News Category 3
Frank Perry v Raleys Solicitors - Elizabeth Jones, Parklane Plowden Chambers
25/09/17. The Claimant was a miner who many years ago brought a claim, supported by medical evidence, for VWF (Vibration White Finger). In the current action the Claimant was pursuing his former solicitor for professional negligence in failing to advise him about making a claim for services (which were similar to claims for care and assistance).
At first instance the claim was dismissed on the basis the Claimant could not prove he needed assistance with tasks due to the VWF; this was overturned on appeal. From the perspective of a personal injury practitioner the case considers some relevant issues.
DISHONESTY – The Defence put the Claimant to proof. The implication of the Defendant’s case was the Claimant would never have made a claim for services, even if he had been properly advised, as the Claimant did not need assistance. Lady Justice Gloster formed the view “if serious allegations of dishonesty were being made, it should have been made absolutely clear to Mr Perry in cross-examination that such was the case”(see paragraph44). The Court formed the view the Claimant should be given the opportunity to address the allegations of dishonesty that were being made. Can the same analogy be drawn in a case in which the Defendant is...
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Fire Safety - Laura Guntrip, Lester Aldridge
23/09/17. The danger presented by fire is well known but people may be surprised by just how many fires actually take place and, in particular, how many occur in care homes.
Care home fires are not a new phenomenon but the topic has been bought sharply to the forefront of our minds as a result of the recent media coverage of several such incidents. As a result of that coverage and tragedies such as Grenfell Tower, fire safety is not only at the forefront of our minds but also that of regulatory bodies.
Statistics published by London Fire Brigade in October 2016 show that in London alone, there were 120 care home fires in 2016 (an average of ten a month just in London). Care home fires are therefore not as rare as many may think.
Fires can highlight failures and inadequacies in risk assessments, evacuation procedures, staff training and staffing numbers. They can also highlight other issues such as inadequate fire detection or control systems or equipment.
Fires can be devastating and can spread quickly. Elderly people, particularly those with limited mobility, visual, hearing and cognitive impairments are, of course, at an even greater risk and rely upon care providers and staff to ensure their safety.
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CICA and False Claims: A Rock and a Hard Place? - Caroline Kelly, Thorntons
17/09/17. The Criminal Injuries Compensation Authority (CICA) has been in the press on a number of occasions recently about compensation paid out to abuse victims in cases where the allegations have later been exposed as false.
The Criminal Injuries Compensation Scheme (CICS) is a government funded scheme which aims to compensate victims of violent crime.
Having previously volunteered as a support worker with the Women’s Rape and Sexual Abuse Centre (WRASAC), I know how difficult it can be for survivors to speak out about the abuse they have suffered, often taking years to do so and I also know how difficult it can be to obtain a conviction in such cases. So to read comments suggesting that compensation in such cases should only be paid where the allegations have been tested and proven does concern me. How many survivors would miss out on compensation if that were the case?
I absolutely agree that in cases where allegations of abuse have been found to be false, then steps should be taken to recover the compensation paid, albeit I appreciate in many cases that compensation may well already be spent and the person may have no money to pay the compensation back. However, if CICA were only to pay compensation in cases where there has been a criminal conviction, many who suffered such abuse would go without compensation. There has to be a balance struck. It must also be remembered that criminal cases have to be proven beyond a reasonable doubt whilst a civil case must be proven on the balance of probabilities.
CICA do not pay out compensation lightly and I don’t agree with any suggestion that the system provides an incentive for people to make up allegations of abuse to recover compensation. It is not simply a case of filling out a form making such allegations and CICA then pay out compensation. An investigation is undertaken by CICA including obtaining reports from the police and from medical professionals about the impact the abuse has had on the survivor. In my view, those who make false allegations and submit a claim for compensation will have to have gone to some lengths to weave a story that supports a claim for compensation.
Where allegations are later proven to be false, then CICA can take steps to recover the money paid out by pursuing a civil action to recover the compensation paid. This in itself costs money and ultimately even if CICA obtain a judgment, that only confirms that CICA are entitled to repayment of the sum and most likely expenses as well. If the perpetrator has no assets or money to pay, then CICA will recover little or nothing. So to take steps to pursue the civil fraud, they have to weigh up whether or not the perpetrator has any funds or assets to repay them.
Whilst I think there are some ways in which CICA fail victims of crime, I also recognise that they are in a difficult situation particularly in abuse claims. If they refuse to pay out until criminal investigations are concluded and the allegations are found to be proven to the criminal standard of beyond a reasonable doubt, many survivors would be refused compensation as so many cases are not prosecuted due to lack of evidence or a not guilty verdict is returned. I don’t believe that all those cases are cases where false accusations have been made. It is my view that in this situation, CICA are doing their best to ensure that genuine survivors of abuse are paid out, even in cases where a conviction does not follow. It would certainly be interesting to see how many abuse cases CICA have paid compensation on against those cases where compensation has been paid and the allegations are later found to be false as I believe that the number of people making such false allegations and recovering compensation are a minority and CICA are acting in the interests of the majority. Ultimately, I think CICA will always be between a rock and a hard place in this situation.
Caroline Kelly is a Partner and Solicitor Advocate in in Thorntons’ Personal Injury Team.
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Summary of Recent Cases, September 2017
15/09/17. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Costs
Woodburn v Thomas - Sen Cts Costs Office (Master McCloud) 11/08/2017
The court provided guidance on drafting bills of costs in details assessments in cases subject to the CPR Part 3 costs budgeting regime.
The bill of costs specified costs claimed on a phase-by-phase basis, each phase matching those set out in Precedent H forms. The costs lawyer set out in the CMC phase of the bill all the CMC costs which did not relate to costs budgeting. He provided a separate "non-phase" part of the bill in which all the costs relating to costs budgeting and costs management were set out. It followed that the bill's CMC phase excluded some items of costs which related to budgeting which were required to be included in...
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Is the Criminal Injuries Compensation Scheme Fit for Purpose? - Caroline Kelly, Thorntons Law LLP
14/09/17. I wrote earlier this year in the Journal of the Law Society Of Scotland about the sad case of Criminal Injuries Compensation Authority v First Tier Tribunal (Social Entitlement Chamber) and Y [2017] EWCA Civ 39 and the purpose of the Criminal Injuries Compensation Scheme (‘the Scheme’)*. The Scheme has been in the papers recently for a number of reasons over the last month or so and that raises the question for me as to whether the Scheme is fit for purpose in its current state.
The Scheme is government funded and run by the Criminal Injuries Compensation Authority (‘CICA’) and is ‘designed to compensate blameless victims of violent crime’. For me, the key words there are blameless, victims and violent crime. My opinion piece in the journal talks about a case where a child conceived and suffering congenital disabilities as a result of rape cannot recover compensation directly under the Scheme and the criteria for claiming special expenses where a victim of rape is bringing up a disabled child as a result of that rape and I don’t intend to consider those issues further here. Instead, the three further areas which I consider merit attention are :-
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Sexual assault, children and grooming
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Sexual assault and the two year rule
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The same roof rule
Sexual Assault and Grooming
Charities such as Barnardo’s and Rape Crisis say that children are being denied compensation under the Scheme because they are considered by the CICA to have consented to the assault when in fact they have been groomed by their attacker or attackers. The definition of a crime of violence includes ‘a sexual assault to which a person did not in fact consent’. So can a child consent to a sexual assault? The criminal law says no. On that basis, how can the CICA apply a different definition to consent if the criminal law is clear on this issue? The Scheme should not be applied in such a way that victims are made to feel that they are to blame for the abuse. If the situation is such that the CICA are refusing compensation in such cases, I suggest that the Scheme needs to be updated to make it clear that grooming does not equate with consent.
Sexual Assault and the Two Year Rule
Applications for a payment under the Scheme must be sent ‘as soon as reasonably practicable after the incident giving rise to the criminal injury to which it relates and in any event within two years after the date of that incident’. A claims officer can extend that period if they are satisfied that ‘due to exceptional circumstances the applicant could not have applied earlier. No definition of exceptional circumstances is given. I previously volunteered with the Women’s Rape and Sexual Abuse Centre (WRASAC) and I know from my time there that victims of sexual assault may not report the crime right away and if they do, it can often be much later before they feel able to disclose the abuse to anyone, particularly in cases where the abuse occurred when they were younger. This places many victims of sexual abuse outwith the two year time limit, meaning they then have to justify why it has taken them so long to make a claim. I take the view that this does not help the Scheme meet its purpose – it is making blameless victims justify their actions. The two year time limit works in many cases but when the crime of violence is sexual assault or abuse I do not think that this reflects the reality of the victims experience and coming to terms with such events.
Same Roof Rule
If the criminal injury was sustained before 1 October 1979 and the victim lived in the same household as their assailant as members of the same family, then the victim is not entitled to compensation. The Inner House recently determined that this restriction of the scheme was proportionate (https://www.scotcourts.gov.uk/search-judgments/judgment?id=49a738a7-8980-69d2-b500-ff0000d74aa7) and was a ‘prudent policy decision’. It could however mean that two victims of the same assailant could end up being treated differently, if for example one victim resided with the assailant and the other didn’t. Successive governments have declined to change this rule. The CICA justified their exception in a letter dated 7 December 2016 to the Public Petitions Committee (http://www.parliament.scot/S5_PublicPetitionsCommittee/Submissions%202016/PE1612_A_CriminalInjuriesCompensationAuthority.pdf) on the basis that changing the rule would increase the Scheme’s potential liability in an uncertain way, involve a significant administrative burden for the CICA and present difficulties for claims officers in linking the offence and the injuries. Certainly in relation to the last ‘justification’, in any claims for compensation I deal with, I rely on medical experts to link injuries with the incident and it would seem to me that this should be the case in any applications to CICA. It shouldn’t be for the claims officer to make that determination. In my view, this restriction prevents the Scheme from fulfilling its purpose. There are other eligibility criteria that must be taken into account which in my view would mean that the changes to the same roof rule would not ultimately mean opening the floodgates.
Caroline Kelly
Partner and Solicitor Advocate
Accredited Specialist in Personal Injury Law
Thorntons Law LLP
* http://www.journalonline.co.uk/Magazine/62-4/1023117.aspx
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- The Divisibility of Psychiatric Injury and Taking the Stress Out of Apportionment - Jack Harding, 1 Chancery Lane
- Editorial: Filing by Email or Fax - Aidan Ellis, Temple Garden Chambers
- Stressful Times: Marsh v Ministry of Justice [2017] EWHC 1040 (QB) - Andrew Roy & Vanessa Cashman, 12 King's Bench Walk
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