|
Headnote |
Summary of decision:
Mental and physical abnormalities arising from being conceived and born as a result of incest were not personal injuries within the meaning of the Criminal Injuries Compensation Scheme 1969.
Facts:
The applicant, P, was conceived and born as a result of an act of incestuous sexual intercourse between her mother, WB, and her mother’s father TGB. WB alleged that the intercourse was rape. At the time of conception, in or about April 1972, WB was aged 15. On 13 November 1991 TGB was convicted and sentenced to eight years imprisonment for, inter alia, offences constituted by acts of incestuous sexual intercourse. P was born with, and would suffer permanently from, severe mental handicap. She was born with congenital characteristics not present in a normal child, which were genetic and arose directly from the consanguinity of her parents. On 4 December 1991 WB applied to the Criminal Injuries Compensation Board (‘the Board’) on behalf of P for compensation on the basis that her mental handicap was directly attributable to crimes of violence perpetrated by TGB. The Board rejected that application on the ground that they were not satisfied that P was suffering from personal injuries which were directly attributable to a crime of violence as required by paragraph 5 of the Criminal Injuries Compensation Scheme 1969 (‘the Scheme’). A applied for an oral hearing, following which the Board affirmed the previous decision. The Board held that, even if the congenital defects were personal injuries, the characteristics complained of were not attributable to what could be taken as an act of rape but to the genetic make up of the parents, and were thus not directly attributable to violence. Further, at the time of conception and birth the mother and the offender were living together as a family for the purposes of paragraph 7 and P was not, therefore, entitled to compensation. By judicial review, P sought to quash the Board’s decision and sought an order requiring the Board to consider the application anew. The main issues were: (1) whether the grievous condition of P could properly be regarded as a personal injury within the meaning of paragraph 5 of the Scheme; (2) whether, assuming the first question was answered affirmatively, the injuries were directly attributable to a crime of violence; (3) whether the claim was barred in terms of paragraph 7 of the Scheme on the basis that the victim who suffered injuries and the offender who inflicted them were living together at the time as members of the same family.
Held, dismissing the application:
(1) The Board had not erred in law when they concluded in their decision that “congenital deficiencies cannot properly be held to be injuries within the meaning of the Scheme”. The reasoning in the Board’s written decision was not open to criticism. The concept of injury, in the context of a situation where compensation for it must be assessed, presupposed a pre-injury state which was capable of assessment and comparison with the post-injury state. It was obvious from the circumstances of this case that P never had, nor could have, any existence save in a defective state. Accordingly, it was inevitable that her plight, grievous though it might be, could not be seen as "personal injury", within the meaning of paragraph 5 of the 1969 Scheme.
(2) This view was supported by a consideration of paragraph 10 of the 1969 Scheme, which provided that " .. compensation will be assessed on the basis of common law damages ...". It was quite evident from a number of decisions, and in particular McKay v Essex AHA [1982] 1 QB 1166 that such an assessment, in this case, would be impossible. The common law, with logical justification, had set its face against the possibility of making an assessment of damages in a case such as this.
(3) The Board ought to have adopted a common sense approach to causation. In drawing a distinction between the birth of the child, which was accepted as being directly attributable to the act of rape, and the injuries, that were not, the Board had erred in their approach. A jury would accept the birth of a child and its disabilities as both being directly attributable to the same criminal act.
(4) It plainly could not be the case that the foetus and the offender “were living together at the time as members of the same family” as it could not meaningfully be said that a foetus could live with anyone as a “member of… (a) family”. It was clear that paragraph 7 of the Scheme was intended to relate to persons in life independent of their mothers and the Board were, therefore, wrong to hold otherwise.
(5) In the light of the Court’s conclusion on the first issue, its conclusions on the second and third issues were of no practical effect.
Parts of the scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1969, as revised, paragraphs 2, 5, 6, 7, 9, 10
Scottish Law Commission, No 30
Congenital Disabilities (Civil Liability) Act 197, sections 1, 4(1).
Human Fertilisation and Embryology Act 1990
Prescription and Limitation (Scotland) Act 1973
Abortion Act 1967
Cases referred to in the judgment:
Burton and de Martell [1992] 3 ALL ER 833
R v CICB ex pare P, 1993
Black v Duncan 1924 SC 738
A v C 1919 35 Sh. Ct. Rep 166
Zepeda v Zepeda 190 NE 2d 849
Curlender v Bio-Science Laboratories App. 165 Cal Rptr 477
McKay v Essex AHA [1982] 1 QB 1166
Berman and Others v Allan and Another 404 A 2d8
Alquijay v St Lukes-Roosevelt Hospital Center 483 NYS 2d 994
Azzolino and Others v Dingfielder 337 SE 2d 528
Williams v State of New York 223 NE 2d 343
Cowe v Forum Group Inc 575 NE 2d 630
Harbeson and Others v Parke-Davis Inc Wash. 656P 2d 483
Turpin v Sortini and Others Sup 182 Cal Rptr 337
Procanik v Cillo and Others 478 A 2d 755 (NJ 1984)
Jorgensen v Meade Johnson Laboratories Inc 483F 2d 237 (1973)
Renslow v Mennonite Hospital and Others 367 NE 2d 1250
Bergstreser v Mitchell and Others 577 F 2d 22 (1978)
Graham and Another v Keuchal and Others 847 P. 2d 342 (Okl. 1993)
R v Criminal Injuries Compensation Board ex parte Schofield [1971] 1 WLR 926
Brown v Minister of Pensions 1946 SLT 371
R v Criminal Injuries Compensation Board ex parte Ince [1973] 1 WLR 1334
Stapley v Gypsum Mines Limited [1953] AC 663
R v Criminal Injuries Compensation Board ex parte Staten [1972] 1 ALL ER 1034
Livingstone v Raywards Coal Company (1880) 7 R (HL) 1
Wallace v Kennedy 1908 SLT 485
Simpson v Imperial Chemical Industries Limited 1983 SLT 601
Williams v The State of New York 276 NYS 2d 885
Becker and Others v Schwartz and Others and Park and Others v Chessin and Others 413 NYS 2d 895
Moffat v The Secretary of State for Scotland 1995 SLT 729
Page v Smith [1996] 1 AC 155
Glasgow District Council v The Secretary of State for Scotland 1980 SC 150
Ahmed v The Secretary of State for the Home Department [1994] Imm AR 457
Andrew v Glasgow District Council 20 January 1995, Lord Clyde, unreported.
Albala v City of New York and Others NY 429 NE 2d 786
Enright v Eli Lilly & Company and Others 568 NYS 2d 550 (Ct App 1991)
Grover and Others v Eli Lilly & Company and Others 591 NE 2d 696 (Ohio 1992)
R v Criminal Injuries Compensation Board ex parte Webb [1987] 1 QB 74
Gray v Criminal Injuries Compensation Board 1993 SLT 28
Hamilton v Fife Health Board 1993 SLT 624
Barclay v Chief Constable, Northern Constabulary 1986 SLT 562
Fleming v Strathclyde Regional Council 1992 SLT 161
Law Hospital NHS Trust v Lord Advocate 1996 SLT 848
Airedale NHS Trust v Bland [1993] AC 789
Representation:
Mr Philip Brodie QC and Mrs Janys Scott, instructed by Brodies, WS, for A.
Mr Robert Reed QC and Miss Marion Caldwell, instructed by the Solicitor to the Secretary of State for Scotland, for the Board.
|