37. The appellants submitted that courts must be guided by the principles of equivalence and effectiveness and are mandated by the decision of the CJEU in BV to ensure that "some account is taken of the seriousness of the consequences of the harm suffered by the victims" of intentional crime by the inclusion of a power to make an award for general damages. The respondents argued that the CJEU's findings on 'fair and appropriate' compensation (at §§58 and 61) ought to be read in the context of the Italian Scheme which provided for fixed rates of compensation. By contrast, the Scheme in Ireland has no upper limit and payments may be made for a range of out-of-pocket expenses, including future loss of earnings.
38. At §69, the Court of Appeal confirmed that "[t]here is no longer any doubt that the [Compensation] Directive does indeed confer an EU law right to compensation from the State" on victims of violent intentional crime.
39. Arising from the CJEU's 'important clarification' as to the scope of the Compensation Directive and its confirmation of an EU law right to compensation, Ms. Justice Ní Raifeartaigh stated that it was necessary to consider inter alia the extent or scope of that right and "in particular, the exclusion of compensation for pain and suffering from the Irish Scheme...".
40. The Court of Appeal observed that there were comments in the BV decision that were supportive of both the appellants' and the respondents' positions. Those comments which tended to favour the respondents' positions were summarised as follows (at §129):
"References in the judgment to the discretion afforded to member states, the need to ensure financial viability of national schemes, the fact that compensation need not be the same as that which would be required of the actual perpetrator, that what is prohibited is something that is "purely symbolic" or "manifestly insufficient", and the approval in principle of schemes that include a fixed-rate approach, all tend to support the State's position."
41. Insofar as the appellants' position was concerned, the Court of Appeal noted the 'repeated references' in the BV judgment to both material and non-material loss and stated (at §129):
"However, the clear and repeated references to "non-material" as well as material loss might be thought to support the appellants' view that compensation for pain and suffering cannot be entirely excluded from the outset."
42. At §129, the Court of Appeal held as follows:
"I am of the view that the BV case offers much guidance on what constitutes "fair and appropriate" compensation, but it does not signal definitely whether a member state must provide some compensation for pain and suffering." (Emphasis added)
43. The Court of Appeal held that, in order to resolve the issue as to whether the Scheme is required to provide for both special and general damages (material and non-material damages), it may be necessary for an Irish court to seek a preliminary reference, however it was not prepared to make such a reference in that case on inter alia prematurity grounds.
Relevant domestic caselaw considering "non-material" damage
44. The question as to what losses a victim of violent intentional crime must suffer in order for same to constitute 'non-material' damage has not been determined in Irish law. That is not surprising given the Scheme does not provide for the payment of such damages. It is noted however that the scope of non-material' damage has received some judicial consideration from the Irish Circuit Court in a data protection context in recent times.
45. In Kaminski v Ballymaguire Foods Limited [2023] IECC 5, O'Connor J. was satisfied that the defendant's breach of section 117 of the Data Protection Act 2018 and/or the GDPR had caused the plaintiff to suffer serious embarrassment and sleep loss and that he was entitled to an award for non-material damages. The Court outlined the factors likely to apply in assessing damages for non-material loss including the following:
There must be a link between the data infringement and the damages claimed.
If the damage is non-material, it must be genuine, and not speculative.
Damages must be proved. Supporting evidence is strongly desirable. Therefore, for example in a claim for damages for distress and anxiety, independent evidence is desirable such as for example a psychologist report or medical evidence...."
Relevant domestic case-law on the function and assessment of damages for pain and suffering
46. The function of general damages (or non-pecuniary damages) for pain and suffering was considered by the Irish Supreme Court decision in Sinnott v Quinnsworth [1984] ILRM 523 in which the Chief Justice stated as follows (at p.531):
"General damages are intended to represent fair and reasonable monetary compensation for the pain, suffering, inconvenience and loss of the pleasures of life which the injury has caused and will cause to the Plaintiff."
47. In its consultation paper, "Compensating the Victims of Crime" (LRC CP-67/2022), the Law Reform Commission observes that it is open to the victim of any crime to litigate against the person who is alleged to have injured them, since a criminal offence will usually also amount to tortious wrongdoing such as the tort of assault and battery.
48. As regards, the assessment of the damages to be paid by the perpetrator, the Court of Criminal Appeal in The People (DPP) v Lyons [2014] IECCA 27 stated that:
"It is almost axiomatic that a person who, through criminal wrongdoing, inflicts injury or loss on another person, that he or she is separately and distinctly liable to pay full compensation in civil proceedings. It represents a civil liability independent of the criminal liability of the convicted person."
49. Leaving aside the possibility of exemplary damages, the amount of damages liable to be paid by the perpetrator in respect of such tortious liability is likely to be determined with reference to the Personal Injury Guidelines adopted by the Judicial Council in 2021 which catalogue the level of damages, which it considered might fairly and justly be awarded in respect of varying types of personal injury.
50. In DPP v Stephen Duffy [2023] IESC 1, the Supreme Court noted the significance of the BV decision and stated, at §67:
"The [CJEU]Court also said "fair and appropriate" compensation for victims of crime did not necessarily have to be the same amount that an offender might be ordered to pay in full reparation. It was, rather, a contribution to the reparation of material and non-material losses suffered. Further, States were entitled to ensure that their schemes were financially viable. However, compensation awards must have regard to the seriousness of the consequences of the crime for the victim and could not be "purely symbolic or manifestly insufficient".
NECESSITY FOR A REFERENCE TO COURT OF JUSTICE
51. In light of all of the above, it appears to the referring court that clarification is required as to whether the Compensation Directive requires Member States to compensate victims for both material and non-material loss. Do the "relevant criteria" identified by the CJEU in BV represent the minimum standards required in order to ensure that a compensation scheme provides "fair and appropriate" compensation to victims of intentional crime within the meaning of Article 12(2)?
52. If so, then it also appears to the referring court that clarification is required as to what forms of loss fall within the scope of "non-material loss" and whether in particular this includes a victim's "pain and suffering". In short, are Member States required to provide some compensation for pain and suffering?
53. Finally, it is clear from BV that "fair and appropriate compensation' for the purposes of the Compensation Directive does not necessarily correspond to the damages which might be awarded under the Personal Injury Guidelines as against the perpetrator of that crime. However, it appears to the referring court 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.
REASONS FOR THE REFERENCE
54. The parties before the referring court all submit that in order to address the above issues arising in the Plenary Proceedings, the referring court requires the assistance of the CJEU to interpret Article 12(2) of the Compensation Directive.
55. The referring court agrees that, following the decision of the CJEU in BV, further clarity is required as to whether the Scheme, which prohibits the payment of compensation for pain and suffering in non-fatal cases, is incompatible with the State's obligations under Article 12(2) of the Compensation Directive, and if so, on what criteria ought to guide the referring court in assessing damages for "pain and suffering".
56. The referring court has been informed that there are approximately 17 separate cases pending before the Irish High Court in which this same issue has been raised. Those cases will benefit from the assistance that the CJEU might give in the within proceedings.
57. In order to address the above issues arising in the Plenary Proceedings, the referring court requires the assistance of the CJEU in interpreting Article 12(2) of the Compensation Directive and in determining the specific questions below.
THE QUESTIONS REFERRED
a) Does the obligation imposed on Member States by Article 12(2) of Directive 2004/80/EC ("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 Presidenza del Consiglio dei Ministri v BV ("BV") (Case C129/19, EU:C:2020:566)?
b) If the answer to Question (a) is yes, what forms of loss fall within the scope of "non-material loss"?
c) In particular, does a victim's 'pain and suffering' fall within the scope of "non-material loss?"
d) 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.
e) Can the compensation established for victims of violent intentional crimes under the 'Scheme of Compensation for Personal Injuries Criminally Inflicted' (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?
VIEW OF THE REFERRING COURT
58. The recommendations of the CJEU to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2019/C380/01) states that the referring court may briefly state its view on the answer to be given to the questions referred for a preliminary ruling, as this information may be useful to the CJEU.
59. The view of the referring court on the issues raised at questions a) to c) above is as follows:
The three references by the CJEU (at §§. 60, 64 and 69 of BV) to "fair and appropriate compensation" encompassing "non-material losses" expressly and in addition to "material losses" strongly suggest that compensation for "non-material losses" cannot be entirely excluded.
Non-material damage or loss is conceptually indistinguishable from "pain and suffering" for which general damages are intended to represent fair and reasonable monetary compensation.
In addition, at §64 of BV, the CJEU stated that the compensation granted to victims represents a "contribution to the reparation of material and non-material losses suffered by them". The CJEU then stated that such a contribution may be regarded as "fair and appropriate" if it compensates, to an appropriate extent, the "suffering" to which those victims have been exposed. The reference to "suffering" also strongly implies that "pain and suffering" must be compensated at least to some extent.
Finally, it is hard to see how compensation can be said to take into account the "seriousness of the consequences" for the victim (as per §§ 63 and 69 of BV) 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".
22 March 2024
[1] Although the Scheme substantially pre-dates the Compensation Directive
[2] In the course of the Plenary Proceedings before the referring court, the plaintiff submitted three medical reports setting out further details of his injuries. These medical reports, which are admitted without formal proof by the Defendants, are at Appendix I.
[3] A Copy of the 1986 version of the Scheme is at Appendix II.
[4] The 2021 Scheme is of no immediate relevance to the issues arising in these proceedings.
BAILII: