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Developments in abuse claims: Large loss of earnings claims, limitation and illegality/public policy
Whilst general damages in abuse claims historically can be assessed within the parameters of reasonable case law, special damages in these claims have steadily increased and have become more and more elaborate.
Special damages claims historically have developed to include claims for:
- The cost of travelling to therapy sessions
- Loss of earnings
- Loss of chance
- Care claims
- Aggravated damages
- Loss of congenial employment
In recent years, more innovative claims have been presented for the costs of:
- Addiction to alcohol, cigarettes and prescription medicine
- Cosmetic surgery, for example to repair scars from self-harm in adult years or pigmentation damage
Claims in historical abuse cases have even strayed into areas of illegality, as illustrated by a recent case, MG v Street & St Augustine of Canterbury RC High School  (“MG”), in which the schedule of loss included the costs of addiction to illegal drugs.
The case of MG, whilst only in the County Court, is significant and will hopefully encourage claimants to adopt a more realistic approach when considering whether to advance large special damages claims, which can stray into “grey” areas. The decision also further assists defendants in relation to limitation.
MG was a pupil at the Canterbury RC High School (the School) in the mid-1980s. The School employed Mr Street as a teacher. When the claimant was in his second year at the School, Mr Street indecently assaulted him a number of times. Following a police investigation, in 2014 Mr Street pleaded guilty to five counts of indecently assaulting the claimant and received a suspended prison sentence. The abuse (although serious) was “at the lesser end of the spectrum”. There were issues as to the nature and extent of the abuse - the claimant contended that the abuse continued for some length of time but Mr Street said that it was actually for only a relatively short period of time.
From leaving school in 1993 the claimant went on to abuse alcohol and illegal drugs. He lived “a chaotic lifestyle”, was unable to hold down a secure job or (despite obtaining O-levels and A-levels) complete a higher level of education, had difficulties maintaining permanent accommodation and was homeless for some periods of time. Medical evidence submitted on behalf of the claimant showed that at the end of 2012 and early in 2013 he underwent successful rehabilitation for alcohol and drug dependence.
In 2014 MG (who was by now in his early 40s) brought a civil claim for compensation for historical sexual abuse against both the School and Mr Street. His claim was issued in 2016, where his claim for special damages included a large loss of earnings amounting to over £500,000. His contention was that he would have been a teacher but he had been unable to achieve this goal due to his illegal drug use as a result of Mr Street’s abuse of him. He contended that at no time before 2013 was he “functioning normally”. Rather than claiming a broad-brush figure for loss of earnings (reflecting a loss of opportunity), as is often the case in these types of claims, he submitted a specific calculation for past and future loss of earnings.
The school admitted that it was vicariously liable for the abuse on MG by Mr Street. However it maintained a limitation defence. It argued that as over 25 years had elapsed since the abuse had occurred, it was prejudiced and could not investigate such a large loss of earnings claim after such a length of time (detailed records/witnesses were missing).
In any event, the claimant’s large claim for loss of earnings and costs arising from his drug use was irrecoverable because it was illegal, arguing public policy reasons and, in relation to causation, the claimant’s decision to take illegal drugs was unreasonable so there was no causal connection between that and the abuse by Mr Street when the claimant was aged 12/13 years.
Even though the School had admitted vicarious liability, the Court, relying on RE v GE  EWCA Civ 287 and Archbishop Bowen and the Scout Association v JL  EWCA Civ 82, refused to exercise its Section 33 discretion and did not allow the claim to proceed, dismissing the claimant’s case against the school. The Judge found that the Court could not fairly try MG’s claim for the large loss of earnings due to the lack of evidence available.
However, the claim against the abuser, Mr Street (a litigant in person), who had not entered a limitation defence, continued. After consideration of detailed medical evidence, the judge found that the distress caused by the abuse was “relatively short lived” and “not the cause of the claimant’s drug addiction”. His view was that the claim for special damages therefore failed and only general damages remained payable.
Whilst the judge did not need to determine illegality/public policy considerations, as the case concerned a claim for loss as a result of illegal drug abuse, he went on to do so. This is the first time that this has happened in a historical abuse claim. He agreed with various tests set out in case law and more specifically in Patel applying the public interest test set out by Lord Toulson:
- The underlying purpose of the prohibition of the use of illegal drugs derives from the harmful effect of those drugs on the user including the addictive nature of those drugs;
- There are no other relevant public policies upon which the denial of the claim would have an impact. Tortfeasors are of course liable for damages arising from their torts, but the extent of their liability is limited by legal principles. [The Claimant’s] submission that a decision to refuse damages “will give the appearance of allowing abusers to escape consequences of their abuse” is, in my judgment, wholly fanciful.
- Denial of the claim is a proportionate response to the illegality.
The judge decided that, whichever way you viewed it, MG’s claim for damages for loss of earnings would fail as the losses arose from MG’s “unreasonable and illegal decision to use drugs” rather than from psychological damage caused by the abuse by Mr Street, which was “relatively short lived and not an effective cause of his drug addiction”. He dismissed the entire special damages claim (the claim for further treatment having been withdrawn) and only awarded the claimant general damages (£15,000 plus interest) payable by Mr Street.
This case shows that, whilst this is a County Court decision, the courts continue to accept limitation as a valid defence in historical abuse claims, even if a defendant has admitted liability, especially when such elaborate loss of earnings claims are submitted. However, it does not go beyond existing authority i.e. Archbishop Bowen and the Scout Association v JL  EWCA Civ 82 (mentioned above – Court of Appeal), F&S v TH  EWHC 1605 (QB); and, more recently, Peter Murray v Father Martin Devenish (as a Representative of the Sons of the Sacred Heart of Jesus)  (High Court).
It also confirms that, perhaps not surprisingly, in historical abuse cases, as in previous cases, claimants will be unable to recover special damages for losses arising from their own illegal activity for reasons of illegality and public policy.