England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS TRIBUNAL
HHJ PHILLIP SYCAMORE
JR/375/2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/12/2010

LORD JUSTICE HOOPER :

This is the judgment of the Court

1. At the conclusion of the hearing we announced our decision that the appeal was dismissed and we now give our reasons.
2. The appellant ("CICA") appeals the decision of HHJ Sycamore sitting as a judge in the Upper Tribunal Administrative Appeals Chamber quashing by way of judicial review the decision of Mr Martin Bethel Q. C., sitting as a nominated adjudicator of the Criminal Injuries Compensation Appeals Panel, the first respondent.
3. The second respondent, Mrs Irene Lamb, born in 1946, was attacked and injured on 28 March 1998. In November 2007 she described the attack in this way to Richard Winspear of the Leeds Traumatic Stress Service:

Approximately eight years ago Mrs Lamb was assaulted.  She noted she had left work and had gone to collect her grandson at her daughter's, who was the landlord of a public house called The Miner's Arms.  She stated when she got there the car park was packed and as she was turning her car, a car went into the back of Mrs Lamb's car.  She noted the other car reversed.  Mrs Lamb got out to check her car and as she was walking around, was approached by two big women and a large man.  She described these like "sumo wrestlers".  She stated the man stared at her with dilated pupils and was very aggressive, demanding money for the damage to his car.  Mrs Lamb noted "how did you make that out" as he had gone into the back of her car.  She then barged past these people and was heading into a passage way when one woman jumped on her back and was very heavy and Mrs Lamb fell to the ground.  She stated at this time they started kicking her and Mrs Lamb was in disbelief and could not understand what was happening.  She noted feeling helpless and powerless and had beliefs that she was going to die.  Also the man took a crowbar to her car and Mrs Lamb had thoughts of what would have happened if her grandson was in the car as normally he would have been.  She was eventually taken to hospital by her daughter and spent several weeks in severe pain, particularly of her back.

Compounded to the trauma was also the attitude she described from the police, where one woman had told her daughter "it's just a domestic".  Later she was visited by a police officer and noted that the man had denied everything but stated to her "I grew up with him, I know him.  I turned out to be a policeman but he is a real wrong one and you are lucky to be alive".

4. On 16 March 1999 Mrs Lamb was awarded a sum of £2500 by CICA in respect of the strained back. The papers relating to the award for a strained back have been destroyed by the appellant in accordance with usual practice.
5. She made no claim at the time for any disabling mental disorder, a claim which would, under the Scheme, have required a psychiatric diagnosis. In the words of HHJ Sycamore:

It does not seem likely, given the amount and description of the award which was made, that there was evidence which suggested any form of psychiatric injury before the [CICA] at the time the original award was made.

6. In July 2006 she applied to CICA to re-open her claim, stating that her "condition had progressively deteriorated." According to an internal CICA memorandum dated 18 December 2006, Mrs Lamb "states that her psychological injury has become much worse." In her formal application to CICA Mrs Lamb wrote:

MY PRESENT SYMPTOMS /SEVERE BACK PAIN PANIC ATTACKS. DEPRESSION. STRESS. INSOMNIA. NIGHTMARES + FLASHBACKS. HYPERTENSION. AS A DIRECT RESULT OF THE VICIOUS ATTACK I SUFFERED I EXPECTED THAT THE SYMPTOMS OF ANXIETY AND THE PAIN IN MY BACK TO IMPROVE BUT THEY HAVE BECOME MORE SEVERE OVER THE YEARS. I HAD TO MOVE INTO SHELTERED HOUSING ... .

7. That her condition had become much worse was supported by letters from her daughter and a friend.
8. Her application was refused. She appealed that decision. Her appeal was rejected by Mr Bethel on 14 April 2008. She made an application for permission to apply for judicial review of that decision. That application was successful and her application for judicial review was heard by HHJ Sycamore. He quashed the decision of Mr Bethel in so far as it related to Mrs Lamb's psychiatric condition, but upheld the decision in so far as it related to back pain. There is no cross-appeal from the part of the decision which relates to back pain. Mrs Lamb appeared in person before HHJ Sycamore.
9. Following some confusion about the precise terms of the order, HHJ Sycamore on 30 March 2010 reviewed the order that he had originally made and ordered that the appellant's case be re-opened and considered by the appellant. His reasons for so doing were, in summary, that Mr Bethel's decision was perverse and that the only decision open to Mr Bethel on the papers was to make the order that the appellant's case be re-opened and considered by the appellant. HHJ Sycamore also ordered that the case should be re-opened and considered by CICA "in accordance with the provisions of paragraphs 56 and 57 of the Scheme." He should not have added the words in quotation marks.
10. The Scheme makes provision for re-opening a claim. Paragraphs 56 and 57 state:

56. A decision made by a claims officer and accepted by the applicant, or a decision made by the Panel, will normally be regarded as final. The claims officer may, however, subsequently re-open a case where there has been such a material change in the victim's medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where he has since died in consequence of the injury.

57. A case will not be re-opened more than two years after the date of the final decision unless the claims officer is satisfied, on the basis of evidence presented in support of the application to re-open the case, that the renewed application can be considered without a need for further extensive enquiries.

11. In so far as Mrs Lamb's psychiatric condition was concerned, Mr Bethel wrote:

I regret that I am not satisfied that there has been the necessary material change in the applicant's medical condition. In particular:

...

So far as psychiatric symptoms are concerned they are said to have existed ever since the incident and have not supervened since the award in March 1999. Thus they do not constitute a material change in her condition since the award was made.

12. Mr Bethel gave no further reasons. He did not identify the "psychiatric symptoms" which "are said to have existed ever since the incident and have not supervened since the award in March 1999". Miss Davies rightly accepted that if Mrs Lamb had had, because of the assault, some symptoms of anxiety and stress at the time of the hearing in March 1999 and that thereafter her mental condition had significantly deteriorated, that would constitute a material change in her medical condition.
13. In so far as the need for further extensive enquiries, Mr Bethel wrote:

Even if I had been so satisfied, I consider that there would be a need for further extensive enquiries relating to the Applicant's medical history and to the many other factors referred to by Dr Taylor as contributing to the Applicant's psychiatric condition ... .

In this passage Mr Bethel is querying whether Mrs Lamb's (current) psychiatric condition was, in the words of the Scheme "directly attributable to" the assault.

14. We shall refer only to material which was before Mr Bethel and identified by him, albeit noting in passing that further material came into existence after Mr Bethel's decision which supports Mrs Lamb's contention that her psychiatric condition had progressively deteriorated.
15. HHJ Sycamore reached his conclusion adverse to the appellant having set out in his judgment passages from four documents which we shall look at now.
16. HHJ Sycamore quoted from a letter from Mrs Lamb's general practitioner dated 25 May 2007. Mrs Lamb became a patient of the clinic in 1991, seven years before the assault. The general practitioner wrote:

[Mrs Lamb] has also suffered from anxiety depression and although there have been other factors in her life which have been a cause for this the [incident] in February 1998 definitely seems to have been a factor. She had worsening symptoms and received counselling support of 6 sessions in March 2003 and also help with dealing with panic attacks. In March 2005 she was referred to see a psychiatrist because of worsening anxiety depression. Since 2005 she has been treated with Dosulepin 75mgs and night and has also received some counselling support.

Her current situation is that although she is somewhat better than before she is still requiring Dosulepin 75 mgs at night for depression and she also takes Ibuprofen 400mgs 3 times a day and Co-codamol 2 tablets 4 times a day regularly to treat her back pain. …

I cannot say that this is solely attributable to the incident in February 1998 but before that time we didn't see her regularly with musculoskeletal pain and she had not had any treatment from us for anxiety depression. …"

17. As to this letter HHJ Sycamore pointed out:

Thus it can be seen that it was not until March 2003 that the Applicant received counselling sessions and March 2005 that she was referred to see a psychiatrist.

18. The general practitioner's letter is also important in that it shows that, prior to the assault, Mrs Lamb had not had any treatment for anxiety/depression since joining the practice in 1991. This was supported by a letter (to which HHJ Sycamore referred) dated 14 November 2007 written to the general practitioner by Dr Taylor, the consultant psychiatrist to whom Mrs Lamb had been referred in about March 2005. In that letter he wrote under the heading Formulation and Diagnosis:

Prior to the assault on 28 February 1998, you had no mental health problems, nor did you suffer any physical ailments and did not take any medication. You are now dependent on pain relief and medication for your Anxiety.

19. In the same letter Dr Taylor wrote that he had arranged for Mrs Lamb to attend the PTSD clinic and that he had prescribed a further drug for her mental condition. He described the mental condition in this way:

At this clinic appointment you described how you were unwell; you were getting frequent panic attacks and getting out very little. Your sleep is disturbed and you continue to experience a lot of back pain. You get flashbacks of the mugging that you experienced and continue to feel depressed and down.

...

You have difficulty in sleeping due to a combination of anxiety, flashbacks of your assault and physical back pain."

20. Dr Taylor also wrote:

Your father died in 1988 and your mother in 1998. You were saddened by their deaths and grieved as any other person would grieve over the loss of their parents. You did not become depressed and did not need medical help, as you allowed yourself to grieve.

21. HHJ Sycamore referred to a letter written by Richard Winspear, a cognitive therapist, who is the senior coordinator of the PTSD clinic to which Dr Taylor referred Mrs Lamb. Richard Winspear described Mrs Lamb's symptoms, including re-experiencing the assault, avoidant behaviour, panics, hyper-arousal and hyper-vigilance. Under the heading "Opinion and care plan recommendations" he wrote:

Mrs Lamb described a history of depressive episodes but following the assault approximately eight years ago has developed some features consistent with Post Traumatic Stress Disorder. Re-experiencing symptoms were evident including nightmares and intrusions during the day of the assault. Often following such re-experiencing she will then find herself ruminating on the assault and further exacerbating her distress maybe thinking about what could have happened such as being attacked by the man with the crowbar or if her grandson had been in the car. She will also feel anger that the man and the other assailants were not charged and that they "got away with it". This can further exacerbate her low mood. Avoidant behaviour was also noted where generally she will avoid going out on her own. She states the main reason for this is for fear of further attack or assault but other factors attributing to this can be her low mood, no motivation also physical pain where she states at times she will "talk myself out of it" and also her low self esteem and image. Also she described having panic attacks when out at worse believing she may collapse which can again lead to avoidance. Symptoms of hyper-arousal were also noted where when out she is constantly looking around and has an increased startle reaction, which also exacerbates her anxiety.

22. HHJ Sycamore also quoted passages from a report prepared for CICA on 12 February 2008 by Dr Taylor.
23. In the report to CICA dated 12 February 2008 Dr Taylor wrote:

… Mrs Lamb states she has had low mood and anxiety since this time. The next year Mrs Lamb's ex-husband and mother died and this was seen as the predominant trigger to her low mood. However, Mrs Lamb states that her symptoms stem from the time of the mugging. At the last clinic appointment on 13 April 2007 Mrs Lamb stated that her mood has been variable up and down, similar to how it has been over the last seven years. However she stated that her anxiety symptoms have worsened and she has been getting daily panic attacks and palpitations and feeling that she cannot swallow. She describes her sleep as worse. …

Mrs Lamb states that although she recognises there are other aspects to her past personal history that could have an impact on her depression and anxiety, she feels she has dealt with those things for example with regard to her abusive childhood she feels that she was able to move on from that at approximately the age of 30 to 35 and was very well until approximately the age of 52, 8 years ago when she was mugged and at the similar time her ex-husband and mother died.

24. In his conclusion Dr Taylor wrote:

Mrs Lamb states that she had symptoms of being vigilant at all times and does not like being out on her own.  If she goes to the shops she states she is always checking that there is no-one behind her at any time.  She states that the details of the mugging are still very fresh in her mind and she frequently remembers every detail.  She still has significant feelings of anger regarding the attack and the symptoms of anxiety and physical pain that it has left her with.

In 2005 when she was first referred to this service she was offered counselling but at that time she felt unable to take it up as it distressed her too much to talk about it.  Mrs Lamb has recently been thinking about it and has been referred and accepted for treatment by the PTSD service.

Mrs Lamb continues to suffer symptoms of Post Traumatic Stress Disorder resulting from the assault she experienced in 1998.  Her early upbringing resulted in her always being suspicious and wary of others and this assault has resulted in her being even more wary and distrustful of others.  Some of the depressive symptoms that were evident when we first saw her are likely to have resulted from grief relating to the deaths in 1999 of both her mother and her ex-husband [Mrs Lamb's father].  These factors probably continue to complicate the picture, but it seems clear that most of her current disability is related to the PTSD symptoms together with the back pain that she suffers and that these symptoms originate from this assault.

25. On the basis of this material HHJ Sycamore drew the following conclusion:

28. ... these opinions were based on the Applicant's own accounts given some years after the assault and her expressed belief that she had suffered symptoms since the attack. There was no reference to any contemporaneous or earlier accounts given by her, for example in the general practitioner records, or to opinions formed by other medical experts at or nearer to the time of the assault. It does not seem likely, given the amount and description of the award which was made, that there was evidence which suggested any form of psychiatric injury before the Interested Party at the time the original award was made. There was nothing to assist the Adjudicator to establish what, if any, finding was made at the time of the original award in relation to psychiatric injuries.

29. In my judgement the Adjudicator should, on the available evidence, have reached different conclusions in respect of the physical injuries on the one hand and the psychiatric injuries on the other. ... In forming the view he did in relation to the psychiatric injuries ... he relied essentially on recent medical reports which themselves were dependent upon the accuracy of the Applicant's recollection some years later as to the first onset of her psychiatric injuries. This was against the background of a history which suggested that there was no evidence of any suggested psychiatric injury before the Interested Party when the original award was made. ... In addition support is lent to the Applicant's assertion of late onset by the letter from Dr Taylor of 25^th May 2007, which was available to the Adjudicator, in which she said that it was not until March 2003 that counselling was first provided and March 2005 that there was first a referral to a psychiatrist. For all of these reasons I have formed the view that the rational finding would have been that the evidence supported a finding that there was, so far as the psychiatric injuries were concerned, a material change as defined in paragraph 56 of the Scheme and that injustice would result if the original assessment was allowed to stand

30. It is my judgement that in all of the circumstances it was not open to the Adjudicator to make the findings he did in relation to the psychiatric injuries.

26. Although Miss Davies criticised HHJ Sycamore for not applying the proper test in judicial review proceedings, in our view he made it clear that he was applying the proper test. He asked himself, in effect, whether the finding by the Adjudicator was perverse and concluded that it was.
27. Miss Davies submitted that HHJ Sycamore was wrong to conclude that the findings of the Adjudicator were perverse and submitted that the Adjudicator reached a decision that he was entitled to reach. She submitted that looking at the material as a whole there was material which justified the Adjudicator's decision.
28. She referred us to reports prepared for the general practitioner by Dr Taylor's Senior House Officers, namely Dr Kapoor in August 2006 and Dr Walker in April 2007.
29. Dr Kapoor recounts Mrs Lamb as saying that since the assault she has had panic attacks and low mood. Dr Kapoor also wrote that Mrs Lamb had had long-standing problems relating to anxiety and depression that have been made worse by the psychological traumas she suffered in early years- physical and emotional abuse in a children's home. This passage was later repeated by Dr Walker and Dr Taylor. Dr Kapoor wrote that after a happy marriage for 20 years and following the death of her father (in 1988) and her mother (in 1999) Mrs Lamb became bereft and agitated and developed symptoms of a depressive illness.
30. Dr Walker also wrote:

... You have a long history of depression and anxiety. You stated that things are pretty much similar for you, your mood is variable being up and down and this is how it has been over the last 7 years. You think that your anxiety symptoms have worsened recently. You get daily panic attacks and palpitations and the feeling that you cannot swallow. You described your appetite as variable and you have not lost any weight. You say that your sleep is poor, you get off to sleep quickly after taking the Dothiepin, however, you are waking fairly frequently in the early hours. You think this is mainly due to your arthritis and back pain. You moved to a bungalow in January and you feel this is better for you. You also have the support of resident warden. You stated that you occasionally get suicidal thoughts, mainly linked to physical pain. However, you do not think how you would do it and you have no plans to kill yourself and described your family as protective. You have 3 daughters who are supportive of you and they also have their own families. You see your grandchildren fairly regularly. You feel that your symptoms have been ongoing since you were mugged 8 years ago; when you refused to hand over your money they mugged you and also damaged your car. You feel you have anxiety symptoms and panic attacks since then, not wanting anyone to be behind you at any time, being vigilant at all times. You have also had back problems since this time and you have arthritis which causes you significant pain.

You stated that you still feel angry regarding the attack and the details of it are very fresh in your mind. When you were first referred to the service you were offered counselling, but at the time you felt unable to take this up. However, you have been thinking about it recently and would like the opportunity to discuss and have therapy regarding this time in your life. We also discussed that it would be helpful to manage your anxiety symptoms.

31. Miss Davies submits that these reports show that Mrs Lamb has had a history of mental problems and that her current problems may be due to longstanding causes.
32. In our view there were, on the facts of this case, three questions which should have been asked by Mr Bethel in so far as paragraph 56 is concerned:

1. What is Mrs Lamb's current psychiatric condition?

2. Is that condition directly attributable to the assault?

3. Has there been a material change in Mrs Lamb's psychiatric condition since the hearing in March 1999?

33. As to question 1 the only conclusion that can properly be drawn is, in our view, that Mrs Lamb at the time of the hearing before Mr Bethel was suffering florid symptoms associated with PTSD. There is no material to contradict that.
34. As to the second question, the only conclusion that can properly be drawn from all the material is that these symptoms of PTSD were caused by the assault. The view of the consultant psychiatrist, Dr Taylor, is clear and finds support in the letter from the general practitioner. Prior to the assault on 28 February 1998, as Dr Taylor writes, Mrs Lamb had no mental health problems and most of her current disability is related to PTSD and the PTSD symptoms originate from the assault.
35. That leaves the third question: Has there been a material change in Mrs Lamb's medical condition since the hearing in March 1999? We agree with HHJ Sycamore's conclusion on this point. There is, in our view, nothing in the material to suggest that Mrs Lamb was suffering the florid symptoms associated with PTSD from which she now suffers at the time of the hearing. If she had been suffering these symptoms it seems very likely that she would have sought medical attention from her general practitioner which she did not until much later. Our conclusion on this third question is amply supported by the fact that Mrs Lamb told CICA that her condition had worsened and had progressively deteriorated, an assertion supported by her daughter and a friend.
36. We agree with HHJ Sycamore that it would be perverse not to find the test in paragraph 56 satisfied.
37. We turn to the test in paragraph 57. We have already set out what Mr Bethel wrote about this (see above, paragraph 13). He found a need for further extensive enquiries relating to the Applicant's medical history and to the many other factors referred to by Dr Taylor as contributing to the Applicant's psychiatric condition. In the light of our conclusion in paragraph 35 there is no need for such further extensive enquiries on the evidence presented by Mrs Lamb. It may be that CICA wishes to make further enquiries having re-opened the case in accordance with our order, but there is no need at this stage.
38. For these reasons the appeal is dismissed.