About this case:

• Citation:
  [2024] IEHC 171
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Emily Egan

Delivering judgment for the High Court, Ms Justice Emily Egan remarked that “it is hard to see how compensation can be said to take into account the ‘seriousness of the consequences’ for the victim… if damages for ‘pain and suffering’ are entirely excluded. Therefore, in order to qualify as ‘fair and appropriate compensation’ under Article 12(2), compensation for the victim must include some contribution in respect of ‘pain and suffering’.”

Background

On 12 July 2015, the plaintiff, a Spanish man, was seriously assaulted on the street outside his home by a group which included two juveniles. The plaintiff was robbed and was continuously kicked as he lay on the ground, causing him to lose consciousness and to suffer severe injuries. The plaintiff’s injuries caused him to be absent from work, and eventually he was dismissed from his position as a software engineer.

The plaintiff applied to the first defendant for compensation pursuant to the Scheme of Compensation for Personal Injuries Criminally Inflicted on 1 October 2015, and was notified on 14 February 2019 of his award of €645.65.

The decision of the first defendant stated that the award was made ex gratia in respect of the plaintiff’s out-of-pocket expenses. Pursuant to the Scheme, the first defendant could not make an award for general or “non-material” damages in order to compensate the plaintiff for his pain and suffering.

Proceedings were issued on 2 August 2019 seeking various reliefs, including declarations that the Scheme is incompatible with Ireland’s obligations under Council Directive 2004/80/EC of 29 April 2004 (the Compensation Directive) and with the Charter of Fundamental Rights of the European Union, and that the plaintiff as a victim of crime is entitled to general or “non-material” damages.

The High Court

Ms Justice Egan examined the Scheme, noting that paragraph 6 thereof provides for compensation for victims of criminally-inflicted injuries on the basis of damages under the Civil Liability Act 1995 (as amended), but precludes compensation for inter alia pain and suffering in respect of injuries sustained on or after 1 April 1986.

Turning to the Compensation Directive, the judge noted that Article 12(2) thereof requires EU member states to vindicate the rights of victims of intentional violent crime in domestic and cross-border scenarios through the provision of “fair and appropriate compensation”.

Finding that Article 12(2) had received “limited consideration by the CJEU”, the court considered, inter alia, Presidenza del Consiglio dei Ministri v BV (Case C129/19, EU:C:2020:566), in which the CJEU held that Italy’s compensation scheme which provided for a fixed award of €4,800 for victims of sexual crimes did not appear to constitute a fair and appropriate contribution to the reparation of the victim’s material and non-material losses as required by the Compensation Directive, and set out relevant criteria for the interpretation of Article 12(2) by member states.

Ms Justice Egan also examined Doyle v The Criminal Injuries Compensation Tribunal & Ors. and Kelly v The Criminal Injuries Compensation Tribunal & Ors. [2020] IECA 342, in which the Court of Appeal acknowledged that a reference to the CJEU may be required to resolve the issue of whether the Scheme should provide for both material and non-material damages, but refused to do so in those cases on grounds of prematurity.

The court found that the nature of losses constituting “non-material” damage in the contexts of the Compensation Directive and the Scheme had yet to be determined by the CJEU and the Irish courts, but noted inter alia the judgment in Kaminski v Ballymaguire Foods Limited [2023] IECC 5, in which the Circuit Court found that compensation for non-material loss in the data protection context did not cover “mere upset”.

Ms Justice Egan considered that “clarification is required as to whether the Compensation Directive requires member state to compensate victims for both material and non-material loss” and if the “relevant criteria” identified in BV are the minimum standards required by Article 12(2), then clarification is also required “as to whether the Compensation Directive requires member state to compensate victims for both material and non-material loss”.

The judge also considered that “clarification is required as to the relationship between full compensation (being the damages which are likely to be awarded to the victim as against the perpetrator) on the one hand and the amount constituting ‘fair and appropriate compensation’ for the purposes of the Compensation Directive, on the other”.

Agreeing that the assistance which the CJEU might give would assist the 17 cases pending before the High Court in which the same issues were raised, Ms Justice Egan decided to make a reference to the CJEU, expressing her views that non-material damage is analogous to pain and suffering for which general damages represent fair and reasonable monetary compensation, and that in light of BV, “non-material losses” could not be entirely excluded from the Scheme and that some contribution in respect of pain and suffering was required in order for an award to qualify as “fair and appropriate compensation” under Article 12(2).

Conclusion

Accordingly, the court agreed to refer the following questions to the CJEU:

1. Does the obligation imposed on member states by Article 12(2) of the Compensation Directive to provide “fair and appropriate compensation” to victims of violent intentional crimes, require that a victim be compensated for both material and non-material loss within the meaning of BV?
2. If the answer to Question (a) is yes, what forms of loss fall within the scope of “non-material loss”?
3. In particular, does a victim’s ‘pain and suffering’ fall within the scope of “non-material loss?”
4. If the answer to a) and c) is yes, bearing in mind that member states are required to ensure that their schemes are financially viable, what relationship should the “fair and appropriate compensation’ awarded to a victim pursuant to the Compensation Directive bear to the damages in tort that would be awarded to that victim as against the relevant perpetrator as tort-feasor?
5. Can the compensation established for victims of violent intentional crimes under the Scheme be regarded as “fair and appropriate compensation to victims” within the meaning of Article 12(2) of the Compensation Directive if a victim is awarded the sum of €645.65 as compensation for a serious eye injury resulting in permanent sight impairment?

Blanco v. Criminal Injuries Compensation Tribunal & Ors [2024] IEHC 171