Gareth Owen Jones (Appointee Mrs Maureen Caldwell) v First Tier Tribunal (Social Entitlement Chamber) Criminal Injuries Compensation Authority (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Patten,Lord Justice Rix,Lord Justice Mummery |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] EWCA Civ 400 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2010/2079 |
| Date | 12 April 2011 |
[2011] EWCA Civ 400
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Nicol J, HHJ Sycamore and UTJ Mesher
07/222710
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rix
and
Lord Justice Patten
Case No: C3/2010/2079
and
Robert Glancy QC (instructed by Pattinson & Brewer) for the Appellant
Ben Collins (instructed by Treasury Solicitor) for the Interested Party
The Respondent did not appear and was not represented
Hearing date: 4 th March 2011
Introduction
At about 2.20 am on 18 th January 2005 the appellant, Mr Gareth Jones, was driving a Highways Agency gritter lorry along the nearside carriageway of the A282 north of the Dartford River Crossing. The A282 is a six-lane dual carriageway which links the Dartford Crossing bridge and tunnel to the M25 motorway. Slightly ahead of Mr Jones' vehicle was an articulated lorry travelling in the central lane of the north bound carriageway. This was driven by Mr Brian Nash.
As the articulated lorry approached a car parked on the hard shoulder of the carriageway, a man (Mr Barry Hughes) ran from near the car into the middle of the central carriageway, turned towards Mr Nash's lorry, and raised his arms. Mr Nash braked but was unable to avoid hitting Mr Hughes who was killed instantly. As a result of braking, the rear nearside corner of the articulated lorry strayed into the path of the gritter lorry and a collision occurred. The cab of Mr Jones' vehicle was destroyed and he was thrown from the vehicle on to the road. He suffered quite catastrophic injuries and now requires full-time residential care.
On 17 th May 2007 (acting by his mother, Mrs Maureen Caldwell) Mr Jones applied to the Criminal Injuries Compensation Authority (CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 ("the Scheme"). The Scheme was made on 1 st April 2001 under the powers contained in s.1 of the Criminal Injuries Compensation Act 1995. Section 1 of the Act provides (so far as material) that:
"(1) The Secretary of State shall make arrangements for the payment of compensation to, or in respect of, persons who have sustained one or more criminal injuries.
(2) Any such arrangements shall include the making of a scheme providing, in particular, for—
(a) the circumstances in which awards may be made; and
(b) the categories of person to whom awards may be made.
(3) The scheme shall be known as the Criminal Injuries Compensation Scheme.
(4) In this Act—
…
"criminal injury", "loss of earnings" and "special expenses" have such meaning as may be specified;
…
"specified" means specified by the Scheme."
Paragraph 6 of the Scheme provides that:
"Compensation may be paid in accordance with this Scheme:
(a) to an applicant who has sustained a criminal injury on or after 1 August 1964;"
The definition of "criminal injury" is contained in paragraph 8 of the Scheme:
"For the purposes of this Scheme, "criminal injury" means one or more personal injuries as described in the following paragraph, being an injury sustained in and directly attributable to an act occurring in Great Britain and directly attributable to:
(a) a crime of violence (including arson, fire-raising or an act of poisoning); or
(b) an offence of trespass on a railway; or
(c) the apprehension or attempted apprehension of an offender or a suspected offender, the prevention or attempted prevention of an offence, or the giving of help to any constable who is engaged in any such activity."
There is no further definition in the Scheme of what is meant by a "crime of violence" but "personal injury" is stated in paragraph 9 of the Scheme to include:
"… physical injury (including fatal injury), mental injury (that is temporary mental anxiety, medically verified, or a disabling mental illness confirmed by psychiatric diagnosis) and disease (that is a medically recognised illness or condition). Mental injury or disease may either result directly from the physical injury or from a sexual offence or may occur without any physical injury. Compensation will not be payable for mental injury or disease without physical injury, or in respect of a sexual offence, unless the applicant:
(a) was put in reasonable fear of immediate physical harm to his or her own person; or…"
Although the application for compensation was made outside the two-year time limit, the CICA waived any objection that it was out of time and accepted the claim for consideration. But on 6 th March 2008 Mr Jones was informed by the CICA that it was unable to make an award under the Scheme. The reasons given were that:
"Under paragraphs 6 and 8 of the Scheme we may pay compensation only if your client was the victim of a criminal injury. In most cases this means an injury directly attributable to a crime of violence. This type of crime might involve a physical attack on the victim or, in some cases, the threat of an attack. Or it might involve reckless behaviour that causes injury. To assess whether your client qualifies for an award under the Scheme we obtain relevant details about the incident and injuries from the police and the doctors who provided treatment. In this case there is reference to a "reckless act" in the application form, but to be eligible for an award under the Scheme the applicant must have been a victim of a crime of violence. We have looked at the facts in this case and cannot pinpoint a crime of violence which would enable an award to be made."
Mr Jones requested a review of the decision but in a decision letter of 29 th May 2008 the CICA stated that it remained of the view that the injuries suffered were not attributable to a crime of violence.
Mr Jones then appealed to the First Tier Tribunal ("FTT"). Although an open verdict had been reached at Mr Hughes' inquest, the FTT reviewed the evidence and made the following findings of fact:
"34. Mr Jones was injured because the vehicle he was driving collided with an articulated lorry driven by Mr Nash when it veered into the lane of the A282 in which he was proceeding. Mr Nash changed direction because of the actions of Mr Hughes in running out and standing in front of his vehicle with the intention of killing himself. Although there is some evidence that Mr Nash had exceeded the speed limit and there is uncertainty as to the speed at which Mr Jones was travelling, there is no evidence to suggest that Mr Jones's injuries could have been avoided if either vehicle were travelling within the speed limit.
35. There is inevitably no evidence available as to the state of mind of Mr Hughes, whose actions caused Mr Jones' injuries through the mechanism of a highway road traffic accident. The Tribunal found on the balance of probability that he ran into the road intending to commit suicide. There was no evidence that he deliberately intended to harm the users of the road."
Suicide is no longer a criminal act but, before the FTT, counsel for Mr Jones contended that Mr Hughes had committed two criminal offences: (i) intentionally and unlawfully interfering with a motor vehicle contrary to s.22A of the Road Traffic Act 1988 ("the 1988 Act"); and (ii) inflicting grievous bodily harm contrary to s.20 of the Offences against the Person Act 1861 ("the 1861 Act"). The FTT were not satisfied that an offence under s.22A had been committed or that any such offence amounted to a crime of violence within the meaning of the Scheme rules. That conclusion is not challenged on this appeal and I need say no more about it. But the FTT also rejected the claim based on a s.20 offence. Their reasons are set out in paragraphs 37 and 38 of the decision as follows:
"37. The Tribunal were not satisfied that a crime of violence had been committed by Mr Hughes. Suicide is not a crime per se. There are actions which may be unlawful and may result in personal injury to another which are not crimes of violence. It is the nature not the consequences of an act which makes it a crime of violence. In the view of the Tribunal Mr Hughes' act in throwing himself in front of the articulated lorry was not a hostile act directed towards a person who suffered injury as a result.
38. The Tribunal accepted the evidence of PC Sexton that probably Mr Hughes' primary aim was to be certain of causing his own death and that in his experience it was very unusual for a suicide in this manner to cause such extensive personal injuries and damage to vehicles. Mr Hughes may have been careless of the injuries that may have been caused to third parties by his actions. However the Tribunal were not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused when he ran out into the dual carriageway, such as to bring his case within section 20 OAPA 1861".
Before coming to the substance of the FTT's reasoning it is necessary to say something about the law relating to s.20 and the authorities on what constitutes a crime of violence within the meaning of the Scheme.
Section 20 of the 1861 Act provides that:
"Whosoever shall unlawfully and maliciously wound or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanour…".
In R v Savage [1992] 1 AC 699 Lord Ackner (quoting from Diplock LJ in R v Mowatt [1968] 1 QB 421 at p. 426) said that:
"In the offence under section 20 … for … which no specific intent is required, the word 'maliciously' does import … an awareness that his act may have the consequence of causing...
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