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Newsletter June 2003
Wednesday, 18th June 2003

This is the second in a series of newsletters which the Board has decided to produce to keep applicants informed from time to time as to the procedures it follows and other developments. Our first newsletter issued in March of this year and the Board's Guide to Hearing Procedures issued in April.


 


Board Members


 


The Board comprises five members. Ms. Anne O'Brien, B.L. has recently been appointed to the Board by the Minister for Education & Science.


 


His Honour Judge Sean O'Leary (Chairman)


Professor Desmond Greer


Dr. Helen Cummiskey


Dr. Ruth Pilkington


Ms. Anne O'Brien B.L.


 


Solicitor to the Board.


 


Ms. Sharon Moohan B.C.L, L.L.M  commenced work as Solicitor to the Board in May.


 


Discovery of documents (application form, section 8)


 


Section 8 of the application form says that the Board will request production of an existing document only where the applicant has been unable to obtain it and where the document is relevant to identity, residence in an institution, or the abuse or injury suffered.  The Department of Education and Science, Cornamaddy, Athlone, Co. Westmeath, holds records for children who were sent to a residential institution on foot of a court order.  If an applicant or solicitor states in a Freedom of Information request to Athlone that he/she is seeking evidence of residence to support a claim to the Redress Board, the Freedom of Information section will give the matter priority and will send a 'Report by School Number and Pupil Number' within approximately two weeks. This report will normally be sufficient proof of residence and will, where available, be required by the Board.


 


Applications


 


The Board has accepted applications since December 2002.  The number received to date is 1334.  Forty-six of these applications have been refused as on the face of the documentation the application was outside the Boards terms of reference as laid down in the 2002 Act.  The remaining applications are now being processed.  The statutory steps and times allowed for each step laid down in the Act and Regulations occupy a minimum of 16 weeks (assuming that all necessary documentation has been lodged with the Board), to which must be added any time taken for processing the application by the Board's office staff. In broad terms the first 8 weeks is taken up notifying relevant persons as outlined in the Residential Institutions Redress Act 2002 (Miscellaneous Provisions) Regulations 2002. The second 8 weeks is taken up confirming with the applicant or his/her solicitor that the application is complete (2 weeks) and scheduling the application for hearing or settlement (6 weeks). In some cases the Board, with the cooperation of the applicants and the relevant persons, will be able to reduce this period.  This process was complete in respect of some applications during the month of April and so hearings and settlement discussions began. To date the Board has conducted 47 settlement negotiations and 13 hearings.


 


Summary


Refused            46


Settlements       47


Hearings           13


Total                106


 


 


Interim awards


 


Section 10(10) of the Residential Institutions Redress Act, 2002 provides that the Board may make an interim award if three conditions are satisfied, namely:


 


(1)        The Board has made a preliminary decision that the applicant is entitled to an award;


(2)        The Board is satisfied that it is probable that a final award equal to or greater than the amount of an interim award will be made, and


(3)        The Board is of opinion that having regard to the age or infirmity of the applicant, the making of an interim award is appropriate in the circumstances.


 


Without prejudice to the right of any applicant to apply or the Board to consider any other individual circumstances within the conditions outlined in the Act, the Board has decided that it will routinely consider whether it is appropriate to make an interim award if - 


 


(a)        The applicant was born before 1st January 1930,


 


OR


 


(b) The Board is satisfied on the basis of a written report from the applicant's regular medical practitioner that the applicant is suffering from -





  • A medical or psychiatric condition which is considered to be life-threatening, or


  • Early dementia or a dementia-like illness which will likely culminate in a reduction or loss of mental faculties in the short term which will potentially affect the applicant's ability to process his/her claim.

 


The Act further provides that an interim award shall not exceed €10,000, and that the amount of any interim award shall be deducted from the final award made by the Board.  To date the Board has awarded 12 interim payments.


 


Incomplete application forms.


 


The number of application forms received by the Board which lacked essential information has fallen. This has improved the number of applications clearing the first administrative hurdle. Pending the receipt of the missing information the application is allocated a reference number but is not further processed.  Applicants will speed up the process for themselves and others if the application form is fully completed before it is sent to the Board.


 


Hearing Arrangements


 


When an application is considered ready for hearing the Board will contact the applicant or his/her solicitor in writing. Applicants or their solicitors will normally receive 4 weeks notice of any hearing date. On arrival at our offices in Dublin, the applicant will be greeted at reception and shown to a waiting room where there is a phone for his/her personal use. Chilled water, tea, coffee and biscuits are available. The Board's premises are fully wheel chair accessible. If applicants so wish they will be shown the hearing room and any queries they may have will be answered by the Board's receptionist. For more details please refer to the guidelines on hearing procedures which are available on our website www.rirb.ie.  or from the Board's office.


 


Travel Expenses


 


In relation to attendance at hearings, the Board will pay all reasonable travelling expenses, a subsistence allowance and, if a person takes time off work to attend a hearing, his or her loss of wages, as follows:


 



  • Your travel expenses by train or bus between your home and the hearing venue.  More expensive methods of travel should be approved in advance.



  • The travel expenses of anyone who needs to come with you because you cannot travel alone or need their assistance or moral support at the hearing



  • The travel expenses of any person who is giving oral evidence on your behalf (provided we have agreed beforehand that they need to come to the hearing)



  • The wages or salary lost by you, a person giving you necessary assistance or your witness as a result of attending the hearing.  Lost wages or salary means the actual net loss after deductions for tax and social welfare, and should be set out in a letter from the employer of the person concerned.

  • Subsistence allowance if you are absent from home or otherwise stay at the hearing for more than five hours



  • The cost of a baby-sitter or carer actually incurred (if supported by a letter from the sitter/carer confirming the payment).

 


Unless agreed beforehand by the Board, we will not pay for the expense of a witness from outside the state.


 


All claims for travel expenses must be supported by receipts and tickets.  All expenses will be paid at the end of the process but if travelling expenses to the hearing are a problem an advance of your cost of travel can be applied for during the 4 weeks leading up to the hearing.


 


 


Medical Reports


 


Medical reports (from GPs, other doctors, psychiatrists) are of assistance to the Board in assessing an application, as are reports from counsellors and psychologists. These reports can be recent or date from the applicant's time in an institution or both if he/she wishes.


 


Below are the guidelines issued by the Board for the preparation of a medical report on a person applying for redress. It is hoped that these will be of assistance to applicants, lawyers and medical practitioners.


 


 


Guidelines for the preparation of medical report


on person applying for redress


 


The purpose of the medical report on a person applying for redress is to assist the Board in its task of determining the amount of redress payable with respect to the unique circumstances of the individual applicant, based on the effects on him or her of any physical abuse, sexual abuse, emotional abuse or neglect suffered while resident in an institution as a child under the age of 18.


 


The report should contain a history of the abuse forming the basis of the application and a description of the immediate and long-term effects of such abuse.  Where appropriate, the report should in particular describe:


 




  1. The nature, severity, treatment and prognosis of any psychiatric disorder;


  2. The nature, severity, treatment and prognosis of any personality disorder;


  3. The presence of any medical condition;


  4. The psychosocial consequences of the abuse;


  5. The general adaptation and global level of functioning of the applicant and


  6. The loss of opportunity resulting from any of the above or from lack of appropriate education.  

The report should also provide, where possible, a history of the pre-injury status of the applicant, and the impact of the abuse suffered by the applicant on his or her pre-existing condition.


 


The Board will need to be satisfied in respect of each of these matters that the 'injuries' arose from, or are consistent with the abuse suffered by the applicant.


The Board would also appreciate your opinion as to the relative severity of the applicant's injuries.


 


The report should also address the nature and extent of any treatment to date and where treatment is recommended an outline of such treatment and the expected duration of such treatment.


 


If appropriate, your opinion on the applicant's capacity to manage his or her funds would be appreciated.


 


For your further information, the full definitions of 'abuse' and 'injury' as set out in the Residential Institutions Redress Act, 2002 are outlined below. 


 


 


RESIDENTIAL INSTITUTIONS REDRESS ACT, 2002


 


 


Section 1.        


 


 


            In this Act, unless the context otherwise requires-


 


            'abuse', in relation to a child, means-


 


 


                                                           


(a)        the wilful, reckless or negligent infliction of physical injury on, or failure to prevent such injury to, the child,


 


(b)        the use of the child by a person for sexual arousal or sexual gratification of that person or another person,


 


(c)        failure to care for the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare, or


 


(d)        any other act or omission towards the child which results in serious impairment of the physical or mental health or development of the child or serious adverse effects on his or her behaviour or welfare,



 


'injury' includes physical or psychological injury and injury that has occurred in the past or currently exists……..


 


 



Additional Award on the Principle of Aggravated Damages


 


Regulation 4 of the Residential Institutions Redress Act 2002 (Section 17) Regulations 2002 provides that:


 


'In addition to the award made in accordance with Regulation 3 or 5, the Board … may make an additional award to an applicant on the same basis as an award of the High Court calculated by reference to the principles of aggravated damages where the Board … is satisfied that it is appropriate to do so having regard to the circumstances of abuse of the applicant, but such additional award shall not exceed 20 per cent of the award made in accordance with Regulation 3 or 5.'


 


Aggravated damages in the High Court


 


According to the Law Reform Commission (Consultation Paper on Aggravated, Exemplary and Restitutionary Damages 1998), aggravated damages are 'grounded in both the outrageous conduct of the defendant and the injury of the defendant'.  In Conway v. INTO (1991), Finlay CJ defined aggravated damages as compensatory damages which are increased by certain factors.  These include (a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, As in Todd v. Cinelli (March, 1999), where Kelly J made an additional award of £7,500 by way of aggravated damages in recognition of the added hurt or insult to the plaintiffs as a result of the defendant's conduct. and (b) conduct of the wrongdoer after the commission of the wrong, As in FW v. BBC (March 1999), where Barr J awarded aggravated damages of £15,000 in respect of professional misconduct on the part of a consultant psychologist who examined the plaintiff on behalf of the defendant… such as a refusal to apologise or to ameliorate the harm done …'.Finlay CJ made it clear that this enumeration was not to be regarded as comprehensive; other factors could also ground an award of aggravated damages.  He then explained that 'the circumstances which may properly form an aggravated feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who had been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant'.


 


The Board was advised by Senior Counsel that the application of these principles seldom leads to additional awards of damages.  For example, in Cooper v. O'Connell (1997), the Supreme Court refused to make an award of aggravated damages on the ground that, although the defendant had been 'seriously negligent', there had been no element of oppressiveness, arrogance or outrage in his conduct - nothing, in fact, to distinguish it from an ordinary case of professional negligence.


 


The Board has also noted that in its Report on Aggravated, Exemplary and Restitutionary Damages (L.R.C.60/2000), the Law Reform Commission recommended that 'aggravated damages should be defined as follows:


 


'Aggravated damages are damages to compensate a plaintiff for added hurt, distress or insult caused by the manner in which the defendant committed the wrong giving rise to the plaintiff's claim, or by the defendant's conduct subsequent to the wrong, including the conduct of legal proceedings.'


 


The Commission went on to recommend 'a policy of moderation' in the award of aggravated damages: 'We believe aggravated damages will only be appropriate where there has been reprehensible, high-handed behaviour on the part of the defendant and such damages should only be awarded in exceptional cases'.


 


Aggravated damages in their application to different torts


 


An important consideration in assessing the position of aggravated damages in the legal framework is whether the principles which apply to the awarding of such damages are objective or subjective in nature.


 


An objective rule would arise if the matters which give rise to the awarding of aggravated damages were capable of application across all torts. Under this approach the circumstances which would demand the awarding of aggravated damages in a defamation action would be the same as would apply in a civil action relating to rape.


 


A more subjective approach would recognize that damages for different torts, before the consideration as to whether aggravated damages should be awarded, should themselves reflect the inbuilt outrage of society in the nature of the wrong and in the actions of the perpetrator.   Under this approach the application of the principles laid down by the Supreme Court, in assessing whether aggravated damages should be awarded, would be applied in the context of the type of tort under consideration.


 


The subjective approach would appear to more accurately reflect the law at present. If it were otherwise certain outrageous actions such as indecent assaults would always fall within the definition of the reprehensible and high-handed behaviour' needed to justify aggravated damages and such damages would always be awarded.  This is clearly not the law at present.


 


The question of aggravated damages in the context of the redress scheme must be considered against that background.


 


Aggravated damages in the context of the redress scheme


 


Section 5(1) (a) of the Residential Institutions Redress Act, 2002 requires the Board 'to make awards in accordance with this Act which are fair and reasonable having regard to the unique circumstances of each applicant'.  Regulation 3 of the Residential Institutions Redress Act 2002 (Section 17) Regulations, 2002 further requires the Board, when making an award, to 'determine the weighting to be allocated to the applicant'.  This weighting is set out in Schedule 1 to the Regulations by reference to the 'constitutive elements of redress'.  Having determined the weighting to be allocated to the applicant, the Board must then 'make an award to that applicant which is within the limits of the amounts specified in … the Table' set out in Schedule 2 to the Regulations.


 


The 'constitutive elements of redress' consist of the severity of the abuse and the severity of the injury resulting from the abuse suffered by the applicant.  In the opinion of the Board, these elements must be taken into account in the application of the principle of aggravated damages in the context of the redress scheme in two respects.  First, the level of 'aggravation' which should attract an additional award must take into account that the very essence of the scheme is to provide redress for the serious hurt suffered by applicants who have been abused. The Board must also be conscious of the provisions of section 5(3) of the 2002 Act, namely, that 'when considering an application … the Board (a) shall not address any issue of fault or negligence arising out of evidence given in an application …, and (b) shall not make a finding of fact relating to fault or negligence …'.  In other words, the 'constitutive elements of redress' establish that the threshold from which the Board must consider whether an applicant has suffered additional hurt is a high one.  Secondly, factors which in other cases might be taken to justify an award of aggravated damages will normally have already been taken into account by the Board in its assessment of the severity of the abuse or of the injuries suffered by the applicant.  Accordingly, it is the view of the Board that additional awards on the basis of aggravated damages will only be made in exceptional circumstances.


 


In short, an additional award based on the principle of aggravated damages will only be made where the Board (without going into any question of fault on the part of any person or institution) is satisfied that the manner in which the applicant was abused was so oppressive or outrageous that an award based solely on the constitutive elements of redress does not represent an award which is fair and reasonable having regard to the unique circumstances of the applicant.


 


The Board retains the right to vary these arrangements in the light of any further discussions with the stakeholders and practical experience.


 


 


Sean O' Leary,


Chairman.


June 2003


 


 


 

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