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Headnote |
Summary of decision
The phrases "full recovery" and "continuing disability" in the Criminal Injuries Compensation Scheme 1996 had to be construed by reference to each other and related to the relevant limb or organ and not to the claimant. Where there was an observable and measurable loss of faculty which could sensibly be described as "continuing" rather than temporary or short term and an ordinary person adopting a sensible view of life would not be prepared to agree that there had been a full recovery, the case would probably be one of continuing disability.
Facts
The applicant (‘E’) claimed compensation under the Criminal Injuries Compensation Scheme 1996 (“the 1996 Scheme”) after sustaining a fracture to her finger during an assault at work on 3 January 1997. The issue for the Criminal Injuries Compensation Appeals Panel (‘the Panel’) was whether there was “continuing disability” or “full recovery”, as outlined in the 1996 Scheme Tariff. There were medical reports from a GP and two consultant orthopaedic surgeons. Their evidence was consistent with that of E namely that she had recovered from her injury to the extent that she was able to return to her pre-accident work as a nurse, that she had an almost full range of movement in the finger, but that she had some residual stiffness, slight loss of movement and occasional discomfort. No other long term disabilities were anticipated. The Panel upheld the earlier decisions of the Criminal Injuries Compensation Authority and made an award of £1,500, in accordance with level 3 of the tariff, on the basis that she had made a full recovery from her injury. The Panel concluded that E did not have a continuing disability within the meaning of the Scheme. The focus of their consideration was on E’s ability to perform everyday tasks rather than looking specifically at the functioning of her finger.
E sought judicial review of that decision on the grounds that the Panel had incorrectly directed itself as to the meaning of the words “full recovery” and “continuing disability” contained in the Tariff. E contended that on the basis of the evidence before the Panel they ought properly to have concluded that this was a case of “continuing disability” and so awarded compensation of £3,500 as directed by level 8 of the tariff.
Held, making an order of certiorari quashing the decision of the Panel
(1) The words "full recovery" and "continuing disability" (which are similarly used in the Tariff in relation to numerous descriptions of injury to other limbs) were not defined in the Act, the Scheme or the Tariff.
(2) As the tariff contained only two descriptions of injury in relation to a fractured finger there must necessarily be in each case either “full recovery” or “continuing disability”. Therefore each phrase had to be construed by reference to the other and each excluded the other. Accordingly, “full recovery” meant full recovery from what would otherwise be “continuing disability”. Conversely “continuing disability” meant a continuing disability which precluded full recovery. Furthermore, continuing disability” had to be contrasted not with “recovery” but with “full recovery”. Similarly “full recovery” had to be contrasted not with “disability” but with “continuing disability”. It followed that the case could properly be treated as one of “full recovery” if the “disability” was merely temporary or short lived. Subject to the above, the phrases should be given their ordinary dictionary meanings
(3) The phrases “full recovery” and “continuing disability” related to the relevant limb or organ and not the condition of the claimant as a person, or a worker or housewife or whatever.
(4) Where there was an observable and measurable loss of faculty which could sensibly be described as "continuing" rather than temporary or short term and an ordinary person adopting a sensible view of life would not be prepared to agree that there had been a full recovery, the case would be probably one of continuing disability.
(5) Disability was not limited to inability to perform a task or activity; as the dictionary showed, it extended to conditions that limit movements and senses. The meaning of “disability” in respect of shock or nervous shock as set out in Note 2(b) to the tariff and relied on by the Panel was not relevant to physical injuries such as those sustained in this case.
(7) The Panel had wrongly focussed on the issue of whether E was still able to carry out her full range of normal duties at work and placed undue reliance on Note 2(b) to the tariff. In this case the Panel had accepted E’s evidence that she was suffering from a loss of function or impaired movement in the finger. In light of those findings it was very difficult to see how the Panel, if it had properly directed itself in law, could have come to any view other that that the case was one of “continuing disability”. Accordingly, an order of certiorari was made to quash the decision of the Panel.
Parts of scheme and other legislation referred to in judgment
1996 Criminal Injuries Compensation Scheme, paragraphs 25, 26
Cases referred to in judgment
R v. Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2AC 513
Representation
K. Maciel instructed by the Royal College of Nursing Legal Services for E.
A. Robinson instructed by the Treasury Solicitor for the Respondent.
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