme.
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, received by the Tribunal Secretariat on [ ], the applicant stated that he had suffered a broken foot in the course of a struggle with three men who had attempted to hold up [ ] at gun point. The applicant claimed for medical expenses and stated that he had also incurred a loss of a week’s earnings.
3. The applicant submitted his claim within the three-month timeframe required by the Scheme. His account of the incident is generally confirmed by the gardai, to whom the matter was reported immediately.
4. From the foregoing, I am satisfied that the applicant has established, on the balance of probabilities, that he was a victim of a crime of violence and sustained personal injury which is directly attributable to that crime of violence. He has conformed with the procedural requirements of Paragraphs 20 - 22 of the Scheme in submitting his claim.
5. However, while the applicant has demonstrated that he has a claim which is capable of being assessed under the Scheme, he still has an obligation to provide evidence by which the application may be properly assessed. Compensation is payable under the Scheme where reasonable assistance is given to the Tribunal to assess the claim. The pertinent paragraph of the Scheme is paragraph 10, which reads:
“No compensation will be payable to an applicant who has not, in the opinion of the Tribunal, given the Tribunal all reasonable assistance, in relation to any medical report that it may require, and otherwise.”
The rationale of this ‘reasonable assistance’ rule appears to be that the Tribunal needs information upon which it can make its decision as to the appropriate amount of compensation to award. That information must come either directly or indirectly from the applicant.
6. In this case the applicant supplied an invoice for hospital treatment dated [ ] in the sum of €55 for treatment received between [ ] and [ ]. It is a demand for payment rather than a receipt for payment. The applicant also stated on his application form that his losses were in the sum of €850 from absence from his business between [ ] [ ].
7. On [ ] the Tribunal Secretariat wrote to the applicant acknowledging his application. While addressed to the applicant it wrongly calls him [ ] the message of the letter is clear: that as loss of earnings from a self-employed business is claimed, tax assessments for the three years preceding the incident are required. Further, it states that any further documentation relevant to the applicant’s claim should be submitted.
8. On [ ] the Tribunal Secretariat wrote to the applicant enclosing the garda report into the incident. This letter indicated that the claim would be processed when criminal proceedings had concluded, and sought evidence of any further expenses to be furnished should they be claimed by the applicant.
9. No further correspondence by way of tax assessments or documents vouching expenses were furnished by the applicant. On [ ] (which perhaps should have read [ ]) the Tribunal Secretariat wrote to the applicant enclosing previous correspondence. It sought the documentation already requested and any vouching documents in relation to the out-of-pocket expenses incurred by the applicant as a result of the incident on or before [ ].
10. The applicant replied to this letter on [ ]. He stated that the incident had completely altered the trajectory of his life and had incurred ‘innumerable loss and suffered untold trauma’ as a result of the incident. He stated that trauma arising from the incident prevented him from carrying on with [ ] or indeed a new business of [ ]. The applicant stated that he was now dependent on his wife.
11. On [ ] the Tribunal Secretariat replied to this letter. It stated that:
“You will be required to furnish documentation in support of your out of pocket expenses incurred as a result of any personal injury that was sustained during the injury. You will also be required to furnish medical reports substantiating your claim that suffered injuries as a result of the incident and that you are unable to engage in employment as a result”.
It appears that the letter enclosed a copy of the Scheme and a copy of the frequently asked questions section of the website. It is noted that this website indicates that ‘general damages’ for loss and suffering is not recoverable under the Scheme, and that an applicant may also apply for the costs of a medical report to be recouped as part of his claim.
12. On [ ] the applicant replied to this letter. He reiterated that the incident had caused some physical harm that had healed, but that the trauma remained and had impacted on his employment. He asserted that he had suffered post-traumatic stress as a result of the incident and claimed damages as a result. The applicant did not however submit any report from a medic diagnosing post-traumatic stress disorder arising from the incident in question.
13. On [ ] the Tribunal Secretariat replied to the applicant. It noted that no medical reports had been supplied by him, nor had any out-of-pocket receipts. It stated that the onus was on the applicant to make out his claim, and sought that the applicant inform the Secretariat by [ ] if he wished to submit any further documentation to substantiate his claim. No response to this letter is on file.
14. The position is that the Tribunal has been furnished reports of a leg injury and assertions of trauma which it is claimed led to significant loss of earnings. However, while corroboration for the leg injury can be found in the Garda Report, there is no medical evidence which links the incident to any diagnosis of the applicant’s trauma reaction, and in particular how it has impacted his ability to work. This is significant for two reasons. First is that the Tribunal can only assess the evidence before it and it neither has any medical evidence of a psychiatric injury nor of loss of earnings arising from any such psychiatric injury. Secondly, the case law on damages for psychiatric injuries has consistently stated that distress and upset cannot sustain an award of damages – there must be a diagnosis of a recognisable psychiatric illness which causes the damages claimed (see, for example, Larkin v Dublin City Council [2008] 1 IR 391; Murray v Budds [2017] IESC 4).
15. In this case the applicant was expressly asked for medical reports to substantiate his claim that a consequence of his injury was an inability to work. He did not provide those medical reports (which would most properly be via the assessment and report of a consultant psychiatrist, and may be supplemented by a vocational assessor to establish the impact of the medically diagnosed injury on the ability to work in terms of loss of earnings). While the applicant has maintained his assertion that trauma precluded him from working, there is no medical evidence that this is the case. This does not mean necessarily that the applicant is wrong in what he has asserted: it simply means that he has supplied no solid evidence of his assertion for the Tribunal to assess.
16. As set out above, the obligation is on the applicant to provide the Tribunal with ‘reasonable assistance’ in provision of evidence such as medical reports such that a proper assessment of his case may be made. The applicant was invited to provide such information but failed to do so. The failure to provide this information effectively means that the Tribunal cannot discharge its function. It cannot assess whether the impact of the incident was a psychiatric injury (for which compensation may be awarded) or distress (for which compensation cannot be awarded). Even if the evidence of a psychiatric injury were provided, there is no evidence off loss (such as tax receipts or a revenue record of the applicant’s earnings pre- and post- incident). As such there is no concrete evidence to assess the correct amount of any compensation, even had a psychiatric injury been established on the evidence.
17. The Tribunal must therefore refuse this application under Para 10 of the Scheme. In doing so it notes that the applicant may appeal. Any appeal would be a fresh hearing of the case in which the applicant would be entitled to provide any evidence of his loss of earnings and any psychiatric injury which he sustained.
Tricia Sheehy Skeffington
Member, Criminal Injuries Compensation Tribunal
15 June 2022