Criminal injuries compensation – exceptional and justified risk – test
The claimant, a fire-fighter, was ordered to enter a burning building in the belief that it was a flat containing trapped people only to find that it was a storeroom; he proceeded to extinguish the fire and was injured while doing so. Had the true facts been known, he would not have entered the building but other measures would have been taken. The Criminal Injuries Compensation Authority (CICA) rejected his claim under the Criminal Injuries Compensation Scheme 2012. The claimant appealed to the First-tier Tribunal (F-tT) and at the hearing the Authority argued that the risk had not been “exceptional” as required under paragraph 5(2) of the Scheme because the claimant was trained and had only done what would normally be expected of him in the course of his work. The F-tT rejected the Authority’s argument, having taken account of its guidance regarding “exceptional” and “justified” risk, holding as a matter of fact that the claimant would not normally be expected to enter an unoccupied storeroom containing flammable materials, and found him 100 per cent eligible for an award. CICA applied to the Upper Tribunal for judicial review of that decision on the basis that the F-tT had erred. CICA argued that the claimant would normally have entered a burning building if life was endangered, that that had been his belief in this instance and therefore the risk had not been exceptional as required under the Scheme.
Held, allowing the application in part, that:
the test of whether there was an exceptional and justified risk should be determined by reference to what was believed to be the position at time the risk was taken. The concept of “taking” a risk in its very nature required a subjective view of what the risk was and at the time the claimant entered the building the risk taken was not exceptional within the requirements of paragraph 5, given his belief that life was endangered by the fire (paragraphs 18 to 19);
it was however wrong to focus exclusively on the time that the claimant entered the building as after he had done so he discovered that the building was a storeroom (not living accommodation), and the claimant was then taking an exceptional risk which he would not normally have been expected to take (paragraph 20);
the F-tT was limited to deciding whether CICA’s decision was correct on the issues that CICA had addressed in its review and therefore the tribunal had no jurisdiction to make a percentage eligibility award as that matter had not been addressed in the review decision: SB and others v First-tier Tribunal and CICA  UKUT 497 (AAC);  AACR 16 (paragraphs 21 to 22).
The judge quashed the decision of the F-tT and referred the case to CICA for consideration of the percentage eligibility, among other matters.
Permission to appeal granted by the Court of Appeal. Judgment Criminal Injuries Compensation Authority v First-Tier Tribunal & Anr  EWCA Civ 1175 on 24.05.18
The editorial board has decided to report the Court of Appeal decision as  AACR 22