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Headnote |
Summary of decision
A railway employee who suffered Post Traumatic Stress Disorder after giving assistance to a boy whose arm was amputated by a train’s wheels was refused compensation. No criminal offence of trespass had been committed when the boy slipped whilst jumping back onto steps at the back of a train carriage from which he had been told to alight for not having a ticket. Whilst the Criminal Injuries Compensation Board did have power to hear further submissions after it had retired, doing so would not have made a difference in this case.
Facts
The Applicant (‘M’), an employee of the railways suffered Post Traumatic Stress Disorder ('PTSD') after giving assistance to P, a boy aged 12 or 13, whose arm was amputated by a train’s wheels. P was traveling on a train in Sussex without a ticket. The guard or controller required P to alight from the train at Angmering Station. P complied. As the train pulled away, P jumped onto steps at the back of a carriage so that he was holding onto the carriage and standing on the steps, from which he slipped and fell on to the tracks. One of the wheels then ran over his arm. M made a claim to the Criminal Injuries Compensation Board (‘the Board’). The Board concluded that M’s injury was not the consequence of a criminal offence of trespass by P within paragraph 4(c) of the Criminal Injuries Compensation Scheme 1990. Upon appeal by M by way of an oral hearing, counsel attended on his behalf but without the relevant legislation and an adjournment was granted so that he could put before the Board any authorities he could find. In the event, the Board concluded that the offence of trespass on a railway meant trespass on land (not on the train) and that no criminal offence had been committed resulting in no award of compensation. Upon returning to his Chambers and having spoken to a colleague who referred him to another analagous case where the Board had found trespass made out, Counsel appearing for M before the Board provided further submissions by way of a note. The Board did not consider that it was right to hear further submissions on the basis that it was functus i.e. it had no power or authority to deal with the case any further. M sought judicial review of the Board’s decision on two bases. (1) That the Board erred in law in deciding that there had been no criminal offence; and (2) That the Board should, in light of Counsel’s note, have reconsidered the decision and heard further submissions or a further hearing.
Held, refusing the application
(1) The Board was not subject to written procedural provisions and had not formally recorded its decision. The Board did have the power to hear further submissions and their decision not to hear further submissions could be set aside and would be set aside as having been made under a misapprehension of the powers of the Board.
However:
(2) The Board had been correct in determining that no criminal offence had been committed. Section 55 of the British Transport Commission Act 1949 dealt with trespass on places on the railway to which the public were not normally admitted and therefore excluded trains and platforms. Further, it was a precondition of criminality that a warning was placed at the nearest station. Although section 16 of the Railway Regulation Act 1840 did apply to stations, no offence was committed unless a person was told to leave the station and refused to do so. P had been asked to leave the train and not the station. There was no trespass on the station platform, nor by P jumping from the platform onto the train. P had not committed a criminal offence and M could not recover compensation.
Parts of the scheme and other legislation referred to in judgment
1990 Scheme, paragraph 4(c)
British Transport Commission Act 1949 section 55
Railway Regulation Act 1840 section 16
Cases referred to in the judgment
Akewushola v Secretary of State for the Home Department [2000] 1 WLR 2295
Paragraph 13 of the judgment also refers to a case simply as Wood
Representation
Mr M Seaward, instructed by Thompsons, Congress House, Great Russell Street, London, for M.
Mr H Keith, instructed by the Treasury Solicitors, Queen Anne's Chambers, 28 Broadway, London for the Board.
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