Following the recommendation of the Independent Inquiry into Child Sexual Abuse, a new sub-category of psychiatric injury has been included within the sixteenth edition of the Judicial College Guidelines (the Guidelines).
In this article, we explore this new section of the Guidelines and consider whether the courts in Scotland are likely to adopt these new figures in a manner which may bring awards for damages closer to those in England and Wales.
What are the Judicial College Guidelines?
In addition to the awards of compensation made for psychiatric and psychological damage, awards will often include an element for injury to feelings caused by the abuse itself, the denial of the offence and the need for the injured person to discuss and recall the abuse in court or other proceedings.
The new sixteenth edition
Section 4(c) of the Guidelines provides the factors to be considered when assessing damages for the sexual and/or physical abuse itself, any psychiatric injury as well as case specific details regarding aggravating features which may lead to a separate sum being made for injury to feelings.
This section provides for three categories of awards relating to injuries classed as:
- Severe (£45,000 to £120,000).
- Moderate (£20,570 to £45,000).
- Less severe (£9,730 to £20,570).
All of these brackets are higher than those for claims involving psychiatric injury where abuse has not been involved.
In the recent case of TVZ & Others v Manchester City Football Club , Johnson J considered the likely value of the claim despite the fact that the claimants were unsuccessful. Guidance was provided on separate awards for the physical acts of abuse and the immediate consequences, as well as an award for any long-term psychiatric disorder caused by the abuse. However, in line with established principles, no separate award for aggravated damages was considered appropriate. Rather, the single award of damages itself should take account of the aggravating features of an abusive act. When providing two separate awards, Johnson J reminded himself of the risk of double counting.
In this case, eight claimants pursued a claim against Manchester City Football Club. The nature and frequency of the abuse and the impact on each claimant varied, but when considering the awards against the new Section 4(c), all of the cases except for one fell into the ‘severe’ range of the Guidelines. Johnson J acknowledged that the total award may be substantially higher than the top applicable Guideline bracket, but stated that this was because, as well as the psychiatric disorder, there is the immediate injury to feeling occasioned by the abuse. An award in excess of £120,000 was made in two of the eight cases when the two separate awards were accumulated. Taking into the account the particular facts in each case, this is not surprising as some of the claimants suffered over 100 incidents of serious sexual abuse which was found to have caused a severe impact to their mental health and wellbeing.
The inclusion of new guidelines for sexual and physical abuse provides direction as to how awards for damages should be assessed in this area and provides greater certainty to all parties in ensuring there has been an appropriate assessment made.
Scotland: will awards continue to be higher than England and Wales?
While the Guidelines are not binding in Scotland, they are regularly heavily relied on in submissions, and viewed as persuasive, always disregarding the 10% uplift applicable for cases involving a conditional fee arrangement. The Guidelines have now incorporated the previous 10% uplift to provide a single range of figures. So will the approach of the revised guidelines be followed in Scotland?
A list of factors relevant to assessing general damages has developed in Scottish caselaw since J v Fife Council , echoing many factors identified by the Guidelines, including the character, nature, severity, frequency and duration of abuse, the immediate effect on the claimant’s life, ongoing emotional and social consequences, and the nature of any psychiatric illness or psychological condition caused. Factors now identified by the Guidelines as aggravating, for example, abuse of a position of trust and the impact of giving evidence in criminal proceedings, have also been considered by the courts, along with the impact of time when abuse was denied.
In AB v The English Province of the Congregation of Christian Brothers , the claimant described persistent sexual, physical and emotional abuse by Brothers at a residential school for around 12 months in the period 1980/81, leading to depression, anxiety, drug and alcohol use, and suicidal ideation necessitating in-patient care. The claimant had been unemployed since 1983 and was unlikely ever to work again. The court awarded £20,000 for the period when abuse occurred, £50,000 for consequences thereafter to trial at October/November 2021, and £25,000 for future consequences – a total of £95,000, higher than the range proposed by the Guidelines as appropriate to the majority of severe abuse cases.
In A v Glasgow City Council , the claimant reported frequent sexual, physical and emotional abuse by his former foster carer for a period of over five years. A criminal trial, at which the claimant gave evidence, related to some of those events, and evidence at the civil trial went further. While the claimant had initially coped with the impact of abuse, had secured and maintained employment, and had adopted children, he struggled as life progressed, suffering post-traumatic stress disorder (PTSD) at trial. An award of £90,000 was made for the period of abuse, £25,000 for the period thereafter to trial, and £20,000 for the future. This total of £135,000 markedly exceeds the range of awards for aggravated ‘severe’ cases in the Guidelines.
These awards result from careful consideration of the impact on each individual through life, but demonstrate that, while key factors are as narrated in the Guidelines, Scottish awards may be higher in value. However, with the Guidelines only released a month ago, it remains to be seen whether the new sixteenth edition will be widely followed and adopted by the courts in Scotland. If so, the Guidelines may play a key part in closing the gap between higher awards in Scotland and those in England and Wales.