Setting civil compensation against awards from the Criminal Injuries Compensation Authority
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The emergence of civil compensation claims in the field of child abuse in the past decade or so has highlighted two of the systems that exist to compensate victims of abuse, the civil compensation process and the Criminal Injuries Compensation Scheme (CICS).
There are other systems, which exist under the umbrella of the Local Government Ombudsman, the power of criminal courts to award compensation and situations where local authorities and other organizations put into place treatment programmes for persons who have suffered abuse whilst in their care. However this article compares the civil and the CICA schemes, and the way in which a larger award can be obtained from the latter. Of course any kind of deliberate assault claim may be suitable for a dual approach.
First of all the CICS expressly anticipates that a civil award may be made in relation to the same crime or crimes of violence.
Paragraph 48(1) of the 2008 Scheme states:-
“An award payable under this Scheme will be reduced by the full value of any payment in respect of the same injury which the applicant has received or to which he or she has any present or future entitlement, as a result of...
(c) any order by a civil court whether in the United Kingdom or elsewhere for the payment of damages;...
(e) a settlement of a claim for damages, compensation or both on terms providing for the payment of money."
Paragraph 49(3) allows a claims officer to require an applicant to provide details of any attempts taken to obtain civil damages, and crucially the CICA can decline to process an application until those attempts have been exhausted. For this reason, the CICA’s standard approach (where they are informed of the existence of a civil claim) is to delay their determination until the civil process is concluded.
Paragraph 49(1) goes further and stipulates that where the Applicant receives civil damages subsequent to the CICA determination, they will be required to pay the Authority in full, the amount that they received from the Authority.
It might be thought that the CICS tariff system is a poor relation to the civil process, and in many cases this is bound to be correct. One incident of rape might only obtain a figure of £11,000 under the present tariff, whereas in Griffiths v Williams Unreported Court of Appeal 21st November 1995 an award was made in the sum of £50,000 for an act of rape to include aggravated damages.
However the writer has handed a number of cases where the CICA claim produced a larger award than the civil case. The following points demonstrate how this can happen.
- In a civil claim, there are a number of obstacles that do not feature in the 2008 Scheme, such as the Limitation Act 1980, proving a duty of care, breach of that duty and in some cases vicarious liability.
- The CICA are only concerned to establish whether a crime of violence has taken place. Once they have accepted that point, and there are no issues of time limits, the pre 1979 rule or criminal convictions they will then proceed to causation.
- If the Claimant loses the civil claim, there is a costs liability. A publicly funded Claimant may have to accept a lower amount of compensation, since otherwise he could lose his public funding certificate and end up in the same position as a privately funded Claimant. These considerations may lead to the Claimant accepting a lower settlement than might be awarded if the Claimant were successful on all points. The costs risk before the CICA is entirely different, if the Claimant is on a contingency fee agreement.
The CICA do not operate an adversarial but an inquisitorial system. They expect full disclosure of all evidence and in some cases, they will ask for a copy of counsel’s advice on settlement from the civil action. Whilst the writer takes the view that this is a document that remains privileged, it may assist if the advice is released because it then explains to the CICA why the civil claim was settled.
There is an issue as to whether the applicant in the CICA process is obliged to disclose to the CICA the Defendant’s medical expert report. Again the writer cannot see why this should be any different from a report commissioned by the Applicant, which the Applicant chooses not to rely upon. Nonetheless practitioners should be aware of the “Consent and Signature” section of the Authority’s application form, which undertakes to let the CICA see “all medical reports” and Paragraph 4 of the Practice Statement C1-3, which states the consequences of failure by or on behalf of the Appellant promptly or at all to disclose to the Authority and the Tribunal any specialist report in the possession of the Appellant relating directly or indirectly to the relevant injury.
There may be tactical sense in disclosing all the medical reports, both positive and negative.
How then does one get around the problem of the low tariff awards? The answer can be found in Paragraph 30(1) of the 2008 Scheme, which states:-
“Where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his or her death), no compensation in respect of loss of earnings or earning capacity will be payable for the first 28 weeks of loss. The period of loss for which compensation may be payable will being after those 28 weeks and subject to sub paragraph (2) below, will continue for such period as a claims officer may determine.
Paragraph 31(1) then says:-
“Loss of earnings or earning capacity for any period of loss prior to the date of assessment……will be assessed by:
- (a) calculating the applicant’s earnings as they would have been during the period of loss had it not been for the injury; and
- (b) deducting any earnings which have, or should have, been paid to the applicant during the period of loss, whether or not as a result of the injury.
Paragraph 31 then goes on to say how future loss of earnings are to be calculated. Paragraph 32 talks about the multiplier and the multiplicand. Paragraph 33 says:-
“Where a claims officer considers that the approach in paragraphs 31 and 32 to assessing compensation for future loss of earnings or earning capacity is impracticable, the compensation payable in respect of that loss will such other lump sum as he or she may determine.”
There is no doubt that conventional claims for loss of earnings claims in child abuse cases are difficult. The problem with the CICA approach is that according to Paragraph 30, past loss of earnings has to be calculated in a conventional manner.
There is no room for making an award on a lump sum basis, as was done in Various Applicants v Flintshire County Council Unreported Mr Justice Scott-Baker 26th July 2000 where an award of £20,000 was made for past loss of earning capacity. Similar awards were made in KR and Others v Bryn Alyn Community (Holdings) Ltd (In Liquidation) and Royal and Sun Alliance plc  EWCA Civ 85. In relation to future loss of earnings on the other hand, there is scope under Paragraph 33 for the CICA to make a loss of advantage/loss of earnings capacity award as was done in MB v London Borough of Ealing and Another  EWHC 1262 (QB). In the Flintshire judgment Scott Baker J set out his approach in principle to the computation of past loss of earnings as follows:-
“In none of the cases (before me) has a detailed loss of earnings claim been advanced. I have approached the claims in this way. For any loss up until the date of trial, the Claimant has had to persuade me that it is more likely than not that over the years since the abuse, he has earned less money than would have been the case had he not been abused. Where that question has been answered in the affirmative, I have gone on to assess the loss in monetary terms. It has not been possible to conduct the exercise on a conventional basis. Other factors, which are not the fault of the Defendants, have affected the Claimant’s earning ability. For example, some have spent periods in prison and there have been other causes of or contributions to personality problems. Accordingly, where I am satisfied that, but for the abuse, an individual Claimant would have earned more over the pre-trial period as a whole either by having a better paid job or spending more time in work, I have done my best to reflect this by making an award of a round sum.”
Nonetheless in the writer’s experience, the CICA will make awards for past loss of earnings, in circumstances where the Schedule of Loss shows a clear loss of earnings over the years set against whatever the applicant has in fact earned. The Schedule has to be backed up by clear psychiatric evidence, for instance a statement to the effect by the psychiatrist that the majority of the applicant’s problems in finding and holding down work have been caused by the abuse (which is the subject of the application). Alternatively the psychiatrist may say that a proportion of the Claimant’s difficulties in working have been caused by the abuse. In the Precedent section is a Schedule of Loss of Earnings where 50% of past loss of earnings was awarded to a Claimant.
The following cases (handled by the writer) demonstrate what can be achieved.
Case Study One
The Applicant was born in 1970 and was abused by her step father from 1980 to 1985. She approached solicitors in 2000, but no claim was issued until 2005 when she instructed Malcolm Johnson & Co. to run a civil claim against the local authority (in whose area she had resided as a child) for failure to take into care. She settled her civil claim in the sum of £25,000 plus costs in early 2007.
In 2005, the Applicant also made an application to the CICA. This was refused initially and then proceeded to review where again it was refused. The application then proceeded on appeal to the CICAP and in June 2009 (the Applicant was aged 39), the CICAP made an award as follows:-
- £24,460 for tariff injuries
- £87,500 for past and future loss of earning capacity
- (£50,000 was for past loss of earnings, and £37,500 for future loss of earnings)
A psychiatrist instructed jointly in the civil action, confirmed that the majority of the Applicant’s employment problems were caused by the events of 1980 to 1985. Her Schedule showed what she might have earned in a secretarial position, although the CICAP substituted this for the earnings of a dental nurse.
Total - £111,960
This was reduced by £25,000, bringing the net award to £86,960.
Case Study Two
The Applicant was born in 1982. Between 1992 and 1997 she was sexually abused by a leisure centre worker who persuaded her parents to let him care for her at weekends. Her abuser was convicted in 2005 and in early 2006 she approached Malcolm Johnson & Co. A claim was brought against the abuser’s employers, a local authority. The action was compromised in the sum of £42,500 plus costs in May 2008. A parallel application was made to the CICA and this proceeded through review stage to the CICAP.
At the hearing before the CICAP in March 2010, the Applicant was awarded the following amounts:-
- £13,500 as a tariff award - disabling mental illness over five years but not permanent
- Therapy costs - £2,168
Past loss of earnings – still to be assessed. The CICAP accepted that the Applicant had lost six years past loss of earnings as a result of the abuse, however the net loss of earnings would be reduced by 50% as Dr Friedman, the psychiatrist had advised that 50% of the Applicant’s loss of earnings could be attributed to the abuse.
Future loss of earnings capacity - £24,000
Dr Friedman’s fee for further report - £517.50
Net award – to be assessed.
It is anticipated that the Applicant may receive in the region of a further £20,000 to £30,000.
Case Study Three
The Applicant was born in 1967. Between 1988 and 1990 she was sexually abused by a Roman Catholic priest. The priest was never convicted of any crime, but a number of other victims gave evidence to the police against him in around 2000.
The Applicant brought a claim against the priest’s employers which was settled in the sum of £10,000 in June 2008. They had also paid £17,000 in therapy costs prior to her undertaking litigation. Following a successful review in April 2010, the Applicant was awarded the following amounts by the CICA:-
£13,500 as a tariff award – disabling mental illness over five years but not permanent. This was reduced to £5400 as the report of the psychiatrist, Dr Friedman indicated that 30 to 40% of the Applicant’s condition was attributable to the incident. For various reasons it was decided not to appeal this decision (see below).
Past loss of earnings - £16,297
50% of Dr Friedman’s fees for updated report - £550
Net future loss of earnings - £5840
Total - £28,087
Deduct compensation of £10,000 (we successfully argued that the therapy paid for by the Defendant should not be taken into account)
Net award - £18,087
The recoveries in Case Studies Two and Three are not particularly large, and the Applicant’s costs have to come out that award. This was capped at 25% of the amount recovered. The other problem is the time taken to get to a final resolution from the CICA/CICAP was two years and updated psychiatric evidence was required in Case Studies Two and Three. Consequently there needs to be a serious assessment at the outset of the civil claim as to whether the parallel CICA claim is actually worthwhile.
The writer has dealt with a fourth case, where the Claimant settled her direct claim against the Defendant for £30,000 plus costs. In her parallel claim to the CICA, the Appeal Panel declined to give her any more money on the grounds that her civil claim encompassed a detailed loss of earnings element, and given the strength of the case on liability, it would be wrong for the Appeal Panel to award more.
On the other hand, if the CICA claim is not made and the civil claim fails then the client is left without any compensation. The major obstacle is the amount of work that needs to be done, in preparation of the initial application, the application for review and any appeal. The Schedule of Loss and the work associated with putting that Schedule together (i.e. benefits/payslips/pension information) together with the other evidence can be transferred into the CICA claim relatively easily, but the arguments that need to be formulated are very different.
The writer thinks that only a small minority of claims will be suitable for this dual approach. Nonetheless the issue of presenting both civil/CICA claims should be considered carefully at the outset of an assault based claim.
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