Iron bar assault: Delay to award a ‘breach of duty’ over justice

A 13-year delay finalising a €162,000 compensation award for a woman who suffered head injuries when hit with an iron bar in a random assault breaches the State's duty to vindicate her right to constitutional justice, the High Court has declared.

Mr Justice Michael White said he was concerned that an applicant with serious injuries as a result of a grievous assault in 2002 had to wait seven years for an interim award, and then more years until a final decision in 2015.

However, because the Criminal Injuries Compensation Tribunal ultimately awarded a total €162,000 to Alwyn Byrne, Belturbet, Co Cavan, the judge exercised his discretion not to award further damages over the breach of duty to her.

He granted a declaration that the delay amounted to breach of duty by the respondents - the tribunal, Minister for Justice and the State - to provide for determination of her claim in vindication of her right to constitutional justice in the manner in which the compensation scheme is operated.

Stranger broke in

Ms Byrne suffered the injuries in May 2002 when a stranger broke into the residence where she was staying and hit her with an iron bar. Her assailant was later convicted on assault charges and jailed for four years.

The €162,000 final compensation comprises an interim €82,794 award of December 2009 and a further €80,000 formally decided upon in February 2015, just after Ms Byrne took her High Court proceedings.

Dissatisfied with the final award, she has appealed to a three-member division of the tribunal which will hear the appeal next month.

In February 2015, when securing leave for Mr Byrne to take High Court judicial review proceedings, Siobhan Phelan BL said delays within the tribunal system appeared “endemic”.

‘A state of fear’

Ms Byrne is a qualified physiotherapist but has been unable to resume that work due to the head injuries suffered by her, is unable to make any long-term plans until her claim is finally addressed and lives in “a state of fear” due to her injuries, counsel said.

In his judgment, Mr Justice White noted Ms Byrne first sought compensation soon after the May 2002 assault and the interim €82,794 award was made in December 2009.

Most of that, €73,764, was to cover loss of earnings from 2002-2009 and was calculated on her gross earnings for the year ended April 2001. The tribunal’s final decision on her claim, made in February 2015, awarded her a further €80,000.

The judge said he was satisfied, at the time Ms Byrne initiated her High Court case, she was not aware a final decision was imminent or made.

He noted Ms Byrne had been dealing with her own claim until the end of November 2010 when solicitors began to act for her.

He also noted the tribunal in January 2011 sought an actuarial report from her which was sent in June 2011, while the tribunal’s October 2012 request for particulars was replied to in July 2013.

Ms Byrne’s side was told by the tribunal in July 2014 her case appeared to be a matter for a hearing by three tribunal members but, at that time, there was only a chairperson and no members, he said.

On January 26th, 2015, the tribunal emailed Ms Byrne’s side indicating the chairman was reviewing the papers. A letter dated February 6th, 2015, received by her solicitors on February 10th, 2015, said a final decision had been made by a single member.