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Compensation tribunal did not act irrationally in refusing claim for nervous shock

By: Mark Tottenham BL

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Supreme Court dismisses appeal from High Court, and affirms refusal to quash decision by a compensation tribunal to refuse compensation for nervous shock to the father of two daughters who died in a nightclub fire, where their mother had been awarded compensation for nervous shock, on the grounds that: (a) a court should not interfere with the decision of a tribunal unless it could be shown that it had been irrational; and (b) there had been many features on which had been possible for the tribunal to distinguish between the father's claim and the mother's claim.

Finlay CJ (majority): Appeal from decision of High Court - discharge of conditional order of certiorari - claim by father of two girls who died in nightclub fire - third girl seriously injured - compensation tribunal established - payment by State ex gratia - compensation in respect of personal injury and loss "attributable to the fire" - claim submitted to tribunal in respect of deceased daughters - assessment of £27,300 in each case - clams for nervous shock - award to mother - no compensation to father in respect of injury or loss - whether decision of tribunal so wrong as to arbitrary and capricious - whether father entitled to have his claim assessed - whether error was 'within jurisdiction' - unreasonable conclusions or decisions - damages for nervous shock - whether open to tribunal to distinguish between claim of mother and claim of father.

"It seems to me that the principle that judicial review is not an appeal from a decision but a review of the manner in which the decision was made ... is consistent with this concept of judicial review based on irrationality of the decision."

Henchy J (concurring): Jurisdiction of Stardust Victims' Compensation Tribunal - option of victim to have entitlement decided by tribunal - informal nature of tribunal hearings - refusal of claim for compensation - whether unreasonable or irrational - whether decision departed from accepted moral standards - adoption by tribunal of English test for nervous shock - no record of oral evidence given by claimant or his wife - cases heard together - medical evidence -

"For my part, I would be slow to test unreasonableness by seeing if the decision accords with logic. Many examples could be given of reputable decisions and of substantive laws which reject logic in favour of other considerations."

Griffin J (concurring): Nature of compensation scheme - test for judicial review - need to place some limitation on the extent of admissible claims - proximity to accident - whether tribunal acted unfairly or irrationally - lack of transcript of written record of proceedings before tribunal - experience of tribunal members.

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense."

"The members of the Tribunal saw and heard the applicant and his wife and the two medical witnesses who gave oral evidence. They alone were in a position to evaluate that evidence."

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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