Scottish Court of Session Decisions

The petitioner seeks review of a decision of the Respondent Board, refusing her claim for compensation under the 1990 Scheme ("the Scheme"). The Board were represented when the petition called before me for a first hearing, as was the petitioner.

The application was brought under the Scheme in respect of paragraph 4 thereof, the relevant parts of which are as follows:

The case arises out of the conviction in Edinburgh Sheriff Court of the petitioner's husband of prolonged and protracted sexual abuse of their daughters which, when eventually the petitioner came to learn what had been happening, caused her to become psychologically and seriously traumatised. It was recognised that sexual abuse of children is a crime of violence. It was accepted that the petitioner had suffered personal injury in respect of psychological illness but the issue was on whether or not the petitioner, not having been the physical victim of a crime of violence, could nevertheless make what I will categorise for the sake of definition, "a secondary claim," a primary claim being one when the claimant is the direct victim in the sense of having suffered personal injury at the hand of the offender.

The first stage in the process is to analyse the decision of the Board in order to determine its reasoning for rejecting the claim.

It is to be noted that the single member originally considering the application rejected it on the basis of the following observation:

This clearly demonstrates that the member in question was determining the matter as one of eligibility in principle rather than on the particular facts of the particular case.

I was informed that before the Board that issue was contested as a matter of law and no evidence was led, although medical reports on the petitioner were available and the Board had also obtained, at some stage, a Social Enquiry Report as to what had happened to the daughters. While that document had been dispatched to the solicitors acting for the petitioner by the Board, once they had obtained it, it was not before the decision-making Board when this hearing was heard and they had no knowledge of it or its contents.

However, it is important to note that the substance of the decision of the Board is in the following terms:

The case to which the Board referred to in that part of the decision was quoted in a previous paragraph, where another board had allowed, in generally similar circumstances, a secondary claim, which decision this Board categorise as wrong. The question, however, is why they do so.

The first question to be considered is the legal construction to be put on the words "directly attributable". In my opinion, such should not be fenced around with somewhat cumbersome terminology that the common law has used in relation to the issue of causation. Rather in the context of the Scheme, it should be given a simple common sense meaning, namely, is there a direct link both in time and space between the criminal conduct and the injury to the claimant (cf R v Criminal Injuries Compensation Board ex parte Ince 1973 3 AER 808 per Megaw LJ 815; R v Criminal Injuries Compensation Board ex parte Hilary Kent (unreported) Friday 6 March 1998). Mr Creally, who appeared for the respondents accepted quite properly that secondary claims could be competently made and should be allowed if a proximity test is met on the facts of each case, which makes it thus a jury question. He maintained the proposition that the substance of the decision before me was based upon the Board's view that the evidence was insufficient to meet that test. In so far as the Chairman had ventured into a consideration of the case to which he referred and the Concise Oxford Dictionary, he had exceeded what was necessary for the substance of the decision and indeed had gone beyond what had been given orally at the hearing as the basis for the decision. It was, he submitted, for the petitioner to make a case upon the evidence and she had not done so. That, he submitted was the substance of the Board's decision.

I am quite unable to accept Mr Creally's analysis of the Board's decision.

While they do make reference in the body of the decision to a lack of evidence, and while they do make reference at the start of the decision paragraph to having considered the evidence, in my opinion, it is perfectly plain that the Chairman was approaching the matter as a pure question of legal construction and was effectively saying that secondary claims were incompetent. Why else, I suggest, would he yet put such emphasis by underlining on the word "directly". Why would he make reference to the petitioner not having been sexually abused by the offender? Why does he make reference to phraseology which subsequently appeared in the 1995 Scheme which was plainly amending and restricting the phrase "bodily injury" which was undefined in the 1990 Scheme? Why did he feel the need to look for a definition of "directly" in the dictionary? If "directly" is defined by reference to lack of intermediaries or intervention in the dictionary, in my opinion, it is to wholly misunderstand the relevance of the word directly in the context of a secondary claim, where the issue is one of proximity, not admitting to any independent third party intervention. If all that triggers the matter, with regard to the claimant, is the information as to the commission of the relevant crimes being conveyed to her by the victims directly, so far from breaking a chain of causation, it seems to me in principle to establish it.

Thus, in my opinion, it follows that the Board here have not only wrongly construed the relevant phrase as a matter of law, but have failed properly to address their mind to the real question, which must be a question of fact. They have made no attempt to assess the issue of proximity with regard to time and space and it is not surprising that the petitioner did not make any serious attempt to do so, having regard to the substance of the decision against which she was appealing, which plainly deals with the general principle of eligibility and not the particular facts of a particular case. It is also, in my opinion, more than coincidental that the Chairman in the current decision lifts phraseology directly from the restricting provisions of the 1995 Scheme which, even then, still admit secondary claims in this context, albeit on a rather stricter basis than might have been open to a claimant relying simply upon the undefined phrase "directly attributable".

Mr Mitchell, who appeared for the petitioner, sought to introduce a secondary question that, in any event, there was or should have been sufficient evidence for the factual question to be decided. But I consider that to be nothing to the point where, in my opinion, as I have stated, this board has misdirected itself on the essential question of law by deciding the matter as one of principle in general terms. It would be quite inappropriate for me to make any attempt to determine the evidential question.

In these circumstances, I hold as a matter of law that secondary claims as I have defined them in the context of sexual abuse within a family are competent in principle and must be evaluated as a matter of fact with regard to the proximity test which requires evidence. The case quoted by the Board and referred to in its decision, is a classic example of such a claim succeeding, and in my opinion, rightly so in law, contrary to the views expressed by the Chairman.

Mr Creally's argument with regard to the inclusion in the decision of the Chairman's reference to dictionary definitions, which he maintained was unnecessary and superfluous, if not misleading, in my opinion, misunderstands the requirements from a quasi judicial body such as this Board. The substance of its decision must be supported by clear reasoning which enables the petitioner to know why he or she has won or lost. However the corollary of that is that the petitioner is entitled to rely upon all the reasoning advanced in the written decision if seeking to attack it as flawed. As I have indicated, the Chairman's reference to dictionary definitions is highly indicative of his approach to the matter which, for the reasons I have given, I consider to be unsound in law.

In these circumstances, this decision cannot stand and will be reduced. The case will be remitted back to the Board for consideration by a separately constituted Board as to whether the proximity test is met upon the evidence to enable the claim to succeed. On that latter matter, I offer no view, same that it will be for the petitioner to satisfy the Board upon relevant evidence that the proximity test was satisfied.

In these circumstances, the prayer that a petition will be granted and an interlocutor has been issued reducing the decision.