Blanco v Criminal Injuries Compensation Tribunal and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Egan
• Judgment Date: 22 March 2024
• Neutral Citation: [2024] IEHC 171
• Docket Number: Record No. 2019/6174P

Order for a Reference Pursuant to Article 267 of the Treaty on the Functioning of the European Union

Between

Alejandro Blanco

Plaintiff

and

Criminal Injuries Compensation Tribunal, The Minister for Justice and Equality, Ireland and The Attorney General

Defendants

[2024] IEHC 171

Ms. Justice Egan

Record No. 2019/6174P

THE HIGH COURT OF IRELAND

IDENTITY OF THE COURT MAKING THE REFERENCE

1 . This reference is made by the High Court of Ireland (Ms. Justice Emily Egan) (“ the referring court”). The main proceedings bear the record number 2019/6174P.

2 . The reference has been submitted by e-curia. In the event that it is necessary to communicate instead by way of post, the address is as follows: Principal Registrar, The High Court, Four Courts, Inns Quay, Dublin 7, Ireland.

IDENTITY OF THE PARTIES TO THE MAIN PROCEEDINGS

3 . The Plaintiff is represented by Michael Lynn SC, Catherine Donnelly SC and Devina Brady BL of the Bar of Ireland instructed by MacGuill & Co. Solicitors with an address for service of Merchants House, 27/30 Merchant's Quay, Dublin 8 D08 K3KD, Ireland. The First to Fourth Named Defendants are represented by Miriam Reilly SC and Mark Finan BL of the Bar of Ireland instructed by the Chief State Solicitors Office with an address for service of Chief State Solicitor, Osmond House, Ship Street Little, Dublin 8, D08 V8C5; Ireland.

THE SUBJECT MATTER OF THE DISPUTE

4 . The within proceedings (the “ Plenary Proceedings”) concern an application by the Plaintiff to the Criminal Injuries Compensation Tribunal (the “ Tribunal”) for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted (“ the Scheme”).

5 . The Scheme is a non-statutory mechanism by which the State presently gives effect to its obligations under Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (the “ Compensation Directive”) 1. The First Defendant, the Tribunal, is the body responsible for administering the Scheme in the State. The Second Defendant is a Government Department with responsibility for ensuring that the Scheme is operated effectively by the Tribunal. The Third Defendant is the juristic person answerable at law for the actions of the Second Defendant, its servants and/or agents. The Fourth Defendant is the law officer of the State designated by the Constitution of Ireland and is sued in his representative capacity. The First to Fourth Defendants shall be referred to herein as ‘the Defendants’ and/or ‘the State’.

6 . The issue in the Plenary Proceedings giving rise to the requirement for this Article 267 Reference is whether the exclusion from the Scheme of compensation for general damages, including pain and suffering, fails to vindicate the Plaintiff's right to fair and appropriate compensation under Article 12(2) of the Compensation Directive. All parties before the referring court are in agreement that an Article 267 Reference is required.

MATERIAL BACKGROUND FACTS

The Assault

7 . The Plaintiff, a qualified software engineer who was born in Spain was the victim of a serious criminal assault in Ireland on 12 July 2015 when he was attacked on the street outside his home by a group of people. Three individuals two of whom were juveniles were prosecuted and convicted of various offences arising from the assault. The Plaintiff has been unable to ascertain the identity of his juvenile assailants.

8 . The Plaintiff suffered a significant and permanent eye injury and other injuries during the assault. Details of his injuries were outlined in the application to the Tribunal submitted on his behalf by his solicitor as follows:

The (Plaintiff) was set upon by a group of four persons, who kicked him heavily to the ground and thereafter continued to kick him while he was on the ground for approximately 20 minutes. The (Plaintiff) lost consciousness during the attack. He suffered several injuries to his eyes, including an orbital fracture to the bottom of his left eye, very close to the optic nerve. He had to undergo surgery on his eyes and has lost partial vision on his left eye. He now also suffers from double vision due to the displacement of eye muscle. The (Plaintiff)'s jawbone was fractured and his tooth chipped. He suffered a contusion to his left shoulder. He had to wear his left arm in a sling for some time and this arm remained partially immobilised. He also suffered

injury to his waist and chest. The (Plaintiff) is also suffering from mental distress and anxiety as a result of the attack…

The (Plaintiff) is currently suffering from pain and partial loss of vision in his left eye. He continues to suffer double vision in both eyes, particularly after waking up in the morning. His left arm is still partially immobilised. He is also suffering continued mental distress and anxiety. His tooth remains chipped….

The (Plaintiff) was absent from work as a result of the incident …

The (Plaintiff) was dismissed from his job and is currently unemployed” 2.

The Plaintiff's Application under the Scheme

9 . On 1 October 2015, the Plaintiff submitted an application for compensation to the Tribunal under the Scheme. On 14 February 2019, the Plaintiff was notified of the Decision of the Tribunal dated (the “ Decision”) on foot of which he was awarded the sum of €645.65 as compensation under the Scheme (the “ Award”).

10 . The Decision stated inter alia:

“ The (Plaintiff) suffered personal injuries and loss arising from a violent assault and beating on 12 July 2015 in Dublin City when he was attacked by a group, including juveniles, on the street outside his home, some of whom were charged with various offences. The (Plaintiff) has not been compensated to date.

The Tribunal is satisfied that the out-of-pocket expenses claimed are directly attributable to crimes of violence and the application comes within the terms of the General Scheme…

The Tribunal notes that the (Plaintiff) has not claimed for expenses arising from dental injuries.

The Tribunal makes an ex gratia award of €645.62 in respect of the ( Plaintiff)'s out-of-pocket expenses directly attributable to the violent crimes complained of including those vouched.

The Tribunal is precluded under the Scheme from awarding cash stolen from the ( Plaintiff) during the attack or compensation for other property loss or damage.”

11 . The Tribunal's letter dated 14 February 2019 did not include a breakdown of the Award and same was duly requested by the Plaintiff's solicitors on 3 April 2019. By letter dated 10

April 2019, the Tribunal furnished the Plaintiff's solicitors with a breakdown of the award, which was as follows

“ Fee to replace driving licence	€44.20
Fee to replace spectacles	€339.00
Medicine	€28.82
Hospital	€100.00
Travel expenses	€133.63
Total	€645.65

12 . The Plaintiff had only submitted expenses in the sum of €645.65 and the award therefore reflects the total claim advanced for out of pocket expenses. In accordance with the provisions of the Scheme, the Award was limited to the Plaintiff's out-of-pocket expenses and did not provide any compensation for general damages, including pain and suffering, notwithstanding the significant and ongoing injuries sustained by him in the attack.

The Plenary Proceedings

13 . The Plaintiff issued the Plenary Proceedings on 2 August 2019 seeking, inter alia:

— A Declaration that the Scheme is incompatible with the State's obligation under Council Directive 2004/80/EC of 29 April 2004 and/or Articles 1 and/or 3 and/or 4 and/or 7 and/or 9 of the Charter of Fundamental Rights in that it fails to provide for fair and appropriate compensation by reason of the exclusion of general damages, including pain and suffering from the Scheme.

— A Declaration that the Plaintiff, as a person who was the victim of crime whose rights to compensation the State was obliged to vindicate, is entitled to damages for pain and suffering.

THE NATIONAL SCHEME

14 . The Scheme is a non-statutory administrative scheme, funded by annual and limited cash grants, and is designed to pay compensation in appropriate cases to victims of criminally inflicted injuries.

15 . The necessity for such a Scheme arose from the fact that victims of crime had no practicable and effective legal remedy available for their injuries (including that perpetrators may not be identifiable or may not have sufficient funds to pay damages if found liable in other proceedings). The historical background to the Scheme in 1974 involved terrorist bombings in Dublin in late 1972 and early 1973.

16 . From 1st October 1972, persons who suffer injury as a result of a crime of violence within the jurisdiction of the Irish State, can apply to avail of the remedies provided under the Scheme. The Scheme was drafted with the intention that it would be comprehensible to a person with little or no legal knowledge and that a person, acting on his/her own behalf, could bring an application to the Tribunal without the necessity of legal assistance.

17 . The Tribunal was set up on 8 May 1974 to administer the Scheme and to process applications at first instance and predates the Compensation Directive. The Scheme has been amended twice since its inception, in 1986 (which is the operative Scheme in the Plenary Proceedings 3) and 2021 4.

18 . Paragraph 1 of the Scheme provides that a payment for compensation may be made in respect of personal injury “where the injury is directly attributable to a crime of violence…”. In its original configuration, the Scheme made provision for the payment of general damages, including pain and suffering, however this was removed in 1986 as it placed a strain on the State's financial resources during a period of profound economic recession.

19 . As amended in 1986, the Scheme allowed for the making of an ‘ex gratia’ payment to a victim by way...