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Neutral Citation Number:	2010 UKUT 460 AAC
Reported Number:
File Number:	JR 1690 2009
Appellant:	Rust-Andrews
Respondent:	The First Tier Tribunal (CIC)
Judge/Commissioner:	Judge M. Rowland
Date Of Decision:	19/12/2011
Date Added:	12/01/2011
Main Category:	Criminal Injuries Compensation
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 33. Criminal injuries compensation – assessment of compensation in respect of future loss of earnings – whether loss to be proved on the balance of probabilities The claimant suffered psychiatric injury following an assault. There was evidence before the First-tier Tribunal (F tT) that, if the claimant had cognitive behaviour therapy, the chance of her being able to return to work full-time would be 60 per cent. The F-tT decided that she should have had such therapy and that, if she had done so, she would, on the balance of probabilities, have been able to return to her former work by a date 15 months after the hearing and so it decided there would be no loss of earnings after that date. It also found, on the balance of probabilities, that she had not lost a chance of promotion that had arisen before the hearing. The claimant claimed judicial review on the ground that the F-tT should have awarded further compensation on the basis that there was a 40 per cent chance that she would not be able to return to work, submitting that that was the approach at common law and that the Criminal Injuries Compensation Scheme 2001 required that approach to be applied. The Criminal Injuries Compensation Authority argued that the Scheme did not require the common law approach to be applied because it made express provision for all matters to be determined on the balance of probabilities but that, in any event, the common law did not require compensation to be assessed on the basis claimed by the claimant. The Upper Tribunal dismissed her application for judicial review and the claimant appealed to the Court of Appeal. Held, granting permission to appeal but dismissing the appeal, that: 1. the Criminal Injuries Compensation Act 1995 expressly requires that compensation be determined in accordance with the Scheme and not by common law principles, but this does not require the exercise to be conducted in a straitjacket or mean that no help can be gained from authorities dealing with similar issues (paragraph 34); 2. the Scheme provides that the standard of proof is to be on the balance of probabilities. However paragraph 33 acknowledges that there must come a stage where proof will have to give way to broader assessment (paragraph 35); 3. applying the balance of probabilities, the F-tT was satisfied that a continuing loss had been shown for the period of up to the date 15 months after the hearing but not thereafter. This was an issue of fact on which the burden of proof lay on the claimant. The findings of the F-tT were open to it on the evidence and raised no issue of law (paragraph 36).
Decision(s) to Download:	[2012] AACR 33bv.doc [2012] AACR 33ws.doc