The Divisional Court quashed the board's decision that the applicant, Margaret Johnson, was not entitled to compensation and remitted the claim for the board's reconsideration.
The applicant discovered the recently murdered body of a friend and since then she has suffered from a shock-induced psychiatric illness. She claimed compensation under the criminal injuries compensation scheme.
The board, applying the common law test of foreseeability in relation to tortious liability when considering whether her psychiatric injury was 'directly attributable' to a crime of violence, refused her application on the basis that the applicant did not have a sufficiently proximate relationship with the immediate victim of the crime.
David Hewitt (Wager Turner & Co, Bishop Auckland) for the applicant; Michael Kent (Treasury Solicitor) for the board.
MR JUSTICE KAY said that in R v Criminal Injuries Compensation Board, Ex parte Parsons, unreported, 25 November 1982, and O'Dowd v Secretary of State for Northern Ireland (1982) NI 210, it was held that the test of foreseeability played no part in nervous shock claims of this kind, where the provision referred to 'directly attributable'. It was clear that the board's decision could not be allowed to stand since there had been an error on a point of law.
It would not be in every case that a person who discovered a body, the result of a crime of violence, would be entitled to compensation. It was necessary for the claimant to satisfy the board that he or she was suffering from personal injury caused by the experience.
There were two elements to be established. It must be shown that the claimant suffered personal injury. Shock, distress and emotional upset could not in themselves suffice however unpleasant the experience. There must be some sort of injurious after-effects brought on by the shock and such injurious after-effects must satisfy the financial limitations for claims imposed by the scheme.
Secondly, it would be necessary to establish that the nervous shock related injury was caused by the finding of the body. While foreseeability was in no way the test for entitlement to compensation, the less foreseeable a consequence of an event was, the more difficult it might be to establish the necessary causal link. Thus it would not be improper for the board to have in mind foreseeability in determining whether the evidence established causation in a case such as the present.
Although it was difficult to see any answer other than that the applicant was entitled to compensation on the facts, it was right simply to quash the decision and remit the matter to the board.
LORD JUSTICE STEYN agreed.