135. Personal injury claims are brought for financial compensation. This can include general damages for the pain, suffering and loss of amenity experienced by the claimant, and special damages for past and future financial losses, such as earnings and the costs of care and therapy.
136. General damages are presently awarded for the sexual abuse itself and for any physical or psychiatric injuries resulting from the abuse.
137. When considering the appropriate level of award to make, the court will ordinarily compare the claimant’s case with that of other claimants whose cases have been reported. It will also consider the Judicial College (formerly Judicial Studies Board) Guidelines for the Assessment of General Damages in Personal Injury Cases (Guidelines).[1] These Guidelines do not contain a freestanding section on injuries caused by sexual abuse. But they do provide some guidance on how to quantify the psychiatric damage that may result from such abuse.
138. At the time the North Wales Children’s Homes Litigation commenced, except for the 1996 case arising from the physical and sexual abuse of children in care by Frank Beck (an employee of Leicestershire County Council), there were very few reported cases for judges to consider when assessing general damages.[2] Nor did the Guidelines make any mention of sexual abuse cases.
139. The February 2001 Court of Appeal judgment in the claims against Flintshire County Council, which were part of the initial tranche of North Wales claims, was therefore the first major appellate decision on compensation for institutional child sexual abuse.[3] An important aspect of that decision was that the court doubted the applicability of the Guidelines to child sexual abuse cases, recognising that abuse in care fell into a “wholly different category from psychiatric damage that follows other personal injuries”.[4]
140. In June 2001, the High Court gave its judgment in the Bryn Alyn litigation, having considered the Beck case and the Court of Appeal’s decision in the Flintshire claims.[5] In 2003, the Court of Appeal heard the appeals in the Bryn Alyn claims and gave clear guidance on how the courts should quantify general damages for child sexual abuse. In particular, it said that:
141. Malcolm Johnson said that one of the most important things that the Court of Appeal said in Bryn Alyn was that it was necessary to look at both the short and long-term effects of abuse. He said that that was “still good law today” and that the courts continue to follow this approach.[8]
142. Some special damages claims are easy to calculate, such as the cost of therapy or counselling. But other claims, especially loss of earnings, may be much more complex. Claimants who are abused as children have no pre-injury earnings upon which to base such a calculation. They may also have had a difficult family life, few educational opportunities, or have themselves committed criminal offences, sometimes as a consequence of their neglect or abuse. These factors can be very difficult for the courts to disentangle.
143. Some victims and survivors, though not all,[9] expressed dissatisfaction with the amount of damages they had received for their civil claims.
143.1. AR-A41, who was abused at Forde Park, received in the region of £50,000:
“when you think a broken leg is the same as what’s happened to me for 55 years of my life since it happened, if you think the pathetic amount they paid me – because I think it’s pathetic. I earned more than that in 12 months, you know, when I was in business, and it should have been life changing, not the pennies that they offered. Ridiculous.”[10]
143.2. AR-A2, who was abused at St Vincent’s, accepted compensation of £17,500. As an adult who has spent many years suffering from mental health issues since being abused as a child, AR-A2 calculated that this amounted to compensation of under £6 a week. He asked, “can someone tell me the fairness in this?”[11]
144. Malcolm Johnson told the Inquiry that claimants are “getting far more for very serious abuse than they were, say, ten years ago”.[12] Other claimant lawyers felt that the awards were still too low.
144.1. Tracey Storey said “personally, I don’t think that we compensate people who have been abused in childhood. I don’t think we really get to understand the impact upon a developing child of those experiences”. She compared their cases with those claimants who have suffered serious physical injuries, such as brain damage. She did not think “we are there yet with compensating people who have been through these events and who have carried it around with them into adulthood”. Although she accepted that child sexual abuse cases were complicated by the pre-care and pre-abuse experiences of victims and survivors, she still thought the awards she sees regularly were “pretty low”.[13]
144.2. Henry Witcomb and Elizabeth-Anne Gumbel both agreed that general damages in cases of child sexual abuse are too low. However, the latter made the point that the general damages for all personal injury claimants are too low and the sums awarded for severe sexual abuse have to be seen in the context of the current system.[14]
145. One of the reasons for this may be that, when assessing general damages, the courts tend to focus on specific incidents of abuse and their psychiatric consequences, and may not make awards simply for the experience of living for a protracted period in an abusive and neglectful environment.
146. Paul Connolly, who was brought up in an “absolutely appalling” environment at St Leonard’s,[15] was awarded £16,000 in his claim.[16] Tracey Storey observed that “the court system hasn’t really recognised the full extent of emotional abuse and the impact it has on the developing personality of a child who has to go through those events. I mean, no child should have to do that”.[17] She explained that they did attempt to argue that, in Paul Connolly’s case, the abusive experiences had limited his educational attainment and other opportunities. She said that the issue was raised in negotiation to increase the value of the claim, but “typically, those arguments aren’t getting anywhere”.[18]
147. Sarah Erwin-Jones agreed that it was difficult but not impossible for claimants to claim for the overall experience. She referred to a ‘failure to remove’ case in which the damages awarded reflected the experience of being in a harsh and uncaring environment. However, she did also acknowledge that there were a number of differences between that case and the cases of non-recent sexual abuse based on vicarious liability.[19]
148. Some claimants in the Forde Park litigation wanted to pursue claims for loss of education. Elizabeth-Anne Gumbel explained that claims simply based on the quality of education have not, to her knowledge, succeeded as personal injury claims.[20] However, that loss of education clearly continues to be an important issue for many victims and survivors. Nigel O’Mara, a counsellor, called for an educational trust to help them obtain qualifications later in life.[21]