13.09.12: 500k max CICA damages awarded to our client

'CD' v Criminal Injuries Compensation Authority Appeal Panel

We represented the appellant 'CD' who on 13th September 2012 was awarded the maximum sum payable to any victim of crime in the UK, by the Criminal Injuries Compensation Authority, in the sum of £500,000.

Our client was born in 1968. After her parents separated between 1974 and 1984 when aged between 6 and 16 she visited her father on weekend access visits. He subjected her to sexual assaults on many occasions and engaged her in posing for pornographic photographs. She was privately educated but experienced panic attacks and lack of concentration at school resulting in her underachieving academically. She achieved one 'O' level, embarking on a series of destructive relationships and turning to alcohol to block out the memories of the abuse. From these relationships the appellant gave birth to a son and daughter. The appellant attempted to lead a normal life determined to make sure her children did not suffer as she did. She completed an access course and began a teaching degree but left after only one term as a result of a decline in her mental health manifested as agoraphobia. In 1999 the appellant's father was arrested and eventually convicted on drug offences for which he received a custodial sentence. The incarceration of her father gave the appellant strength to return to employment as a teaching assistant leading to a role in child welfare. In 2007 the appellant disclosed her abuse to her husband and experienced a breakdown at work. Later that year she made a statement to the police. Criminal investigations ensued culminating in a criminal trial of the appellant's father in 2009. He was convicted of ten counts of sexual assault on the appellant and was sentenced to eleven years imprisonment.
The appellant lodged an application with CICA on 7 July 2009 (which fell under the 2008 scheme). On 29 September 2011 the CICA made an award of £8,200 under level 12. The appellant applied for a review of the CICA decision in October 2010 contending that the correct award was £22,000 under level 17, non-consensual penile penetration of the vagina/and or anus and/or mouth exceeding 3 years. The appellant referred to the transcript of her full video taped police interview in support. A report of Dr Jane O'Neill, Consultant Psychiatrist was submitted with the application for review. Dr O'Neill's view was that the appellant had shown an ability to achieve academically and that in the absence of child sexual and emotional abuse, it is likely that she would have progressed to higher education from school and obtained a job as a graduate . Dr O'Neill recommended two to three years of weekly cognitive behavioural therapy following which it was hoped that the appellant might be able to progress to full time employment. On this basis the appellant argued that claims for special expenses should be allowed.
In August 2011 the CICA conceded that the correct level of award was £22,000 and at the same time rejected the appellant's claim for special expenses contending that there was not sufficient evidence to confirm that the appellant suffered psychological problems around the period that would have affected her school or higher/further education and ignored the appellant's treatment losses alleging that there was not enough evidence to confirm that the treatment was not available on the NHS.
The appellant applied for a review to the Tribunal Panel. In the meantime the appellant suffered a deterioration in her mental health which resulted in her being medically retired from employment. Two further reports from Dr Jane O'Neill were submitted to the panel. The first report of February 2012 dealt with the CICA's contention that the appellant was not suffering from PTSD during her school years. Having given consideration to the appellant's GP records for the relevant period which noted her attendance on her GP with shortness of breath and panic attacks and her development of alcohol abuse and an eating disorder concluded that her post traumatic symptoms clearly interfered with her ability to concentrate and perform at school and resultant underachievement academically. In addition Dr O'Neill stated that she did not expect the intensive treatment previously recommended by her would be available on the NHS. In her report of July 2012 Dr O'Neill, recognised the appellant's deterioration in mental health and agreed that she would be unfit to undertake any employment in the future. A number of other documents were submitted to the appeals panel including a detailed schedule of loss and employment report showing the level of earnings the appellant would have achieved had she fulfilled her wish to become a teacher and progress accordingly. The appellant repeated her contention that the CICA had erred in refusing to consider that loss of earnings had been established. The appellant clearly had the ability and will to work within the teaching profession but due to her symptoms attributable to the abuse she was unable to do so. Evidence of her working history was submitted to the panel.
It was also argued that the CICA award did not take account of the appellant's medical treatment and travel costs. Given that it was not disputed that the appellant had suffered a mental disorder, it was submitted that the medical costs flowing from the necessary treatment of the disorder should be awarded.
On 13 September 2012 the appellant attended the Tribunal Panel Appeal Hearing. The authority accepted that there was a causal link between this crime of violence and the appellant's subsequent loss of earnings. The appellant gave compelling oral evidence as to how it was her wish to become a teacher having left school and gone to university, which was accepted. After submissions, the tribunal found the appellant had some part time future earning capacity for 50% of her future working life on minimum wage. The panel awarded the appellant as follows:
Tariff £22,000
Total past loss of earnings £282,386
Future loss of earnings £420,000 (approximately)
It was then recognised that the paragraph 24 cap of £500,000 had far been exceeded by at least £200,000 without taking into consideration any treatment and associated travel costs and therefore that the "fine tuning" of any calculations was inappropriate.
The Panel also directed that the costs incurred on obtaining expert medical reports and copy medical notes be paid for by the authority.
Final award : £500,000