COLEFAX V FIRST TIER TRIBUNAL [2014] EWCA Civ 945
Child Abuse Compensation Claims – Time Limit
FACTS:-
The Applicant was the victim of a violent assault by two men on about 21st May 2007. They smacked his head against a brick wall, causing loss of consciousness, multiple fractures of his jaw, and a wound over his right eye. He had surgery to repair his jaw later that month, including the insertion of plates and pins, causing him to lose a number of teeth. In December 2007, the Applicant suffered an epileptic seizure. A second seizure occurred in July 2008, and thereafter his seizures have continued with increasing frequency. It was only in September 2009 that the Applicant was diagnosed by a neurologist as suffering from post-traumatic epilepsy caused by the violent attack in May 2007. Thereafter, he made his application for compensation under the Scheme on 26th November 2009, in relation both to his physical and mental injuries.
His application was rejected by the CICA as being out of time, as was his appeal to the First Tier Tribunal. He obtained permission for judicial review, but his application to the Upper Tribunal was dismissed. He appealed to the Court of Appeal.
JUDGMENT:-
Lord Justice Briggs said that paragraph 18 of the Criminal Injuries Compensation Scheme 2008 provided a two-year time limit (from the date of the relevant incident) for the making of a written application for compensation. However the paragraph provided for a waiver:
"A claims officer may waive this time limit only where he or she considers that:
(a) It is practicable for the application to be considered; and
(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period."
The issue was whether if the victim of a violent crime suffered immediate consequential injury ("injury A"), but also suffered some different injury ("injury B") which was only diagnosed as having been caused by the violent crime after the expiry of the two-year period, then was the condition in paragraph 18(b) capable of being satisfied by reference to an application which included or was limited to compensation for injury B?
Alternatively did the condition have to be satisfied by the Applicant showing that it would not have been reasonable to expect him to have made, within the two-year period, an application for compensation in relation only to injury A, which he knew from the outset had been caused by the violent crime?
Briggs LJ said that the Scheme was to be interpreted, at least as a starting point, by reference to the ordinary meaning of the words used, without being distracted by an inappropriate endeavour to fit the statutory scheme within the confines of some analogous legal context, either at common law or (as in this case) under the Limitation Acts. Briggs LJ referred to the following cases:-
Under the heading 'Re-opening of cases', paragraphs 56 and 57 of the 2008 Scheme enabled a claims officer to re-open a case, where there had been such a material change in the victim's medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim had since died in consequence of the injury.
The power to re-open cases in paragraphs 56 and 57 would (subject to its limited availability after two years) readily accommodate the late manifestation of a new type of injury. However it was not clear that it would accommodate the late diagnosis of the requisite causal link between the crime and a medical condition which had not first appeared, or deteriorated, since the making of the claims officer's decision.
The phrase at the beginning of paragraph 18 "an application for compensation under this Scheme in respect of a criminal injury" meant an application for compensation in respect of one or more personal injuries, rather than an application in relation to a specific personal injury. Thus it followed that the expression in paragraph 18(b) "an application" meant an application for compensation in respect of one or more personal injuries.
The correct question was not merely whether the Applicant reasonably could have made an application in time, but whether, in his particular circumstances, he both could and should have done so. The re-definition of the form of abuse of process constituted by bringing a second claim for relief which could and should have been sought in an earlier claim, in Johnson v Gore Wood [2002] 2 AC 1, afforded an illuminating and persuasive analogy.
The result of that analysis was that it was open to an Applicant seeking a waiver in respect of a late claim under paragraph 18 to show that, even if he had suffered some immediately apparent relatively minor injury, it was reasonable for him, in his particular circumstances, not to make it the subject of a compensation claim, even if another person in the same circumstances might reasonably have done so.
The appeal should be dismissed.
Lady Justices Black and Arden agreed.
Child Abuse Compensation Claims – Time Limit
FACTS:-
The Applicant was the victim of a violent assault by two men on about 21st May 2007. They smacked his head against a brick wall, causing loss of consciousness, multiple fractures of his jaw, and a wound over his right eye. He had surgery to repair his jaw later that month, including the insertion of plates and pins, causing him to lose a number of teeth. In December 2007, the Applicant suffered an epileptic seizure. A second seizure occurred in July 2008, and thereafter his seizures have continued with increasing frequency. It was only in September 2009 that the Applicant was diagnosed by a neurologist as suffering from post-traumatic epilepsy caused by the violent attack in May 2007. Thereafter, he made his application for compensation under the Scheme on 26th November 2009, in relation both to his physical and mental injuries.
His application was rejected by the CICA as being out of time, as was his appeal to the First Tier Tribunal. He obtained permission for judicial review, but his application to the Upper Tribunal was dismissed. He appealed to the Court of Appeal.
JUDGMENT:-
Lord Justice Briggs said that paragraph 18 of the Criminal Injuries Compensation Scheme 2008 provided a two-year time limit (from the date of the relevant incident) for the making of a written application for compensation. However the paragraph provided for a waiver:
"A claims officer may waive this time limit only where he or she considers that:
(a) It is practicable for the application to be considered; and
(b) In the particular circumstances of the case, it would not have been reasonable to expect the applicant to have made an application within the two-year period."
The issue was whether if the victim of a violent crime suffered immediate consequential injury ("injury A"), but also suffered some different injury ("injury B") which was only diagnosed as having been caused by the violent crime after the expiry of the two-year period, then was the condition in paragraph 18(b) capable of being satisfied by reference to an application which included or was limited to compensation for injury B?
Alternatively did the condition have to be satisfied by the Applicant showing that it would not have been reasonable to expect him to have made, within the two-year period, an application for compensation in relation only to injury A, which he knew from the outset had been caused by the violent crime?
Briggs LJ said that the Scheme was to be interpreted, at least as a starting point, by reference to the ordinary meaning of the words used, without being distracted by an inappropriate endeavour to fit the statutory scheme within the confines of some analogous legal context, either at common law or (as in this case) under the Limitation Acts. Briggs LJ referred to the following cases:-
- S v First Tier Tribunal [2014] 1 WLR 1313
- Rust-Andrews v First Tier Tribunal [2011] EWCA Civ 1548
Under the heading 'Re-opening of cases', paragraphs 56 and 57 of the 2008 Scheme enabled a claims officer to re-open a case, where there had been such a material change in the victim's medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim had since died in consequence of the injury.
The power to re-open cases in paragraphs 56 and 57 would (subject to its limited availability after two years) readily accommodate the late manifestation of a new type of injury. However it was not clear that it would accommodate the late diagnosis of the requisite causal link between the crime and a medical condition which had not first appeared, or deteriorated, since the making of the claims officer's decision.
The phrase at the beginning of paragraph 18 "an application for compensation under this Scheme in respect of a criminal injury" meant an application for compensation in respect of one or more personal injuries, rather than an application in relation to a specific personal injury. Thus it followed that the expression in paragraph 18(b) "an application" meant an application for compensation in respect of one or more personal injuries.
The correct question was not merely whether the Applicant reasonably could have made an application in time, but whether, in his particular circumstances, he both could and should have done so. The re-definition of the form of abuse of process constituted by bringing a second claim for relief which could and should have been sought in an earlier claim, in Johnson v Gore Wood [2002] 2 AC 1, afforded an illuminating and persuasive analogy.
The result of that analysis was that it was open to an Applicant seeking a waiver in respect of a late claim under paragraph 18 to show that, even if he had suffered some immediately apparent relatively minor injury, it was reasonable for him, in his particular circumstances, not to make it the subject of a compensation claim, even if another person in the same circumstances might reasonably have done so.
The appeal should be dismissed.
Lady Justices Black and Arden agreed.