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Headnote |
Summary of decision
The applicant sustained injuries which were either caused in a fight or a fall. The Board found that he had failed to prove his case as to how he came by the injuries. That decision was perverse as there was sufficient evidence before the Board to reach the conclusion that the injuries were sustained in a fight. The Board should try to decide how injuries are sustained if possible and practicable on the evidence before them.
Facts
The Applicant (‘S’) was found unconscious in the road by a passer-by on 19th November 1984. An ambulance was called and he was taken to hospital, however he walked out of the hospital and tried to take a taxi home. As S had no money to pay his taxi fare, there was an altercation between him and the taxi driver. The police were called and he was arrested for being drunk and disorderly. He was examined in custody and found to have sustained a head injury together with left and right sided facial injuries and admitted to hospital for specialist neurological treatment. S subsequently applied to the Criminal Injuries Compensation Board (‘the Board’), which disallowed his application. He then sought an oral hearing, at which the Board confirmed the original decision on the basis that they were not satisfied how S came by his injuries and that S had failed to discharge the onus of proving his case. S sought judicial review of the Board’s decision on the basis that it was perverse in that the Board must reach a decision one way or the other whether the case has been made out or not.
Held, allowing the application
(1) There are cases in which the Board is entitled in law to say that an applicant has not discharged the burden of proof and that it does not know how the relevant injury was sustained. However, in so far as it is possible and practicable on the material before the tribunal, the Board ought to try to make up its mind one way or the other.
(2) In the present case there are 3 ways in which S could have come by his injuries: (i) he had a fall, (ii) he had a fight in which someone hit him otherwise than in self-defence and (iii) he had a fight in which he came by his injuries through someone hitting him in self-defence. At no stage was the third possibility canvassed.
(3) Reference in the Board’s reasons to S’s acquaintance with violence was hardly justified on the facts. He had one previous conviction for assault.
(4) In light of the clear medical evidence of a severe blow to the back of the head and injuries to the front of the face on both left and right sides May LJ said : “I am driven to the conclusion that no reasonable tribunal should, in balancing a fall on one side against a fight on the other, have reached a conclusion that they were both equally likely. Any reasonable tribunal must, faced with the choice on the material available, have been forced to the conclusion that a fight was more likely than a fall.”
(5) The Board’s decision was perverse in the Wednesbury sense. Application allowed.
Parts of Scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1979
Cases referred to in judgment
R v CICB ex parte Crangle (unreported, 6th November 1981, Hodgson J)
Representation
Mr A Sharp instructed by Messrs E Rex Makin & Co for the Applicant
Mr J Laws instructed by the Treasury Solicitor for the Respondent
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