AP V FIRST TIER TRIBUNAL AND CICA [2011] UKUT 368
FACTS:-
The Applicant was a man aged 22. When he was aged 12, his father was attacked in the street and died. On 8 February 2010 he made a claim for criminal injuries compensation, contending that he had suffered mental disorder as a result of what had happened to his father. On the 4 April 2010, the CICA rejected the claim on the grounds (i) that the claim had not been received within 2 years from the date of the incident and (ii) that he did not fulfil the condition in paragraph 9(b) of the Criminal Injuries Compensation Scheme 2008 that he either witnessed and was present at the incident or was involved in its immediate aftermath. That decision was upheld on review. The Applicant appealed to the First Tier Tribunal and his appeal was allowed on the issue of the time limit. They then considered the substantive appeal on Paragraph 9(b) issue at a further hearing. They found that the Appellant was not involved in the immediate aftermath of the circumstances in which his father was injured. He had seen his father 3-4 hours after treatment when he was ready to be discharged from hospital. In addition, they found that the Appellant’s Borderline Personality Disorder was not caused by the circumstances in which his father died. His condition had been diagnosed 4 years after the incident. The Applicant then sought permission to apply for judicial review of that decision. The ground for his application was that he had given incorrect information to the First Tier Tribunal as to the sequence of events, because he was on “high medication”. By a decision made on 11 January 2011 on the papers Upper Tribunal Judge Wikeley refused permission. The Applicant exercised his right to have his application for permission reconsidered at an oral hearing. Following an oral hearing before Judge Turnbull granted that permission and the matter proceeded to judicial review before the same judge.
JUDGEMENT:-
Judge Turnbull considered paragraphs 6, 8 and 9 of the 2008 Scheme. Paragraph 9(b) stated that the victim must have:-
(b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury (including fatal injury) directly attributable to conduct within paragraph 8(a), (b) or (c), and
(i) that relationship still subsists (unless the victim has since died), and
(ii) the applicant either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath; or
The wording of para. 9(b)(ii) – “or was closely involved in its immediate aftermath” – was intended to reflect the test, stated by the House of Lords in McLoughlin v O’Brien [1983] 1 AC 410, for the recoverability by a “secondary victim” of damages in tort for psychiatric illness caused by injury to another. In this case, the police report dated 15 July 2002 (prepared in connection with a criminal injuries compensation claim made by the Applicant’s mother) which was in evidence before the First Tier Tribunal indicated that the attack on the deceased occurred at about 3.30 a.m. on 1 November 2001. He was taken by ambulance to hospital, where he received treatment, and was discharged home at about 10.30 am on 1 November. He spent most of that day in bed. At about 3 am on 2 November the deceased’s wife noticed that his breathing was laboured and he was taken to Newham General Hospital. He was later transferred to London Hospital and the existence of a large blood clot was confirmed. It was found to be inoperable. After lengthy observation and the administration of brain stem tests, life was pronounced extinct at 11.55 am on 2 November. The Applicant and his mother had seen the deceased when he was in hospital on 1 November. The Applicant appears to have told the First Tier Tribunal that he saw the deceased “3-4 hours after treatment when he was waiting to be discharged from hospital”. He was not discharged until some 7 hours after the attack.
The witness statements from members of the Applicant’s family which were before the First Tier Tribunal appeared also to indicate that the Applicant and his mother did not go to the hospital until after the Applicant had been treated and was waiting to be discharged. However, they did state that “when they went to the hospital to pick up [the deceased] he was in a very bad state with blood all over his clothes and [the Applicant] was very traumatised by seeing his father in that state”.
The witness statement of the Applicant’s mother had stated:
“After we got home [the deceased] was feeling very unwell saying his head is hurting him a lot. [The Applicant] took his father into his bedroom and gave him some water and food and sit near his father the deceased till he fall asleep after the deceased went to sleep the applicant was sitting near the deceased crying after the deceased went to sleep he never woke back up and the ambulance and police was called and me and the Applicant went with my husband to hospital when my husband was said to be dead all of this mentally traumatize the Applicant.”
Judge Turnbull said that the only basis on which he could interfere with the decision of the First Tier Tribunal by way of judicial review was if that decision was in some respect wrong in law. Having now had the opportunity to consider the law more fully Judge Turnbull was of the view that the Applicant could not bring himself within paragraph 9(b)(ii) of the Scheme. Firstly one had to read the words “witnessed and was present on the occasion when the other person sustained the injury” in paragraph 9(b)(ii) as referring, in a case of a physical attack such as occurred in the present case, to being present when the attack occurred. That was the natural meaning of those words, and that conclusion followed from the fact that the wording of paragraph 9(b)(ii) was intended to reflect the law as to the recoverability of damages in tort for psychiatric illness. The fact that the Applicant was present at the time when consequential and increasing damage to the deceased’s brain was occurring did not therefore mean that he “witnessed and was present on the occasion when [the deceased] sustained the injury”.
The words “or was closely involved in its immediate aftermath” qualified the words “the occasion when the other person sustained the injury.” It was the “immediate aftermath” of that occasion which the Applicant must have been closely involved in. It was appropriate, in answering that question, to regard cases decided by the courts in relation to tortious liability as directly applicable. The subsequent consequences were part of a sequence of events which culminated in the deceased’s death, but they were not in Judge Turnbull’s judgment sufficiently proximate in either time or nature to the initial injury to be capable of falling within the “immediate aftermath” principle. Judge Turnbull referred to the case of Taylorson v Shieldness Produce Ltd [1994] EWCA Civ 16.
Moreover it was not arguable that if the Applicant gave incorrect evidence as to the sequence of events, that resulted in the First-Tier Tribunal’s decision being wrong in law or otherwise open to challenge by way of judicial review.
The First Tier Tribunal had also found that the Applicant’s current mental health problems were due to a borderline personality disorder and not due to the circumstances in which his father died. In view of Judge Turnbull’s conclusion on the immediate aftermath point, it was not strictly necessary to consider this point. It was an additional point on which the First Tier Tribunal decided against the Applicant. However, Judge Turnbull accepted the CICA’s submission that the First Tier Tribunal was entitled to deal with it at the hearing on the evidence then before it. The psychiatric evidence did not actually link the Applicant’s current mental health problems to the loss of his father.
The application for judicial review would be dismissed.
FACTS:-
The Applicant was a man aged 22. When he was aged 12, his father was attacked in the street and died. On 8 February 2010 he made a claim for criminal injuries compensation, contending that he had suffered mental disorder as a result of what had happened to his father. On the 4 April 2010, the CICA rejected the claim on the grounds (i) that the claim had not been received within 2 years from the date of the incident and (ii) that he did not fulfil the condition in paragraph 9(b) of the Criminal Injuries Compensation Scheme 2008 that he either witnessed and was present at the incident or was involved in its immediate aftermath. That decision was upheld on review. The Applicant appealed to the First Tier Tribunal and his appeal was allowed on the issue of the time limit. They then considered the substantive appeal on Paragraph 9(b) issue at a further hearing. They found that the Appellant was not involved in the immediate aftermath of the circumstances in which his father was injured. He had seen his father 3-4 hours after treatment when he was ready to be discharged from hospital. In addition, they found that the Appellant’s Borderline Personality Disorder was not caused by the circumstances in which his father died. His condition had been diagnosed 4 years after the incident. The Applicant then sought permission to apply for judicial review of that decision. The ground for his application was that he had given incorrect information to the First Tier Tribunal as to the sequence of events, because he was on “high medication”. By a decision made on 11 January 2011 on the papers Upper Tribunal Judge Wikeley refused permission. The Applicant exercised his right to have his application for permission reconsidered at an oral hearing. Following an oral hearing before Judge Turnbull granted that permission and the matter proceeded to judicial review before the same judge.
JUDGEMENT:-
Judge Turnbull considered paragraphs 6, 8 and 9 of the 2008 Scheme. Paragraph 9(b) stated that the victim must have:-
(b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury (including fatal injury) directly attributable to conduct within paragraph 8(a), (b) or (c), and
(i) that relationship still subsists (unless the victim has since died), and
(ii) the applicant either witnessed and was present on the occasion when the other person sustained the injury, or was closely involved in its immediate aftermath; or
The wording of para. 9(b)(ii) – “or was closely involved in its immediate aftermath” – was intended to reflect the test, stated by the House of Lords in McLoughlin v O’Brien [1983] 1 AC 410, for the recoverability by a “secondary victim” of damages in tort for psychiatric illness caused by injury to another. In this case, the police report dated 15 July 2002 (prepared in connection with a criminal injuries compensation claim made by the Applicant’s mother) which was in evidence before the First Tier Tribunal indicated that the attack on the deceased occurred at about 3.30 a.m. on 1 November 2001. He was taken by ambulance to hospital, where he received treatment, and was discharged home at about 10.30 am on 1 November. He spent most of that day in bed. At about 3 am on 2 November the deceased’s wife noticed that his breathing was laboured and he was taken to Newham General Hospital. He was later transferred to London Hospital and the existence of a large blood clot was confirmed. It was found to be inoperable. After lengthy observation and the administration of brain stem tests, life was pronounced extinct at 11.55 am on 2 November. The Applicant and his mother had seen the deceased when he was in hospital on 1 November. The Applicant appears to have told the First Tier Tribunal that he saw the deceased “3-4 hours after treatment when he was waiting to be discharged from hospital”. He was not discharged until some 7 hours after the attack.
The witness statements from members of the Applicant’s family which were before the First Tier Tribunal appeared also to indicate that the Applicant and his mother did not go to the hospital until after the Applicant had been treated and was waiting to be discharged. However, they did state that “when they went to the hospital to pick up [the deceased] he was in a very bad state with blood all over his clothes and [the Applicant] was very traumatised by seeing his father in that state”.
The witness statement of the Applicant’s mother had stated:
“After we got home [the deceased] was feeling very unwell saying his head is hurting him a lot. [The Applicant] took his father into his bedroom and gave him some water and food and sit near his father the deceased till he fall asleep after the deceased went to sleep the applicant was sitting near the deceased crying after the deceased went to sleep he never woke back up and the ambulance and police was called and me and the Applicant went with my husband to hospital when my husband was said to be dead all of this mentally traumatize the Applicant.”
Judge Turnbull said that the only basis on which he could interfere with the decision of the First Tier Tribunal by way of judicial review was if that decision was in some respect wrong in law. Having now had the opportunity to consider the law more fully Judge Turnbull was of the view that the Applicant could not bring himself within paragraph 9(b)(ii) of the Scheme. Firstly one had to read the words “witnessed and was present on the occasion when the other person sustained the injury” in paragraph 9(b)(ii) as referring, in a case of a physical attack such as occurred in the present case, to being present when the attack occurred. That was the natural meaning of those words, and that conclusion followed from the fact that the wording of paragraph 9(b)(ii) was intended to reflect the law as to the recoverability of damages in tort for psychiatric illness. The fact that the Applicant was present at the time when consequential and increasing damage to the deceased’s brain was occurring did not therefore mean that he “witnessed and was present on the occasion when [the deceased] sustained the injury”.
The words “or was closely involved in its immediate aftermath” qualified the words “the occasion when the other person sustained the injury.” It was the “immediate aftermath” of that occasion which the Applicant must have been closely involved in. It was appropriate, in answering that question, to regard cases decided by the courts in relation to tortious liability as directly applicable. The subsequent consequences were part of a sequence of events which culminated in the deceased’s death, but they were not in Judge Turnbull’s judgment sufficiently proximate in either time or nature to the initial injury to be capable of falling within the “immediate aftermath” principle. Judge Turnbull referred to the case of Taylorson v Shieldness Produce Ltd [1994] EWCA Civ 16.
Moreover it was not arguable that if the Applicant gave incorrect evidence as to the sequence of events, that resulted in the First-Tier Tribunal’s decision being wrong in law or otherwise open to challenge by way of judicial review.
The First Tier Tribunal had also found that the Applicant’s current mental health problems were due to a borderline personality disorder and not due to the circumstances in which his father died. In view of Judge Turnbull’s conclusion on the immediate aftermath point, it was not strictly necessary to consider this point. It was an additional point on which the First Tier Tribunal decided against the Applicant. However, Judge Turnbull accepted the CICA’s submission that the First Tier Tribunal was entitled to deal with it at the hearing on the evidence then before it. The psychiatric evidence did not actually link the Applicant’s current mental health problems to the loss of his father.
The application for judicial review would be dismissed.