PD v FIRST-TIER TRIBUNAL [2013] UKUT 371
Child abuse website – CICA – Continuing significant disability
FACTS:-
The Claimant applied to quash the decision of the First-tier Tribunal dismissing his appeal against a decision to award him £4,400.00 as a final payment of compensation under the Criminal Injuries Compensation Scheme 2008 in respect of a fracture of his left wrist. The award was made on the basis that there had been a ‘substantial recovery’ from the injury, but the claimant contends that he should have been awarded £8,200.00 because he still had a ‘continuing significant disability’. The Claimant also contended that he should have received a tariff award of £1000.00 for multiple minor injuries.
JUDGEMENT:-
Judge Bano went over the facts of the case and the history of the application. The Claimant had relied upon a transcript of the unreported judgment of Munby J. (as he then was) in R v CICAP and CICA ex parte Embling, (CO/3697/99), decided in the Divisional Court on 30 June 2000 and orthopaedic evidence to the effect that there was likely to be a continuing disability of swelling and stiffness and limitation of movements in the left hand. The First tier Tribunal decided that whilst the Claimant did have some difficulties with his wrist, he was satisfied that he exaggerated them to an extent and that he had a good grip with his left hand.
Another judge had expressed views in relation to an application for an interim payment, which supported the Claimant’s case. The Claimant contended that the tribunal which made the final award was bound by the views of the judge who made the interim award. Bano J said that the decision made on an interim award did not form part of the decision making process leading to a final award and, as the judge made clear, his view was not intended to bind the tribunal which ultimately determined the appeal.
Bano J said that the phrase “full recovery” was to be construed by reference to the alternative “continuing disability” and, vice versa. So, “full recovery” meant full recovery from what would otherwise be “continuing disability”. Conversely, “continuing disability” meant a continuing disability which precluded “full recovery”. Secondly, if at all possible one should give both to the phrase” full recovery” and to the phrase “continuing disability” such meaning as would have the effect that (a) if a particular state of affairs “X” fell outside the meaning of the words ”full recovery”, it could nevertheless sensibly be described as falling within the words “continuing disability”, (b) conversely, if a particular state of affairs fell outside the meaning of the words “continuing disability, it could nevertheless sensibly be described as falling within the words “full recovery”, and so on for all possible conditions “X”, “Y”, “Z” etc.
“Continuing disability”” had to be contrasted not with “recovery” but with “full recovery”. That carries with it the corollary that to the extent that something more had to be shown if the case was properly to be described as one of “full recovery” rather than “recovery”, so correspondingly, the alternative category of continuing disability had a wider ambit when contrasted with “full recovery” than would be the case if it were merely contrasted with “recovery”. As against that, the phrase “full recovery” had to be contrasted not with “disability”, but with “continuing disability”. That carried with it the corollary that for this purpose the case could properly be treated as one of “full recovery” if the “disability” was merely temporary or short term.”
Applying that analysis to the descriptors in this case, the descriptor ‘substantial recovery’ must be read as meaning substantial recovery from what would otherwise be continuing significant disability, so that the existence of a significant continuing disability would preclude a finding that a Claimant had made what would otherwise be regarded as a substantial recovery. In deciding what constituted disability for these purposes, the case of Embling also gave valuable guidance on the nature of the disability which was to be taken into account. In that case, Munby J. held:
“42. In my judgement, the phrases “full recovery” and “continuing disability” relate to the relevant limb or organ and not to the claimant. They are to be understood as carrying their ordinary dictionary meanings. Proper emphasis is to be given to the word “full” in the phrase “full recovery”, and to the word “continuing” in the phrase “continuing disability”. Where there is observable and measurable loss of function or faculty which can sensibly be described as continuing, rather than merely temporary or short-term, and such that the ordinary person adopting a sensible view of life would not be prepared to agree that there has been “full recovery”, the case will properly be one of “continuing disability”.
The types of disability which resulted from a Colles fracture included pain and stiffness and limitation of wrist movement. The tribunal made no reference whatever to the medical evidence and they assessed the significance of the disability almost entirely by reference to the continuing impact of the injury on the Claimant’s daily life. The tribunal failed to consider, in the light of all the evidence, whether there was any continuing observable or measurable loss of function in the Claimant’s wrist which could properly and sensibly be described as ‘significant’, and for that reason their decision was in error of law.
Bano J would remit the appeal to the First-tier Tribunal for complete redetermination by a fresh tribunal.
Child abuse website – CICA – Continuing significant disability
FACTS:-
The Claimant applied to quash the decision of the First-tier Tribunal dismissing his appeal against a decision to award him £4,400.00 as a final payment of compensation under the Criminal Injuries Compensation Scheme 2008 in respect of a fracture of his left wrist. The award was made on the basis that there had been a ‘substantial recovery’ from the injury, but the claimant contends that he should have been awarded £8,200.00 because he still had a ‘continuing significant disability’. The Claimant also contended that he should have received a tariff award of £1000.00 for multiple minor injuries.
JUDGEMENT:-
Judge Bano went over the facts of the case and the history of the application. The Claimant had relied upon a transcript of the unreported judgment of Munby J. (as he then was) in R v CICAP and CICA ex parte Embling, (CO/3697/99), decided in the Divisional Court on 30 June 2000 and orthopaedic evidence to the effect that there was likely to be a continuing disability of swelling and stiffness and limitation of movements in the left hand. The First tier Tribunal decided that whilst the Claimant did have some difficulties with his wrist, he was satisfied that he exaggerated them to an extent and that he had a good grip with his left hand.
Another judge had expressed views in relation to an application for an interim payment, which supported the Claimant’s case. The Claimant contended that the tribunal which made the final award was bound by the views of the judge who made the interim award. Bano J said that the decision made on an interim award did not form part of the decision making process leading to a final award and, as the judge made clear, his view was not intended to bind the tribunal which ultimately determined the appeal.
Bano J said that the phrase “full recovery” was to be construed by reference to the alternative “continuing disability” and, vice versa. So, “full recovery” meant full recovery from what would otherwise be “continuing disability”. Conversely, “continuing disability” meant a continuing disability which precluded “full recovery”. Secondly, if at all possible one should give both to the phrase” full recovery” and to the phrase “continuing disability” such meaning as would have the effect that (a) if a particular state of affairs “X” fell outside the meaning of the words ”full recovery”, it could nevertheless sensibly be described as falling within the words “continuing disability”, (b) conversely, if a particular state of affairs fell outside the meaning of the words “continuing disability, it could nevertheless sensibly be described as falling within the words “full recovery”, and so on for all possible conditions “X”, “Y”, “Z” etc.
“Continuing disability”” had to be contrasted not with “recovery” but with “full recovery”. That carries with it the corollary that to the extent that something more had to be shown if the case was properly to be described as one of “full recovery” rather than “recovery”, so correspondingly, the alternative category of continuing disability had a wider ambit when contrasted with “full recovery” than would be the case if it were merely contrasted with “recovery”. As against that, the phrase “full recovery” had to be contrasted not with “disability”, but with “continuing disability”. That carried with it the corollary that for this purpose the case could properly be treated as one of “full recovery” if the “disability” was merely temporary or short term.”
Applying that analysis to the descriptors in this case, the descriptor ‘substantial recovery’ must be read as meaning substantial recovery from what would otherwise be continuing significant disability, so that the existence of a significant continuing disability would preclude a finding that a Claimant had made what would otherwise be regarded as a substantial recovery. In deciding what constituted disability for these purposes, the case of Embling also gave valuable guidance on the nature of the disability which was to be taken into account. In that case, Munby J. held:
“42. In my judgement, the phrases “full recovery” and “continuing disability” relate to the relevant limb or organ and not to the claimant. They are to be understood as carrying their ordinary dictionary meanings. Proper emphasis is to be given to the word “full” in the phrase “full recovery”, and to the word “continuing” in the phrase “continuing disability”. Where there is observable and measurable loss of function or faculty which can sensibly be described as continuing, rather than merely temporary or short-term, and such that the ordinary person adopting a sensible view of life would not be prepared to agree that there has been “full recovery”, the case will properly be one of “continuing disability”.
The types of disability which resulted from a Colles fracture included pain and stiffness and limitation of wrist movement. The tribunal made no reference whatever to the medical evidence and they assessed the significance of the disability almost entirely by reference to the continuing impact of the injury on the Claimant’s daily life. The tribunal failed to consider, in the light of all the evidence, whether there was any continuing observable or measurable loss of function in the Claimant’s wrist which could properly and sensibly be described as ‘significant’, and for that reason their decision was in error of law.
Bano J would remit the appeal to the First-tier Tribunal for complete redetermination by a fresh tribunal.