Assessing damages in historical abuse claims

The High Court has recently provided important guidance on quantum in historical abuse claims. Peter Wake analyses the ruling.

In recent years, there has been a proliferation in the number of claims brought against local authorities arising out of historical sexual abuse. The main reason for this was the change in the law brought about by the decision of the House of Lords in A v Hoare [2008] which means that intentional assault cases are now subject to the same rules as other personal injury claims.

Whilst the basic limitation period for a personal injury claim is three years from the date of injury, this is somewhat flexible. The limitation period can be extended at the discretion of the court and local authorities are now regularly faced with assault and abuse claims dating back from more than 20 years ago. The logistical, financial and legal difficulties that claims of this type pose for local authorities are as obvious as they are significant.

A good number of these cases have been rigorously contested and have come before the courts in some high profile judgments. Perhaps unsurprisingly, the majority of the reported cases have dealt with issues relating to limitation and the scope of an employer’s vicarious liability for the actions of its employees.

However, the recent judgment of the High Court in AB & Others v Nugent Care Society offers useful guidance on the correct approach to determining quantum in abuse claims involving complex mental illness with multiple causes. It is also helpful as a guide to the level of damages that are likely to be awarded in other similar cases in which a claimant is successful or where a claim is settled.

The Nugent Care Society group litigation has a considerable history. The claims arise out of abuse of children in care in the 1960s and 1970s whilst at a children’s home run by the Society. Court proceedings were issued as long as ten years ago in some of the cases, and the matter has been before the Court of Appeal on two occasions before coming back to the High Court for this most recent judgment in which damages were awarded to two of the claimants, JA and JPM.

In assault cases, damages are awarded for the insult which may arise through interference with the person. Accordingly an important aspect of damage, in addition to compensation for any physical or psychiatric injury, is the injury to the victim’s feelings. This is intended to compensate for the indignity, mental suffering, shame, disgrace and humiliation that is frequently experienced by victims of sexual abuse. Often such damages are classified as aggravated damages by the courts. In this respect, assault claims are different to more traditional negligence claims in which damages for mental distress are only awarded where there is a recognised psychiatric condition.

JA was sexually abused by a teacher on three occasions when aged 13 to 15. He was also subjected to more extreme sexual abuse and physical violence (for which the defendant was not liable) by older boys at the care home. He had come from a poor and problematic family background. His father was an alcoholic and his mother was physically abusive to him. As an adult, he had managed to overcome most of his childhood problems. He was no longer involved in criminality and he was in employment.

Psychiatrists assessed that 50% to 70% of JA’s psychological problems came from pre-care experiences. The care episodes (including the non-negligent abuse) amounted to 30% to 50% of his problems. Whilst the abuse exacerbated JA’s pre-existing difficulties, he had not suffered any identifiable psychiatric illness although the effects of the abuse were marked. He had personality difficulties and found it hard to trust others. The adverse experiences suffered by JA were cumulative in their effect and were not alternative causes. There was no separation of damages and an award of £10,000 was made.

JPM was subjected to significant and repeated sexual abuse by more than one abuser over a period of months. In later life, he suffered with alcohol abuse and criminality. Although the abuse had contributed to JPM’s later difficulties, it was held that he would have abused alcohol, offended and had a difficult life in any event. He was aged 50 at the time of the trial. He had suffered from moderate or moderately severe Post-Traumatic Stress Disorder (PTSD) since 1998.

The judge did not hold there to be any percentage apportionment in terms of causation of the symptoms, but held that the abuse had made a “material contribution” to the PTSD. Despite recognising that the two were closely linked, separate awards were made for the assaults and injury to feelings (£25,000) and the PTSD (£12,500). The PTSD award was discounted to take account of JPM’s other difficulties and to avoid double recovery for the injury to feelings.

Damages for assault can include compensation for injury to feelings in addition to physical or mental injury. In cases where there is no discrete psychiatric injury, it will be more appropriate to make one award that takes into account the adverse psychological consequences as part of the picture to be borne in mind when considering the level of damages for the assault itself. This was how the judge assessed damages in the JA claim.

However in cases where there is an identifiable psychiatric condition, separate awards for psychiatric injury and injury to feelings may be appropriate assuming appropriate care is taken to avoid double recovery of compensation. This was the approach adopted in the JMP claim.

Historical abuse claims are now commonplace. The more pressing issues in such claims will continue to relate to liability and limitation, however the recent judgment on quantum in AB from an experienced judge is a useful point of reference on damages.

Peter Wake is an Associate in the Local Government Team of Weightmans LLP. He can be contacted on 0151 242 6866 or via This email address is being protected from spambots. You need JavaScript enabled to view it..