Assault victim denied criminal injuries compensation following judicial review by Advocate General

The First-tier Tribunal (Social Entitlement Chamber) had held that the applicant was entitled to compensation after ruling that fracture of the nasal bones was to be included within the definition of “skull fracture” in the Criminal Injuries Compensation Scheme, but a judge in the Court of Session reduced the tribunal’s decision.

‘Fracture of nasal bones’

Lord Brailsford heard that the interested party in the proceedings suffered a fractured nose as a result of an assault on 30 May 2015.

The court was told that under the Criminal Injuries Compensation Scheme 2008, the tariff which listed the injuries included in the scheme and the corresponding amount of compensation for each injury, included provision for “fracture of nasal bones”, with awards ranging between £1,000 and £2,000.

But under the Criminal Injuries Compensation Scheme 2012, which replaced the 2008 scheme and was introduced as part of plans to reduce spending on criminal injuries compensation, the tariff did not include fracture of the nasal bones, although it did continue to include provision for “skull fracture” - for which the amounts awarded ranged between £1,000 and £4,600.

On 25 June 2015 the interested party applied to CICA for compensation, but in terms of the 2012 scheme the authority refused his application - a decision which was upheld following a review.

The interested party then appealed to the First-tier Tribunal (FTT), which allowed the appeal and returned to the matter to CICA for finalisation.

On behalf of the UK Ministry of Justice, the Advocate General for Scotland, Lord Keen of Elie QC, sought judicial review of the FTT’s decision, arguing that nasal bones were not part of the “skull” within the meaning of the word in 2012 scheme tariff of injuries.

‘Ordinary meaning’

It was submitted that the “ordinary meaning” of the word “skull” did not include the nasal bones, and reference was made to various dictionary definitions.

It was also argued that the word “skull” required to be interpreted in the light of the state of the law before the 2012 scheme came into force. 

The 2008 tariff included provision for “fracture of nasal bones”, but the contention was that had it been intended that a fractured nose sound in compensation under the 2012 scheme, the same phrase would have appeared in the 2012 tariff.

It was further submitted that the word “skull” required to be interpreted in the light of the “mischief” at which the 2012 tariff was directed.

The 2012 scheme followed a consultation by the Secretary of State on changes to the 2008 scheme, in which the Justice Secretary stated that he proposed to “spend less money” on criminal injuries compensation by abolishing awards for certain categories of injury, which included “fractured nose”.

It followed that if a fractured nose was to be read as part of a “fractured skull” injury in the 2012 scheme, the purpose of the mischief which the scheme was designed to eliminate would be “defeated”.

Finally, it was argued that the word “skull” required to be interpreted in the context of the 2012 scheme as a whole, namely that an injury such as a “fractured nose” which did feature in the 2008 tariff but not in the 2012 tariff was not intended to sound in compensation under the 2012 scheme.

‘Medical interpretation’

Counsel for the interested party relied on the written reasons given by the FTT in its decision dated 15 December 2016.

It was submitted that in reaching its decision the FTT relied on the “expertise” of the medical member of the tribunal, a professor emeritus of forensic medicine with expert knowledge of the skeleton, whose evidence should be preferred and relied upon for the “correct interpretation”.

The FTT defined the skull as the “skeletal structure of the head that supports the face and protects the brain”, which is “subdivided into the facial bones and the brain case, or cranial vault, the facial bones underlie the facial structures, form the nasal cavity, enclose the eyeballs, and support the teeth of the upper and lower jaw”.

The tribunal considered that the 2012 scheme was “not absolute and allowed for interpretation in a number of areas”. 

It was also noted by the tribunal that there was no provision in the 2012 scheme to prohibit awards for injuries sustained by the interested party, nor was there any prohibition in the 2012 scheme to prevent awards for injuries that had previously appeared as discreet injuries in the 2008 scheme.

‘Tribunal erred’

However, the judge ruled that the petitioner’s submissions were “correct in law”.

In a written opinion, Lord Brailsford said: “The petitioner advanced four arguments in support of the contention that the term ‘skull’ in the 2012 Scheme fell to be construed as excluding injuries to the bones of the nose. The consequence of this submission, if correct, was that the FTT was in error in its construction of the said term and that its decision fell to be reduced.

“In my view there is merit in all the foregoing arguments. Each of the arguments is, in my view, capable of standing on their own in support of the petitioner’s position. Taken together i consider they present a cohesive argument in support of the construction of the terms ‘skull’ in the 2012 scheme as proposed for the petitioner.

“By contrast the decision of the FTT upon which counsel for the interested party essentially relied depended upon the court accepting that the correct construction of the word ‘skull’ in the 2012 Scheme was more expansive than that submitted by the petitioner and was capable of including the nasal bones.”

The judge considered that there were two problems with the tribunal’s approach.

He explained: “First, the tribunal relied on the expertise of their medical member. My concern is that this person’s view was not evidence before the tribunal. His view was accordingly subject to neither cross-examination nor, at least as a matter of inference, critical evaluation by the tribunal as a whole.

“A tribunal member is entitled in terms of Rule 2(2)(d) to use appropriate expertise in assisting the tribunal to understand matters of technical difficulty or complexity. The function of the member with technical expertise is not however to go further and provide evidence. 

“In my view if the tribunal employ the expertise of a member on evidence which is not subject to testing or challenge they transgress the rule that they ‘deal with cases fairly and justly’.

“This problem is highlighted by the second consideration or difficulty I perceive regarding the approach taken bu the FTT in the present instance. The definition relied upon by the tribunal was at odds with dictionary definitions relied upon by counsel for the petitioner.”

Lord Brailsford concluded: “It follows that in my view the FTT were in error in construing ‘skull’ in the way they did. This error has been repeated by the approach of counsel for the interested party in the present case. 

“I have already expressed the fire that I consider there to be merit in the argument advances in behalf of the petitioner. I consider these arguments to be correct in law. I am accordingly of the view that the decision of the FTT falls to be reduced.”