The High Court has ordered the Criminal Injuries Tribunal to reconsider its decision that a girl who lost almost all sight in one eye when a boy set off a firework on Halloween was not entitled to compensation.
Mr Justice Cian Ferriter quashed the decision that the injuries she suffered were “not attributable to a crime of violence” and ordered the tribunal to reconsider it.
On October 31st, 1995, a “screamer” firework exploded in the face of the girl, who was 13. It was lit and set off down a road in Salthill, Co Galway, by an 11-year-old boy.
She was left 90 per cent blind in her right eye and lost 10 per cent of her vision in the left eye.
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Her injuries, including facial injuries, caused her to suffer severe adverse consequences in her life, including migraines and reduced vision, it is claimed.
About three months later, in February 1996, her solicitors lodged an application to the tribunal for compensation under the General Scheme of Compensation for Personal Injuries Criminally Inflicted.
Her solicitors sought a preliminary ruling from the tribunal over whether the injuries were attributable to a crime of violence but the tribunal responded that there was no provision in the scheme for such a ruling.
It was decided to hold off the compensation application until after the girl did her Leaving Certificate and to see how her injuries affected her early adult life and career development.
As a result, it was more than 16 years later, in 2012, before her full claim to the tribunal was made. In March 2015, the tribunal found her claim did not come under the compensation scheme.
An appeal under the tribunal appeals mechanism was also rejected.
She then brought High Court proceedings against the tribunal, claiming its decision was undermined by errors of law and by errors of finding of fact. The tribunal opposed the challenge.
Mr Justice Ferriter found the tribunal acted erroneously in adopting a test of subjective recklessness by saying it was entitled to take into account the immaturity of the 11-year-old who set off the firework. His immaturity would have no place in an objective test, the judge said.
The tribunal concluded the boy lit the firework “on a street that he thought to be empty” and “had no contemplation that any other person may be endangered and/or hurt and/or involved in a dangerous accident as a result of his actions”, the judge said.
On an objective assessment, it would have been necessary for the tribunal to consider all of the relevant evidence relating to the circumstances of the incident, he said. This would go to the question of whether, objectively, the acts in context were reasonably calculated to endanger safety or cause serious personal injury or a dangerous accident, he added.
The tribunal also did not have any regard for the evidence of three other witnesses who were on the street that night. The absence of such consideration supports the view that the tribunal erroneously applied a subjective test, he said.
The tribunal also found that, while the boy had committed an offence under the Explosives Act of using a firework, this was “an administrative offence” where there is no threat of imprisonment. Therefore, the tribunal found, a breach of that law was not on its own a crime of violence.
Dropping a “banger” on empty park ground with nobody nearby, while also an offence under the Explosives Act, would not constitute a crime of violence, the judge said. However, setting off a screamer firework down a public road on which people were visible and within the range “could well be taken to constitute a crime of violence”.
Whether the conduct here involved in the commission of the offence constituted a crime of violence “is ultimately a question of fact for the tribunal but legally it is required to engage in that assessment and it fell into error in not doing so here”.
This was a material error of law and the decision should be quashed, he said.