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Newsletter: March 2011 (issue no. 3)
The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed 13 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, a mentoring service for members, access to data bases and an information exchange to members to assist them in their work. ACAL’s membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field.
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Latest Case Law from the Association of Child Abuse Lawyers
BJM v EYRE, HAWTHORNE, LORAM AND RILEY [2010] EWHC 2856
The Claimant, a 21 year old man claimed damages against the four Defendants. Judgment was entered against the four Defendants with damages to be assessed. The First Defendant had been a male prostitute who hired out a number of boys to clients. The Claimant met the First Defendant through a friend and he was groomed for sexual abuse by a series of men who came to the First Defendant’s flat. The abuse continued from around 2001 onwards to 2003, when the Claimant was sold on to another abuser, the Second Defendant for £500. He was then taken to London and abused by a further series of men. He was threatened with various consequences if he tried to run away. The Third Defendant, a man in his late 40’s abused the Claimant on three occasions. The Fourth Defendant abused the Claimant on one occasion. Eventually the police removed the Claimant from the Second Defendant’s home. The four Defendants and four other men were charged with criminal offences. All four Defendants pleaded guilty to a variety of charges.
Mrs Justice Swift went over the history of the case and the evidence. She referred to the case of C v Flintshire County Council [2001] EWCA Civ 302. She accepted the evidence of the psychiatrist that the Claimant’s PTSD was entirely attributable to the sexual abuse that he suffered, although it was probable that the Claimant would have suffered a loss of confidence in any event, given his other problems. In addition he would probably have been prone to mental illness and misuse of alcohol and drugs. It was not suggested that his HIV diagnosis was attributable to the abuse.
However had it not been for his constant truancy from school encouraged by the First Defendant and the distress and upheaval caused by the sexual abuse and his abduction, he would have been able to address his dyslexia and to gain the necessary educational and/or vocational qualifications to enable him to train as a chef.
Pain, suffering and loss of amenity
In relation to assessment of damages for pain suffering and loss of amenity, Swift J said that the JSB Guidelines only provided limited assistance in cases of sexual abuse. The abuse was severe and lasted over a year. Swift J referred to the similar case of AT, NT, ML and AK v Dulghieru [2009] EWHC 225 (QB) where women forced into prostitution received between £82,000 and £125,000 for pain, suffering and loss of amenity. She also referred to the case of KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 where one Claimant, DJ who was abused over a period of six years. He received £50,000 (now £62,604) from the Court of Appeal. Swift J would award £75,000 in this case.
Aggravated damages
The Claimant had been threatened, sold and used sexually and the Defendants had denied any wrongdoing. Swift J would have regard for the principles in Rowlands v Chief Constable of the Metropolitan Police [2007] 1 WLR 1065. She would award £20,000 under this head of damages.
Expenses incurred by the Claimant’s parents
A claim had been made for financial contributions made by the Claimant’s parents towards his foster placement in 2003. There was no documentary evidence or detailed particulars and consequence, it was not appropriate to make any award under these heads.
Loss of earnings
A claim had been made on the assumption that having finished his education and vocational training, the Claimant would have started work as a trainee chef in April 2006 at the age of 17. For the first four years of his working life, his earnings would have on the lowest percentile of average annual earnings for a chef as reported in the Office for National Statistics Annual Survey of Hours and Earnings. This produced a figure of £48,859 for past loss of earnings. Swift J said that whilst his aspirations were realistic, it was highly unlikely that he would have worked all of the last four years. Therefore the claim would be reduced to £30,000.
The claim for the next six years was based on the assumption that the Claimant would remain unfit for any type of employment. This was calculated at £73,934. After applying a discount, Swift J would award £55,000.
Loss of earnings capacity
Swift J would make an award of £30,000 under this head of claim.
Therapy
Swift J accepted the figure given by the psychiatrist and £2,700 would be awarded. In relation to the psychologist’s recommendation for treatment, the Claimant would be awarded £1750.
Expenditure on alcohol
The final head of claim was for the Claimant’s expenditure on alcohol over and above that which would have been incurred in any event if he had not been abused. The recommended maximum for an adult was 21 units per week, whereas the Claimant had consumed 60 units per week. Assuming the cost at £1 per unit, and the period of excess consumption began after the end of the Claimant’s abduction, the claim was £14,640 for past loss. There was no future claim.
The Claimant had relied on two cases B v London Borough of Ealing and Another [2008] EWHC 1262 and Eagle v Chambers [2004] EWCA Civ 1033. Swift J said that any excess consumption of alcohol would not satisfy the test in Eagle and this part of the claim would not be allowed.
Interest
This would be awarded on general and aggravated damages at 2% per annum from the date of service of the proceedings at £4,157.26 and interest on past loss of earnings, at half the special discount rate from the commencement of the loss was £2,998.
The total award was therefore £209,450. The Defendants would be jointly and severally liable for that sum together with his costs.
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CRIMINAL INJURIES COMPENSATION AUTHORITY V CRIMINAL INJURIES COMPENSATION APPEALS PANEL – IRENE LAMB [2010] EWCA Civ 1433
This is not a case involving child abuse, but one that concerned an attempt to re-open an award by the CICA. This is a problem that sometimes occurs in child abuse cases, where an award has been made by the Authority, that does not reflect the long term damage that accrues in adulthood.
The Applicant had been assaulted in around 1998 by three people after a dispute over car parking. She was awarded £2500 by the CICA for an injured back, but made no claim for any disabling mental disorder.
In July 2006, the Applicant applied to the CICA to re-open her claim, stating that her psychiatric condition had progressively deteriorated as had her back. That application was refused and the CICAP upheld the decision. She applied for judicial review of the decision of the CICAP, and the court at first instance quashed the decision of the CICAP in relation to the psychiatric condition, but not the back pain. The trial judge ordered the CICA to re-open the decision.
The trial judge had found that it did not seem likely, given the amount and description of the award which was made, that there was evidence which suggested any form of psychiatric injury. The Applicant said that the psychiatric symptoms had appeared some time after the original award had been made, and there was some support for that in the medical records. The CICA appealed to the Court of Appeal.
Lord Justice Hooper went over the history of the case and the evidence of psychiatric damage. He also considered Paragraph 56 and 57 of the CICA Scheme.
“56. A decision made by a claims officer and accepted by the applicant, or a decision made by the Panel, will normally be regarded as final. The claims officer may, however, subsequently re-open a case where there has been such a material change in the victim’s medical condition that injustice would occur if the original assessment of compensation were allowed to stand, or where he has since died in consequence of the injury.
57. A case will not be re-opened more than two years after the date of the final decision unless the claims officer is satisfied, on the basis of evidence presented in support of the application to re-open the case, that the renewed application can be considered without a need for further extensive enquiries.”
The CICA had criticized the trial judge for not applying the proper test in judicial review, but in the view of the Court of Appeal it was clear that he was applying the proper test. He asked himself whether the finding of the Adjudicator was perverse and concluded that it was. In the view of the Court of Appeal there were three questions that the CICAP Adjudicator should have asked, insofar as paragraph 56 of the CICA Scheme was concerned.
1) What was the Applicant’s current psychiatric condition?
2) Was that condition directly attributable to the assault?
3) Had there been a material change in her psychiatric condition since the hearing in March 1999?
There was no doubt that the Applicant was suffering from psychiatric symptoms, and that these were caused by the assault. In relation to the third question, the Court of Appeal agreed with the trial judge’s conclusion that she was not suffering from the kind of psychiatric symptoms at the time of award that she now suffered. That conclusion was amply supported by the fact that the Applicant told the CICA that her condition had worsened and had progressively deteriorated.
In relation to paragraph 57 of the Scheme, there was no need for further extensive enquiries on the evidence presented by the Applicant.
EB v JOHN HAUGHTON [2011] EWHC 279 (QB)
In this case, a 28 year old Claimant alleged that she was abused by the Defendant when she was 10 or 11 years old in around 1993.
On the 24th July 2003, the Defendant pleaded guilty to indecent assault on a female under the age of 14 on the 20th May 2002. On the 3rd December 2004, the Claimant made a statement to the police about the incidents that formed the basis of her civil claim. However on the 6th September 2006, he was acquitted. In May 2007, the Claimant received an award of £1300 from the Criminal Injuries Compensation Authority. On the 6th February 2008 (following the judgment of the House of Lords in A v Hoare [2008] 1 AC 844) her solicitors sent a Letter of Claim to the Defendant and on the 16th December 2009, they issued proceedings. The Defendant raised the defence of limitation pursuant to the Limitation Act 1980.
Mrs Justice Slade exercised her discretion pursuant to Section 33 of the 1980 Act to disapply limitation and allow the Claimant’s claim to proceed. Her careful and considered judgment is interesting insofar as it provides an example of how a court might approach a person whose claim becomes statute barred prior to A v Hoare but which is then brought subsequent to that judgment. It also rehearses all the arguments commonly found in these cases, including the effect of delay on the evidence.
Slade J also had to decide whether the allegations of abuse were proven. She found that the circumstances of the assault by the Defendant in 2002 were strikingly similar to these. Thus evidence of the 2002 assault and the subsequent conviction was admissible.
Slade J awarded the Claimant £28,000 for general damages and interest thereon at £653. £3640 was awarded for the cost of therapy. The claim for aggravated damages failed. Slade J said that she did not consider this to be an appropriate case for an award of aggravated damages. Contesting the allegations made by the Claimant was not a factor justifying the award of aggravated damages.
Why not join ACAL?
ACAL OFFERS ITS MEMBERS:
Client Referral System: ACAL receives many requests for help from survivors of abuse. Referrals are made to our panel of solicitors trained in the specialism of child abuse compensation cases. (panel membership only)
Database of Institutions/Homes: ACAL collects nationwide details of institutions and group actions against any organisation responsible for abuse. Providing central intelligence, to point solicitors and counsel in the right direction. Public funding is more likely to be available with the benefit of group generic evidence.
Meetings: ACAL organizes an annual workshop at which members can freely seek advice on this difficult side of law. Members can attend free of charge.
Mentoring: New members can receive mentoring from members of ACAL’s Executive Committee who are experienced in child abuse compensation cases.
Website: All members of ACAL are listed in a private section of the ACAL website to encourage networking amongst members for both social and work purposes. The website also provides members with: lists of recommended experts and counsel; a discussion forum; and information about public funding.