Tomlinson -v- Criminal Injuries Compensation Tribunal, [2005] IESC 1 (2005)

Docket Number:155/04
Party Name:Tomlinson, Criminal Injuries Compensation Tribunal
Judge:Denham J.

THE SUPREME COURTAPPEAL NO. 155 of 2004DENHAM J.GEOGHEGAN J.McCRACKEN J.BETWEEN/ANGELA TOMLINSONAPPLICANT/APPELLANTANDCRIMINAL INJURIES COMPENSATION TRIBUNALRESPONDENTJudgment delivered on the 19th day of January, 2005 by Denham J.1. At issue on this appeal is the exercise of judicial discretion in the granting or refusing of leave to apply for judicial review when there is an alternative remedy available to the applicant.2. Angela Tomlinson, the applicant/appellant, is referred to hereafter as the applicant. The applicant's husband died on the 20th day of April, 1997, following an assault in a Dublin Hotel.3. On the 14th day of August, 1997, the applicant applied to the Criminal Injuries Compensation Tribunal, the respondent, for compensation under the Scheme of Compensation for Personal Injuries Criminally Inflicted.4. By letter dated 24th day of September, 2002, the applicant was informed that her claim for compensation had been considered by a member of the Tribunal who was of the opinion that it came within the scope of the scheme and who made an award of 30,571.02 plus stg£431,000.00. The letter informed the applicant of her right of appeal and that such an appeal is heard at a sitting of three members of the Tribunal and is a hearing de novo at which the Tribunal may confirm the amount awarded, vary the amount awarded, or refuse the application and make no award of compensation.5. Attached to the letter of the 24th day of September, 2002, was a copy of the decision. This stated that there was sufficient evidence to say that the application came within the scheme. The award was set out as follows:Actuarial fees 5,176.06For loss of earnings. I have carefully read the report of Piers Segrave Daly & Lynch. Mr. Francis Tomlinson was head of marketing for Nomura Capital Management U.K Limited. I think the assumptions made in the actuaries report are optimistic. In particular the assumption that the late Mr. Tomlinson's earnings would increase by 67% between the 5th April, 1997 and the year 2000/2001. I am prepared to allow a loss of earnings figure of stg £990,000.00.I am further prepared to allow for loss of the company car a sum of stg £33,000.00.From these sums should be deducted a sum of the benefits paid on the death of Mr. Tomlinson as per the report of Joseph G. Byrne & Sons Actuaries stg£592,000.00.Therefore the figure I am actually allowing for loss of wages including loss of company car is stg£431,000.00.For mental distress I am awarding a total of 25,394.96 to be divided as follows:-Mrs. Angela Tomlinson 15,394.96Each of the three sons,Matthew, Andrew and Richard 2,000 each 6,000.00To the Mother, Patricia 2,000.00To each of his two brothers,Christopher and Anthony 1,000 each 2,000.00.6. At issue is the deduction stg£592,000.00 made by the Tribunal.7. The applicant has been advised by counsel that this deduction was unauthorised under the scheme and that it was made in excess of jurisdiction.8. The applicant applied for leave to apply for judicial review. On 16th day of December, 2002, the High Court (O'Higgins J.) granted leave to apply by way of application for judicial review in respect of the following reliefs:-1. A declaration by way of...

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