Compensation Generally
When we think of compensation for loss this brings a multitude of things to mind, from the PPI claims we hear advertised to the millions paid to claimants in the United States for burning their lips on a hot coffee.
And this begs the questions, what is this all based on?
An early distinction should be made between criminal wrong doing and negligent wrong doing. The main purpose of the criminal law is to punish (as well as rehabilitate) the wrong-doer. The purpose of the law of negligence is to require those who are negligent to pay for the damage they cause to others. So the drunk driver who is pulled over by the police before he or she crashes (and who causes no loss) will be punished. While the driver who doesn’t quite maintain a safe stopping distance and causes a rear end collision will not likely be punished, but is required to compensate the other party for the damage to the their vehicle and for any injuries to the occupants inside (albeit usually through his or her insurer). And finally the drunk driver who does cause a collision is subject to both punishment under the criminal law and obliged to compensate any injured parties, again through his or her insurer.
But how is the level of compensation calculated?
It’s useful to start with the Oxford dictionary definition of compensation which is “…something, typically money, awarded to someone in recognition of loss, suffering, or injury.” This is not the most precise of definitions and reflects the wide variety of outcomes in different cases across the jurisdictions.
In Scotland the legal definition provides some clarity and explains the reasons for the more moderate awards that are made by the courts in this ancient jurisdiction. Restitutio in integrum or ‘restoring the situation’ as its approximate English translation would be, essentially requires an award which so far as possible puts the wronged person in the position they would have been in had the negligence not occurred. Unlike in the United States, the purpose of the law of negligence in Scotland is not to punish the wrongdoer, but to compensate the injured party.
Where negligence is established the Courts will assess losses such as loss of earnings or out of pocket expenses simply by reference to wage slips or other relevant vouching. Pain and suffering is a little more complicated and awards are made with reference to the Judicial College Guidelines and to previously decided cases which involved similar injuries. It is not a precise science by any means but it does aim to achieve consistency at least to some degree.
Criminial Injuries Compensation
On the other hand, where losses are caused by a violent crime, a civil claim in negligence is usually not an option. This is due to the fact that there is no insurance policy to cover the situation and generally speaking, those who commit violent crimes against individuals don’t often have the means to pay out for a claim. We are then left in a situation where the criminal is punished but the victim is not compensated.
This is where the Criminal Injuries Compensation Authority (CICA) comes into play. The CICA is a government funded organisation that was created to provide compensation for blameless victims of violent crime. It is the responsibility of The CICA to control the administration of The Criminal Injuries Compensation Scheme (the “Scheme”) in England, Scotland and Wales.
But, the CICA has a wide discretion under the Scheme to refuse or reduce claims. Late reporting of a crime is one example which can often result in an application being refused. There are a number of other pitfalls including the character of the applicant, failure to provide assistance in bringing the assailant to justice or simply having unspent convictions. Decisions are appealable to the CICA tribunal, however the tribunal has the same wide discretion to refuse claims, and decisions of the tribunal cannot be appealed to any higher authority.
It should also be noted that the CICA is a public body and does not have anywhere near the same amount of funding to deal with claims compared to a large insurance company. As a result awards of compensation are low compared to claims in negligence.
By way of example, a recent client of mine was subjected to a violent assault during the course of which they were stabbed several times. Fortunately this client survived and was not left with any significant long term problems (other than scars). This client displayed great personal strength and robustness of attitude towards the attack and recovered relatively quickly from the psychological consequences in the years that followed. This client received roughly £2,000 from the CICA.
It is an unfortunate reality of the system of compensation in the UK that victims of violent crime receive vastly different awards of compensation when compared to those who are victims of negligence.
In order to bridge this gap a review of awards under the Scheme, as well as a review of the level of funding available to the Scheme ought to be considered.
Ultimately the funding of Criminal Justice in Scotland lies within the remit of the UK government and this issue should be considered as a priority during the next UK Justice Policy Review.
I should note that it’s not entirely doom and gloom this side of the border. The Scottish Government have recently created a Victim Surcharge Fund into which a new financial penalty will be imposed on all criminals who are sentenced to pay a court fine. The Scottish Government have stated… “Victim support organisations will be able to apply to the fund to cover the costs of providing short-term and practical support such as new windows and locks for burglary victims or funeral expenses for families of murder victims”.
The Victim Surcharge Fund may go some way to covering expenses which would otherwise not be covered by an application to the CICA, albeit it’s unlikely that this will bridge the gap between claims arising from crime and those arising from negligence.
More information on the Victim Surcharge Fund can be found at:
https://www.gov.scot/news/paying-the-cost-of-crime/
Blog by Lewis Clark, Solicitor
