Gavin v The Criminal Injuries Compensation Tribunal

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-HC 1151
• Docket Number: [1994 No. 407 J.R.],407 J.R./1994
• Court: High Court
• Date: 01 January 1997

GAVIN v. CRIMINAL INJURIES COMPENSATION TRIBUNAL

EAMONN GAVIN

APPLICANT

AND

CRIMINAL INJURIES COMPENSATION TRIBUNAL

RESPONDENTS

1996 WJSC-HC 1151

407 J.R./1994

THE HIGH COURT

Synopsis:

EVIDENCE

Admissibility

Hearsay - Exclusion - Tribunal - Decision - Reasons - Statement - Affidavit - Deponent being tribunal's secretary - Deponent not present at tribunal's deliberations - Affidavit inadmissible as proof of reasons for tribunal's decision - (1994/407 JR - Carroll J. - 9/2/96) [1997] 1 IR 132

|Gavin v. Criminal Injuries Compensation Tribunal|

JUDICIAL REVIEW

Remedy

Scope - Tribunal - Decision - Rationality - Reasons for decision stated by deponent not present at tribunal's deliberations - Affidavit inadmissible to establish reasons - Compensation claimed for criminal injuries - Mental stress and trauma - Whether injury directly attributable to crime of violence - Compensation scheme not requiring injury to be solely attributable to such crime - (1994/407 JR - Carroll J. - 9/2/96) [1997] 1 IR 132

|Gavin v. Criminal Injuries Compensation Tribunal|

TRIBUNAL

Decision

Reasons - Statement - Hearsay - Affidavit - Deponent being tribunal's secretary - Deponent not present at tribunal's deliberations - Affidavit inadmissible as proof of reasons for tribunal's decision - (1994/407 JR - Carroll J. - 9/2/96) [1997] 1 IR 132

|Gavin v. Criminal Injuries Compensation Tribunal|

Citations:

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 551

CIVIL LIABILITY ACTS 1961–1964

ORR V CRIMINAL INJURIES COMPENSATION BOARD EXzPARTE INCE 1973 3 AER 808

MIN FOR PENSIONS V CHENNEL 1946 2 AER 719

GRAY V BARR 1971 2 AER 949

STAPLEY V GYPSUM MINES LTD 1953 2 AER 478

1 Judgment delivered by Miss Justice Carroll on the 9th day of February 1996

2 This is an application for judicial review of a decision of the Respondents, the Criminal Injuries Compensation Tribunal, made on 13th October, 1994. The Applicant is a married man with two grown children. He is now aged just fifty-three and he worked as systems analyst for Computer Systems for many years. He had a good salary, a company car, good prospects and he owned his own house which he was buying on mortgage. Then on 26th February, 1984 he was the victim of what has become a notorious crime. His car was stolen by a number of persons. He tried to prevent the theft and was carried on the bonnet of the car and subjected to severe assault by the perpetrators of the crime trying to dislodge him. He subsequently identified two persons as being among the perpetrators and they were charged with the crime.

3 He lodged a claim with the Tribunal in respect of the injuries suffered in this crime on 26th March, 1984, and he was awarded £2,035 on 5th September, 1985 to cover all aspects of his claim. He accepted this on 26th September, 1985.

4 There followed a series of unnerving incidents. On 1st November, 1984 the windows in his own car and in the company car which he had were smashed by youths travelling in a car at 1.00 a.m. in the morning outside his house. On the 5th May, 1985 in the course of criminal proceedings, one of the accused Joseph Meleady threatened the Applicant, saying, "I will blow you away when I get out". On the 26th November, 1985 when the Applicant was again attending Court, he was advised by the Guards to leave and wait elsewhere which he did. He was then subjected to abuse by a gang of youths and had to flee to the Bridewell Garda Station for Garda protection. Also on the 26th November, 1985 he was threatened again by Joseph Meleady who said "I will get you". He was also subjected to written threats and obscene letters.

5 In all there were three trials and three convictions, and at the last appeal the Court of Criminal Appeal decided the conviction was unsafe and the two accused were released.

6 The Applicant attempted to reopen his original application in respect of the crime which occurred on 26th February, 1984. This was refused as he had been awarded and accepted compensation in respect thereof. So he brought five fresh applications to the Tribunal. The first dated the 4th December, 1990 was in respect of the incident relating to the cars and claimed mental injuries. The other four dated the 30th October, 1991 claimed mental stress.

7 The application was heard by a single member of the Tribunal, Mr. Burns. He said that he felt the proper approach was to deal with all of the applications together because he was of opinion that the various incidents were connected by a common thread, namely a campaign of intimidation against the Applicant. He had no hesitation in holding that the circumstances surrounding the applications justified exceptional treatment and he allowed them to be considered despite the passage of time.

8 The Applicant complained that after the incidents he started to lose concentration, he suffered post-traumatic stress disorder and he developed alcohol dependency. He resigned from his job on the 8th September, 1986. Subsequently he tried to get employment but he claimed it was unlikely and improbable that he would ever again get secure employment. He is now a part-time hackney driver. He had to sell his house and move into rented accommodation. His marriage experienced difficulties though thankfully that appears to be behind him now.

9 Dr. McKeown, a psychiatrist in St. Patrick's Hospital, saw the Applicant in October 1989 and stated in the summary to his report dated 20th July, 1992:

"Mr. Gavin had a mild to moderately severe post-traumatic stress reaction with secondary alcohol dependence. I have no doubt that the emotional trauma he experienced in connection with the theft of his car in February 1984, the subsequent Court cases, the adverse publicity, the damage to his property and the threats made on his life did have a damaging psychological effect. Mrs. Gavin stated in October 1989 that her husband had been drinking excessively from the middle of 1986 which would suggest that it was the episodes following the car theft in 1984 that had the damaging psychological consequence, rather than the incident itself. It would appear that Mr. Gavin has been coping well psychologically and abstaining from alcohol from the end of 1992."

10 The extent of the Applicant's special damage at the time of the submission to the Tribunal was quantified as follows:-

11 Net loss of earnings from October 1986 to January 1994 £146,832 (this figure is also net of tax).

12 Future loss of earnings calculated on an actuarial basis £262,080

13 Capital value attributable to loss of pension £28,866

14 Loss of the capital value of the family home £90,000.

15 These alone came to over half a million pounds in respect of special damage without anything being allowed for pain and suffering.

16 As he claims in his submission, his life has been completely ruined. Three times he was driven to hunger strike through desperation. The last one lasted thirty-one days and ended on 18th November, 1994 shortly after liberty to seek judicial review was granted.

17 When the matter came to be decided by Mr. Burns on the 18th November, 1993 he decided that the Applicant was clearly the victim of a number of incidents which amounted to assaults. He said:

"While some of the incidents complained of amount to damage to property only and not to offences against the person the Applicant has been the victim of a number of offences against the person and has suffered injuries as a result thereof"

18 (My comment on that is that there was one incident involving damage to property, that is the breaking of the car windows, and the Applicant was not claiming for damage to property. He claimed for mental injury caused by the incident).

19 Having referred to Dr. McKeown's report, Mr. Burns says:

"I am satisfied that the Applicant has suffered injuries directly attributable to crimes of violence and that he was the victim of a vicious and orchestrated campaign of intimidation by reason of his fulfilment of his civic duty in attending Court and giving evidence. I am satisfied the Applicant is entitled to compensation in accordance with the Scheme."

20 He continues

"As a result of this vicious and cruel campaign of intimidation the Applicant suffered serious psychological injury including depression, loss of confidence, disruption of family and occupational life and ultimately alcoholic dependence. The Applicant had a successful and stable job prior to the incidents in question."

21 He lists out the various consequences the Applicant suffered, having to sell the house and move to rented accommodation, his marital difficulties and that he is currently abstaining from alcohol. He said during the course of a lengthy hearing the Applicant struck him as an honest and straightforward person who had undergone immense strain and difficulties as a result of the criminal activities to which he was subjected. He accepted it would be difficult for the Applicant to obtain rewarding employment.

22 Having made those findings one would have expected at least an award covering all the Applicant's special damage. Instead Mr. Burns concluded:

"Taking into consideration the extent of the Applicant's injuries and the extent to which his occupational, domestic and recreational lifestyle has been affected. I award the Applicant the sum of £100,000 to cover all aspects of the various applications before me."

23 I mention Mr. Burns determination in some detail because when the Tribunal came to deal with an appeal from that award, it affirmed the original decision, not just the award.

24 Needless to say the Applicant appealed under the terms of the Scheme and the appeal was heard by three members of the Tribunal. They gave their decision on the 13th October, 1994 in the following terms:

"At a sitting of three members of the Tribunal concluded on this day, the Tribunal, having considered the papers...