Child abuse claims conference – the changing landscape Tuesday 25 May 2010 Valuing abuse claims Patrick Sadd

1. Child abuse claims conference – the changing landscape •  Tuesday 25 May 2010 • Valuing abuse claims • Patrick Sadd

2. Valuing abuse claims • Dealing with expectations • Remedy is money • Core dilemma : how does court begin compensating someone whose adult life may have been blighted by abuse to which they were exposed as a child ? • One view – no amount of money sufficient • Intangible remedies : validation & acknowledgment, calling to account – ‘so that it doesn’t happen again’ • Apologies– rare and only worthwhile to client if public • The need to match empathy with being dispassionate

3. Valuing abuse claims • PI claims – conventional approach • Identifyinginjury/injuries • Matchinginjuries with medical speciality • Issuesfor medics • history ( review of medical records), examination, diagnosis, prognosis, treatment , pre-existing, exacerbation, acceleration, ‘but for’ • PSLA: matching JSB & comparables • Financial losses consequent on injuries • past & future : earnings, care, treatment : backed by medical support ; benefits

4. Valuing abuse claims • Abuse claims – a modified approach : • Pain & suffering – identifying injury/injuries : at the time the abuse occurred (physical & mental) and 15, 20 + years on (mental; occasionally physical) – awareness that abusive act ‘Awards in cases such as this should take account of the nature, severity and duration of the abuse itself and its immediate effects, as well as of any long term psychiatric harm’ • Duration of abuse : not always determinative : disproportionate effect – capacity for suffering

5. Valuing abuse claims • Pain & suffering & loss of amenity – the blighted life – anhedonia : the loss of capacity to be happy • What all adultcases have in common - how life lived since abuse – causal link with abuse – submerged – link not made – collapse on disclosure • low self-esteem, social isolation, poorrelationships with partners/children,substance abuse (drugs/alcohol), poor employment record, self-harm, offending • With self-harm:scarring: physical evidence of psychiatric harm • Life lived : detailed in psychiatric report, medical records and statement

6. Valuing abuse claims • Pain & suffering • Causation and apportionment • Issue: Where abuse victim claiming for injuries sustained from abuse in children’s home, residential institution , or in foster care it is likely that they will have a pre-history of exposure to physical or sexual abuse, neglect or poor parenting ( one parent with mental illness, the other absent ) – Should there be an attempt at strict apportionment? • Court’s approach : Coxon v Flintshire CC [ 2001] EWCA Civ 302 • Facts: abused at home, 14 taken into care; 12 months abused in care: indecently assaulted , locked in secure unit physically assaulted by staff and residents; constantly denigrated - psychiatric consequences aged 35 • Trialjudge : PSLA £35,000 • LA appeal – already damaged – strict apportionment – follow JSB Guidelines • CoA: impassioned rebuff

7. Valuing abuse claims • Coxon v Flintshire • Lord Justice Ward • Physical, emotional and sexual abuse of children in care by those supposed to provide that care seems to me to fall intoan wholly different category from psychiatric damage that follows other personal injuries. The injury is of a different character. The essential element of the damage is the extent to which the injury compounds and multiplies the effect of the pre-existing condition. The [JSB ] Guidelines do not include among the facts to be taken into account the duration of the suffering. In the nature of this kind of abuse, the victims are frequently unable to address the abuse until many years later. The claimant is an example of that unhappy state of affairs. ( #. 54 ) • This 14 year old child had her childhood destroyed to a very significant extent..while she was in care and her young adult life has been blighted in the most appalling way ( #.57 )

8. Valuing abuse claims • Coxon v Flintshire • Lord Justice Buxton • …the usual process of attributing responsibility breaks down, because the initial cause of cause of Miss C’s vulnerability is the context in which the defendants have to take particular care. If they did not take that care, in circumstances where it was known and foreseeable what could be the outcome of abuse by persons of trust in positions of responsibility,then they cannot complain if less weight than otherwise is given to that original cause. Those considerations entitle - indeed oblige - the judge not to weigh too nicely arguments based on the respective causal effect of the various facts in the history (#67) • JSBto be treated with caution (#68) • Reminder to take into account actual abuse as well as psychiatric consequences • LA’s appeal failed

9. Valuing abuse claims • KR & Others v Bryn Alyn [2003] EWCA 85 • Appeal of 14 individuals in care – the North Wales cases : Lost in Care • Approach to apportionment : A wrongdoer must take his victim as he finds him. To abuse an already damaged individual may have the result of pushing him over the brink. The possible exponential effect of abuse on children who have already suffered psychiatric damage by reason of previous experienceshad been noted by Ward LJ at paragraph 54 of his judgment in C v. Flintshire County Council • Apportionment still relevant applying normal rules of where several tortfeasors cause different damage – but consider impact • Guidancealso on loss of earnings & treatment

10. Valuing abuse claims • Sources for PSLA - physical & psychiatric • JSB – with health warning • Kemp/Lawtel/Westlaw comparables : avoid CICB & CICA tariff • Various Claimants v Leicestershire CC 1996 • Regression ‘therapy’ ; sexual, physical abuse & psychiatric harm • KR v Bryn Alyn [ 2003] EWCA Civ 85 • Review of psla awards of 14 claimants : paras.109 fllwg • A v Archbishop of B’ham & ors [2005] EWHC 1361 • 11 years of regular severe sexual abuse : 50,000 • C v D & anor [2006] EWHC 166 • 4 years of less severe abuse : 20,000 • Lawson v Glaves Smith [2006] EWHC • Multiple rapes over 4 days – imprisoned - forced cocaine – 78,500

11. Valuing abuse claims • Sources for PSLA (2) - physical & psychiatric • Pierce v Doncaster MBC [2007] 2968 • Neglect, physical and emotional over 14 years :25,000 • MB v LB of Ealing & anor [2008] EWHC 1262 • Physical and emotional abuse through childhood : 33,500 • AT,NT,ML,AK v Dulghieru [2008] EWHC 225 • Sex trafficking – women forced into prostitution :82,000 – 125,000 • Maga v Trustees of B’ham Archdiocese [2009] EWHC 780 • Sexual abuse by priest on 12/13 year old : now 45 :10,000 for actual abuse; 7,500 for psychological harm

12. Valuing abuse claims • Loss of earnings & earning capacity • A : No vulnerable pre-history • Sports club/school/church/ parents’ friend. • Education : not able to access having to deal with abuse : consider educational psychologist • Sibling/parental career/job comparison • A v Archbishop of Birmingham [ 2005] EWCH 1361 – in work – mental collapse on disclosure – not work again – past & future loss • B : Pre-existing vulnerability • What would have been employment course • Chance of doing better - Coxon • Difficulties of finding work with mental health history • KR - In this context the ‘push over the edge’ or cumulative effect of the Bryn Alyn abuse may have made the difference between a claimant being able to work and not being able to work.

13. Valuing abuse claims • Loss of earnings & earning capacity • C : Breakdown at moment of disclosure : in work • Straightforward – conventional • Effect on continuity of work – effect of disclosure with employers. • D : Treatment & effect on employment • Impact on work : time off • Impact on future in having treatment – reaction & disclosure of having to have treatment • E : Schedule of loss • Provide narrative – more is more !!! • Make the case – not just figures • CRU : 5 years : harm historical

14. Valuing abuse claims • Treatment costs • Issue: Should apportionment apply to therapy as to PSLA ? - Multiple issues helped by therapy, not all related to abuse • Bryn Alyn - In our view, once it is established that the Bryn Alyn experience played a significant part in the need for therapy, the whole of the anticipated cost should be recoverable from the defendant unless it can be clearly shown that the treatment is divisible. (#137) • Material contribution = full cost • Issue - Will Claimant engage with therapy? • Scan medical records – missed appointments – community mental health • NB : Costings (medication ) – relapse – earnings – travel

15. Valuing abuse claims • Aggravated & exemplary damages • Aggravated : AT,NT,ML,AK v Dulghieru [2008] EWHC 225 • Injury to feelings, humiliation, anger, resentment – ‘so appalling, so malevolent, so utterly contemptuous of the Claimant’s rights’ £30,000 – 35,000 • Richardson v Howie [2004] EWCA Civ 1127– ‘the wholly exceptional case’ - otherwise subsumed into award for PSLA • Appleton v. Garrett [1996] P.I.Q.R. P1 • Exemplary : • ( 1 ) Oppressive arbitrary or unconstitutional behaviour by government servant - Muuse v S S for Home Department [ 2010] EWCA Civ 453 • ( 2 ) Profit made at the expense of abuse : AT,NT,ML,AK v Dulghieru [2008] EWHC 225 - £15,000

16. Valuing abuse claims • Related issues : • Cost of alcohol abuse : MB v LB of Ealing [2008] EWHC 1262 – apportioned award to reflect additional cost consequent on effects of abuse • Criminal acts : Gray v Thames Trains [2009] UKHL 33 – Ladbroke Grove train crash – PTSD – stabs pedestrian – diminished responsibility – indefinite detention - claim for loss of earnings failed • Suicide : Corr v IBC Vehicles Ltd. [2008] UKHL 13 : foreseeability of harm – acute depression leading to suicide – widow’s claim – no break in chain – ‘Once liability has been accepted for depression, the question in each case is whether it has been shown that it was depression which drove the deceased to take his own life.’ (#83) • The child claimant : awaiting psychological outcome – Human Rights Act claim - negligent diagnosis of sexual abuse • Medical evidence : avoid the sympatheticpsychiatrist ; check medical history : gynaecological/colo-rectal/ENT (septum )

17. Valuing abuse claims • Handout available with cases • Special thanks to Malcolm Johnson