The Criminal Injuries Compensation Scheme was originally set up in 1974, operating on a non-statutory basis and dependent upon annual cash grants from the government for funding. In 1986, the State removed the entitlement for payment of compensation relating to non-material losses, including pain and suffering, due to the severe financial difficulties of the State at the time.
In 2004, the State became required to implement the EU Compensation Directive. In addition, the Victim’s Charter sets out, amongst other things, information and support services for victims of crime, outlining their rights within the criminal justice system. Those services featured within the Charter are funded and operated independently of the State.
The purpose of the Criminal Injuries Compensation Scheme, which is administered by the Criminal Injuries Compensation Tribunal, is to compensate victims of crime for their losses. A recent case of Blanco v. Criminal Injuries Compensation Tribunal has been referred to the CJEU on the basis that the amount awarded to him by the tribunal was insufficient and therefore incompatible with the State’s obligation under the EU Compensation Directive.
Mr. Blanco was a qualified software engineer who was seriously injured in a criminal assault outside his home. He suffered multiple injuries, including partial loss of vision, a fractured jawbone, stress, and anxiety.
The Tribunal ultimately awarded him a sum of €645.65, being his out-of-pocket expenses, suffered as a result of the injury. The award made no allowance whatsoever for pain and suffering or for loss of earnings.
In the course of his pleadings, the Plaintiff argued that the Defendants had failed to provide a fair and appropriate level of compensation as required under the Directive.
The High Court examined recent related cases of both the Irish and EU Courts. They noted that the CJEU was requested to adjudicate on the matter of the adequacy of compensation awards in a referred Italian case, known as the BV case. The Plaintiff in that case argued that the fixed sum for compensation for pain and suffering paid to a victim of sexual violence was not fair and appropriate compensation, as required under Article 12 of the Directive. Under the Italian State Scheme, a fixed sum of €4,800.00 was allocated as compensation for pain and suffering for victims of sexual violence.
The CJEU held that that sum was not fair and appropriate and did not represent adequate compensation for the non-material harm suffered. The CJEU concluded that a fixed sum could not be appropriate in all cases whilst recognising that member States did have discretion to set amounts for compensation. The CJEU also noted the need for Schemes to be financially viable. The CJEU held, however, that a member State exceeds its discretion if the compensation awarded is manifestly insufficient, having regard to the seriousness of the damage for the victims.
That ruling was thereafter considered by the Irish Court of Appeal in the case of Doyle and Kelly v. CICT. The Court of Appeal held that arguments had been presented in the BV case that supported the position of both the Appellants and the Respondents. However, the Court of Appeal found that the CJEU had stopped short of definitively stating that member States must provide compensation for pain and suffering. The Court, in its consideration, also referred to the case of DPP v. Duffy, which concluded that fair and appropriate compensation by the Scheme did not need to be the same amount as an offender might be ordered to pay in reparation, but that awards must have regard to the seriousness of the consequences of the crime on the victim. This ruling again did not definitively conclude that a victim had an entitlement to a pain and suffering award from the Scheme.
Ultimately, Ms. Justice Emily Egan, in the High Court case of Blanco v. CICT, taking into account that there were 17 pending similar cases, and noting the continuing uncertainty as a result of the CJEU ruling in the BV case, she referred the matter formally to the CJEU to resolve the issues. She raised five questions to be answered by the CJEU:
- Does the obligation imposed on member States by Article 12(2) of Directive 2004/80/EC to provide fair and appropriate compensation require that a victim should be paid for both material and non-material losses?
- What form of loss falls within the scope of non-material loss?
- Does pain and suffering fall within that scope?
- What relationship should fair and appropriate compensation bear to the damages in tort that would be awarded against a tort-feasor?
- Can compensation under the established Irish Scheme be regarded as fair and appropriate if a victim is awarded €645.65 as compensation for a serious eye injury?
The CJEU ruling is expected in the coming months. If the CJEU agrees with the Plaintiff, Blanco, then the Government will have to decide how to deal with the requirement for compensation for pain and suffering to be paid. It is likely that this would require statutory intervention in circumstances where the current Scheme is funded by annual cash grants. If the CJEU does agree with the Plaintiff, then it is possible that the Government could use the Judicial Council Personal Injuries Guidelines for compensation as a jumping off point for calculation of awards. It is important to note, however, that awards under the Scheme are limited thus far. In the Supreme Court case of DPP v. Duffy, an upper limited was effectively applied to pain and suffering awards i.e. that the Scheme does not need to award the same amount as an offender might be ordered to pay in full reparations. An offender, in some circumstances, can be ordered to pay a certain amount in full reparations to a victim, and this can be significantly less than compensation amounts outlined in the Personal Injuries Guidelines. The CJEU ruling is therefore heavily anticipated.
If you have a query in relation to a personal injuries matter, please contact Donna Phelan of Dillon Solicitors LLP at 01 2960666 or by email at info@dillon.ie.
