RS v Criminal Injuries Compensation Authority

For claims under the Criminal Injuries Compensation Scheme, the occasion when a primary victim sustained injury is the event which inflicted the injury, ordinarily the commission of the crime. It does not include later consequences of that injury. The immediate aftermath limb is flexible in time and space and is not governed by a rigid one-hour rule. Its focus remains the secondary victim’s exposure to the overt consequences of the injury-causing event. Common-law psychiatric-injury cases may assist, but the Scheme’s ordinary wording controls.

The Criminal Injuries Compensation Authority appealed against a decision of the Upper Tribunal (Administrative Appeals Chamber), dated 14 June 2012. The Upper Tribunal had quashed the First-tier Tribunal’s dismissal of RS’s appeal against the rejection of his claim for compensation for psychiatric injury following the sexual assault of his wife.

The First-tier Tribunal had found that RS did not learn of the assault until several hours after it had ended. The Upper Tribunal held that the First-tier Tribunal had adopted an erroneous approach to the occasion on which the injury was sustained and to the meaning of immediate aftermath. The central issue was the proper construction and application of paragraph 9(b)(ii) of the Scheme.

Lord Justice Laws gave the leading judgment. Lord Justices Lewison and McFarlane agreed. The appeal was allowed.

1. The Upper Tribunal had adopted too broad an approach to the first limb of paragraph 9(b)(ii). The occasion when the primary victim sustained injury means the event which inflicted the injury, in effect the commission of the crime. It does not include later consequences of that event. This remains so where the primary victim suffers mental injury.
2. A series of events may amount to an occasion for the purposes of paragraph 9(b)(ii). However, a secondary victim must have witnessed and been present at the event when the injury was inflicted, or have been closely involved in that event’s immediate aftermath. The later development of injury, or a later consequence such as an epileptic fit or amputation, is not itself the relevant occasion. This conclusion was supported by AP v FTT and the CICA [2011] UKUT 368 and Taylor v A. Novo UK Limited [2013] EWCA Civ 194.
3. The concept of immediate aftermath is flexible. It is not confined to what occurs immediately upon termination of the physical acts and is not subject to a strict one-hour rule. The Upper Tribunal therefore erred in treating the First-tier Tribunal’s reasoning as necessarily vitiated by an error of law.
4. The court added that common-law tort authorities, including McLoughlin v O’Brien 1983 1 AC 410 and W v Essex County Council [2001] 2 AC 592, should be used cautiously. The decision maker must apply the ordinary meaning of the Scheme and focus on the secondary victim’s exposure to the overt consequences of the paragraph 8 event.
5. The First-tier Tribunal had also erred by relying on a police officer’s personal opinion when deciding when the attack ended and whether it continued. Those factual questions had to be reconsidered. The final order was: appeal allowed.

1. Court of Appeal (Civil Division) [2013] EWCA Civ 1040: allowed the Criminal Injuries Compensation Authority’s appeal. It held that the Upper Tribunal had adopted too broad an approach to paragraph 9(b)(ii) and had wrongly found an error of law concerning immediate aftermath.
2. Upper Tribunal (Administrative Appeals Chamber): on 14 June 2012, quashed the First-tier Tribunal’s determination and allowed the appeal to proceed on the basis that the First-tier Tribunal had misdirected itself on paragraph 9(b)(ii).
3. First-tier Tribunal: dismissed RS’s appeal against the Authority’s rejection of his compensation claim.