Criminal Injuries Compensation Board Ex Parte K & Anor, R v.

Factual and Procedural Background

The applicants sought to quash decisions by the Criminal Injuries Compensation Board ("the Board") dated 10th February 1997, which held that neither applicant was entitled to compensation under the 1990 Criminal Injuries Compensation Scheme ("the Scheme"). The background involves a victim ("J"), born in 1982, who suffered serious indecent assaults between 1991 and 1993 by the grandfather of one applicant ("Mr M"). Neither applicant was aware of the assaults until J disclosed them in August 1993. Following this disclosure, the applicants and J reported the matter to the police, and J provided a detailed account of the assaults. The applicants suffered reactive depression as a result of being told of the assaults and subsequently applied for compensation in March 1994. The Board initially disallowed all three applications in 1995, but in 1997 awarded compensation to J while denying awards to the applicants on the basis that their injuries were not "directly attributable" to a crime of violence under the Scheme. The applicants challenged this decision by way of judicial review.

Legal Issues Presented

1. Whether the Board erred in law by deciding that the reactive depression suffered by the applicants was not directly attributable to the offences committed by the grandfather within the meaning of the Scheme.
2. Conditionally, if the first issue is decided in favour of the applicants, whether the reactive depression suffered by the applicants constituted a personal injury under the Scheme.

Arguments of the Parties

Applicants' Arguments

• The applicants argued that there was a short, unbroken chain of causation linking the grandfather's crime to their injuries: the crime caused injury to J; J told the applicants; and the disclosure caused their reactive depression.
• They contended there was sufficient proximity in time and place, as they lived with J during the assaults, supporting direct attribution.
• They submitted that a chain of causation would not necessarily be broken by multiple intermediaries in the communication of the crime, absent an unusual event.

Board's Arguments

• The Board argued that the applicants' injuries did not flow directly from the crime but from being told about it.
• They submitted that if the applicants had witnessed or heard the assaults, the position would differ.
• Proximity in time and place was relevant but not conclusive for determining direct attributability.
• They opposed the application for leave to appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McLoughlin v O'Brian [1983] AC 410	Strict test of proximity by sight or hearing for claims based on psychiatric injury; no compensation for shock caused by third-party communication.	Used to highlight the common law limitation on secondary victims claiming for psychiatric injury caused by communication rather than direct perception.
Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310	Foreseeability is insufficient to allow claims for nervous shock caused solely by being informed of an accident; proximity requirements apply.	Supported the principle that mere communication does not establish direct causation for psychiatric injury claims.
Jaensch v Coffey, 155 CLR 549	Psychiatric illness induced by mere knowledge of a distressing fact is not compensable; perception of the distressing event is essential.	Reinforced the necessity of direct perception rather than indirect knowledge for compensation.
Parsons v Criminal Injuries Compensation Board (unreported, 1982)	Compensation may be awarded even if the claimant would have no common law cause of action; direct attribution can be found in cases of nervous shock from witnessing aftermath of crime.	Used as binding authority that "directly attributable" may extend beyond common law proximity limits.
R v Criminal Injuries Compensation Board ex parte Webb [1987] 1 QB 74	The Scheme should be construed as a public announcement of government willingness to compensate, not as a statute; focus on reasonable understanding of compensation circumstances.	Guided the court to interpret the Scheme purposively rather than strictly.
Stapley v Gypsum Mines Ltd [1953] AC 663	Causation is a question of common sense, fact, and degree; courts avoid philosophical or scientific definitions.	Supported the approach of applying common sense to causation in this context.
O'Dowd v The Secretary of State for Northern Ireland (Court of Appeal, Northern Ireland)	An act can be an effective cause of damage even if accompanied by other acts; causation is a question of fact and degree.	Referenced to illustrate general principles of causation, though limited by the Scheme's "directly" requirement.

Court's Reasoning and Analysis

The court acknowledged the tragic facts and the reactive depression suffered by the applicants. It recognized that the applicants had no common law cause of action due to lack of proximity by sight or hearing of the assaults. However, the central legal question was whether their psychiatric injuries were "directly attributable" to the crime under the Scheme, a concept distinct from common law causation.

The court noted established common law principles limiting recovery for psychiatric injury caused by third-party communication and emphasized that foreseeability was not relevant under the Scheme. It relied on the Parsons decision to show that compensation under the Scheme may extend beyond common law limits.

Applying a purposive interpretation, the court held that the word "directly" in the Scheme imposes a restrictive causation requirement. The court declined to create a detailed definition of "directly attributable," endorsing a common sense, fact- and degree-based approach to causation, consistent with Stapley.

The court accepted that proximity in time and place between the secondary victim and the crime is a relevant factor: the closer the proximity, the more likely the injury is directly attributable. It rejected the applicants’ argument that the chain of causation must be recognized as direct unless broken by an unusual event.

Given that J’s disclosure occurred days after the last assault and many months after earlier assaults, the court found sufficient material to support the Board’s conclusion that the applicants’ injuries were not directly attributable to the crime. The court emphasized its role was limited to determining whether the Board’s decision was legally unreasonable or made in error, and found no such error.

Holding and Implications

The court held that the Board did not err in law in finding that the applicants’ reactive depression was not directly attributable to the grandfather's crime of violence under the Scheme.

The direct effect is that the applicants’ claims for compensation were properly refused. The court declined to grant leave to appeal, indicating that no new precedent was set beyond the application of existing principles. This decision underscores the restrictive interpretation of "directly attributable" in the Scheme and confirms the importance of proximity and immediacy in claims for psychiatric injury as secondary victims.