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Awarding Aggravated Damages in Sexual Abuse Claims - Helen Nugent, No 18 Chambers

22/10/14. With the ongoing process of Operation Yewtree and the decision of the Yorkshire Police last month to commission an independent investigation into its handling of the Rotherham child exploitation scandal, reports of historic sexual abuse have a continued and wide reaching presence in the national headlines.

From a civil liability perspective, the issue of compensation for the victims of sexual abuse is a difficult and very sensitive one. No sum of money can put right the wrong; and reducing the injury element of the claim to a figure can seem an incredibly cold and artificial task.

The current guidelines for psychological harm arising from sexual (or physical) abuse are provided at Chapter 4A of the Judicial College Guidelines (12th Edition); where specific reference is made to the aggravating features of false imprisonment and breach of trust. In determining the relevant bracket of damages, other aggravating factors can include cases where the damaging effect has been longstanding; where the injury has gone untreated or even been denied for a sustained period of time. The provisions also set out that aggravated damages may be appropriate.

In many abuse cases, the injury to the individual’s feelings; the indignity, mental suffering, disgrace and humiliation is such that a separate sum is awarded to the claimant, over and above the conventional award for pain, suffering and loss of amenity. In W v Meah [1986] 1 All ER 935 Woolf J. outlined that the award of aggravated damages should be moderate; compensation for the personal injury being the primary purpose of General Damages.

Separate awards were made to the four young, female victims in Dulghieru [2009] EWHC 225 QB, who were induced by fraud to travel from Moldova to the UK, where they were falsely imprisoned and sexually abused. They suffered significant psychological harm as a consequence of being trafficked; and they were later diagnosed with chronic Post Traumatic Stress Disorder. In the Court’s assessment of PSLA, there was no express identification of the many obvious aggravating features of the case; these were considered specifically in relation to the level of aggravated damages, so as to avoid any duplicity or double recovery. Overall, the awards ranged from £125,000.00 to £82,000.00 (updated to £146,250.00 and £95,940.00).

Three years later in GLB v TH [2012] EWHC 3904 QB an award for aggravated damages was made by the Court in the sum of £15,000.00 (updated to £15,450.00; and in addition to PSLA at £67,500.00; updated to: £69,010.00); for a claimant who had suffered abuse on the part of her paternal grandfather. Plainly, there had been a breach of trust in addition to what the Court described as emotional upheaval; and with the defendant’s persistence in denying liability, the claimant had to face the ordeal of giving live evidence at trial.

The issue of aggravated damages arose more recently, in JXL & SXC v Winston Britton [2014] EWHC 2571 QB the claimants contended for separate awards to reflect the injury to their feelings, the humiliation, loss of pride, feelings of chronic anger and resentment. The claimants were sisters who were assaulted at a young age, whilst in the defendant’s care. Both sisters suffered from permanent Post Traumatic Stress Disorder; the younger sister was diagnosed with an Emotionally Unstable Personality Disorder and she had also become substance dependent.

As with Dulghieru, the aggravating features (the abuse of trust; and the significant delay of over 20 years in the matter being properly investigated and Police action taken) were more relevant at the aggravated damages stage. The Court then had to assess the total of the final award: to ensure that it was proportionate. At trial, the separate sums of £15,000.00 and £25,000.00 were awarded in addition to General Damages at £32,5000.00 and £40,000.00 respectively.

Whilst the awards themselves are modest, the fact that a separate award has been made in these cases is important recognition of the injury to a victim’s feelings, beyond the psychological harm already accounted for in the guidelines. Against a backdrop of so many historic abuse claims, it will be interesting to see how the Courts continue to approach the assessment of this key aspect of a claimant’s claim.

Helen Nugent
No 18 Chambers, Southampton

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