Where to next for general damages in the wake of the comments by Johnson J in TVZ & Others -v- Manchester City Football Club Limited

Although Johnson J had found against the claimants in TVZ & Others -v- Manchester City Football Club Limited on limitation and vicarious liability he still proceeded to set out in detail his approach as to how he would have assessed damages in each of the eight claims, had the claims been successful.

Opinion is divided among those who deal with these claims on both sides as to whether there was any benefit in Johnson J adopting such an approach as this would not be the norm.

In the course of this blog, we do not comment on the individual damages assessed by Johnson J but there are a number of comments made by him and also the manner in which he assessed the damages that are of interest to those who deal with these types of clams and they are as follows:

  • Johnson J started his deliberations by noting that the existing Judicial Guidelines recognise that claimants are entitled to compensation for the assaults and batteries themselves that constitute the abuse and the psychological impact of the abuse at the time it was perpetrated as well as compensation for the pain, suffering and loss of amenity that was suffered by the claimants as a result of the long-term psychiatric disorders that they have sustained and that a single award it made in respect of both at present.
  • He notes that the Judicial College indicated in the Introduction to the 15th edition of the Judicial College Guidelines that in the next edition they will consider whether it is appropriate and practical to create a separate sub-category of psychiatric injury reflecting awards made to victims of sexual abuse. In that introduction Lambert J said that the decision of the Judicial College to create this separate sub category will depend in large part upon the reported decisions on such injuries over the life of the 15th edition but she said that it seemed to the Judicial College that there are strong arguments for creating such a sub-category if at all possible, given the particular features which often arise in such cases such as breach of trust, the inability to form or maintain emotional and sexual relationships, the impact on education and the effect on the victim of the, often long, interval before the fact of the abuse is reported.
  • Johnson J noted that questions of apportionment may arise if a claimant’s psychiatric injury has resulted not just from acts of abuse the subject of the claim but also from other factors. He confirmed that the approach to be taken to apportionment is as set out by the Court of Appeal in BAE Systems (operations) Ltd v Konczach [2017] EWCA civ 1188 [2018] CR 1. The correct approach depends on whether an injury is single and indivisible, or whether it can be apportioned between causes for which the defendant is responsible and causes for which it is not. In order to conclude that an injury is single and indivisible it is necessary to identify a rational basis on which the harm suffered can be apportioned between a part for which the defendant is responsible and a part for which the defendant is not. The divisibility does not depend on the causative contribution caused by the defendant it depends on the divisibility of the harm.
  • Johnson J stated that in assessing damages in these cases the precise psychiatric diagnosis was in his view of secondary importance, the more important thing was the practical impact that the abuse has had on the claimant, taking account of the factors identified by the Judicial College Guidelines (such as the claimant’s ability to cope with life, education and work, the effect on their relationships, the extent to which treatment would be successful, future vulnerability, prognosis and whether medical help has been sought).
  • Having reviewed the Court of Appeal judgments in Richardson V Howie [2004] EWCA Civ 1127[2005] PIQR Q3, Vento v Chief Constable of West Yorkshire [2002] EWCA Civ 1871[2003] IRLR and Hugh Martins V Mohammed Choudhary [2007] EWCA EWCA Civ 1379, Johnson J was satisfied that the existing authorities did not create an inflexible rule that there should be a single award of damages for all non-pecuniary losses. He was of the view that the appropriate way to structure an award of damages will depend on the particular circumstances of each claim while ensuring that claimants are fully compensated, avoiding double recovery and also explaining clearly how the award of damages is calculated. Where there was just a straightforward assault with minor injuries suffered he could see that the making of a single award could be appropriate. In circumstances where the only loss experienced by the claimant was injury to feeling he was also satisfied that it may be appropriate to make a single award of damages. However, in these claims he was of the view that damages for the abuse itself and damages for any psychiatric injury that flowed from that abuse are more appropriately assessed as two separate awards of damages as they represent two different forms of loss. It was his view that if one was to try and assess the damages in these claims on the basis of the brackets set by the Judicial College for psychiatric injury there was a risk of failing to sufficiently compensate the immediate psychological impact of the abuse even if the awards made were at the top of the relevant bracket provided for in the Judicial Guidelines.
  • On the basis of this analysis Johnson J concluded that in these claims he would make two separate awards for damages:-
    • One for the abuse itself, including the immediate consequences(general damages for abuse) and
    • One for the longer-term psychiatric disorder caused by the abuse (general damages for pain suffering and loss of amenity/PSLA).

He accepted that this meant that the total award for damages was likely to be substantially higher than the top applicable bracket set out by the Judicial College and that as there was a risk of double recovery by overlap if two awards were made, then he as the judge must take care to avoid that. He was of the view that it would not be difficult to separate out the two heads of loss, as the general damages for PSLA referred to at (ii) above compensated for the psychiatric disorders and associated long term psychological sequelae that were discussed by the medical experts and could be drawn out from the factual evidence of how the claimants have lived their lives over the last 30 years whereas the general damages for the abuse referred to at (i) above compensated for the injury to feelings experienced by each claimant at the time of the each individual act of abuse.

  • Johnson J did not consider it necessary to make a separate award for aggravated damages in these claims as he agreed with the Court of Appeal in Martins that the award of damages to be made to the claimant for the general damages for abuse  would take account of the degrading  physical violation of the claimants and breach of their personal autonomy and the associated feelings relating to the same which were caused by the breach of the trusted relationship between Bennell and the claimants and the claimants’ vulnerability which Bennell had exploited for his own gratification.
  • In keeping with the comments made by Irwin J in AB v Nugent Care Society [2010] EWHC 1005 (QB) that“ the shame and distress and the psychological effects are cumulative, not separate”  Johnson J agreed that the correct approach was to make a single award to cover all the incidents of abuse.

Solicitors for the claimants in TVZ have stated they intend to appeal the judgment.

Written by Sharon Moohan at BLM (sharon.moohan@blmlaw.com)

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