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Headnote |
Summary of decision
Where an applicant’s injuries result from his willing participation in a fight, the following 3-stage test should be applied in assessing whether and to what extent he should receive compensation: (i) does the applicant’s conduct make a full award inappropriate; (ii) if so, to what extent does the applicant’s conduct impact on the appropriateness of an award; (iii) what award if any should the applicant consequently receive? In this case the Board failed to show it had applied the appropriate reasoning.
Facts
The applicant (‘G’) was injured when he intervened in a fight on behalf of a friend whom he believed had been attacked. G made an application to the Criminal Injuries Compensation Board (‘the Board’), which was refused on paper on the grounds that G had provoked and was willing to participate in a fight (paragraph 6(c) of the 1979 Scheme). G applied for an oral hearing, at which the Board confirmed the paper decision to withhold compensation, having rejected his oral evidence in favour of a witness statement given to the police immediately after the event which demonstrated that he had provoked and was a willing participant in the fight. G sought judicial review of the Board’s decision.
Held, granting the application
(1) The facts found by the Board were capable of sustaining the whole spectrum of possible decisions from nil to a complete award. All the possible levels of award lie within the range of decision compatible with the finding that the applicant was ready to fight in the material circumstances.
(2) Whilst the court accepted that it is “more nearly a moral judgment than a causative link that is postulated by paragraph 6 it is still for the Board to establish a rational and proportionate nexus between the conduct of the applicant before and during (and in other cases after) the events before these can reduce or extinguish the award to which he would otherwise be entitled.”
(3) The Board in such cases should proceed in 3 stages: (i) does the applicant’s conduct make a full award inappropriate; (ii) if so, to what extent does the applicant’s conduct impact on the appropriateness of an award; (iii) what award if any should the applicant consequently receive?
(4) The Board’s reasoning failed to consider stage (ii) and was consequently defective. Application granted.
(5) The Guide to the Scheme published by the Board should be treated as a guide and no more. It did not constrain the exercise of the Board’s discretion in applying the Scheme.
Parts of scheme and other legislation referred to in judgment
1979 Scheme, paragraph 6(c)
Cases referred to in judgment
Lane v Holloway [1968] 1 QB 379
British Oxygen [1971] AC 610
Representation
Mr R Drabble instructed by Messrs Arthur Smith & Broadie-Griffiths for the Applicant
Mr M Kent instructed by the Treasury Solicitor for the Respondent
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