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Headnote |
Summary
In assessing compensation for an applicant with a pre-existing medical condition who was injured at work, the Criminal Injuries Compensation Appeals Panel was entitled to adopt different multipliers for the future cost of lifetime care and the future receipt of care-related benefits.
Facts
In November 1992 the applicant (‘S’) was injured whilst working as a cleaner; she tripped on a wire placed some 8 inches above the ground by someone unknown. She suffered from incapacitating fibromyalgia as a result of her injury. She also had carpal tunnel syndrome and lumbar spondylosis which were not in any way related to the accident. Nor did they contribute to her incapacitating condition in 2001.
Her application for compensation was initially refused on the basis that her injuries did not result from a crime of violence. At an appeal hearing, the Criminal Injuries Compensation Appeals Panel (‘the Panel’) found she was eligible for a full award. In March 2001 the Panel assessed her putative common law damages under paragraph 12 of the Criminal Injuries Compensation Scheme 1990 (‘the 1990 Scheme’) at £195,968. It then deducted £187,955 for benefits which had been or would have been received as a result of the injury under paragraph 19 of the 1990 Scheme, leaving a net final award of £8,013. The Panel, in assessing compensation, adopted different multipliers for the future cost of lifetime care (15) and the future receipt of care-related benefits (19.5). S sought judicial review of the Panel’s decision, which was refused by Munby J. S appealed Munby J’s decision on the grounds that (i) the judge was wrong in law to find that the Panel could properly apply different multipliers to the calculation of the cost of future care and the deduction for future benefits; (ii) having concluded that the Panel had wrongly applied a balance of probability test to the calculation of the deduction for future benefits, the judge was wrong to conclude that the chance of the benefit continuing to be paid at the present rate was virtually 100%.
Held, dismissing the appeal
(1) The reduction of the multiplier for the future care needs to 15 was an entirely orthodox means of reflecting future contingencies which did not imply that there would have been particular care needs from the age of 72. Instead it could, and in the view of the court should, be seen as an agreed recognition that there would have been expenditure on some care in any event during the actuarial period selected from the Ogden tables. In particular, it was not an implicit finding that S would have required the same intensity of care as she would now need from the age of 72.
(2) The Panel also concluded that S would have required some care over the years apart from the injury, but would never have qualified for Disability Living Allowance. The differing multipliers accorded with these findings and were not amenable to judicial review. Reference to section 75 of the Social Security Contributions and Benefits Act 1992 was not necessary. It did not form part of the Panel's reasons and the judge was correct not to rely on it.
(3) It was also too late seek to bring benefits other than Disability Living Allowance into the argument as contended for by S’s counsel. Until this appeal, the challenge has been advanced only by reference to Disability Living Allowance and the judge recorded in his judgment that there was no challenge to the Panel’s finding that but for the injury the claimant would never have become entitled to benefits.
(4) It was not clear from their decision that the Panel had applied the wrong test to the calculation of the deduction for future benefits. The finding explicitly depended on medical evidence that was not expressed in terms of probability. In any event, if the Panel had applied the wrong test, then the judge's decision that the modest adjustment in the multiplier sufficiently reflected the overwhelming realities was correct.
Parts of scheme and other legislation referred to in judgment
Criminal Injuries Compensation Scheme 1990, paragraphs 12 & 19(a)
Social Security Contributions and Benefits Act 1992, sections 71-76
Cases referred to in judgment
Doyle v Wallace [1998] PIQR Q146
Langford v Hebran [2001] EWCA Civ 361
Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602
Elizabeth-Ann Gumbel QC and Henry Whitcomb instructed by T V Edwards for S
Robin Tam and Jeremy Johnson instructed by the Treasury Solicitor for the Respondent
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