B e f o r e :
LORD JUSTICE LAWS LORD JUSTICE LEWISON and LORD JUSTICE MCFARLANE ____________________
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Mr Ben Collins (instructed by the Treasury Solicitor) appeared on behalf of the Applicant Miss Laura Begley (instructed by Neil Hudgell Solicitors) appeared on behalf of the Respondent ____________________
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Lord Justice Laws :
This is an appeal with permission granted by Arden LJ on 5 March 2013 against a decision of the Upper Tribunal (Administrative Appeals Chamber) (Walker J, UTJ Levenson and UTJ Bano), dated 14 June 2012, by which the Upper Tribunal quashed the determination of the First-tier Tribunal (the FTT). The FTT had dismissed the respondent's appeal against the rejection by the Criminal Injuries Compensation Authority of his claim for compensation for psychiatric injury, holding that the respondent was not eligible for an award under paragraph 9(b) of the Criminal Injuries Compensation Scheme. The Upper Tribunal reversed that decision.
The facts of the case are shortly described by the Upper Tribunal as follows, paragraph 2:
The FTT found in terms (paragraph 16(4)) that the first the respondent knew about the attack was when he arrived home at 4.40pm on the Monday after it had happened the Friday before. The respondent's claim for compensation was with respect to psychiatric injuries sustained in consequence of the events on 20 March 2009.
The scheme contains these relevant provisions:
Paragraph 9 excludes the payment of compensation in respect of "mental injury or disease without physical injury or in respect of a sexual offence", subject however to the exceptions set out in subparagraphs (a) to (d):
The CICA accept that on one point the Upper Tribunal were right to remit the case for further consideration by a different constitution of the FTT. This concerns the Upper Tribunal's conclusion that the FTT wrongly based a finding as to when the attack on the respondent's wife ended upon a subjective opinion of a police officer who gave evidence. At paragraphs 17 and 18 the FTT had said this:
The Upper Tribunal attached much importance to this aspect. I take one short extract from paragraph 25 of their determination:
The CICA accept the Upper Tribunal's strictures on this point, which are in their totality set out in an extended passage from paragraphs 22-25. They ask therefore that the matter go back on the footing that it is possible that a differently constituted FTT might arrive at a different conclusion as to the scope of the attack. The concern of the CICA on this appeal is with the proper test to be applied to the facts when the case is remitted in due course under paragraph 9(b)(ii) of the scheme. I turn to that issue.
At paragraph 12 the Upper Tribunal held that the task of the FTT, in a case involving mental injury which engaged paragraph 9(b) of the scheme, involves four stages. The first of these stages is in my judgment critical to the resolution of this appeal, and I will set it out but for the last sentence:
The Upper Tribunal held that the First-tier Tribunal had not addressed these questions and, in particular (para 15), had not properly addressed the first limb of 9(b)ii: had the respondent witnessed and been present at the occasion when his wife sustained injury? They held also that the FTT had erred in relation to the second limb, "immediate aftermath". As Ms Begley has submitted this morning, this is a flexible idea (see McLoughlin v O'Brien 1983 1 AC 410 ). It may not be confined to what happens "immediately" upon the termination of the relevant physical acts (see W v Essex County Council [2001] 2 AC 592 per Lord Slynn at 601 and see also Galli-Atkinson v Sehgal [2003] EWCA Civ 697 . The FTT, it was said, had not confronted these factors.
The first argument advanced by Mr Collins for the CICA is that the Upper Tribunal's approach to 9(b)(ii), unlike that of the FTT, confused two distinct concepts which the scheme requires should be kept separate: (1) the occasion on which the primary victim sustained the relevant injury; and (2) the consequences of that injury. 9(b)(ii), it is submitted, is only satisfied if the secondary victim was present at and witnessed the first of these, the occasion on which the injury was sustained, or else was "closely involved" in that occasion's immediate aftermath." But the Upper Tribunal, in articulating stage 1 of the approach to be adopted in a 9(b)(ii) case, conflated the occasion of the injury with its consequences, not least in the formulation which I have read, Upper Tribunal paragraph 12(1):
In my judgment this point is well taken. Although, as the CICA accept, a series of events may amount to an "occasion" within 9(b)(ii) (compare North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 ), the expression in 9(b)(ii) "witnessed and was present on which the occasion when the other person sustained the injury", must in my judgment refer to the event which constituted the infliction of the injury, in effect the commission of the crime. I accept of course (and this was much emphasised by Miss Begley this morning) that the primary victim may only have suffered mental injury. In that case, if there is a secondary victim it must be on the footing that he or she witnessed and was present at the occasion when that injury was inflicted. In this case too that will refer to the commission of the crime (see paragraph 8(a)). Later consequences of the event when the injury was inflicted are not the occasion on which it was inflicted. The secondary victim is to be compensated if and only if he too suffers injury because of his presence at that event or his involvement in its immediate aftermath. If the "occasion" in question is extended to later consequences, the application of the term "immediate aftermath" becomes strained and artificial, and the scope of the scheme as it applies to secondary victims becomes much broader and more uncertain than is suggested by the plain words "witnessed and was present on the occasion". Thus, to take examples discussed by both parties (see Mr Collins' skeleton, paragraph 28; Miss Begley's skeleton, paragraph 7), where the primary victim suffers an epileptic fit after a head injury sustained in an assault a putative secondary victim could not claim compensation for witnessing the fit, nor for being present at the amputation of a limb in a case where the primary victim had suffered a gunshot wound.
This approach is in my judgment supported by the reasoning of the Upper Tribunal in the earlier case of AP v FTT and the CICA [2011] UKUT 368 :
This interpretation of 9(b)(ii) is also, I think, supported by the decision of this court in Taylor v A. Novo UK Limited [2013] EWCA Civ 194 despite Miss Begley's reservations as to that case. This was a case in which the primary victim had sustained in an accident at work. Some three weeks later she collapsed and died as a result of a deep vein thrombosis and pulmonary embolism caused by the injuries sustained in the accident. The court held that her daughter, who witnessed the death but not the accident, could not claim as a secondary victim. For these reasons it seems to me that the Upper Tribunal adopted too broad an approach to the first limb of paragraph 9(b)(ii). I would allow the appeal of the CICA on this ground.
As I said, the Upper Tribunal also held (paragraphs 16 and following) that the FTT had fallen into error in relation to the second limb of 9(b)(ii), "immediate aftermath". The FTT's reasoning is at paragraphs 20-21:
However that may be, the Upper Tribunal seems to have concluded that the FTT erred in principle in relation to immediate aftermath. They held in essence that the FTT had adopted too rigid an approach. They noted that the FTT in paragraph 20 had quoted part only of the Padley & Begley textbook. The full passage is set out by the Upper Tribunal at paragraph 16 as follows:
The Upper Tribunal also cited W v Essex County Council [2001] 2 AC 592 . I have also referred in passing to the passage from Lord Slynn's speech at page 601. With great respect, I will not read it out here. It is to be found at paragraph 18 of the Upper Tribunal's decision. If I may so, I have no quarrel with the Upper Tribunal's general approach to the law relating to immediate aftermath, but I am not persuaded that they were right to castigate the FTT's approach to this part of the case as vitiated by an error of law. In my judgment the FTT did not adopt a rigid rule, as would arise if the view were taken that the immediate aftermath was strictly limited to one hour following the triggering event. I would therefore allow this appeal also on the ground that the Upper Tribunal wrongly held that the FTT erred in law in relation to the second limb of para 9(b)(ii).
But since the case is anyway being remitted, I may perhaps make two observations. First, though of course Lord Slynn referred in W to McLoughlin v O'Brien , I consider with respect that some caution needs to be exercised in drawing assistance from the common law cases in tort in relation to immediate aftermath. It is important that the decision maker should not be distracted from applying the ordinary meaning of the scheme's words. Second, as to that, while I accept that immediate aftermath may allow a degree of temporal and spatial flexibility, the focus of the provision is upon the secondary victim's exposure to the overt consequences of the paragraph 8 event, and in the nature of things these are likely to follow the event more or less immediately.
For those reasons I would, for my part, allow the appeal. If my Lords agree, we will hear counsel as to the appropriate orders to be made.
Lord Justice Lewison:
I agree.
Lord Justice McFarlane :
I also agree.
Order : Appeal allowed