Jayne Zito is dependent on Christopher Clunis, the killer of her husband, to get any compensation for the death of her husband Jonathan four years ago this Tuesday.
Clunis, who suffers from schizophrenia, yesterday won the first round of his high court battle to bring a damages action against a London health authority, claiming they failed to care for him in the community. His success paves the way for Mrs Zito to claim damages for assault against him as legally, she is unable to sue Camden and Islington Health Authority herself.
Clunis is seeking an indemnity from the health authority for any damages arising from his liability to her. "My family's frustration is that we can't take action against the health authority directly - so this is the only way to pursue the claim on behalf of Jon and myself," said Mrs Zito yesterday.
"Because [Clunis] has succeeded, our claim can go ahead. It's frustrating that a member of the public can't have the right to take direct action against a health authority, and that I have to be so closely linked with the offender."
In 1992, Clunis stabbed Jonathan Zito in the eye in Finsbury Park tube station in north London. A year later he was detained indefinitely at Rampton Hospital after pleading guilty to manslaughter due to diminished responsibility at the Old Bailey.
The crux of Clunis's claim is that, had he been given appropriate medical treatment, he would not have killed Mr Zito and his condition would have improved to the point where he might be safely released into the community. As it was, the killing had caused his condition to worsen dramatically, and he claims that he was unlikely to recover, improve or ever be released.
Yesterday, Deputy Judge Richard Mawrey QC dismissed the health authority's summons for Mr Clunis's action to be struck out for showing no reasonable cause of action. The judge said he did not think it would offend the public conscience for Clunis to be awarded damages. "Still less do I consider that it would offend the public conscience for Mr Clunis to recover from the authority - which, on the basis of his pleaded case left him at large as a dangerous psychopath - an indemnity against his unarguable liability to Mrs Zito. Indeed it might well offend the public conscience were he unable to do so."
The judge said that it was established law that a health authority was liable when a mental patient in its care harmed himself and asked if there should be a difference if harm to the patient came about through committing a crime.
"If the suicidal patient jumps off a high building, he commits no offence - but what if he tries to end his life by stealing a car and driving it into a wall, which is likely to involve several criminal offences?" he said. "If the authority is right, the former can recover damages, the latter not. I consider that this would offend common sense, logic and the public conscience."
He was also unable to see the logic of saying that medical authorities may owe a duty to treat and restrain the patient who was likely to harm himself but no duty where the patient was likely to harm others.
Clunis's solicitor, Martin Taube, said afterwards that the judgment was a "major step forward", and he added: "By this action the health authority will be held accountable to the community at large if they fail to look after the mentally ill following discharge from hospital."
The health authority said it would appeal, but the hearing is unlikely to take place for a year. "They must be made to pay for their negligence,"said Mrs Zito. "It's about time they did. They have avoided responsibility and it's about time they paid for it."