COMPENSATION FOLLOWING FATAL STABBING: HUMAN RIGHTS AND THE CICA: “DOUBLE RECOVERY” NOT ALLOWED

The decision of the Upper Tribunal in  VG -v- CICA [2017] UKUT 0049 (AAC) is important reading for anyone involved in advising in fatal claims. In essence a High Court action was rendered valueless because the damages awarded were offset by the CICA.  It shows the need to think long and hard before issuing civil proceedings when there may be an easier (and cheaper) alternative of an application under the Criminal Injuries Compensation Scheme.

THE FACTS

The applicant’s son was murdered in a stabbing incident. The murderer was a resident in a Care Home run by a NHS trust.  When sentencing the murderer the judge observed that the systems in place at the Care Home were wholly inadequate.  The murderer’s non-compliance with his medication played a “very significant part” in the commission of the offence and the Care Home had failed to monitor this or to carry out searches of the murderer’s rooms – he had a history of knives being found in his room.

THE CIVIL ACTION

The applicant issued High Court proceedings against the NHS Trust. The claimant sought damages for negligence and under the Human Rights Act. That action was compromised on the basis of £10,000 being paid. That £10,000 was said to be in settlement of the whole claim. (It is important that there was no further clarification of the settlement. The claim encompassed both claims in negligence and under the HRA).

THE CRIMINAL INJURIES COMPENSATION CLAIM

The applicant then made an application under the CICA scheme. Compensation was assessed at £10,500 but the £10,000 paid under the civil action was offset, leaving a balance of £500. (The CICA scheme generally operates a system of “offset”, whereby any damages received in a civil action are set off against an award, to prevent “double recovery”.

THE APPLICANT’S APPEAL

The Upper Tribunal summarised the applicant’s arguents.

“In essence the applicant’s argument is that the compensation received from the Trust by way of settlement of the High Court claim was for a breach of the systemic duty under article 2 to put in place an appropriate legal and administrative framework. Liability for damages for breach of article 2 does not require the loss to be the death itself and there is an article 2 duty in relation to risk that stands independently of any criminal liability or responsibility for death (and can, for example, include inadequate investigation). Thus the applicant had not received compensation in respect of a criminal injury”

The applicant put in a note from counsel which stated

“I can confirm that, in valuing the claim (and advising in favour of accepting the settlement offer) I considered only damages likely to be awarded for the non-pecuniary damage suffered by [K and the applicant] as a result of a breach of the Article 2 systemic duty. This was because … a decision had been taken and communicated to the Trust [by the letter dated 25th February 2014] not to pursue the negligence claim (or a claim for breach of the Article 2 operational duty).
Thus, since the settlement offer was not premised on the basis of a claim in negligence, it would not have included an award for funeral costs under the Law Reform (Miscellaneous Provisions) Act 1934 or a bereavement award under the Fatal Accidents Act 1976”

THE ARGUMENTS OF THE CICA

3. The Authority argued that the scheme is one of last resort and the purpose of paragraph 85 is to prevent double recovery. The damages paid by the Trust were paid in respect of the death of K. It was not a question of looking at the nature of that claim but it was about its outcome. If it was a payment to compensate the applicant for her loss, the loss was the death of her son, not for some abstract breach of Article 2. There would have been no liability without that loss. This continued to be the case even if the details of the claim changed. The authorities cited by the applicant do not establish that damages awarded in an article 2 claim can be awarded even when there is no causal link between a breach of article 2 and the death of a person. The purpose of a payment of damages in a human rights claim is to place a claimant, so far as is possible, in the same position as if the Convention rights had not been infringed (see eg Anufrijeva v Southwark [2003] EWCA Civ 1406, [2004] QB 1124 per Lord Wolf CJ at paragraph 59). In any event the final settlement document contains no details of the basis on which the claim was settled. The Upper Tribunal should give paragraph V 85 of the 2012 scheme its plain and proper meaning and find that First-tier Tribunal reached the correct decision.

THE TRIBUNAL’S DECISION

24. I am prepared to assume in favour of the applicant (without deciding) that article 2 may be breached in either of the two different ways that Mr Gask has suggested. I accept that in an appropriate case (as on the dramatic facts in Makaratzis) damages can be awarded without the breach being linked to a death (or causing a death), notwithstanding the Authority’s apparent arguments to the contrary. However, that is not the case here and I do not propose to speculate (in the context of a human rights jurisprudence that is still developing) on what the position might be in cases where there are very different facts. I agree with the Authority that in the present case it cannot be said that the settlement between the Trust and the applicant was independent of K’s death. It was occasioned by K’s death and there was a causal link between K’s death and the claims and allegations made against the Trust.
25. Notwithstanding how the law might be applied to the facts of any other case, in this particular case the High Court claim form of 10th January 2012 was never amended, the Trust’s offer of 15th May 2014 referred to “settlement of the whole of her claim”, the Notice of Acceptance of 5th June 2014 went into no further detail, counsel’s note of 6th April 2016 does not assist the applicant (for the reasons that I have explained) and I am in no doubt that the First-tier Tribunal was correct to decide that the agreed compensation from the Trust had been paid in respect of the criminal injury to which the award under the 2012 Scheme relates.
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