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Headnote |
Summary of decision
Foreseeability plays no part in nervous shock claims. The test prescribed by the Criminal Injuries Compensation Scheme 1990 is whether the injury is ‘directly attributable’. Firstly the Applicant must show that he or she is suffering from personal injury (not merely shock or upset) of sufficient magnitude to qualify for an award under the Scheme, secondly the Applicant must show that the injury was caused by experience (in this case, finding the body of a murdered friend). The court was bound by the judgment of the Court of Appeal to this effect in R v Criminal Injuries Compensation Board, ex parte Parsons The Times 25 November 1982, CA
Facts
On 30 May 1989, the Applicant (‘J’) discovered the recently murdered body of a friend. She suffered considerable emotional distress and a shock-induced psychiatric illness. J applied for compensation. This was rejected by the single member as he was “not satisfied that the applicant’s illness was directly attributable to a crime of violence” within paragraph 4(a) of the Scheme. A psychiatric report was obtained and the case was reconsidered by the single member, who maintained his view, adding that J’s illness was only indirectly attributable to the crime of violence. The application was refused by a three-member Board, who said that it was necessary to consider whether the victim had a sufficiently proximate relationship with the immediate victim. J sought judicial review, arguing that the Board were wrong in law to introduce questions of forseeability drawn from the common law in relation to tortious liability into the scheme’s requirement that the injury was directly attributable to a crime of violence.
Held, quashing the decision and remitting the case for re-consideration
(1) Forseeability was not the test for entitlement to compensation. “The language of the draftsman was deliberately designed to establish a criterion different from the criterion or criteria relevant to liability in tort” (per Kay J). R v Criminal Injuries Compensation Board, ex parte Parsons, applied.
(2) The less foreseeable a consequence of an event was, the more difficult it may be to establish the necessary causal link.
(3) In a case such as the present, there were two elements to be established: Firstly, it must be shown that the applicant suffered personal injury. Shock, emotional upset cannot in themselves suffice. Secondly, it must be shown that the psychiatric illness was caused by the finding of the body.
Parts of the scheme and other legislation referred to in judgment
Criminal Injures Compensation Scheme 1990, paragraph 4
Cases referred to in the judgments
R v Criminal Injuries Compensation Board, ex parte Parsons The Times 25 November 1982, CA
O’Dowd v Secretary of State for Northern Ireland [1982] NI 210
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, HL
Representation:
Mr Timothy Hewitt, instructed by J M Wager Turner & Co, Bishop Auckland, for J.
Mr Michael Kent, instructed by the Treasury Solicitor, for the Board.
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