Garg, R (on the application of) v Criminal Injuries Compensation Authority

In judicial review of a compensation assessment, the decision must be examined by reference to the material available to the panel. Later evidence cannot ordinarily be used to recast the original assessment. An inference about likely earnings is not irrational merely because further evidence might support a higher award. A panel may assess a claimant’s personal retirement date by reference to individual employment prospects rather than an assumed general retirement age. Even where an error of law may have occurred, relief can be refused on discretionary grounds where the error caused no real injustice and would not materially have affected the award.

The appellant, Dr Garg, sought judicial review of a 2004 assessment by the Criminal Injuries Compensation Authority under the Criminal Injuries Compensation Scheme of 1990. The assessment followed serious injuries suffered in a 1992 attack at hospital and included compensation for earnings and pension loss. Culvert-Smith J refused a renewed application for judicial review on 18 May 2006.

On appeal, the issues concerned the evidential foundation of the earnings assessment, the assumed retirement age used in calculating future loss, and the treatment of the pension scheme. Permission to appeal was granted only on the pension issue, with the other grounds considered as applications for permission.

1. Disposition. The court granted an extension of time, refused permission on all aspects of grounds 1 and 2, and dismissed the appeal on ground 3.
2. The assessment under the 1990 Scheme had to be made on the information before the Authority’s panel. Material assembled after the hearing could not be relied upon to establish that the original assessment was unlawful. In the absence of contrary information, the panel was entitled to infer that Dr Garg’s locum earnings would have been at the lowest consultant level. That conclusion was neither without evidential foundation nor perverse.
3. The panel’s conclusion that Dr Garg would have retired at 60 concerned his personal prospects. It was based on his disadvantage in the medical labour market, his qualifications and the likely difficulty of obtaining locum work with age. The panel had not thereby assumed that 60 was the normal retirement age for doctors. The availability of deferred pension at age 60 did not establish such an assumption.
4. The court could consider a later explanatory letter from the panel where it merely expanded the reasons given in the original decision and introduced no new reason. In any event, the original decision remained lawful and was far from perverse.
5. The panel may have approached the pension calculation as though later contributions had a diminishing effect on a contributory scheme, although the scheme was a final salary scheme. The relevant pension regulations had not been placed before the panel. A rough calculation showed that correcting the possible error would have produced an award only slightly higher than that made. Even if there had been an error of law, the court would refuse judicial review on discretionary grounds because it had caused no real injustice.

• Court of Appeal (Civil Division): on 5 July 2007, granted an extension of time, refused permission on grounds 1 and 2, and dismissed the appeal on the pension-loss ground. [2007] EWCA Civ 797
• High Court, Administrative Court, Queen’s Bench Division: Culvert-Smith J refused the renewed application for judicial review on 18 May 2006.
• Earlier procedural history: permission applications were refused by Sullivan J and Ouseley J; the latter decision was set aside because Dr Garg had not been informed of the hearing date.