Child abuse claims conference – the changing landscape
Tuesday 25 May 2010
Valuing abuse claims
Patrick Sadd
Valuing abuse claims
Dealing with expectations
– Remedy is money
• Core dilemma : how does court begin compensating
someone whose adult life may have been blighted by abuse
to which they were exposed as a child ?
• One view – no amount of money sufficient
• Intangible remedies : validation & acknowledgment, calling
to account – ‘so that it doesn’t happen again’
• Apologies – rare and only worthwhile to client if public
• The need to match empathy with being dispassionate
Valuing abuse claims
PI claims – conventional approach
– Identifying injury/injuries
– Matching injuries with medical speciality
– Issues for medics
• history ( review of medical records), examination, diagnosis, prognosis,
treatment , pre-existing, exacerbation, acceleration, ‘but for’
– PSLA : matching JSB & comparables
– Financial losses consequent on injuries
• past & future : earnings, care, treatment : backed by medical
support ; benefits
Valuing abuse claims
Abuse claims – a modified approach :
– Pain & suffering – identifying injury/injuries : at the time the abuse
occurred (physical & mental) and 15, 20 + years on (mental;
occasionally physical) – awareness that abusive act
‘Awards in cases such as this should take account of the nature,
severity and duration of the abuse itself and its immediate
effects, as well as of any long term psychiatric harm’
– Duration of abuse : not always determinative : disproportionate effect –
capacity for suffering
Valuing abuse claims
Pain & suffering & loss of amenity – the blighted life –
anhedonia : the loss of capacity to be happy
– What all adult cases have in common - how life lived since
abuse – causal link with abuse – submerged – link not
made – collapse on disclosure
– low self-esteem, social isolation, poor relationships with
partners/children, substance abuse (drugs/alcohol), poor employment
record, self-harm, offending
– With self-harm: scarring : physical evidence of psychiatric harm
– Life lived : detailed in psychiatric report, medical records and statement
Valuing abuse claims
Pain & suffering
• Causation and apportionment
– Issue : Where abuse victim claiming for injuries sustained from abuse
in children’s home, residential institution , or in foster care it is likely that
they will have a pre-history of exposure to physical or sexual abuse,
neglect or poor parenting ( one parent with mental illness, the other
absent ) – Should there be an attempt at strict apportionment?
– Court’s approach : Coxon v Flintshire CC [ 2001] EWCA Civ 302
– Facts : abused at home, 14 taken into care; 12 months abused in care:
indecently assaulted , locked in secure unit physically assaulted by
staff and residents; constantly denigrated - psychiatric consequences
aged 35
– Trial judge : PSLA £35,000
– LA appeal – already damaged – strict apportionment – follow JSB
Guidelines
– CoA : impassioned rebuff
Valuing abuse claims
Coxon v Flintshire
• Lord Justice Ward
– Physical, emotional and sexual abuse of children in care by those
supposed to provide that care seems to me to fall into an wholly
different category from psychiatric damage that follows other personal
injuries. The injury is of a different character. The essential element
of the damage is the extent to which the injury compounds and
multiplies the effect of the pre-existing condition. The [JSB ]
Guidelines do not include among the facts to be taken into account the
duration of the suffering. In the nature of this kind of abuse, the
victims are frequently unable to address the abuse until many
years later. The claimant is an example of that unhappy state of
affairs. ( #. 54 )
– This 14 year old child had her childhood destroyed to a very
significant extent..while she was in care and her young adult life
has been blighted in the most appalling way ( #.57 )
Valuing abuse claims
Coxon v Flintshire
• Lord Justice Buxton
– …the usual process of attributing responsibility breaks down,
because the initial cause of cause of Miss C’s vulnerability is the
context in which the defendants have to take particular care. If
they did not take that care, in circumstances where it was known
and foreseeable what could be the outcome of abuse by persons
of trust in positions of responsibility, then they cannot complain if
less weight than otherwise is given to that original cause. Those
considerations entitle - indeed oblige - the judge not to weigh too
nicely arguments based on the respective causal effect of the
various facts in the history (#67)
– JSB to be treated with caution (#68)
– Reminder to take into account actual abuse as well as psychiatric
consequences
– LA’s appeal failed
Valuing abuse claims
KR & Others v Bryn Alyn [2003] EWCA 85
• Appeal of 14 individuals in care – the North Wales cases : Lost
in Care
– Approach to apportionment : A wrongdoer must take his victim as he
finds him. To abuse an already damaged individual may have the result
of pushing him over the brink. The possible exponential effect of
abuse on children who have already suffered psychiatric damage
by reason of previous experiences had been noted by Ward LJ at
paragraph 54 of his judgment in C v. Flintshire County Council
– Apportionment still relevant applying normal rules of where several
tortfeasors cause different damage – but consider impact
– Guidance also on loss of earnings & treatment
Valuing abuse claims
Sources for PSLA - physical & psychiatric
• JSB – with health warning
• Kemp/Lawtel/Westlaw comparables : avoid CICB & CICA tariff
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Various Claimants v Leicestershire CC 1996
Regression ‘therapy’ ; sexual, physical abuse & psychiatric harm
KR v Bryn Alyn [ 2003] EWCA Civ 85
Review of psla awards of 14 claimants : paras.109 fllwg
A v Archbishop of B’ham & ors [2005] EWHC 1361
11 years of regular severe sexual abuse : 50,000
C v D & anor [2006] EWHC 166
4 years of less severe abuse : 20,000
Lawson v Glaves Smith [2006] EWHC
Multiple rapes over 4 days – imprisoned - forced cocaine – 78,500
Valuing abuse claims
Sources for PSLA (2) - physical & psychiatric
– Pierce v Doncaster MBC [2007] 2968
– Neglect, physical and emotional over 14 years :25,000
– MB v LB of Ealing & anor [2008] EWHC 1262
– Physical and emotional abuse through childhood : 33,500
– AT,NT,ML,AK v Dulghieru [2008] EWHC 225
– Sex trafficking – women forced into prostitution :82,000 – 125,000
– Maga v Trustees of B’ham Archdiocese [2009] EWHC 780
– Sexual abuse by priest on 12/13 year old : now 45 :10,000 for actual
abuse; 7,500 for psychological harm
Valuing abuse claims
Loss of earnings & earning capacity
• A : No vulnerable pre-history
– Sports club/school/church/ parents’ friend.
– Education : not able to access having to deal with abuse : consider
educational psychologist
– Sibling/parental career/job comparison
– A v Archbishop of Birmingham [ 2005] EWCH 1361 – in work –
mental collapse on disclosure – not work again – past & future loss
• B : Pre-existing vulnerability
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What would have been employment course
Chance of doing better - Coxon
Difficulties of finding work with mental health history
KR - In this context the ‘push over the edge’ or cumulative effect of the
Bryn Alyn abuse may have made the difference between a claimant
being able to work and not being able to work.
Valuing abuse claims
Loss of earnings & earning capacity
• C : Breakdown at moment of disclosure : in work
– Straightforward – conventional
– Effect on continuity of work – effect of disclosure with employers.
• D : Treatment & effect on employment
– Impact on work : time off
– Impact on future in having treatment – reaction & disclosure of having
to have treatment
• E : Schedule of loss
– Provide narrative – more is more !!!
– Make the case – not just figures
– CRU : 5 years : harm historical
Valuing abuse claims
Treatment costs
– Issue: Should apportionment apply to therapy as to PSLA ?
- Multiple issues helped by therapy, not all related to abuse
– Bryn Alyn - In our view, once it is established that the Bryn Alyn
experience played a significant part in the need for therapy, the whole
of the anticipated cost should be recoverable from the defendant unless
it can be clearly shown that the treatment is divisible. (#137)
– Material contribution = full cost
– Issue - Will Claimant engage with therapy?
– Scan medical records – missed appointments – community mental
health
• NB : Costings (medication ) – relapse – earnings – travel
Valuing abuse claims
Aggravated & exemplary damages
– Aggravated : AT,NT,ML,AK v Dulghieru [2008] EWHC 225
– Injury to feelings, humiliation, anger, resentment – ‘so appalling,
so malevolent, so utterly contemptuous of the Claimant’s rights’
£30,000 – 35,000
- Richardson v Howie [2004] EWCA Civ 1127 – ‘the wholly exceptional
case’ - otherwise subsumed into award for PSLA
- Appleton v. Garrett [1996] P.I.Q.R. P1
– Exemplary :
– ( 1 ) Oppressive arbitrary or unconstitutional behaviour by government
servant - Muuse v S S for Home Department [ 2010] EWCA Civ 453
– ( 2 ) Profit made at the expense of abuse : AT,NT,ML,AK v Dulghieru
[2008] EWHC 225 - £15,000
Valuing abuse claims
Related issues :
– Cost of alcohol abuse : MB v LB of Ealing [2008] EWHC 1262 –
apportioned award to reflect additional cost consequent on effects of
abuse
– Criminal acts : Gray v Thames Trains [2009] UKHL 33 – Ladbroke
Grove train crash – PTSD – stabs pedestrian – diminished
responsibility – indefinite detention - claim for loss of earnings failed
– Suicide : Corr v IBC Vehicles Ltd. [2008] UKHL 13 : foreseeability of
harm – acute depression leading to suicide – widow’s claim – no break
in chain – ‘Once liability has been accepted for depression, the
question in each case is whether it has been shown that it was
depression which drove the deceased to take his own life.’ (#83)
– The child claimant : awaiting psychological outcome – Human Rights
Act claim - negligent diagnosis of sexual abuse
– Medical evidence : avoid the sympathetic psychiatrist ; check medical
history : gynaecological/colo-rectal/ENT (septum )
Valuing abuse claims
Handout available with cases
Special thanks to Malcolm Johnson