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Headnote |
Summary of decision
Where the possibility of future deterioration of a criminal injury was taken into account, and compensated for in the original award made by the Criminal Injuries Compensation Board the Applicant had failed to make out his case for re-opening of his claim. The decision of the Chairman not to re-open the claim was not one that no reasonable tribunal could have reached.
Facts
The applicant (‘B’) was shot in the leg while working as an employee of Securicor Limited in February 1977. He subsequently applied for compensation and in November 1981 the Criminal Injuries Compensation Board (‘the Board’) made a final award of compensation to him which he accepted in 1982. The medical evidence at that time indicated that the Applicant might suffer flares of infection at the fracture site and that there was a tiny sinus adjacent to the fracture site. In 1985, there was a flare up and the Applicant required a fairly serious operation and further procedures to explore the sinus and bone infection. By early 1986 he had been discharged from hospital and the prognosis was generally favourable. B applied under paragraph 13 of the 1979 Scheme for his case to be re-opened as a consequence of the further problems he experienced with his leg. That paragraph provided that the Board would have discretion to reconsider a case after a final award of compensation has been accepted where “…there has been such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand…” Mr Michael Ogden was the Chairman who considered B’s application. He concluded that this was a borderline case but that on the totality of the evidence he was not satisfied that there had been such a serious change in the applicant’s medical condition that injustice would occur if the original assessment were allowed to stand. B applied for judicial review of Mr Michael Ogden’s decision.
Held, refusing the application
(1) B could only succeed in his application if he could show that the decision made by Mr Michael Ogden was Wednesbury unreasonable, in other words that it was a decision that no reasonable decision maker could have come to on the facts.
(2) In the present case it was perfectly true that there has been a change in B’s medical condition. The doctors had foreseen the possibility of the occurrence of the trouble which did occur, however, the original compensation contemplated that possibility and compensated B for it, in accordance with the doctor’s then opinions.
(3) If each time there was a change of this nature, in the sense that the doctors’ prognosis turned out to be unfortunately correct, it could be said that there was going to be injustice if that change were not compensated that would apply in very many cases. “The Scheme only contemplated the re-opening of cases where there was a strong smell of injustice should there not be a re-opening of the case.”
(4) “Looking at the matter in the round and taking into account what actually did occur, balanced against the possibility which was foreseen by the doctors, I am wholly unable to conclude that Mr Michael Ogden went so far off the rails in this case that he should be caught by the condemnation of the Associated Provincial Picture Houses v. Wednesbury Corporation [1948] KB 223, [1947] 2 All ER 680, unreasonable test”. B’s application was, accordingly, dismissed.
Parts of scheme and other legislation referred to in judgment
1979 Criminal Injuries Compensation Scheme, paragraph 13
Cases referred to in judgment
Associated Provincial Picture Houses v. Wednesbury Corporation [1948] KB 223,
[1947] 2 All ER 680
Representation
JA Hooper for B
N Pleming for the respondent
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