Court of Appeal decides on whether genetic disorder is an "injury"

The Court of Appeal has now handed down judgment in Criminal Injuries Compensation Authority v First Tier Tribunal and Y [2017] EWCA Civ 139.

Y's mother was abused by her own father, who later pleaded guilty to charges of incest. DNA tests showed that Y’s grandfather was in fact also his father. Y’s mother had been awarded compensation from the CICA in her own right in respect of the assaults on her by her father. Y was born with a genetic disorder as a result of his parents' consanguineous relationship.

​Medical evidence shows that there is a 50% chance of such problems appearing in those who were born of an incestuous relationship, compared with a 2% or 3% chance in the general population. Y brought a claim to the CICA, which was refused because the CICA decided that Y's disorder was not a "personal injury" for the purposes of their 2008 Scheme. The First Tier Tribunal upheld that decision. However, in April 2016, Judge Levenson in the Upper Tier Tribunal decided that Y's disorder was a "personal injury" within the terms of the CICA Scheme. The CICA appealed to the Court of Appeal. 

Sadly the CICA's appeal has been granted. The Court of Appeal decided that Y had not suffered an injury under the CICA 2008 Scheme and consequently, he could not recover compensation. 

Lord Justice Leveson said:-
"For my part, I would construe the 2008 Scheme to mean that the victim of the crime of violence in this case could only be M (with the result that she was entitled to receive compensation for the personal consequences to her of her father’s actions).  To suggest that Y, who had not been conceived at the time of the crime, was himself a victim of crime (the nature of the crime involved being difficult to discern) or that it is possible to assess compensation on the postulate that Y would otherwise have been born without disability and so should be compensated for the genetic disorder from which he suffers is to go beyond that which the Scheme was seeking to cover.  That M (and mothers in her position) should receive compensation to reflect the undeniable difficulties which she has experienced and continues to experience in carrying the responsibility for caring for a disabled child born as a result of the sexual crime of violence committed against her is another matter and one that should be addressed by the Secretary of State: for my part, it is difficult to see why, as a matter of fairness, the common law approach adopted in such cases as Parkinson v St James and Seacroft University Hospital NHS Trust should not be incorporated into the Scheme."

Malcolm Johnson of BL Claims, the solicitor advocate who represented Y before the Court of Appeal said that this was a bitter result for Y and his mother, who had fought so long and hard for compensation. 

However, the Court of Appeal said that the CICA Scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime.

Lord Justice Leveson also said in his judgment:-
"I cannot leave this case without again repeating my profound sympathy for M and the difficulties that Y experiences.  That cannot, however, blind me to what I consider as the only proper construction of the 2008 Scheme.  In the circumstances, I would allow the appeal and restore the order of the FTT."  

Mr Justice McFarlane in the Court of Appeal also said:-
"The courts are, sadly, familiar with cases in which both the physical and long-term emotional impact of child sexual abuse are all too plain to see……….Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect."