Tomlinson v Criminal Injuries Compensation Tribunal

• Jurisdiction: Ireland
• Judge: Mr Justice Kelly
• Judgment Date: 03 March 2004
• Neutral Citation: [2004] IEHC 53
• Court: High Court
• Date: 03 March 2004

[2004] IEHC 53

THE HIGH COURT

Record No 830 JR/2002

ANGELA TOMLINSON v. CRIMINAL INJURIES COMPENSATION TRIBUNAL

Judicial Review

BETWEEN

ANGELA TOMLINSON

Applicant

and

CRIMINAL INJURIES COMPENSATION TRIBUNAL

Respondent

Citations:

CIVIL LIABILITY ACT 1961

CIVIL LIABILITY (AMDT) ACT 1996

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

HILL V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1990 ILRM 36

GAVIN V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1997 1 IR 132

GARVAN V CRIMINAL INJURIES COMPENSATION TRIBUNAL UNREP SUPREME 20.7.1993 1999/12/3142

STEFAN V REFUGEE CMSR 2001 4 IR 203

ABENGLEN PROPERTIES, STATE V DUBLIN CORP 1989 IR 381

Synopsis:

JUDICIAL REVIEW

Scheme of compensation

Scheme of compensation for personal injuries criminally inflicted - Alternative remedies - Judicial review of first instance decision of the respondent - Whether applicant failed to exhaust alternative remedies by not bringing appeal as envisaged under scheme (2002/830JR - Kelly J - 3/3/2004)

Tomlinson v Criminal Injuries Compensation Tribunal

Facts: The applicant was the wife of a man who died as a result of an assault. She was awarded compensation under the scheme. However, she was dissatisfied with the award made in respect of loss of earnings. She decided against appealing the award as envisaged under the scheme and applied for judicial review contending that the respondent had erred and acted ultra vires in calculating the award. The respondent contested the applicant’s application on the merits and also argued that regardless of the merits the court ought to refuse to entertain the application because the applicant had failed to exhaust alternative remedies.

Held by Kelly J. in refusing the application that the court should not intervene before the process envisaged under the scheme had been exhausted. The applicant should have exercised her right of appeal before applying for judicial review. There was no time limit in the scheme for the bringing of an appeal against a determination so the applicant was not prejudiced in that regard.

Reporter: R.W.

1 Mr Justice Kelly delivered on the 3rd day of March, 2004

Introduction

2 Francis Tomlinson (the deceased) died on the 20 ^th April, 1997. His death arose out of an assault in a Dublin hotel. He was survived by the applicant who is his widow and their three sons.

3 The deceased was a visitor to Dublin at the time of his death. He and his family were residents of Bishops Stortford, Hertfordshire, England.

4 In August, 1997 the applicant applied to the respondent seeking to be compensated in respect of the death of the deceased. As is usual, her application was dealt with on paper and without any oral hearing by a single member of the respondent. That member was satisfied that there was sufficient evidence to find that the application fell within the scheme under which the respondent operates. The member then went on to make an award of special damages under three headings. The first was in respect of actuarial fees which he fixed at €5,176.06. The second was in respect of loss of earnings for which he awarded £431,000 sterling. The third was in respect of mental distress assessed at €25,394.96.

5 The applicant is dissatisfied with the award made in respect of loss of earnings. Her complaint arises from the fact that although the single member of the respondent assessed her loss of earnings at £990,000 sterling and also allowed her £33,000 sterling in respect of the loss of a company car, he deducted from those sums £592,000 sterling because of a death in service benefit which was paid to the applicant. In making that deduction the applicant contends that the respondent was wrong and acted ultra vires.

6 On the 24 ^th September, 2002 the applicant was notified of the respondent's decision and she secured leave from O'Higgins J. to commence these proceedings on the 16 ^th December, 2002.

7 The respondent contests the applicant's entitlement to the order which she seeks on the merits but in addition argues that regardless of merits this court ought to refuse to entertain the application because the applicant has failed to exhaust alternative remedies.

The Scheme

8 The respondent operates pursuant to a scheme of compensation for personal injuries criminally inflicted (the scheme). It is an extra statutory scheme. In its present form it was laid by the Minister for Justice before both houses of the national parliament in March, 1986.

9 Paragraph 17 of the scheme provides that it is to be administered by the respondent. The procedures of the respondent are dealt with from paragraph 20 onwards. Paragraph 25 provides that a decision by the tribunal on a claim may be taken by one of its duly authorised officers where the amount does not exceed £250. If the claim is for a greater sum or where a claimant is not satisfied with a decision by that officer the decision is normally taken by one member of the respondent. The respondent has a discretion to hear any claim at a hearing before three members of it. A person who is dissatisfied with a decision given by one member may have his claim heard by a panel of three members. In such case the member who gave the initial decision is not to be one of the three members of the respondent present at the hearing. Paragraph 25 goes on to provide that apart from an appeal by an applicant against a decision of a duly authorised officer or against a decision of one member there will be no appeal against a decision of the respondent.

10 Paragraph 26 makes it clear that at a hearing of the respondent an applicant is obliged to present his case and in so doing is entitled to call, examine and cross-examine witnesses. The onus of proof of a claim lies on an applicant. A member of the respondent's staff is entitled to make submissions to the respondent on the case and is also entitled to call, examine and cross-examine witnesses. An applicant is entitled to be accompanied by his legal adviser or another person at such a hearing but the respondent is not liable for the costs of such representation.

11 The respondent is obliged to apply the civil standard of proof in determining any claim.

12 Paragraph 1 of the scheme provides that the respondent may pay ex gratia compensation in accordance with the scheme in respect of personal injury where the injury is directly attributable to a crime of violence, or to circumstances arising from inter alia the action of the victim in assisting or attempting to assist the prevention of crime in a public place or the saving of human life.

13 Paragraph 2 of the scheme provides that the respondent is to be entirely responsible for deciding in any particular case whether compensation is payable under the scheme and if so the amount. It expressly provides that there is to be no appeal against or review of a final decision of the tribunal.

14 Paragraph 6 of the scheme provides that subject to the limitations and restrictions contained elsewhere in it, the compensation to be awarded is to be on the basis of damages awarded under the Civil Liability Acts except that compensation is not to be payable for inter aliospain and suffering, loss or diminution of expectation of life or exemplary, vindictive or aggravated damages.

15 The only other provision of the scheme to which I need make reference is that which has been identified as possibly justifying the deduction which was made in the present case. It is paragraph 5. It provides as follows:-

"If injury is inflicted in the circumstances set out in the scheme and any person would be entitled to claim compensation (whether statutory or non-statutory) otherwise than under the scheme for the injury, he will not be prohibited from also claiming compensation under the scheme but the tribunal will decide the claim on the basis that no payment under the scheme should result in compensation being duplicated and may accordingly decide either to make no award or to make a reduced award and may, moreover, decide that an award will be subject to conditions as to its repayment in whole or in part in the event of compensation being subsequently received from another source".

The Respondent's Award

16 The award made by the single member does not set out the legal basis upon which the deduction of £592,000 sterling was made. It is agreed however that if there was justification for such a deduction it arose under paragraph 5 of the scheme which I have already set out.

The Evidence before the Respondent

17 Prior to his death the deceased was employed by Nomura Asset Management UK Limited. It maintained a pension and life assurance scheme on behalf of its employees. The applicant received a lump sum payment by way of death in service benefit of £413,200 sterling. Documentary evidence of these facts in the form of a letter from that company dated the 3 ^rd November,...