Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/2885/2010

ADMINISTRATIVE APPEALS CHAMBER

 

1. This is an application for judicial review, brought with my permission, of a decision of a First-tier Tribunal (criminal injuries compensation) made on 2 December 2010. For the reasons set out below I dismiss the application.

 

2. The Applicant is a man now aged 22. On 1 November 2001, when he was aged just 12, his father was attacked in the street and hit on the head. His father was treated in hospital and discharged that day. However, he died less than 24 hours later.

 

3. On 8 February 2010 the Applicant made a claim for criminal injuries compensation, contending that he had suffered mental disorder as a result of what had happened to his father. In a letter dated 21 January 2010 accompanying the claim he said that “I was with my dad at home when he died”. In a letter dated 20 January 2010 the Applicant’s uncle said that “[the Applicant] witnessed a lot when he was young he saw his father when the local ambulance service came to help and were trying to get [his father] breathing but he was died at the time …”

 

4. In April 2010 CICA rejected the claim on the grounds (i) that the claim had not been received within 2 years from the date of the incident and (ii) that he did not fulfil the condition in para. 9(b) of the Criminal Injuries Compensation Scheme 2008 that he either witnessed and was present at the incident or was involved in its immediate aftermath.

 

5. In May 2010 CICA upheld that decision on review. As regards the para. 9(b) point, CICA’s letter included the following:

 

“…..there is nothing in the police reports to suggest that you witnessed and were present at the incident or were involved in the immediate aftermath. Immediate aftermath is limited to a short time span following an incident and although you may have seen distressing sights of your father it would appear that this does not fall within the scope of immediate aftermath.”

 

6. The Applicant appealed. On 1 September 2010 the First-tier Tribunal considered the appeal against the decision on the late claim as a preliminary issue. The First-tier Tribunal’s decision was to allow the appeal and so to waive the two year time limit for making the application.

 

7. On 2 December 2010 the First-tier Tribunal considered the substantive appeal at a further hearing. The First-tier Tribunal dismissed the appeal.

 

8. The Decision Notice handed to the parties on the day of the hearing on 2 December set out the following “summary of the reasons for the decision given orally at the hearing to-day”:

 

 “He was not involved in the immediate aftermath of the incident in which his father was injured. The Appellant’s mental disorder is not directly attributable to the incident.”

 

9. The “summary of Reasons for Panel’s Decision” contained on a document which is in the First-Tier Tribunal file but which, as I understand it, is not routinely provided to the parties, is as follows:

 

“The Tribunal found that the Appellant was not involved in the immediate aftermath of the circumstances in which his father was injured. He saw his father 3-4 hours after treatment when he was ready to be discharged from hospital.

 

Even if we were satisfied we found that the Appellant suffers with a Borderline Personality Disorder which is not caused by the circumstances in which his father died. The Appellant’s condition was diagnosed 4 years after the incident.

 

The Tribunal dismissed the Appeal under para. 9(b).”

 

10. The Applicant, without first applying for a statement of the reasons for the First-tier Tribunal’s decision, then sought permission to apply for judicial review of that decision. The ground for his application was that he had given incorrect information to the First-tier Tribunal as to the sequence of events, because he was on “high medication”. By a decision made on 11 January 2011 on the papers Upper Tribunal Judge Wikeley refused permission. The Applicant exercised his right to have his application for permission reconsidered at an oral hearing. Following an oral hearing before me I gave permission by a decision dated 23 May 2011. Pursuant to the directions at the end of that decision I have since received a written submission from CICA, and letters (enclosing supporting evidence) from the Applicant dated 13 July, 26 July and 18 August.

 

The “immediate aftermath” point

11. The following provisions of the 2008 Scheme are directly material:

 

“6 Compensation may be paid in accordance with this Scheme:

 

(a) to an applicant who has sustained a criminal injury .....

 

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 ……. which is:

 

(a) a crime of violence ...

 

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 a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury ........ or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury ........ unless the applicant:

 

(a) ...........................................................; 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), and

 

(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;  or

 

(c) ..............................................................”

 

12. The wording of para. 9(b)(ii) – “or was closely involved in its immediate aftermath” – was intended to reflect the test, stated by the House of Lords in McLoughlin v O’Brien [1983] 1 AC 410, for the recoverability by a “secondary victim” of damages in tort for psychiatric illness caused by injury to another.

 

13. The law in relation to the requirement of physical and temporal proximity is stated as follows in Clerk & Lindsell, the Law of Torts, 20th ed (2010) para. 8-72:

 

“In McLoughlin v O’Brien Lord Wilberforce stated that: “As regards proximity to the accident, it is obvious that this must be close in both time and space. It is after all, the fact and consequence of the defendant’s negligence that must be proved to have caused the ‘nervous shock’”. In McLoughlin the claimant did not witness the accident which injured her family but she saw them in hospital two hours later. Lord Wilberforce held that the duty should extend to situations such as this where the claimant had suffered shock on “direct perception of some of the events which go to make up the accident as an entire event, and this includes …… the immediate aftermath.” But the immediate aftermath that causes the shock must form part of “the accident as an entire event”. Lord Wilberforce noted that the victims in McLoughlin “were in the same condition (in the hospital), covered with oil and mud, and distraught with pain” as they would have been at the scene of the accident itself. In Alcock v Chief Constable of the South Yorkshire Police , Lord Jauncey concluded that relatives who had not witnessed the death of the victim but identified the body in the mortuary some nine or more hours later were not within the immediate aftermath. He distinguished McLoughlin on the grounds that a longer period of time had elapsed since the accident and the fact that the visits to the mortuary “were not made for the purpose of giving comfort to the victim but purely for the purpose of identification.” Whilst commenting that “to essay any comprehensive definition (of “the immediate aftermath”) would be a fruitless exercise”, his speech clearly indicates that to form part of the accident as an entire event, the experience must be sufficiently related in both time and nature to the original accident. Of the two factors, it is suggested that it is the nature of the experience which is crucial. The longer the time lapse between accident and witness the more likely it is that what is witnessed will differ in nature from the experience of the original accident.”

 

14. The police report dated 15 July 2002 (prepared in connection with a criminal injuries compensation claim made by the Applicant’s mother) which was in evidence before the First-Tier Tribunal (L1) indicated that the attack on the deceased occurred at about 3.30 a.m. on 1 November 2001. He was taken by ambulance to hospital, where he received treatment, and was discharged home at about 10.30 am on 1 November. He spent most of that day in bed. At about 3 am on 2 November the deceased’s wife noticed that his breathing was laboured and he was taken to Newham General Hospital. He was later transferred to London Hospital and the existence of a large blood clot was confirmed. It was found to be inoperable. After lengthy observation and the administration of brain stem tests, life was pronounced extinct at 11.55 am on 2 November.

 

15. The Applicant and his mother saw the deceased when he was in hospital on 1 November. The Applicant appears to have told the First-Tier Tribunal that he saw the deceased “3-4 hours after treatment when he was waiting to be discharged from hospital”. He was not discharged until some 7 hours after the attack. The witness statements from members of the Applicant’s family which were before the First-Tier Tribunal appeared also to indicate that the Applicant and his mother did not go to the hospital until after the Applicant had been treated and was waiting to be discharged. However, they did state that “when they went to the hospital to pick up [the deceased] he was in a very bad state with blood all over his clothes and [the Applicant] was very traumatised by seeing his father in that state”.

 

16. The witness statement of the Applicant’s mother says:

 

“After we got home [the deceased] was feeling very unwell saying his head is hurting him a lot. [The Applicant] took his father into his bedroom and gave him some water and food and sit near his father the deceased till he fall asleep after the deceased went to sleep the applicant was sitting near the deceased crying after the deceased went to sleep he never woke back up and the ambulance and police was called and me and the applicant went with my husband to hospital when my husband was said to be dead all of this mentally traumatize the applicant.”

 

17. The only basis on which I can interfere with the decision of the First-tier Tribunal by way of judicial review is if that decision was in some respect wrong in law.

 

18. I gave permission to being the judicial review claim because it seemed to me that it might be arguable that what the Applicant witnessed after the deceased was discharged from hospital, and in particular the events leading to the deceased’s death, might in all the circumstances properly fall within the words “the immediate aftermath”, and that the First-tier Tribunal might have erred in law in not considering that. I put the point as follows:

 

“The point which has occurred to me is that it may be arguable that the “injury” [referred to in para. 9(b)(ii) of the Scheme] consisted not simply of the initial injury sustained by the deceased at the time of the attack, but the direct and very quickly occurring consequences of it, namely the swelling of the brain and the forming of the blood clot which killed him. Those consequences would have occurred somewhat later, and because the Applicant was present at the deceased’s bedside, possibly at the time when he died, he was arguably present when the deceased suffered those injuries, albeit they were not of course directly visible. Further, I wonder whether, in a case where an injury leads to death shortly afterwards, and the applicant is present at or around the time of death, he should in any event be regarded as “closely involved in [the] immediate aftermath” of the injury. It seems to me that these points may be sufficiently arguable at least to warrant giving permission to proceed for judicial review.”

 

19. In response to that, CICA submits as follows:

 

“The Authority contends that the term “immediate aftermath” where it is used in paragraph 9(b)(ii) of the Scheme relates to the act of the crime of violence (the incident) and not to injuries which manifest subsequent to the incident.  The Authority consider the term “immediate aftermath” to be relevant only in cases where an applicant comes on to the scene immediately after a crime of violence has been committed, or finds the primary victim’s injured/dead body immediately after an incident has occurred.

 

Additionally, at the time that the swelling of the brain and the formation of the blood clot, the deceased no longer bore the signs of immediate violent injury. In the case of Taylor v Somerset HA (1993) 4 Med LR 34 a widow was held not to fall within the “immediate aftermath” principle as her husband’s body bore no signs of violent injury. Therefore although it could be argued that the injury to the deceased was “occurring” at the time that the applicant was by his bedside, the applicant was not aware that this was the case.

 

The Authority consider that the First-tier Tribunal properly considered the issue of when the Applicant saw the deceased after the incident whilst still in hospital and correctly determined that due to the time that had elapsed and the fact that the deceased was being discharged the test of “immediate aftermath” was not satisfied.”

 

20. In response to that the Applicant has stated, in a letter dated 18 August 2011 to the Upper Tribunal, as follows:

 

“….. when I was near my dad’s bed when he died he did have visible injuries as the following:

 

1. Visible blood on his face and clothing.

 

2. Visible severe bruising and scratches to the face and head

 

3. Visible swelling on the face and head

 

4. Also was in visible distress and pain at the time of death

 

Also please note when my dad came back home from the hospital when I was near his bed crying he was also in a lot of distress and pain at that time after he went to sleep he kept on moving a lot in the bed from one side to the other every 3-4 secs he kept on moving from side to side I did know at the time he was in a lot of distress and pain but the hospital said he needs to rest and later that night he died in front of me ….”

 

21. Having now had the opportunity to consider the law more fully I am of the view that even on the footing that what the Applicant says in the letter of 18 August 2011 is true, those events, and the deceased’s death, did not bring the Applicant within para. 9(b)(ii) of the Scheme. 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”. I do not think that the case of North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 leads to a different conclusion. It was a case of medical negligence which appears to have caused brain damage at a particular point in time when the baby had a fit, at which point the claimant was present, and the events over the following 36 hours were then treated as part of the “event” which caused the nervous shock, for which the claimant recovered damages.

 

22. That then brings me to the second point which I considered might be arguable, namely whether the fact (assuming it to be so) that the Applicant witnessed the subequent consequences of the injury, including the deceased’s lapse into unconsciousness, meant that he was present at and witnessed the “immediate aftermath”. In my judgment the answer, on the present state of the authorities, is no. The words “or was closely involved in its immediate aftermath” qualify the words “the occasion when the other person sustained the injury.” It is the “immediate aftermath” of that occasion which the applicant must have been closely involved in. It is in my judgment appropriate, in answering that question, to regard cases decided by the courts in relation to tortious liability as directly applicable. The subsequent conseqences were part of a sequence of events which culminated in the deceased’s death, but they were not in my judgment sufficiently proximate in either time or nature to the initial injury to be capable of falling within the “immediate aftermath” principle. The case which seems to be closest to the present is Taylorson v Shieldness Produce Ltd [1994] EWCA Civ 16. A boy suffered severe head injuries in a road accident at 10.45 am on 12 November 1987, from which he never recovered consciousness before his death at 10.30 am on 15 November, 3 days later. The boy’s father saw him in hospital on 7 or 8 pm on 12 November, after treatment. At that time he had black eyes, there was blood on his face and a tube was attached to the top of his head to relieve the pressure on his brain. Both parents returned to the hospital on the morning of 13 November, at which time his head was bandaged and swollen, his eyes were black and they did not recognise him. He showed no real sign of consciousness. They remained with him for a substantial part of the time until the life support machine was switched off on 15 November. It was submitted on behalf of the claimant that the court was entitled to find that the immediate aftermath of the accident extended from the time when the parents learnt of the accident to the time when they left the hospital after their son died. The Court of Appeal rejected that submission, holding that the parents could not recover damages for mental illness caused by what they had witnessed in the hospital. McCowan LJ said:

 

“For us to find liability established in the present case would, in my judgment, be to do exactly what Lord Oliver [in Alcock] said we should not, that is to say, take a further step along the road which must ultimately lead to virtually limitless liability. I, for my part, am not prepared to do this.”

 

23. It is entirely possible that the law may in the future develop to an extent where events such as those which the Applicant says he witnessed in the present case may be held to fall within the “immediate aftermath” of the initial injury, but it does not seem to me that it has yet done so.

 

24. As noted above, the Applicant based his application for judicial review on the contention that he was mistaken in telling the First-tier Tribunal that he saw his father 3 or 4 hours after treatment. I quote from his letter to the Upper Tribunal dated 2 December 2010:

 

“I by mistake gave the appeal panel incorrect information about when me and my mum went to pick up my dad from hospital as I my also on high medication I got confused and gave incorrect information so I request the Upper Tribunal please to review my case as incorrect information was gave by myself by mistake. I have also confirmed this with my mum as I was only 12 years old at the time she said we went to the hospital straight away when my dad called and I told the appeal panel we went to get my dad after 3 hours which was incorrect ...”

 

25. However, if the deceased did not call from hospital until after he had been treated and was ready to be discharged, it would not appear to matter whether the Applicant and his mother then went immediately or after a delay. One would have expected them to go immediately. But as the deceased was in hospital for a total of some 6 to 7 hours, it must have been a number of hours after the attack before the Applicant saw him. Further, he would not, after being treated, have been in the same physical condition – i.e. of the same distressing appearance – as immediately after the attack. If the Applicant did not see his father until after treatment, what he then saw at the hospital was in my judgment too remote in time and nature from the original accident to be capable of qualifying as “the immediate aftermath” of the accident.

 

26. However, the Applicant told me at the hearing of the application for permission that the deceased was still in the waiting area waiting for treatment when the Applicant and his mother got there, and was then treated and discharged very quickly. If that was the case, it is possible that what he saw was not too remote in time or nature from the accident to be within the “immediate aftermath” principle. (However, the Applicant said that the deceased was only in hospital some 3 hours, which appears to be plainly wrong).

 

27. But the fact (if it be a fact) that the Applicant gave incorrect evidence to the First-tier Tribunal can only have rendered its decision wrong in law if there was a breach of natural justice, or of Article 6 of the Human Rights Convention. It does not seem to me likely that, if the Applicant did give incorrect evidence to the First-Tier Tribunal, it was as a result of any medication which he was taking. The Applicant has produced no medical evidence that he was taking medication which potentially rendered him incapable of giving accurate evidence. There is a reference, in a letter dated 9 April 2008 from Dr Biggs (p.51), to the Applicant suffering from problems with anxiety and concentration as part of his condition and also as side effects of his medication, and that these would probably render him unfit to drive. It appears that the Applicant has needed to speak to his mother, since the First-tier Tribunal hearing, in order to find out exactly what the order of events was (see pp. 8 and 9). In my judgment the Applicant had ample opportunity, before that hearing, to ensure that he gave correct evidence on what was plainly an important point. In any event, there was nothing to alert the First-tier Tribunal to the fact that his mental condition might be leading him to give incorrect evidence. The letter of 9 April 2008 was in the papers before the First-tier Tribunal, but it was by then nearly 3 years out of date, and no direct conclusions as to his ability to give evidence in December 2010 could be drawn from it. Further, as I noted in para. 15 above, the witness statement of the Applicant’s mother and other family members appeared to confirm (see e.g p. T44 of the First-tier Tribunal hearing bundle) that it was only after the deceased had been treated that the Applicant and his mother saw him. I do not see what more the First-tier Tribunal could reasonably have done.

 

28. In my judgment, and as I said in my grant of permission, it is therefore not arguable that if the Applicant gave incorrect evidence as to the sequence of events, that resulted in the First-Tier Tribunal’s decision being wrong in law or otherwise open to challenge by way of judicial review.

 

29. My conclusions in relation to the “immediate aftermath” point are therefore as follows:

 

(i) that the First-tier Tribunal did not go wrong in law, on the evidence before it, in deciding that the Applicant was not present on the occasion when his father sustained the injury, and was not involved in its immediate aftermath. In particular, it could not properly have held, on the evidence before it (or the additional evidence which the Applicant has put before me) that what happened to the Applicant’s father after he returned home was either the occasion when the deceased sustained the injury or part of its immediate aftermath.

 

(ii) that the fact (if it be a fact) that the Applicant gave incorrect information to the First-tier Tribunal as to when he saw the deceased in hospital did not involve or give rise to a breach of natural justice or other error of law.

 

The causation point

30. This was the First-tier Tribunal’s finding that the Applicant’s current mental health problems are due to a borderline personality disorder and not due to the circumstances in which his father died. In view of my conclusion on the immediate aftermath point, it is not strictly necessary to consider this point. It is an additional point on which the First-tier Tribunal decided against the Applicant.

 

31. At the time of giving permission to appeal I was of the view that it might be arguable that there was a breach of natural justice in the First-tier Tribunal considering this point at all without the Applicant being given a further opportunity to produce medical evidence relating to it, in view of the fact that CICA had not given this as a ground for refusing the claim. However, I accept CICA’s submission that the First-tier Tribunal was entitled to deal with it at the hearing on the evidence then before it.

 

32. I was further of the view (at the time of giving permission) that, if it became material, it might be necessary and appropriate to request the First-tier Tribunal to produce a Statement of Reasons on the causation point. In view of my decision on the “immediate aftermath” point, there is no purpose in doing so. But in any event I am very doubtful whether on the evidence before the First-tier Tribunal, or indeed the additional evidence before me now, a tribunal could properly find that the Applicant’s current mental health problems are in any way due to the shock of the events which he witnessed at around the time of his father’s injury and death. The Applicant has relied in particular on the letter dated 8 June 2007 from Dr Biggs, consultant psychiatrist, (p.25) who stated as follows:

 

“I think it is a slightly tricky situation as although I believe he has had a depressive illness, there are some issues of dependency related to the loss of his father and the absence of a father figure. However, he insists that he is still constantly preoccupied with the loss of his father, and I wonder whether there is an element of abnormal grief there which could be effectively worked through.”

 

33. However, that is not evidence that his current mental health problems were caused or contributed to by the shock of what the Applicant saw and heard at the time of his father’s injury and death (i.e. the manner of his injury and death), as opposed to by the grief resulting from the fact that his father had died.

 

34. For the above reasons I must dismiss this application for judicial review.

 

 

 

 

Charles Turnbull

Judge of the Upper Tribunal

15 September 2011