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Louis Browne KC appears in criminal injuries compensation case examining life expectancy

Breaking NewsLouis Browne KC appears in criminal injuries compensation case examining life expectancy

Louis Browne KC from Exchange Chambers appeared before the First Tier Tribunal – Criminal Injuries Compensation, representing the Criminal Injuries Compensation Authority and also acted as amicus curiae (“friend of the court”).

The case concerned an application made under paragraph 13 of the Criminal Injuries Compensation Scheme 1990 to reconsider a case involving a young woman who has substantially outlived her life expectancy.

The 1990 Scheme is a forerunner of the tariff schemes now in place. It is a non-statutory ex gratia scheme which was created under prerogative powers and designed to compensate innocent victims of crimes of violence on the basis, subject to its other provisions, of common law damages usually in the form of a lump sum payment which, again usually, is final.

The applicant was born a healthy baby in November 1994.  In March 1995 she sustained a very severe brain injury after being shaken by her natural father. As a result, she is very severely disabled with a spastic tetraplegia, severe learning difficulties, epilepsy, scoliosis, hip dislocation and multiple sequelae including apnoea episodes and bronchospasm.

The applicant was placed with foster parents who thereafter adopted her and who have provided her with care of the highest quality.

An application for criminal injuries compensation was made on the applicant’s behalf by her County Council on or about 29 March 1996. The application was finally determined at a hearing in 2010. The lump sum award was £510,084.48 net of deductible benefits of £200,685.28. After further deduction of the interim payments made by then of £330,000, the balance of the award was £180,084.48. This sum was accepted in August 2010 in full and final settlement of the claim for criminal injuries compensation.

So far as the assessment of future losses was concerned, in 2010 the Tribunal held that the applicant was unlikely to live beyond 20 years of age.

However, the applicant is now 29 years of age and has already substantially outlived her life expectancy.

Accordingly, an application was made by her adoptive mother and litigation friend, under paragraph 13 of the Criminal Injuries Compensation Scheme 1990 to reconsider the case.

Paragraph 13 of the scheme says:

“Although the Board’s decisions in a case will normally be final, they will have discretion to reconsider a case after a final award of compensation has been accepted where there has been such a serious change in the applicant’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where the victim has since died as a result of his injuries. A case will not be re-opened more than three years after the date of the final award unless the Board are satisfied, on the basis of evidence presented with the application for re­opening the case, that the renewed application can be considered without a need for extensive enquiries. A decision by the Chairman that a case may not be re-opened will be final.”

Comparing the applicant’s medical condition at the date of the original award in 2010 the Tribunal could find no indication that her prognosis has changed: her attributable medical condition was understood to be irreversible and permanent in 2010, as it is today.

What has changed is that the applicant has outlived the earlier assumed life expectancy, which has been re-assessed to age 36, and the reduced ability of her adoptive parents to care for her, due to their age and health conditions.

Agreeing with Louis Browne KC’s submissions, the Tribunal refused the application to reconsider the case primarily on the basis that an extended life expectancy was not a serious change in the applicant’s medical condition. They also considered, in the specific circumstances of this case, that there would be a need for extensive enquiries to enable the claim to be re-opened.

Commenting on the case, Louis Browne KC said:

“For the purpose of the 1990 scheme, the applicant had to show that there was a serious change in her medical condition in order to reopen the case. As a matter of law and on the facts, the Tribunal concluded that an extended life expectancy was not a serious change.”

Louis Browne KC was instructed by the Criminal Injuries Compensation Authority.

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