Case No: C3/2012/2476 

Neutral Citation Number: [2013] EWCA Civ 1040
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
[APPEAL No: JR/1043/2011]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 13 June 2013

Before:

LORD JUSTICE LAWS
LORD JUSTICE LEWISON
and
LORD JUSTICE MCFARLANE

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Between:

	RS	Respondent	
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CRIMINAL INJURIES COMPENSATION AUTHORITY	

Applicant	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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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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Judgment
Lord Justice Laws:

1.	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. 

2.	The facts of the case are shortly described by the Upper Tribunal as follows, paragraph 2:
“We shall call the applicant and his wife Mr and Mrs S.  On Friday 20 March 2009 Mrs S was the victim of a sexual assault at knifepoint by a man who lived next door to her and who, unbeknown to Mr and Mrs S, was a convicted murderer.  The attack, which later resulted in the assailant being convicted of rape and sentenced to life imprisonment, began when the assailant entered Mr and Mrs S’s house at about 9.15am.  The assailant remained in the house until some time after their 19-year-old son (whom we shall call ‘K’) arrived home at about 1.15pm.  Mr S himself arrived home at about 4.35pm.  His evidence was that he and Mrs S spent what he described what he described as a ‘horrendous’ weekend during which Mrs S was indifferent and hostile towards him, and she did not in fact tell Mr S what had happened until the following Monday, after he had coincidentally met and spoken to his wife’s attacker on his way home from work.  Mrs S’s evidence was that during the weekend the assailant sent her a number of text messages indirectly referring to the attack.”

3.	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.  

4.	The scheme contains these relevant provisions:

“8. For the purposes of this Scheme, ‘criminal injury’ means one or more personal injuries as described in paragraph 9, being an injury sustained in and directly attributable to an act occurring in Great Britain…which is: 
(a) a crime of violence (including arson, fire-raising or an act of poisoning); or 
(b) an offence of trespass on a railway; or 
(c) the apprehension or attempted apprehension of an offender…”

5.	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):
“9. For the purposes of this Scheme, personal injury includes physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is to say a medically recognised illness or condition).  Mental injury or disease may either result directly from the physical injury or a sexual offence or may occur without any physical injury.  Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:

(a) was put in reasonable fear of immediate physical harm to his or her own person; or 

(b) had a close relationship of love and affection with another person at the time when that person sustained physical and/or mental injury (including fatal injury) directly attributable to conduct within paragraph 8(a) (b) or (c), and:

(i) that relationship still subsists, unless the victim has since died,

(ii) the applicant either witnessed and was present on the occasion    when the other person sustained the injury, or was closely involved in its immediate aftermath....”

6.	The only issue in the present case was whether the respondent satisfied the condition prescribed at 9(b)(ii).  Did he witness or was he present when his wife sustained the injury inflicted on her by the sexual assault or was he closely involved in its immediate aftermath?  The conclusions of the FTT are fairly summarised in Mr Collins’ skeleton argument for the appellant at paragraph 18 as follows:

“(i) The attack ended when RS’s son arrived home at around 1.15 pm, around three hours before RS arrived home.

(ii) Given that those three hours had elapsed, it could not be said that RS was closely involved in the immediate aftermath of the attack.

(iii) RS was involved in the consequences of the attack, but the Scheme refers to the occasion on which the other person sustained the injury, and not the events which might follow an incident.

(iv) The requirements of paragraph 9 were accordingly not met.”  

7.	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:

“17. The Tribunal accepted the Police Officer’s opinion in respect of the timing of K’s arrival.  The Tribunal noted that the Police Officer stated that at the subsequent Crown Court trial [K] was a compelling witness and she thought his timings were accurate. 

18.  The Tribunal also accepted the Police Officer’s evidence that the attack ended when [K] arrived home and that subsequent texts could not be seen as a continuation of it.  No threatening texts had been found.”

8.	The Upper Tribunal attached much importance to this aspect.  I take one short extract from paragraph 25 of their determination: 

“By stating that it accepted the officer’s opinion as to when K arrived home, and the officer’s evidence as to whether ‘the attack’ continued after that time, the tribunal appears to have misconceived -- and perhaps abrogated -- its duty.  Acceptance of what the officer had said in both these respects involves having regard to the officer’s personal opinion.  That opinion was irrelevant to the functions that the tribunal needed to perform.”

9.	 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.

10.	 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:

“(1) The first stage is to make findings of fact as to what physical and mental injury or injuries were sustained by the primary victim, as to how they were sustained, and as to the period during which they were sustained.  This period may or may not coincide with the period during which an attack or other conduct within paragraph 8(a), (b) or (c) occurred, and there is no need at this stage to do more than identify the mental and physical injuries to the primary victim and how and when they were sustained. ...”

So as to make plain the scheme of the Upper Tribunal’s reasoning, I should also set out just the headlines of stages 2-4.

“(2) The second stage is to identify in relation to each such injury whether it was what we will call for convenience a ‘9(b)(i) compliant injury’. It will be a 9(b)(i) compliant injury if at the time when that injury was sustained the applicant had a close relationship of love and affection with the primary victim...”

(3) The third stage is to identify in relation to each 9(b)(i) compliant injury whether it is what we will call a ‘9(b)(ii) threshold injury’.  It will be a 9(b)(ii) threshold injury if it is directly attributable to conduct within paragraph 8(a), (b) or (c). ...

(4) The fourth stage is that in relation to each 9(b)(ii) threshold injury the tribunal must consider the two alternative limbs in paragraph 9(b)(ii).”

11.	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.  

12.	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): 

“This period [that is, the period within which the injury was sustained] may or may not coincide with the period during which an attack or other conduct within [paragraph 8] occurred. ...”

13.	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.  

14.	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:
“First, in my view, one must read the words ‘witnessed and was present on the occasion when the other person sustained the injury’ in para 9(b)(ii) as referring, in a case of a physical attack such as occurred in the present case, to being present when the attack occurred.  That is in my view the natural meaning of those words, and that conclusion in my view also follows from the fact that the wording of para. 9(b)(ii) was intended to reflect the law as to the recoverability of damages in tort for psychiatric illness.  The fact that the applicant was present at the time when consequential and increasing damage to the deceased’s brain was occurring did not therefore mean that he ‘witnessed and was present on the occasion when the deceased sustained the injury’.”

15.	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.

16.	 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:  

“20.  As the Tribunal found that the attack had concluded over 3 hours before the applicant returned home, it could not be said that he was closely involved in the immediate aftermath of the attack.  As confirmed in the textbook on Criminal Injuries Compensation Claims by Padley & Begley [That is Miss Begley, to whom we have had the pleasure of listening to today] the test for ‘Immediate aftermath’ is laid down in the case of McLoughlin v O’Brien.  Padley & Begley states ‘in relation to timing, the immediate aftermath is normally regarded as being limited to a short period of time after the occurrence of the incident, that is no more than an hour or so.....’

21.  When the Applicant did arrive home, he was inevitably involved in the consequences of the violent attack.  However, the Scheme specifically states that an applicant must be ‘closely involved in its immediate aftermath’.  It is clear from the preceding words that ‘its’ refers to ‘the occasion on which the other person sustained the injury and not the events that might follow an incident.”

The force of this reasoning may, I readily accept, be affected by the factual conclusions to be arrived at by the FTT upon the question when the assault ended, a question that will be looked at afresh when the case is remitted in view of the earlier FTT’s mistaken reliance on the police officer’s evidence.

17.	 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:

“In relation to timing, the immediate aftermath is normally regarded as being limited to a short period of time after the occurrence of the incident, that is no more than an hour or so although a longer period of time may still be regarded as falling within this category if for instance there is some understandable delay before the primary victim’s body is found or before the applicant is able to visit the primary victim...  In the McLoughlin case, the mother first saw her injured husband and children in hospital.  In a case of a sexual assault or rape the immediate aftermath might involve attendance at the police station and the inevitable medical examination and interviewing process.”

18.	 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).  

19.	  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.  

20.	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:
21.	I agree.

Lord Justice McFarlane:
22.	I also agree.

Order: Appeal allowed