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Headnote |
Summary of decision
It is generally insufficient for the Panel simply to give the figures it has determined to award an applicant with no explanation as to how they have been arrived at. Any award of damages for future care should depend on whether, when and for how long that cost will in fact be incurred. It is for the applicant to satisfy the Panel of the facts on which the award he seeks is based; he may fail to do so although no adverse evidence is before them.
Facts
The applicant (‘DB’), born 26 April 1980, suffered massive brain damage in infancy as a result of a non-accidental injury caused by violent shaking by his birth mother. Consequently, he was, and would remain, totally dependent on others for the rest of his life. DB was cared for by his adoptive mother (‘Mrs B’), who was aged 47 at the date of the application. The claim before the Criminal Injuries Compensation Appeals Panel (‘the Panel’) included the sum of £170,000 for past care and £1,500,000 for future care, based on a nursing care report (‘the care report’) and a multiplier of 13.35. The care report indicated that Mrs B would not be able to continue looking after DB in the long term without professional carers, which was costed at £98,500 for the first year and £96,000 per annum thereafter. In evidence before the Panel, Mrs B confirmed that she would employ the professional carers envisaged in the report owing to her own back problems. The award made by the Panel included the sum of £100,000 for past care and £425,000 only for future care. The Panel initially gave no reasons but read out the figures they had arrived at. Following further submissions on behalf of DB about the care claim requesting reasons for the decision, the Panel retired to reconsider. The Panel reconvened and gave their reasons orally and, subsequently in writing: they did not consider that Mrs B would cease caring for DB immediately; they considered that she would require professional assistance after a period represented by a multiplier of 7; they assessed the annual cost of such care to be £50,000, added £70,000 for the first year and arrived at a figure of £425,000. DM applied for judicial review of the Panel’s decision on the grounds that the reasons were insufficient, that the Panel had rejected the unchallenged evidence of Mrs B and the care report, and that the Panel’s decision was unreasonable.
Held, dismissing the application
(1) It was generally insufficient for a tribunal simply to give the figures it had determined to award an applicant with no explanation as to how they had been arrived at. The initial announcement by the Panel of its decision was clearly insufficiently reasoned. The written reasons given by the Panel were however adequate. It was clear from those reasons what findings of fact were made, why and what followed from them.
(2) The Panel determined that the applicant’s need for care was not that which was put forward on his behalf, but was for care which would be met by Mrs B for 10 years. The Panel in making this assessment applied the rules of common law. The award of damages for future care should depend on whether, when and for how long that cost would in fact be incurred. It was therefore necessary for the Panel to determine whether and when Mrs B would cease to care for DB. The Panel did not make an error in doing so and in making their award on the basis of their findings.
(3) The Panel did not reject the evidence of the care report; they rejected the evidence of Mrs B that she would employ the carers envisaged by the care report as soon as Mrs B stated that she would. It was correct that the Panel had before it no evidence contradicting that of Mrs B. However, the procedure of the Panel is not adversarial, but more inquisitorial. It is for the applicant to satisfy the Panel of the facts on which the award he seeks is based and he may fail to do so although no adverse evidence is before it. In this case the Panel had no medical evidence about Mrs B’s back condition. This Court must defer to the Panel in relation to its findings of fact and assessments of future conduct based on those findings unless convinced that they ignored relevant evidence or acted perversely. The determination reached by the Panel was one open to them on the evidence before them.
(4) The award made was not generous; however, there were no grounds for quashing the Panel’s decision.
Parts of scheme and other legislation referred to in judgment
1990 Criminal Injuries Compensation Scheme, paragraph 12
Cases referred to in judgment
Alexander Machinery v Crabtree [1974] ICR 121
R v Immigration Appeal Tribunal, ex parte Khan [1983] 2 All ER 420
Flannery v Halifax Estate Agencies Limited [2000] 1 WLR 377
Eckersley v Binnie (1988) 18 Con. L.R. 1
Ex parte Dave [1994] 1 WLR 98
Daly v General Steam Navigation Co. [1981] 1 WLR 120
Nash v Southmead Health Authority [1993] PIQR Qi 56
Fairhurst v St Helens and Knowsley Health Authority [1995] PIQR Q1
Housecroft v Burnett [1986] 1 All ER 332
Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174
Moser v Enfield and Haringey Area Health Authority (1982) 133 NLJ 105
Cunningham v Harrison [1973] 3 All ER 463, [1973] QB 942
R v Criminal Injuries Compensation Board, ex p Milton [1997] PIQR P74
R v Hillingdon LBC, ex p Puhlhofer [1986] 1 AC 484
R v Parole Board, ex p Watson [1996] 1 WLR 906
R v the Director General of Telecommunications, ex p Cellcom Ltd [1999] COD 105
Adrian Whitfield QC instructed by Barcan Woodward for DB.
Robin Tam instructed by the Treasury Solicitor for the respondent.
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