IN THE UPPER TRIBUNAL	Case No.  JR/4110/2012
ADMINISTRATIVE APPEALS CHAMBER

Before E A L BANO

Decision: My decision is to make an order quashing the decision of the First-tier Tribunal.  I remit the claimant’s appeal to the First-tier Tribunal to reconsider the matter and to reach a decision in accordance with my findings below.

REASONS FOR DECISION

1.	By his claim for judicial review dated 26 November 2012, the claimant applies 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 contends that he should have received a tariff award of £1000.00 for multiple minor injuries.  The Criminal Injuries Compensation Authority (“CICA”) has resisted the claim, but the tribunal has played no part in the proceedings, which I have decided without an oral hearing. 

2.	On the afternoon of 19 April 2011 the claimant was punched in the face by one of two unidentified youths who took the claimant’s car keys from him and made off with his car.  The claimant fell on his left hand and on his admission to hospital he was found to have sustained a displaced intra-articular comminuted fracture of the distal radius and fracture of the styloid process of the left wrist, a type of injury known as a Colles fracture.  The injury was manipulated and the claimant was given a plaster cast before undergoing an intensive course of physiotherapy. 

3.	On 24 June 2011 the claimant applied for compensation under the 2008 Criminal Injuries Compensation Scheme and by a letter dated 3 November 2011 CICA notified him of an award of £3,300.00 for a fractured radius.  The claimant applied for a review of that decision and on 16 December 2011 a revised decision was issued awarding the claimant £4,400.00 (level 9) for a Colles type wrist injury to one wrist, with a substantial recovery

4.	The claimant appealed against that decision, enclosing with his grounds of his appeal 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.  The appeal documents included the following evidence from the claimant’s orthopaedic consultant:

•	a letter dated 9 May 2011 stating that non-operative treatment would continue, but that although the claimant understood that there would be some limitation of movement, he should be able to regain full functional movement as his left hand was not his dominant hand.
•	a report dated 21 September 2011 stating that there was likely to be a continuing disability of swelling and stiffness and limitation of movements of the left wrist, although elsewhere in the report the consultant stated that the main effects of the injury would last between 12 and 24 months.
•	the consultant’s discharge letter to the claimant’s GP dated 17 November 2011 stating that the claimant had: “a good range of motion of his thumb although there is some limitation of pronation and supination.  Hand grip is very good.” 

 5.	The claimant was asked about his availability to attend the hearing of the appeal and in replying to the inquiry he applied for an interim payment under paragraph 65(a) of the 2008 Scheme.  On 3 July 2012 Judge Summers, who is the Principal Judge in the criminal injuries compensation jurisdiction, directed an interim payment in the following terms:

“I direct the Authority to make an interim payment of £4,400.00 to the Appellant to be paid generally on account of the final award of compensation. My reasons are that on the evidence contained in the medical reports it is clear that the appellant will be awarded an amount of compensation in excess of the value of this interim payment, although I make it clear that my decision is not binding on the Tribunal that makes the final decision.”

6.	The claimant attended and gave evidence at the hearing of the appeal on 3 September 2012.  Having set out the background to the case and identified the relevant issues, the chairman of the tribunal gave the following reasons for dismissing the appeal:

“The Evidence

8.  The Panel had before it the same documents as the Appellant.  In addition to these documents, the Panel heard oral evidence from the Appellant who said that the injury was to his left wrist and that he was right hand dominant.  He said that he feels as though the left wrist cannot take the strain and he does not feel that he has the grip that he had previously.  He claimed to have discomfort if he lifts heavy things and he has difficulty twisting his hand in order to turn taps on and off.  In answer to direct questions he said that he could change a fuse on a plug and that he lived on his own and did not need to call on anyone to do anything to help him with any of the activities of his life.  His description of the problem he had getting out of the bath was that he tends to put pressure on his right hand rather than on both.  Asked about his claim that riding a bike was affected he agreed that he had not tried.  While telling us about the problems that he has made no complaint of pain until he was specifically asked whether he had any pain.

9.  With the Appellant’s consent [the medical member of the tribunal] who is a medically qualified doctor, with a specialism in rehabilitative medicine, tested his grip and in the process pulled hard on his wrist.  The Appellant made no complaint of pain and did not appear to suffer 	any pain.  He demonstrated a good grip.

10.  The Appellant is not receiving any treatment and does not have painkillers for his wrist.

11.  Very much as an after-thought the Appellant claimed that he was entitled to an award for multiple minor injuries in respect of the injuries he had listed on document A1.  He accepted that he did not consult any medical practitioner about any injuries other than his wrist after his first visit to the hospital.

Findings of fact

12.  Having considered the evidence, the Panel made the following findings of fact;-

a.  While the Appellant does have some difficulties with his wrist we are satisfied that he exaggerated them to an extent in his evidence to us and that he has a good grip with his left hand and quite substantial force can be applied to his wrist without causing pain.

b.  the only evidence that supports the Appellant’s claim to have suffered the other injuries set out on A1 is at document B2 where there is evidence that the police officer saw some cuts and bruises to his face and body and C3 states that he presented to A&E complaining of a wrist and head injury.  There is no evidence that the Appellant consulted a medical practitioner at least twice in respect of these injuries within six weeks following the assault or that any of them still had a significant effect six weeks after the incident.

Reasons

13.  The reasons for the decision were:-

c.  It is for the Tribunal to decide on the evidence whether the Appellant suffers from a continuing disability.

d.  The case of R v CICP and the CICA ex parte Lesley Embling does  not assist in deciding whether the Appellant has a continuing significant disability.

e.  We accept that the Appellant has some continuing disability from his wrist injury but he has recovered a very good range of movement and although he told us of a number of difficulties that he cannot do as he did before, we find that this has no real impact on his day to day life and we are satisfied that his wrist is not painful.  We are not therefore satisfied that there is a continuing significant disability.

f.  He does not qualify for an award for multiple minor injuries because he did not consult a medical practitioner on at least two occasions in respect of those injuries within six weeks of the assault and there is no evidence that any of them still had a significant effect six weeks after the assault, both of which are requirements of the Scheme, set out at Note 12.

We are aware of what was said when the interim award was made but the notice itself states that the decision is not binding on us and Judge Summers did not have the advantage we had of seeing the Appellant and hearing his evidence.

In reaching its decision, the Panel also took into account case law supplied by the Appellant, namely R v CICP and the CICA ex parte Embling.”

7.	The claimant applied for judicial review of the tribunal’s decision on the ground that the tribunal was bound by the view of the judge who made the interim award that the claimant would receive an amount in excess of that award, and on the ground that the tribunal’s reasons for its decision were inadequate.  In giving permission to continue with the application on 21 February 2013, I expressed the view that the views expressed by the judge who made the interim award did not constrain the tribunal which made the final award in any way, but that it was arguable that the tribunal ought to have made explicit findings with regard to the nature and extent of the claimant’s residual disability in order to explain adequately why they did not regard it as significant.

8.	I can deal with the first ground of the application shortly.  The claimant contends that the tribunal which made the final award was bound by the views of the judge who made the interim award because of what he calls ‘horizontal stare decisis’.  However, the decision made on an interim award does 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.

9.	On the point on which I gave permission to continue with these proceedings, CICA has submitted that the tribunal’s findings were consistent with the medical evidence and that, in accordance with the tests laid down in the well-known authorities, it gave adequate reasons for its decision.  However, I have come to a different conclusion.

10.	The relevant tariff injury in this case was ‘Wrist Fractured-colles type or equivalent fracture displacement of distal radius-one wrist’’ There are two possible descriptors for that injury: ‘substantial recovery’ (Level 9), or ‘continuing significant disability’ (Level 12).   In the Embling case, to which the claimant very helpfully drew attention, Munby J. was concerned with a fracture to the fingers or thumb for which there were also only two descriptors, namely, ‘full recovery’, and ‘with continuing disability’.   The judge held:

“29. Two things in my judgment follow from this.  First, as (Counsel for the Respondents) puts it, the phrase “full recovery” is to be construed by reference to the alternative “continuing disability” and, I would add vice versa.  So, “full recovery” means full recovery from what would otherwise be “continuing disability”.  Conversely, “continuing disability” means a continuing disability which precludes “full recovery”. 

30.  Second, if at all possible one must give both to the phrase” full recovery” and to the phrase “continuing disability” such meaning as will have the effect that (a)  if a particular state of affairs “X” falls outside the meaning of the words ”full recovery”, it can nevertheless sensibly be described as falling within the words “continuing disability”, (b) conversely, if a particular state of 
affairs falls outside the meaning of the words “continuing disability, it can nevertheless sensibly be described as falling within the words “full recovery”, and so on for all possible conditions “X”, “Y”, “Z” et cetera.

31. The next point to be noted is that “continuing disability”” has to be contrasted not with “recovery” but with “full recovery”.   That, in my judgment, carries with it the corollary that to the extent that something more has to be shown if the case is properly to be described as one of “full recovery” rather than “recovery”, so correspondingly, the alternative category of continuing disability has a wider ambit when contrasted with “full recovery” than would be the case if it were merely contrasted with “recovery”.

32.   As against that, the phrase “full recovery” has to be contrasted not with “disability”, but with “continuing disability”.  That carries with it the corollary that for this purpose the case can properly be treated as one of “full recovery” if the “disability” is merely temporary or short term.”

11.	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 constitutes disability for these purposes, Embling also gives valuable guidance on the nature of the disability which is to be taken into account.  Rejecting the argument that ‘disability’ applies to what a claimant can do, rather than to the condition of the affected limb or organ, 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”.

12.	As would be well-known to an expert tribunal, the types of disability which may result from a Colles fracture include pain and stiffness and limitation of wrist movement.  Consistently with the approach in Embling the judge who dealt with the application for an interim payment considered the medical evidence to the effect that the claimant would continue to have swelling and stiffness and that there would be continuing limitation of pronation and supination, and it was no doubt on the basis of that evidence that the judge concluded that the claimant would receive final compensation in excess of that payable for a Colles fracture with a ‘substantial recovery’.  The tribunal on the other hand found that the claimant had some continuing disability, although since they did not specify the nature and extent of that disability their findings of fact were on any view inadequate.  As the claimant has however pointed out, the tribunal made no reference whatever to the medical evidence and it is clear from the reasons for the decision that 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 my judgment in error of law.
 
13.	The claimant has asked me to substitute my own award for that of the tribunal, but the determination of the appropriate tariff descriptor in this case is a matter which requires medical expertise.  I therefore remit the appeal to the First-tier Tribunal for complete redetermination by a fresh tribunal.

14.	 So far as the multiple minor injuries are concerned, the claimant has objected to the description of the claim as an “afterthought” and has complained that the tribunal overlooked evidence that he attended hospital for a second time on the day after the accident, and also overlooked evidence that there were residual effects of those injuries six weeks after the attack.  However, since I have decided to remit the case for complete re-hearing to a fresh tribunal I do not consider it necessary to decide whether the tribunal erred in law in dealing with this matter. 

15.	For those reasons, my decision is as set out above. 

E A L BANO
31 July 2013