News Category 3
Taking Responsibility: Foster Care, Child Abuse and Vicarious Liability - Liam Ryan, 7 Bedford Row
20/11/17. When dealing with cases of child abuse, strong emotions are stirred in almost all people with clear feeling of right and wrong being arrived at. However, when seeking to compensate an abused party, the question of who should, or can meet a Judgment is a lot more complex, since the culpable individual may have no means with which to satisfy such a Judgment rendering it almost worthless. Accordingly, victims often need to look to other parties to satisfy their claims and this in turn, has led to the consideration of why, or who placed them into the position in which they were abused in the first place. This in turn has led to a fertile and ever developing body of law in the field of vicarious liability.
The Supreme Court on the 18th October 2017 handed down its decision in the case of Armes v Nottinghamshire CC [2017] UKSC 60, a landmark and much awaited decision in the field of child abuse claims. Out of the 5 Lords hearing the appeal, only Lord Hughes dissented in what should be seen as a victory for victims of child abuse.
The facts
The Claimant had been taken into the care of the local authority in February 1985 when she was aged seven. Statutory care orders followed and between March 1985 and March 1986 she was fostered by a Mr and Mrs Allison. Without going into the details of the allegations, Males J at first instance found that she was physically and emotionally abused by Mrs Allison. Between October 1987 and February 1988, she was fostered by a Mr and Mrs Blakely. Males J also found that during that period, she was sexually abused by Mr Blakely.
Notably, in each case, the abuse took place in the foster home in the course of day-to-day care and control of the Claimant. Mrs Allison employed grossly excessive violence to discipline her. Mr Blakely molested her when bathing her and when she was alone in her bedroom. As a result of this the Claimant suffered personal injuries and consequential losses.
The issue before the Supreme Court
It was not suggested that the Defendant was at fault for the selection of the foster carers. The question before the Court was whether the...
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Summary of Recent Cases, November 2017
15/11/17. Here is a summary of the recent notable court cases over the past month. You can also receive these for free by registering for our PI Brief Update newsletter. Just select "Free Newsletter" from the menu at the top of this page and fill in your email address.
Summary of Recent Cases - Substantive Law
Armes v Nottinghamshire County Council [2017] UKSC 60
The Claimant had been in the care of the Defendant council between the ages of 7 and 18. During that time she had been placed with two sets of foster parents. She was physically and emotionally abused during her first placement, and sexually abused during her second. In both instances the abuse took place within the foster homes. The Claimant brought a claim in negligence on the basis of two arguments: either the Defendant council owed the Claimant a non-delegable duty of care, or it was...
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The Scottish Government Should Remove Time-Bar for Abuse Victims Over 18 Where There is a Power Imbalance - Mike Kemp, Thorntons Law LLP
08/11/17. I wrote last year about Scottish Government proposals to remove the time limits for childhood abuse claims and those proposals have now been passed and came into effect earlier this month. Now the Scottish Government have produced a helpful guide to making such claims.
It is pleasing to see the Scottish Government take such a sympathetic view to the victims of childhood abuse and they should be applauded not just for the legislation but for trying to make matters as easy as possible for victims to make a claim. I would like to see that extended to victims of abuse who were abused by someone in a position of power over them, even if they were over 18 at the time of the abuse.
Removing time limits is necessary because the nature of abuse means it is very difficult for the victim to come forward and speak about it when the abuser is in a position of power. The recent accusations of sexual harassment, sexual assault and rape against film producer, Harvey Weinstein and director, James Toback bring into sharp focus how difficult it is to make an allegation against a person in a position of power. Victims feel unable to come forward unless they know their allegations will be taken seriously and this was certainly true of the victims of high-profile abusers such as Jimmy Savile, Stuart Hall and Rolf Harris. In child abuse claims that power imbalance comes from the abuser being an adult and the victim a child but it is apparent from the #metoo tweets on twitter that the reason much of the harassment or abuse suffered by adults had not been spoken about was because there existed an imbalance of power between the victim and their abuser.
There are ongoing police investigations into Harvey Weinstein dating back to the late 1980s and it is likely there are many adults in different industries who suffered historic abuse but felt unable to come forward, just as has happened with child abuse. There may be evidential difficulties in proving these offences beyond reasonable doubt but a civil claim would have greater prospects of success because of the difference in the standard of proof. The case brought against the footballer David Goodwillie which my colleague Caroline Kelly wrote about earlier this year is a good example of that.
Now that victims feel more able to come forward, what is their remedy, particularly if the police are not able to take action? They can make an application to the Criminal Injuries Compensation Authority. However, the CICA requires applications to be made within two years of the incident, although they can consider allowing applications late. Any civil claim brought directly against the abuser would most likely be out of time because of the three year time limit. The court does have a discretion to allow the claim late but the prospects of them exercising that is unclear. I call upon the Scottish Parliament to make it clear by legislation that a person abused by someone with power over them, regardless of their age when abused, should be able to seek justice and redress through the courts without artificial time limits put in their way.
Mike Kemp is an Associate in our personal injury team and can be contacted on 01382 723 171 or This email address is being protected from spambots. You need JavaScript enabled to view it.
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Alternatively, contact the Personal Injury Team on 0800 731 8434.
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The Relevance of Local Living Standards in the Assessment of Damages - Jack Harding, 1 Chancery Lane
02/11/17. What is the correct approach to the assessment of general damages in a case in which the Claimant resides abroad? Should the increased (or possibly lower) cost of living be taken into account and thereby result in an adjustment to the figures set out in the Judicial College Guidelines?
The decision of the Privy Council in Scott v Attorney General (2017) UKPC 15 provides some guidance. The Claimant was assaulted by officers of the Royal Bahamian Police Force. He brought proceedings for compensation for the injuries that he suffered as a result, which rendered him paraplegic because of a wedged compression fracture of his spine. He argued that because the cost of living in the Bahamas was higher than it was in England, the figures set out in the JC Guidelines should be increased by a fixed uplift.
The Privy Council held that there was no general principle that the guideline figures should be routinely increased to reflect different levels of the cost of living between England and the Bahamas. It considered that a prescriptive approach to the assessment of damages whereby they are determined by the rigid application of a scale which is then increased at a preordained rate is incompatible with the proper evaluation of general damages.
The court accepted and emphasised, however, that what is a reasonable sum in any given case must reflect local conditions and expectations. Accordingly, the Bahamian courts had to be responsive to the enhanced expectations of its citizens as economic conditions, cultural values and societal standards in that country change. However, the cost of living indices were not, it held, a reliable means of comparing the two jurisdictions even if one is attempting to achieve approximate parity of value in both. Cost of living varies geographically and may well do so between various sectors of the population. The incidence of tax, social benefits and health provision (among others) would be relevant to such a comparison. Furthermore, the court would require clear evidence of a difference in the cost of living between the Bahamas and England and would not take judicial notice of the same.
Although the case concerned the law of the Bahamas, it is useful reminder that in any case brought in England but involving a claimant resident abroad, the need for damages to be compensatory means that they should reflect local conditions so far as possible. However, clear evidence will be required in each case in order to demonstrate any differential cost.
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Are Pi Firms Blazing a Marketing Trail? - Qamar Anwar, First4Lawyers
31/10/17. The world around us continues to change at a rapid pace and artificial intelligence, voice search, programmatic marketing and mobile marketing are already being embraced by various industries. However, the legal sector isn’t particularly well known for marketing innovation or for being early adopters, but do personal injury firms fare any better?
First4Lawyers recently commissioned research company IRN to poll 100 SME consumer law firms – with turnovers ranging from less than £500,000 to more than £10m – to explore the current and future state of their marketing, in particular examining whether firms are future proofing their strategies and adapting to a changed marketing landscape. The results made for sobering reading.
In a world where there is a plentiful supply of data and information to aid marketing planning and decision making, it was quite shocking that so many respondents to the research are investing in marketing activities that they openly admit are neither important nor effective. But within this, are personal injury firms just as bad, or are they carving themselves out a niche as early-adopters within a snail-paced industry?
The survey data showed that only 17% of specialist PI firms are expecting a marketing budget increase compared to 26% of the total survey, far more are expecting a decrease – 22% compared to 15% of the total survey. However, despite smaller budgets it seems that PI firms are embracing new marketing strategies to make the most effective use of their available resources.
For example, PI firms are now much less reliant on print advertising, with just over two thirds, 67%, using it compared to 84% of the survey. Maybe this is because they have made the move to social media with seemingly greater ease – some 72% of PI firms are using Twitter on a regular basis against only 53% of the survey sample. The reach and influence social media now possesses can transform a business. It allows consumers to feel a part of a brand or a company in a way that print advertising simply can’t. It would seem that PI firms have recognised this and discovered how to get more bang for their buck.
The research also showed that the surveyed firms rated paid search activity as one of the top three most effective marketing tactics and almost 70% of them said it was an important or very important marketing activity. Yet only 41% of the total survey are actually using it compared with 61% of specialist PI firms.
But perhaps most tellingly was that in a data driven age, only 12% of the total survey were using competitor analysis to drive their marketing decisions, but this jumps to 22% of specialist PI firms. It would seem that too many firms are making decisions based on gut instinct or anecdote, rather than data and hard evidence. In most areas of business life now, data is king.
Marketing in its many different forms is crucial to every law firm in 2017 and while PI firms may not be at the cutting edge of marketing innovation, they may at least be leading the charge from the legal sector.
Qamar Anwar
managing director
First4Lawyers
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