Court of Appeal decides on whether genetic disorder is an "injury"

Posted by Malcolm Johnson on

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BL Claims has been at the forefront of the one of the biggest and most controversial cases in the news this week. Criminal Injuries Compensation Authority v First Tier Tribunal and Y [2017] EWCA Civ 139.

Malcolm Johnson represented Client Y, who was born after his mother suffered abuse at the hands of her father. DNA tests confirmed that Y’s grandfather was in fact also his father and he later went on to plead guilty to charges of incest.

Y’s mother had been awarded compensation from the CICA in her own right in respect of the assaults on her by her father. However, Y was born with a genetic disorder as a result of his parents' consanguineous relationship and we firmly believe also deserves compensation to ensure that he can receive the support and specialist medical care he needs.

Medical evidence shows that there is a 50% chance of such problems appearing in those who were born of an incestuous relationship, compared with a 2% or 3% chance in the general population.

Y brought a claim to the CICA, which was refused because the CICA decided that Y's disorder was not a "personal injury" for the purposes of their 2008 Scheme. The First Tier Tribunal upheld that decision. However, in April 2016, Judge Levenson in the Upper Tier Tribunal decided that Y's disorder was a "personal injury" within the terms of the CICA Scheme. The CICA appealed to the Court of Appeal.

Sadly the CICA's appeal has been granted. The Court of Appeal decided that Y had not suffered an injury under the CICA 2008 Scheme and consequently, he could not recover compensation.

While this is a bitter result for Y and his mother, who had fought so long and hard for compensation the Court of Appeal acknowledged that the CICA Scheme should address the position of mothers who find themselves caring for a disabled child born as a result of a sexual crime.

Mr Justice McFarlane in the Court of Appeal also said:-

"The courts are, sadly, familiar with cases in which both the physical and long-term emotional impact of child sexual abuse are all too plain to see……….Although, as a matter of law, we have, in my view, no option but to decide against this claim, I fully understand why M has brought it and I admire her for doing so. She is a survivor who continues to care for her needy and highly disabled son and is a lady who, despite my tenuous encounter with her, commands my great respect."

While disappointed by the result our personal injury team are pleased that this case has brought much attention to the issue and that the rights of women who have given birth to a disabled child as a result of sexual abuse will be addressed.

You can read more on the case and commentary from Malcolm Johnson in the following news articles:

The Sun 

The Guardian

ITV News

Buzzfeed 

Irish Examiner

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If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at info@blclaims.co.uk

About the Author

Photograph of Malcolm Johnson

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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