IN THE UPPER TRIBUNAL	Case No.  JR/1690/2009
ADMINISTRATIVE APPEALS CHAMBER

Before:  Upper Tribunal Judge Rowland

Attendances:

    Mr David Sanderson of counsel, instructed by Rogers and Norton, appeared for the Applicant.

    The Respondent did not appear and was not represented.

    Mr Ben Collins of counsel, instructed by the Treasury Solicitor, appeared for the Interested Party:	

Decision:  This application for judicial review is dismissed.

REASONS FOR DECISION

1.	This is an application for judicial review of a decision of the First-tier Tribunal dated 17 April 2009, whereby it awarded compensation under the Criminal Injuries Compensation Scheme 2001 (“the 2001 Scheme”) amounting to £36,654 (less £5,000 already paid by way of an interim payment).  The application is made with permission granted by Walker J.  I held an oral hearing and am very grateful for the helpful submissions of Mr Sanderson for the claimant and Mr Collins for the Criminal Injuries Compensation Authority.

2.	The 2001 Scheme was the second scheme made under the Criminal Injuries Compensation Act 1995 (“the 1995 Act”).  Paragraph 23 provides –

 “23.	Subject to the other provisions of this Scheme, the compensation payable under an award will be –
    (a)	a standard amount of compensation determined by reference to the nature of the injury in accordance with paragraphs 26-29;
    (b)	where the applicant has lost earnings or earning capacity for longer then 28 weeks as a direct consequence of the injury (other than injury leading to his death), an additional amount in respect of such loss of earnings, calculated in accordance with paragraphs 30-34;
    (c)	where the applicant has lost earnings or earning capacity for longer then 28 weeks as a direct consequence of the injury (other than injury leading to his death) or, if not normally employed, is incapacitated to a similar extent, an additional amount in respect of any special expenses, calculated in accordance with paragraphs 35-36
    (d)	where the victim has died in consequence of the injury …;
    (e)	where the victim has died otherwise than in consequence of the injury ….”

The facts

3.	The claimant was a lecturer in the textile department of a college of further education.  On 22 June 2002 she was assaulted in the toilets at the college and subjected to what the First-tier Tribunal rightly said must have been a terrifying ordeal.  Her assailant was serving life sentences for assault and rape and had absconded from a prison officer while on a day release visit.  He attacked her with a brick, striking her on the head, but fled when she screamed.  He subsequently pleaded guilty to causing grievous bodily harm with intent and was given a further life sentence.  Fortunately, the claimant did not suffer serious lasting physical injuries but she did suffer more serious psychiatric injury.

4.	The claim for criminal injuries compensation was made on 21 February 2003.  An initial award of £1,500 was made in respect of the scar left on the claimant’s head.  At that time, no claim for loss of earnings had been made.  On 20 August 2004, the claimant sought a review.  This resulted in an award of £8,650, consisting of tariff awards of £8,200 in respect of disabling mental illness and £450 in respect of the scar (30% of £1,500 due to the effect of the “multiple injuries” provisions in paragraph 27 of the 2001 Scheme).  The Criminal Injuries Compensation Authority refused to make an award in respect of loss of earnings.  The claimant appealed. 

5.	The evidence before the First-tier Tribunal was that the claimant had, before her injury, informed her employer that she wished to reduce her hours of employment to the equivalent of 0.8 of a full-time lecturer so that she could do freelance work which, she hoped would in due course become her principal occupation.  The claimant’s case was nonetheless that she would probably have been promoted at the college when one of her colleagues retired.  She was aged 28 at the time of the assault.  She married her partner a year later and gave birth to a daughter towards the end of 2005 and another child in early 2009.

6.	According to Dr Ann Stanley, a consultant forensic psychiatrist, there was evidence that the claimant had suffered from Post Traumatic Stress Disorder.  In August 2005, three years after the assault, Dr Stanley recorded that the claimant still had not been able to return to work on a 0.8 basis but she was back on a 0.5 basis and it was anticipated that she would be able to increase her hours in the next 12 to 18 months.  Dr Stanley also considered that, on the balance of probabilities, the claimant was unlikely ever to meet her full potential.

7.	A year later, the claimant was still working on a 0.5 basis, although her employers had continued to pay her on a 0.8 basis.  On 22 June 2006, Dr Stanley answered a number of specific questions put to her by the claimant’s solicitors, although she emphasised that she had not seen the claimant since the previous year.  She estimated the risk of the moderately disabling mental illness continuing beyond the fifth anniversary of the assault at 70%.  Without treatment from a chartered clinical psychologist, she put the risk of the illness being permanent also at 70% but said that, with such treatment, the risk dropped below 50%.  She recommended a further 18 months of such treatment, which would be available from the NHS in some areas.  Crucially, in an answer corrected on 5 July 2006, she considered the risk of the claimant not being able to increase the extent of her work from 0.8 to 0.5 was 60% without such treatment but 40% with treatment.  She also said –

“She is unlikely to meet her full potential.  It is my view that she could undertake a promotion.  Problems with tiredness might prevent her to be able to return to full-time employment.  Cognitive Behaviour Therapy may lead to an improvement, but this is difficult to predict.”

8.	On 2 August 2006, a chartered psychologist estimated that the claimant would need 8-20 sessions of cognitive behaviour therapy which would cost £80 each if done privately.  Her GP had said that there would be a wait of about 3 months for an assessment and another 6 months for treatment on the NHS and that about 6 sessions would be available.  The psychologist repeated her advice on 12 February 2008.  During the intervening period, the claimant had not sought cognitive behaviour therapy but had continued with counselling paid for by her employers.

9.	The First-tier Tribunal increased the tariff award made under paragraph 23(a) to £13,500 (disabling mental illness, confirmed by psychiatric diagnosis, lasting over 5 years but not permanent) in respect of the mental illness and £450 in respect of the scar.  In doing so, it rejected a submission that the illness was likely to be permanent.  It clearly considered that the claimant’s condition was improving and that she was not as badly affected as she was suggesting.  It also relied on Dr Stanley’s evidence that, if the claimant were to have cognitive behaviour therapy, the risk of the illness being permanent would be reduced to below 50%.  This award is not challenged on this application.

10.	The First-tier Tribunal awarded £2,504 in respect of special expenses under paragraph 23(c), made up of £1,250 for past travel, £1,120 for 14 sessions of cognitive behaviour therapy (midway between 8 and 20) and £134 for the travel necessary to obtain that treatment.  In making the award, the Fist-tier Tribunal adopted the claimant’s figures and so this award also is not challenged on this application.

11.	It is, the award of £20,200 made under paragraph 23(b) in respect of loss of earnings, loss or earning capacity and loss of pension that is in issue.  The claimant’s claim had been for about £100,000.

12.	A key element in the First-tier Tribunal’s reasoning is that it found that the claimant had failed “to mitigate her past losses in this case by not taking the advice of Dr Stanley to undergo appropriate psychological treatment”.  In consequence, it was “not satisfied on the balance of probabilities that, by reason of psychiatric injury arising as a consequence of the attack, the Applicant will be prevented from returning to full-time employment” and it based its calculations on the assumption that, if the claimant started cognitive behaviour therapy at the date of its decision, rehabilitation would have been complete by 23 June 2010, eight years after the assault and 15 months after the hearing.

13.	It also found that there was already no reason why the claimant could not be doing some freelance work, but it accepted loss of freelance earnings up to 23 June 2010, at a total of £5,200.  The fact that the college had continued to pay the claimant on a 0.8 basis until September 2007 limited her claim for loss of past earnings in her current job from the college to £9,228, which the First-tier Tribunal accepted and it calculated her future loss of earnings up to 23 June 2010 at £4,600, the claimant having had a period of maternity leave.  It rejected her claim that she would probably have been promoted but for the accident and it found that the effect on her pension and retirement lump sum would be small and that £1,000 would be sufficient compensation.  It rounded the total loss of earnings from the college to £14,000 which, when added to the £1,000 for the loss of retirement benefits and the £5,200 for the loss of freelance work, gave a total of £20,200.  

Assessment of future loss at common law

14.	It is common ground that, although the civil standard of proof is the balance of probabilities, damages in personal injury actions in the courts may be awarded in respect of future loss where the risk of the loss arising is assessed at less than 50%.  I was referred to Mallett v McMonagle [1970] A.C. 166 and Davies v Taylor [1974] A.C. 207, both decided under the Fatal Accident Acts.  In Mallett v McMonagle, Lord Diplock said at 176:

“In determining what did happen in the past a court decides on the balance of probabilities.  Anything that is more probable than not it treats as certain.  But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.”

In Davies v Taylor, Lord Reid explained the reasoning at 213:

“You can prove that a past event happened, but you cannot prove that a future event will happen and I do not suppose that the law is so foolish as to suppose that you can.  All you can do is evaluate the chance.  Sometimes it is virtually 100 per cent.: sometimes it is nil.  But often it is in between.  And if it is somewhere in between I do not see much difference between a probability of 51 per cent. and a probability of 49 per cent.”

15.	I was also referred to Smith v Manchester Corporation (1974) 17 K.I.R. 1 and Moeliker v Reyrolle & Co Ltd [1977] 1 W.L.R. 132, where claimants had undoubtedly suffered permanent disabilities but the quantification of loss depended on the evaluation of the chance of a loss of employment happening in the future, Blamire v South Cumbria Health Authority [1993] PIQR Q1, where there was a proven vulnerability with a risk of future disability leading to a risk of loss of employment which was to be assessed on an evaluation of the chance of it happening and Doyle v Wallace [1998] PIQR Q146, where the claimant had undoubtedly suffered a permanent injury and the quantification of loss, both past and future, depended on the evaluation of the chance that the claimant would have qualified as a drama teacher had the accident not occurred.  It is clear from all of those decisions that a precise mathematical approach to such cases may well be inappropriate in view of the number of imponderables in play but that damages are to be awarded even though the chance of the relevant event happening is small, provided that it is more than a mere speculative possibility.

16.	On the other hand, I was also referred to Stuart-Smith LJ’s warning in Allied Maples Group Ltd v Simmons & Simmons [1995] 1 W.L.R. 1602 at 1609 that care must be taken to distinguish between issues of causation and issues of quantification, with causation generally to be proved on the balance of probabilities, an approach confirmed by the House of Lords in Gregg v Scott [2005] UKHL 2; [2005] A.C. 205.  Stuart-Smith LJ also said that questions of what a plaintiff would have done had the defendant acted differently were to be decided on the balance of probability but questions of what a third party would have done were to be decided by evaluating the chance.  This decision was followed in Doyle v Wallace and explains why in that case the plaintiff’s loss of past earnings (as well as her loss of future earnings) was assessed by evaluating the chance of her qualifying as a drama teacher.

The calculation of loss of earnings under the 2001 Scheme

17.	Paragraphs 30 to 34 of the 2001 Scheme make provision for the calculation of loss of earnings for the purposes of paragraph 23(b).

“Compensation for loss of earnings 
  30.	Where the applicant has lost earnings or earning capacity for longer than 28 weeks as a direct consequence of the injury (other than injury leading to his or her death), no compensation in respect of loss of earnings or earning capacity will be payable for the first 28 weeks of loss. The period of loss for which compensation may be payable will begin after those 28 weeks and, subject to sub-paragraph (2) below, will continue for such period as a claims officer may determine. 
  31.	For a period of loss ending before or continuing to the time the claim is assessed, the net loss of earnings or earning capacity will be calculated on the basis of:
    (a) 	the applicant’s emoluments (being any profit or gain accruing from an office or employment) at the time of the injury and what those emoluments would have been during the period of loss; and
    (b) 	any emoluments which have become payable to the applicant in respect of the whole or part of the period of loss, whether or not as a result of the injury; and
    (c) 	any changes in the applicant’s pension rights; and
    (d) 	in accordance with paragraphs 45-47 (reductions to take account of other payments), any social security benefits, insurance payments and pension which have become payable to the applicant during the period of loss; and
    (e) 	any other pension which has become payable to the applicant during the period of loss, whether or not as a result of the injury.
  32. 	Where, at the time the claim is assessed, a claims officer considers that the applicant is likely to suffer continuing loss of earnings and/or earning capacity, an annual rate of net loss (the multiplicand) or, where appropriate, more than one such rate will be calculated on the basis of:
    (a) 	the current rate of net loss calculated in accordance with the preceding paragraph; and
    (b) 	such future rate or rates of net loss (including changes in the applicant’s pension rights) as the claims officer may determine; and
    (c) 	the claims officer’s assessment of the applicant’s future earning capacity; and
    (d) 	in accordance with paragraphs 45-47 (reductions to take account of other payments), any social security benefits, insurance payments and pension which will become payable to the applicant in future; and
    (e) 	any other pension which will become payable to the applicant in future, whether or not as a result of the injury.
The compensation payable in respect of each period of future loss will be a lump sum, which is the product of that multiplicand and an appropriate multiplier. When the loss does not start until a future date, the lump sum will be discounted to provide for the present value of the money. The claims officer will assess the appropriate multiplier, discount factor, or life expectancy by reference to the tables in Note 3, and may make such adjustments as he considers appropriate to take account of any factors and contingencies which appear to him to be relevant. The tables in Note 3 set out the multipliers and (where applicable) discounts and life expectancies to be applied. 
(a) Table A is to be applied to various periods of future loss to allow for the accelerated receipt of compensation; 
(b) Table B sets out the discount factor, by which the lump sum is to be multiplied, when the loss does not start until various periods in the future; 
(c) Table C is a life expectancy table, and in the absence of other factors affecting life expectancy, the table sets out the age to be applied when assessing a multiplier based on pecuniary loss for life. 
  33. 	Where a claims officer considers that the approach in the paragraphs is impracticable, the compensation payable in respect of continuing loss of earnings and/or earning capacity will be such other lump sum as he may determine. 
  34. 	Any rate of net loss of earnings or earning capacity (before any reduction in accordance with this Scheme) which is to be taken into account in calculating any compensation payable under paragraphs 30-33 must not exceed one and a half times the gross average industrial earnings at the time of assessment according to the latest figures published by the Office for National Statistics.”

The issues

18.	Mr Sanderson accepts that the First-tier Tribunal’s factual findings cannot be challenged in these proceedings.

19.	The application for judicial review identified four grounds of challenge, but it is accepted that the first three really raise the same legal issue (“the first issue”), which is whether compensation should be awarded in respect of future loss in this case where the risk of the loss arising has been assessed at less than 50%.  The other issue (“the second issue”) is whether it was procedurally improper for the First-tier Tribunal not to increase the lump sum for future earnings to reflect Dr Stanley’s assessment that the claimant was unlikely ever to meet her full potential.

Submissions

20.	Mr Sanderson argues that the assessment of loss for the purposes of the 2001 Scheme should follow the approach of the courts in personal injury cases and that, had it applied that approach to its findings, the First-tier Tribunal ought to have compensated the claimant on the basis that, even if she had had the cognitive behaviour therapy, there would have been a 40% chance that she would have continued to have a loss of earnings.  He submits that the statutory scheme cannot exist in a vacuum and that the common law rules, having been developed in order to produce a fair and coherent system, cannot be ignored.  He points to the very structure of paragraph 23, using the language of section 2 of the 1995 Act with its elements corresponding to general damages, special damages for loss or earnings and special damages for other losses, as showing how the 2001 Scheme was drafted against the background of the common law.  He also draws attention to the use of the words “would have been” in paragraph 31(a) in contrast to the use of the word “likely” in the opening words of paragraph 32, which he submits is consistent with the use of the balance of probabilities for proving past loss and the evaluation of a chance for assessing future loss.  He refers to the 6th Annual Report of the Criminal Injuries Compensation Authority (2001/2002) HC 450, in which it was stated that the 2001 Scheme “reflects the basic elements of common law claims”, and to the 6th Annual Report of the Criminal Injuries Compensation Appeals Panel 2001/2002 HC 960, in which it is said at paragraph 3.24 –

“Paragraph 33 of the Scheme permits a panel to make a lump sum award to compensate for loss of earning capacity.  In assessing the lump sum panels follow the guidance given in common law cases such as Smith v Manchester Corp.”

21.	On the second issue, Mr Sanderson submits that, although the First-tier Tribunal considered one specific promotion which had figured in the claimant’s schedule of damages, it had wrongly ignored the broader point, supported by the cogent evidence of Dr Stanley, that there was a greater than 50% risk that, as a consequence of the assault, the claimant’s whole career would be compromised.  In doing so, he submits, it wrongly failed to give weight to a relevant consideration.

22.	Mr Collins responds on the first issue by first submitting that the common law rules do not apply to the 2001 scheme and by secondly submitting that even under the common law approach the claimant would not succeed in this case

23.	As to the construction of the 2001 Scheme, he submits that, whereas the common law aims to put a victim in the same position he or she would have been in but for the tort, the 2001 Scheme is less ambitious and is intended merely to indicate a recognition of the circumstances of the victims of violent crime.  More specifically, he relies upon section 3(2) of the 1995 Act, which provides –

“Where in accordance with any provision of the Scheme, it falls to one person to satisfy another as to any matter, the standard of proof required shall be that applicable in civil proceedings.”

Consistently with that, he submits, paragraphs 20 and 64 of the 2001 Scheme provide that the standard of proof to be applied “in all matters” by, respectively, claims officers and the First-tier Tribunal, is the balance of probabilities.  Against that background, Mr Collins submits, the word “likely” in paragraph 32 must mean more probable than not, even though in other contexts it might not do so.  I was referred to Bailey v Rolls Royce (1971) Ltd [1984] I.C.R. 688 for an example of “likely” being held to have that meaning.

24.	In the alternative, taking a different approach from the Secretary of State’s previous representative, he argues that the First-tier Tribunal’s finding that the claimant would have been fit to return to work full-time by 23 June 2010 was a decision on a question of pure causation which would have been decided on the balance of probabilities even in personal injuries actions in the courts.  

25.	On the second issue, Mr Collins submits that the First-tier Tribunal was not bound to accept everything Dr Stanley said, that it was not entirely clear what she had meant in 2006 because she had dealt elsewhere in her letter with the claimant’s prospects and that the First-tier Tribunal’s conclusion was one it was entitled to reach on the basis of the evidence before it.

Discussion in relation to the first issue

26.	The history of criminal injuries compensation suggests that it should not too readily be assumed that the draftsman of the 2001 Scheme intended any particular part of the Scheme to operate in accordance with common law principles.  As is well known, before 1996 there were non-statutory schemes, made in the exercise of prerogative powers, under which compensation was assessed using the common law rules.  The Criminal Justice Act 1988 contained provisions for codifying the scheme then in existence and putting it on a statutory footing.  However, those provisions of the Act were never brought into effect.  In 1994, the Government of the day purported to use prerogative powers to introduce a tariff-based scheme with no element of compensation for loss of earnings at all.  That was quashed on constitutional grounds – the inappropriate use of prerogative powers while the 1988 Act provisions remained unrepealed (R. v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 A.C. 513) – and that is what led to the passing of the 1995 Act.  Against the background of a plan not to have any compensation for loss of earnings, one needs to look carefully at the 2001 Scheme to see what is included and what is not.  On the other hand, the 2001 Scheme is obviously influenced by the common law approach to compensation and the same sorts of issues are likely to arise.  Therefore, it seems to me that the proper approach is that, where the 2001 Scheme requires a matter to be determined and does not make specific provision as to how it should be determined, the matter must be determined applying common law principles.

27.	Mr Collins submits that the 2001 Scheme does make specific provision material to the present case by requiring all matters to be determined on the balance of probability.  However, that argument ignores Lord Reid’s point that one cannot prove that a future event will happen.  Lord Reid would have regarded it as “foolish” to apply the civil standard of proof to something that cannot be proved and I do not consider that that is what the draftsman of the 2001 Scheme has done.  Nor could paragraphs 20 and 64 provide for a different standard of proof from the civil standard, even if the civil standard were not the balance of probabilities in certain circumstances, because they would then be ultra vires for inconsistency with section 3(2) of the 1995 Act.  However, in my judgment, the common law does require loss to be proved to the balance of probabilities.  It is just that, where the common law requires loss to be quantified by the evaluation of a chance, what it requires to be proved on a balance of probabilities is firstly causation and secondly the assessment of the risk.  

28.	It is therefore necessary to look in detail at the terms of the 2001 Scheme in order to determine how it operates against that background. 

29.	First, it is clearly necessary for a claimant to prove, on the balance of probabilities, that he or she has suffered an injury that is sufficiently serious to qualify for an award under paragraph 23(a).  Paragraph 25 has the effect that there can be no compensation for loss of earnings unless there is a tariff award.  Some tariff awards depend on the prognosis.  Thus, in the present case, determining the tariff award required a judgment as to whether or not the claimant’s illness would be permanent.  That is a matter that fell to be proved on the balance of probabilities.

30.	Secondly, it is necessary for the claimant to prove, on the balance of probabilities that the injury has, or will, be the direct cause of a loss of earnings or of earning capacity.  It is paragraph 23(b) that requires that causal link and it is entirely consistent with the common law to require proof on a balance of probabilities on issues of causation.  In relation to the future, this is again a question of proving a current prognosis.  The causal link will be established if it is proved that the claimant will probably remain disabled by the injury to such an extent that earnings or earning capacity would be affected.

31.	Thirdly, one comes to the determination of the amount of compensation to be paid in respect of loss of earnings.  Here it is noteworthy that paragraph 23(b) refers both to lost earnings and to lost earning capacity.  It then refers to an amount of compensation in respect of “such” loss of earnings.  This is poor drafting.  What is meant is “the” loss of earnings that is the direct consequence of the injury, the financial loss arising from both lost earnings and a loss of earning capacity being expressed as a loss of earnings.  Indeed, it was probably unnecessary to refer to lost earnings as well as lost earning capacity.  In any event, the significance of the reference to lost earning capacity is that, while it will sometimes be possible for the amount of the loss of earnings attributable to the loss of earning capacity to be proved with a high degree of probability, sometimes it will not, even though the loss of earning capacity is indisputable.

32.	The question that arises is to what extent the standard of proof is relevant in these circumstances.  At common law, past loss must be proved on the balance of probabilities, except where it depends on the evaluation of a chance of a third party having acted in a particular way.  In my view, paragraph 31 requires the same approach.  I do not regard the words “would have been” in subparagraph (a) as requiring a different approach where the loss depends on the action of a third party.  Evaluating the chance is then the proper way to determine what “would have been” the emoluments of, say, a person who was a child at the date of the injury but an adult at the date of the calculation of compensation.  What paragraphs 20 and 64 require the claimant to prove on the balance of probabilities is the current degree of probability of the chance materialising.  They do not require that the degree of probability itself be over 50%.

33.	The position is even clearer in relation to paragraph 32, where subparagraph (c) recognises that there must be an “assessment” of future earning capacity and where paragraph 33 allows a different approach if the mathematics required by paragraph 32 is impractical.  It is hard to see why the mathematics should be impractical if all the elements must be proved on the balance of probabilities.  Paragraph 33 seems a clear acceptance of the approach taken in Smith v Manchester Corporation and similar cases.  Again, the claimant must prove the degree of probability of the chance materialising.

34.	Obviously, paragraphs 30 and 34 of the 2001 Scheme represent a considerable departure from the common law approach but paragraphs 31 to 33 seem designed otherwise to codify it.  Indeed, the treatment of social security benefits in the 2001 Scheme is more consistent with the common law approach than the treatment of such benefits in courts, where section 17 of the Social Security (Recovery of Benefits) Act 1997 now applies. 

Conclusion on the first issue

35.	On this analysis, did the First-tier Tribunal err in this case?  Setting on one side for the moment the question of the loss of promotion, I do not consider that the First-tier Tribunal did err.  I accept Mr Collins’ submission that Dr Stanley’s assessment of the probability of the claimant not being able to increase her work due to her illness continuing if she did, or did not have, the relevant treatment went to causation (the issue arising under paragraph 23(b) of the 2001 Scheme) rather than quantification (the issue arising under paragraphs 31 to 33 of the Scheme).  The First-tier Tribunal was prepared to accept that the claimant would not be able to return to work full-time until June 2010 but it did not accept that there would be any reduction in earning capacity after that.  This case is distinguishable from Smith v Manchester and other cases where a continuing loss of earning capacity was proved on the balance of probabilities and what remained was merely the quantification of the resultant loss of earnings.  Therefore I agree with Mr Collins that the common law approach does not assist the claimant on this part of the case.

36.	The position in relation to the loss of promotion is different.  The First-tier Tribunal clearly misdirected itself in deciding that it “was not satisfied on the balance of probabilities that the Applicant would have secured the promotion she was contending for”, because, given that the First-tier Tribunal had accepted that the claimant was then unable to work full-time and therefore unable to apply for the promotion as a result of the assault, what remained was a question of the quantification of her loss that should have been decided by the First-tier Tribunal evaluating the chance that her employer would have promoted her (see Allied Maples Group Ltd v Simmons & Simmons and Doyle v Wallace).  However, in my judgment, that misdirection did not affect the outcome.  The First-tier Tribunal said that there was no real evidence that the claimant would have secured the promotion except from the previous incumbent of the post.  He gave oral evidence at the hearing but the First-tier Tribunal discounted his evidence because it found it exaggerated.  This was because, in his oral evidence, he effectively told the First-tier Tribunal that the claimant would certainly have got the job, whereas, in his witness statement, he had merely said that she would have been “a suitable candidate” and then only if she had been prepared to work full-time, which would have been inconsistent with her desire to develop her freelance work.  (Mr Sanderson criticised the First-tier Tribunal for saying that “there was a fundamental problem with [his] evidence in that he was not an independent witness”, simply on the basis that he was a friend of the claimant and had been to her wedding.  I accept that friendship does not necessarily make a witness unreliable and it may have been putting matters a bit high to say that there was a “fundamental problem” with his evidence, but it seems to me that the First-tier Tribunal must have regarded his friendship with the claimant as the explanation for him giving evidence it had found to be unreliable on other grounds.)  In the absence of any other evidence, such as relevant appraisal reports, the First-tier Tribunal found that “it was simply unable to find she was even a real candidate for the job”.  Given that it was for the claimant to prove that she had lost a chance of promotion that was not merely speculative, that finding would have been fatal to her case even if the First-tier Tribunal had directed itself correctly.

37.	Accordingly, I find against the claimant on the first issue.

The second issue

38.	I accept Mr Collins’ submission that the short answer on this issue is that the First-tier Tribunal plainly did not accept Dr Stanley’s opinion, expressed some years before the hearing, that the claimant was unlikely ever to reach her full potential and that it was entitled to take that view.  Dr Stanley’s 2006 comments had been somewhat tentative and the First-tier Tribunal heard evidence from the claimant and formed an impression of her.  Against that background, its reasons for finding that there would be no loss of earnings after 23 June 2010 are sufficient to explain its rejection of that part of Dr Stanley’s evidence, particularly as it had not been specifically relied upon before the First-tier Tribunal.  

Conclusion

39.	Accordingly, this application for judicial review is dismissed.

Mark Rowland
22 December 2010