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Football and Historic Sexual Abuse: The Approach to Quantum - Francesca O'Niell, 1 Chancery Lane

18/03/17. The news has been bleak and unrelenting: the scandal of historic child sexual abuse continues to fill the headlines. It seems as if no sector of society has been unaffected by this blight, but the news emanating from some (major) football clubs may be particularly difficult for the courts to deal with. By mid December, in response to allegations from 350 individuals, The Football Association, the Scottish Football Association, several football clubs and over 20 UK police forces had established various inquiries and investigations; on 21 December 2016, 155 potential suspects were said to be involved in alleged abuse of 429 individuals at 148 clubs.

So how might a court deal with a potential claim for lost earnings, following a successful criminal conviction of the abuser of a promising young football player who will argue that he would have gone on to play for the Premier League and gone on to earn millions, were it not for the abuse that he suffered?

The method by which the courts assess whether a future event would have occurred, but for the defendant’s negligence, is at the heart of any determination of causation and is often highly relevant to quantum. However, the authorities show a marked difference in the approach taken by the courts, with certain types of cases requiring that causation be proved on balance of probability, while in others an assessment of lost opportunity has been considered more appropriate. Additionally, this lost opportunity approach (lost chance) is proving increasingly important in the quantification of damages for personal injury and, in particular, in respect of lost earnings. This is well illustrated in the recent clinical negligence case of XYZ v Portsmouth Hospitals NHS Trust [2011], in which the claimant was awarded approximately £5.8m for loss of earnings and business opportunity.

Will the courts follow Allied Maples Group Ltd v Simmons & Simmons [1995], where the Court of Appeal found that it was not necessary for the claimant to show, on balance, that there would have certainly been a successful outcome, but simply that there was a real possibility of that outcome coming to pass?

It is much more likely that merely showing that there was a real possibility of an abuse victim becoming a successful professional footballer will not be enough to satisfy the courts that any substantial award of damages should be made. A more nuanced approach will be used, following a trio of “loss of a chance” cases with a somewhat similar premise: in Doyle v Wallace [1998] 30 LS Gaz R 25, [1998] PIQR Q146, CA, a court awarded damages to a trainee teacher who argued that she would have gone on to be a full time teacher but for the injury that she suffered in an accident. The court made a calculation based on there being a 50% chance of that career eventuating. In Langford v Hebran [2001] PIQR Q160, the claimant was a trainee bricklayer who had also just begun a promising career as a professional kickboxer. He was injured in a whiplash-inducing accident, and provided the court with a selection of scenarios in which he went on to have a successful kickboxing career to varying degrees. The Court of Appeal accepted this method of assessing quantum - the claimant was entitled to a percentage of the increased earnings he could have expected in each of the predicted scenarios, with a discount to take account of the possibility that his success may have been temporary, or that he may not have realised any of the hypothetical scenarios suggested.

How could this applied to the wannabe footballer? In Appleton –v- Medhat Mohammed El Safty [2007] EWHC 631 (QB), the court followed Langford and awarded damages on the basis that the claimant had a 75% chance of playing championship football and a 25% chance of playing in the Premier League.

It is my view that courts deliberating on how to award damages in a successful claim against a football club will use a similar formula to those illustrated above. But how many of these claims will actually be successful? It will be interesting to see how the courts deal with causation – the subject of my next blawg on the subject!

Francesca O'Niell
1 Chancery Lane

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