Foilsiú
51140 (20 February 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 (1) of Compensation for Personal Injuries Criminally Inflicted
Appeal
(1) The Scheme in operation at the time application was received by the Tribunal.
Applicant/Appellant: [ ] Ref: #51140
Present:
For the Tribunal:
For the Applicant/Appellant:
[ ], Appellant (hereinafter “the Applicant”)
[ ], Solicitor, [ ] Solicitors
[ ], BL
[ ], wife of Applicant
1. [ ] (“the Applicant”) has made a claim for compensation under the Scheme for Personal Injuries Criminally Inflicted in respect of an incident which occurred on [ ] as a result of which he sustained personal injuries, most notably injury to his right eye.
2. A first instance decision, made by a single Member, issued from the Criminal Injuries Compensation Tribunal (“the Tribunal”) on [ ]. The Applicant appealed that decision and pursuant to paragraph 25 of the Scheme, a three Member panel of the Tribunal was constituted to consider his application on a de novo (afresh) basis. The Appeal hearing took place on [ ] and was held remotely by video conferencing platform, with the agreement of the Applicant. The Tribunal had the benefit of the Applicant’s Appeal file consisting of 285 pages including medical reports, vouching documentation and a Schedule of Losses. As well as receiving the direct oral evidence of the Applicant and his wife, [ ], submissions were also made by the Applicant’s legal team, both Solicitor and Counsel.
3. The Applicant’s claim is that upon his return home from a night out on [ ] in a local nightclub in Co. [ ] with family and friends, he was set upon by a group of [ ] males resulting in injuries to his face and head. In a four-page statement given to the Gardaí two days after the assault, on [ ], the Applicant stated that he could not recall the [ ] males saying anything and that because it was dark, he could not describe them, nor did he know them, nor anything about them. The Applicant claims that the attack happened so fast, he was knocked to the ground and kicked repeatedly and that he had put his arms up over his head to protect himself.
4. The Applicant’s claim is that immediately following the incident he went into his home with his companions and that the Gardaí at [ ] were notified of the incident. The Applicant attended [ ] in [ ] later that morning ([ ]), and was referred onto the [ ] Hospital, [ ], where he underwent an operation on his right eye the following day, [ ]. The Gardaí took their statement from the Applicant whilst he was still in the [ ] Hospital recovering post-surgery.
5. In a Garda Report, received by the Tribunal on [ ], the Gardaí confirmed that one man had been charged with a section 3 (2) assault of the Applicant, as well as public order offences, and having entered a guilty plea at [ ] Circuit Court, he, the Applicant’s assailant, had received [ ] in lieu of [ ] months imprisonment, when sentenced on [ ]. The Gardaí also noted in their Report that they had been informed that the Applicant had received €10,000 in compensation from his assailant. Charges were also brought, albeit in the District Court, against the Applicant himself, for associated alleged assault/public order offences, but the Gardaí confirmed that these charges were withdrawn by the State, on the instructions of the Applicant’s assailant.
(2) Section 3 Non-Fatal Offences Against the Person Act, 1997.
6. Arising out of this incident and the consequent injuries suffered by the Applicant, an application was made for compensation under the Scheme, which was received by the Tribunal on [ ]. The Applicant is claiming compensation for out-of-pocket expenses, extending to medical, accommodation and travel expenses, as well as for loss of earnings.
7. The Tribunal accepts that the Applicant was the victim of a crime of violence arising out of the incident which occurred on [ ] and that he suffered personal injuries directly attributable to that crime of violence (satisfying paragraph 1 of the Scheme). The Tribunal also accepts that the assault was reported to the Gardaí without delay (satisfying paragraph 23 of the Scheme). As regards the obligation to submit an application in a timely manner, paragraph 21 of the Scheme states:
“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 …”
8. This application was received by the Tribunal on [ ], which was 23 days after the three-month time period allowed, in normal course, for submission of applications. By reason of paragraph 21, therefore this application ought to have been received by the Tribunal on or before [ ].
9. It is clear from the wording of paragraph 21 however, that when applications are received outside of the prescribed three-month time frame, the Tribunal can determine if the circumstances for delay in submitting that application are such as to justify exceptional treatment of that application, and thus accept it for further consideration. In this regard applicants are assisted by section 2 (f) of the application form, which provides the opportunity to set out reasons for delay (where applicable) in submitting an application. In the instant case, the Applicant has stated, at section 2 (f) of his application form, that the reasons for his delay in submitting his application were as follows:
“Because I was waiting for the Gardaí to take the second statement and because of the serious problems I have had with my eye injury, I overlooked lodging the application within 3 months.”
10. As noted above, a four-page statement was taken by the Gardaí from the Applicant two days after the incident. While there is no further statement on the file, nor reference to any further statement being taken by the Gardaí, at hearing Counsel for the Applicant submitted that the timelines for taking statements by the Gardaí when investigating criminal matters could not be equated with the timelines for notifying Gardaí/making statements in respect of a civil claim, as in the instant case. Counsel further submitted that the Applicant had submitted his application the same day as he had first attended his solicitor, as soon as his recovery allowed.
11. The Applicant had also stated, by way of explanation for the delay in submitting his application that due to the serious problems with his eye injury, he had overlooked lodging his application (within the three-month time period).
12. The Tribunal notes that Applicant suffers from a condition called [ ], with which he was diagnosed as a teenager. This results in an [ ], which causes [ ]. The Applicant, according to his treating Consultant Ophthalmic Surgeon, Mr [ ], had managed well with the assistance of (gas permeable) contact lenses until [ ], but by [ ] he was unable to wear a contact lens in his right eye and so had poor vision in that eye, and whilst he could still wearing a contact lens in his left eye, the Applicant was suffering from irritable red eye. According to Mr [ ], the Applicant’s poor vision compromised his ability to work, and he had undergone a [ ] in [ ]. It was this eye that was injured in the assault on [ ] where [ ] had ruptured, and emergency surgery was required to re-form the Applicant’s right eye and re-suture the [ ]. (3)
(3) Report of Mr [ ] dated [ ].
13. According to Mr [ ], [ ] survival in patients with [ ] is very good, with a reported 97% chance of five-year [ ] survival and a 92% chance of ten-year [ ] survival. Mr [ ] further noted that …“Following traumatic rupture of a [ ], approximately 50% of corneas will fail at the time of the injury or shortly after”.
14. Notwithstanding that Applicant’s [ ] did in fact survive the rupture to it caused by the assault following re-suturing surgery, and notwithstanding that it appears from the documentary evidence put before the Tribunal from the Applicant’s employer, that the Applicant returned to work some three weeks after this emergency surgery, on [ ], the Tribunal is of the view that the Applicant’s undoubted distress and concern over whether the repair to his traumatised [ ] would hold was totally understandable, and coupled with the delay, of just 23 days, in submitting his application to the Tribunal, these circumstances warrant exceptional treatment. On that basis the Tribunal deems this application amenable to further consideration.
15. The Applicant had been under the care of Mr [ ] since [ ] for treatment for his condition of [ ] which affects both eyes. A number of Medical Reports, dated [ ] [ ] and [ ] from Mr [ ], have been furnished to the Tribunal. Additionally, a series of correspondence from the Applicant’s legal advisors to Mr [ ], raising questions and putting suppositions to Mr [ ], to which Mr [ ] responded, has also been furnished to the Tribunal.
16. At hearing, the Applicant confirmed that following the trauma inflicted on his right eye in the assault and the emergency surgery this required, the original [ ] carried out in [ ] did not fail and that it continues to survive to this day, some [ ] years after the assault. Dr [ ] confirmed as such in his Report of [ ] and noted “…He still enjoys good vision with his right eye with the help of a contact lens and hopefully will continue to do so into the future.” The Applicant confirmed that his right eye has not required any further medical/surgical intervention since the re-suture surgery carried out in [ ] following the assault.
17. The Applicant has unfortunately suffered from persistent trouble with his left eye over the years. His irritable red left eye due to contact lens wear, noted by Mr [ ] back in [ ], found him suffering a complete loss of vision in his left eye such that by [ ] he had to undergo emergency left eye [ ] surgery. In [ ] the Applicant still had poor vision in his left eye according to Dr [ ] ([ ]) and this got worse due to the development of a [ ] in his left eye for which he underwent surgery in [ ], which resulted in the [ ] failing in that eye. In [ ] the Applicant was diagnosed with [ ] which, coupled with treatment for same, resulted in his loss of vision due to [ ]. The Applicant underwent a repeat [ ] surgery for his left eye in [ ], which had a good outcome. According to Mr [ ] ([ ]) the Applicant’s left eye issues were totally unrelated to the assault and injury sustained to his right eye.
18. Fortunately, the Applicant’s left eye vison recovered fairly well and by [ ] he had good vision in both eyes, with the help of contact lenses. In [ ] Mr [ ] was of the view that the Applicant could work with protective goggles but noted that he often worked in a dusty environment (the Applicant had worked for 5 years previously in a [ ] during which time, it appears, he developed [ ]), and this was not good when wearing contact lenses.
19. In [ ], the Applicant suffered a further [ ] rejection of his left eye and consequent vision failure, though he continued to maintain good right eye, 20/20 vision, with the use of contact lenses. In [ ] the Applicant underwent a further [ ] to his left eye. In his Report of [ ] Mr [ ] recorded that the Applicant may have developed the beginnings of a [ ] in his right eye, but did not require surgery, as it was neither clinically nor visually significant. At hearing the Applicant’s wife gave evidence to the effect of the presence of a [ ] in the Applicant’s right eye, though she confirmed that there was no updated medical evidence on this from Mr [ ] (since his Report of [ ] years previously), and no action had been taken.
20. The Applicant has furnished a Schedule of Losses, signed by the Applicant on [ ]. They are as follows:
| Type | Amount claimed |
| a. [ ] | €31,673 |
| b. [ ] Hospital | €260 |
| c. GP/Doctors | €175 |
| d. Prescriptions | €1,104.14 |
| e. Specsavers | €228 |
| f. Travel & Accommodation | €1,152.96 |
| g. Loss of Earnings: [ ] - [ ] | €15,015 |
| h. Loss of Earnings: [ ] - [ ] (104 weeks) | €52,052 |
| i. Loss of Earnings: [ ] - [ ] (36 Weeks) | €18,018 |
| j. Future travelling to [ ] | €18,000 |
| k. Future travelling to [ ] Hospital | €9,000 |
| l. Future travelling to [ ] for future [ ] operations | €45,000 |
| m. [ ] Operations every 7 years @ €10,000 | €70,000 |
*Not included in the Schedule of Losses but within the file are two invoices for the Reports from Mr [ ] @ €450 per Report and confirmation that €799.50 had been paid to vocational evaluator, [ ].
21. The Applicant’s legal advisors submitted at hearing that the Applicant should recover his loss of earnings for the following periods: (i) [ ] – [ ] (ii) [ ] – [ ] (iii) [ ] – [ ]. Submissions were made on the basis that the injury suffered in [ ] by the Applicant during the assault which required emergency surgery was a factor in the matrix of a very complex medical presentation of the Applicant and that in light of having to depend on his right eye due to issues arising and continuing with the Applicant’s left eye, the Applicant was placed in a very precarious position. The Applicant, it was submitted, had to wear goggles for work for fear of further risk of injury to his eyes and therefore was compromised in his ability to fully function.
22. The Tribunal put it to the Applicant that it appeared from the documentary evidence provided by the Applicant’s employer, that he had returned to work three weeks after the emergency surgery on [ ] and that the employer’s letter confirming same was dated three weeks after his return, [ ]. Also, noted the Tribunal, whilst the Applicant had initially claimed illness benefit for the three weeks after the assault, he had not claimed illness benefit again until [ ] bar for one day on [ ] and, his employer had confirmed in their correspondence of [ ], that there was no sick scheme in place.
23. The Applicant’s wife gave oral evidence to the effect that the letter from the Applicant’s employer was incorrect, that the Applicant may have returned to work for a short period but soon got an infection and was off work again. When asked to reconcile that submission with the fact that illness benefit was not claimed for upwards of six months after the Applicant returned to work on [ ], the Applicant’s wife responded that Illness Benefit was means-tested and they decided not to reapply for it, notwithstanding being out of work, as the amount to which the Applicant would have been entitled would be so small.
24. The Tribunal notes from the documentary evidence that the Applicant was in receipt of Illness Benefit from [ ] to [ ], which coincided with the issues arising with his left eye, yet the Applicant earned €13,101 (gross) working with his employer at some stage in [ ], according to the Revenue Commissioners (page 85).
25. The Tribunal put it to the Applicant’s legal advisors that nowhere in Mr [ ] medical reports did it state that but for the injury suffered by the Applicant to his right eye in the assault on [ ], would the Applicant have been in a position to return to work, that the said medical reports did not show a level of causation in respect of the right eye injury and consequent inability to function/work which was now being claimed.
26. The Tribunal noted that its role was to determine what financial losses had arisen due to the assault on the Applicant and injuries arising therefrom, and it appeared to the Tribunal that according to Mr [ ], the Applicant’s issues and inability to work arose primarily due to his pre-existing condition and to [ ], not the assault. The Tribunal invited the Applicant’s legal advisors to indicate what percentage of the claim they could accredit to the injury suffered following the assault on [ ]. In other words, how long, on the balance of probabilities, was the period of not being in a position to work after the eye operation on foot of the assault, did they, the Applicant’s legal advisors attribute to the assault?
27. The Applicant’s legal advisors responded that it would be “up to [ ]”. This was on the basis, they claimed, that but for the Applicant’s right eye being compromised, the Applicant would have been able to work. The Tribunal notes from the documentary evidence that from [ ] to [ ] the Applicant was in receipt of Jobseeker’s Allowance. (4)
(4) On [ ] the Applicant was awarded an Invalidity Pension.
28. The Tribunal responded that the Applicant’s right eye was not in perfect condition prior to the assault, due to the pre-existing condition suffered from by the Applicant, that he was in a precarious position regardless, that the loss of earnings for the first period of loss of earnings sought ([ ] – [ ]) was contradicted by the employer’s letter, and that the second period of loss earnings sought, ([ ] to [ ]) did not appear to be because of trouble the Applicant had with his right eye.
29. The Applicant’s legal advisors responded that the Applicant had never got back to his pre - [ ] position, that the rupture had compromised the Applicant’s right eye, leaving him with a further defective eye. The Applicant’s legal advisors noted that the reason for the Applicant’s issues/inability to work were due to multiple surgeries, prolonged use of steroids and injury to his right eye, according to the contents of one of the responding letters from their enquires to Mr [ ] , upon which they relied.
30. The Tribunal noted in response that questions/suppositions put to Mr [ ] in correspondence from the Applicant’s legal advisors were on the basis that the Applicant had been out of work following the assault for over seven months, until [ ] (letters dated [ ], [ ], [ ]) and that his response opinion was predicated on this information, whereas the documentary evidence was at odds with the oral evidence given at hearing. Furthermore, the re-suture surgery to the Applicant’s right eye [ ] was still in situ [ ] years on and that it was difficult to see, in the absence of medical evidence, what the continuing effects of the assault on the Applicant’s right eye, as claimed by the Applicant, were, following his return to work on [ ].
31. The Tribunal accepts that the Applicant’s suffered an injury to an already compromised right eye in an assault upon him on [ ], which necessitated emergency surgery. The Tribunal accepts that this must have been a very upsetting and worrying time for the Applicant in light of the condition from which he was diagnosed in [ ] and continues to suffer from, [ ], which affects both of his eyes. The Tribunal notes that despite the trauma visited upon the Applicant’s right eye as a result of the assault, that the emergency re-suture surgery carried out was successful and that the [ ] of [ ] has survived to this day, some [ ] years after the emergency surgery in [ ] to save it. This has long outlived the statistical longevity for [ ] surgery, per Mr [ ] (at para 13 above).
32. It is clear that the major issue for the Applicant in the aftermath of the assault, was the significant deterioration in the condition of his left eye from [ ]. Prior to the assault and the injuries arising to the Applicant’s right eye, the Applicant had been having some trouble with his left eye and unfortunately these issues escalated in [ ] and persisted for several years after that. The Applicant was most unfortunate in having been diagnosed with [ ] in [ ], which further exacerbated his pre-existing eye condition.
33. The issue of early signs of a [ ] arising in the Applicant’s right eye, Mr [ ] reported in [ ], was not of significance clinically, such as to require intervention. At hearing, evidence was given that the [ ] was an issue, but as no updated medical opinion from Mr [ ] was put before the Tribunal at hearing, the Tribunal is not persuaded that the [ ] issue now raised, some [ ] years after Mr [ ] opinion of [ ], has any causal link with the assault which occurred in [ ], some [ ] years ago.
34. In acknowledgement of the injuries suffered by the Applicant as a result of the assault which, to some extent, further compromised the Applicant’s already troubled right eye, the Tribunal is prepared to award the Applicant a sum of one year’s income for the year following the incident, that is €37,000, based on the Applicant’s income earned in the years prior to the year of the assault, less the illness benefit received during that year, which the Tribunal calculates on the basis of the information provided by the Department of Social Welfare to be €5,915.20. While there is some evidence that the Applicant did work during that one year that he also received illness benefit, the Tribunal is not deducting his earnings during that year in recognition of the fact that the figures as calculated are global figures.
Award of €31,084.80
a) [ ] €31,673
As the Applicant’s health insurer paid this sum on his behalf, the Applicant is not at a financial loss for this sum and is not obliged in the absence of recovery of same to re-imburse his insurer:
No award
b) [ ] Hospital €260
The Tribunal accepts that this invoice may have been submitted in error, the dates being [ ], and is willing to award this sum on the basis an invoice should have been submitted for [ ].
Award of €260
c) GP/Doctors €175
d) The Tribunal awards this vouched claim in full: Award of €175
e) Prescriptions €1,104.14
The Tribunal awards the Applicant this claim in full: Award of €1,104.14
f) Travel & Accommodation €1,152.96
The Tribunal awards the Applicant this claim in full: Award of €1,152.96
As regards the following compensation claimed:
g) Future travelling to [ ] €18,000
h) Future travelling to [ ] Hospital €9,000
i) Future travelling to [ ] for future [ ] operations €45,000
j) [ ] Operations every 7 years @ €10,000 - €70,000
35. Any future issues that arise for the Applicant’s in relation to his eye condition, some [ ] years after the assault, where his right eye corneal graft has held satisfactorily in the interim, requiring no further medical or surgical intervention, must be attributed to his pre-existing [ ] condition. Furthermore, the Tribunal has been informed that scheduled operations would be covered by the Applicant’s medical card. Accordingly, future travel expenses and/or costs for future emergency corneal operations cannot be awarded as claimed. However, the Tribunal awards the Applicant the global sum of €3,000 to take account of any unforeseen miscellaneous expenses arising into the future in relation to his right eye, attributable to the [ ] incident.
Award of €3,000
36. Two invoices have been furnished for Mr [ ] Reports at €450 each. And confirmation of payment to [ ] Vocational evaluator €799.50 The Tribunal awards this sum in full:
Award of €1,699.50
37. Finally, according to the Applicant’s previous legal advisors ([ ] Solicitors, since retired) in correspondence to the Tribunal, dated [ ], the Applicant received compensation of €10,000 from his assailant following conviction and sentencing in respect of the assault visited upon him on [ ].
38. Paragraph 16 of the Scheme states:
“The Tribunal will deduct from the amount of an award under this Scheme any sums paid to or for the benefit of the victim or his dependants by way of compensation or damages from the offender or any person on the offender’s behalf following the injury.”
39. In the instant case paragraph 16 of the Scheme is engaged. Consequently, the award of must be reduced accordingly.
€38,476.40 – less €10,000
Total Award: €28,476.40
The Tribunal acknowledges the unfortunate health issues that have beset the Applicant to date. The Tribunal wishes the Applicant and his wife well into the future.
Dated the 20th day of February 2023
Nora Pat Stewart BL
For and on behalf of the sitting members of the Tribunal.