Further to our earlier blog detail is now available as to the new approach in the Judicial College Guidelines for quantification of damages for pain, suffering and loss of amenity for claims which result from sexual and physical abuse. The inclusion of a separate category follows the recommendations made by the Independent Inquiry into Child Sexual Abuse – Accountability & Reparations Report published September 2019.
The new section is Chapter 4 – C and applies to cases of sexual and/or physical abuse. The explanation notes that the section includes damages for the abuse itself as well as any psychiatric injury, that is one award not two. The recommended sums are also stated to include an element in the award for indignity, mental suffering, humiliation, distress or anger. It is noted that this element is “sometimes characterised as aggravated damages, but more properly is injury to feelings.”
The following factors are to be taken in to account in the assessment:
- Nature and duration of the abuse and any physical injuries caused
- Nature and duration of any psychological injury and its effect on the injured person’s ability to cope with life, education and work
- The effect on the injured person’s ability to sustain personal and sexual relationships
- Abuse of trust
- The extent to which treatment would be successful
- Future vulnerability
- Prognosis for psychological injury
Aggravating factors which would lead to an additional sum for injury to feelings include:
- Nature of the abuse
- Level of abuse of trust
- Any manipulation to stop reporting by or but blame on the injured party
- The need for the injured party to give accounts and evidence of the abuse in criminal or civil proceedings or any other relevant organisation
There are three brackets:
- Severe – £45,000 – £120,000 – it is noted that the majority of cases are expected to fall within the range £55,000-£90,000
- Moderate – £20,750 – £45,000
- Less Severe – £9730 – £20,570
The approach advocated above is interesting in that it does not follow the strict 2 stage approach which Johnson J recommended in TVZ v Manchester City Football Club.
It is unclear what the reference to the aggravating factor of giving evidence in civil proceedings actually means as unless a claimant provides some detail of the abuse and its consequences it will not be possible for any party to make an assessment of quantum, and therefore will this be an aggravating factor which always applies? Or is this aggravating factor one which applies when a claimant has had to give evidence at trial as opposed to the basic requirement to provide evidence to enable assessment of quantum.
There is also no explanation as to why and when the nature of the abuse should be assessed twice, once as a basic factor and then again as an aggravating factor. No doubt in due course these issues will be the subject of judicial determination.
Written by Paula Jefferson at BLM (firstname.lastname@example.org)