D v The Bishops Conference of Scotland examined how to quantify special damages in a case of historic abuse
Following the removal of limitation in respect of actions relating to historic abuse, the courts have been required to quantify not only solatium in respect of the injury sustained, but also to value lifelong losses which have been sustained as a result.
In D v The Bishops Conference of Scotland, D was sexually abused at a residential school when aged between 14 and 16 in the 1970s while training to be a priest. He claimed damages in respect of the abuse and financial losses as a result of having to leave the priesthood. Liability was admitted. The issues for proof were:
D was a seminarian at a residential school (“the College”). The College was operated by the defenders. While attending the College, D was abused by a priest, Father X who was his Spiritual Director. D went on to become a priest, and after several years he left the priesthood.
D claimed that he left the priesthood (a process known as laicisation) as a result of the abuse sustained. Since leaving the priesthood, D has worked in a self-employed capacity.
D claimed that as a priest he received various forms of income. Part of the income was a “stipend”, in effect a small salary from the Church. Another part was “mass stipends”, which are paid to a priest in exchange for a mass being dedicated to, or offered in respect of, an individual (usually a person who is sick or who has died). Mass stipends or offerings are restricted to one per day and the amount paid is not fixed. The final part was “stole fees”, which are offerings given to the priest as a token of thanks for celebrating funerals, baptisms and weddings.
In addition to income as a parish priest the pursuer also received “benefits in kind”. These included the use of furnished accommodation, certain car costs, housekeeping (including all food and drink, and other household bills, such as payment of a TV licence and the services of a housekeeper), a landline telephone, payment of utility bills, payment of council tax and payment of household insurances.
D’s ambition was to serve as a priest until aged 75. As an adult, he underwent therapy to help him try to deal with the memories and thoughts of the abuse.
D began getting flashbacks of the abuse and knew the time would come when he would have to deal with the past. He did not want the fact that he been subjected to sexual abuse by Father X to become public. In addition, he had concerns about how the Catholic Church was dealing with past sexual abuse. He took the decision to laicise as he felt he could not continue in the priesthood.
He claimed there were a variety of reasons for his decision. In particular, he felt that he was seen as “damaged goods” and continuing with therapy was not enough to resolve his problems. But for the sexual abuse, he would still be a parish priest.
On the other hand, the defenders argued that the decisions D made were not caused by mental health. They argued his decision to leave was the result of his disapproval of the Catholic Church and their handling of sexual abuse allegations, thus he felt that he could not be a public face of that organisation.
Lord Clark held that, at the very least, the sexual abuse made a material contribution to the pursuer’s decision to leave the priesthood. Its impact on his personality, his ability to trust others and to properly function plainly influenced his decision. It was held that while laicisation was a decision made by D and that he had the capacity to make it, he was not truly exercising an option.
It being established that D left the priesthood because of abuse, the court required to quantify the loss, if any, which resulted from D’s change in careers.
Central to Lord Clark’s reasoning on quantum was the observation that, “The object of an award of damages is, so far as is possible, to put the pursuer back into the position in which he would have been, absent the injury”.
But how does the court assess what the pursuer’s position would have been, but for the abuse?
When considering loss of earnings, the general approach is the multiplier/multiplicand method of calculation. A “multiplicand” is an annual figure for loss which is multiplied by the “multiplier”, which represents the number of years of future loss to be claimed.
There are occasions where this is not appropriate, and the court can use a broad-brush approach known as the “Blamire approach”. (From Blamire v South Cumbria Health Authority [1993] PIQR Q1). This approach is a where a lump sum is awarded after consideration of all the circumstances
D argued that the multiplier/multiplicand approach was the correct approach. On the other hand, the defenders argued that where a number of imponderables gave rise to uncertainties, the likely future pattern of earning made the multiplier/multiplicand approach inappropriate.
Settling on the correct multiplicand was an impossible task. The only certainty regarding D’s earnings as a priest was the level of stipend that was automatically payable. Everything else was variable: mass stipends and stole fees varied from diocese to diocese; the size of the parish; the popularity, or otherwise, of D within that parish; and the affluence or generosity of the parishioners. Accordingly, this approach would be “manifestly unsuitable, and unfair to the defenders”. The court was being asked to engage in “speculation” or “estimation”.
In addition, as well as considering the loss, the court required to consider the benefits that D received as a result of laicisation. These included no longer being required to adhere to the strictures of the priesthood; not being on call “24/7”; being financially able to service a mortgage and purchase property; able to choose where he lives and works; able to form relations; and able to get married.
Taking the above into account, the defenders argued that the broad-brush Blamire approach ought to be used.
Having considered both approaches, the court encountered various difficulties in applying the multiplier/multiplicand approach.
The aim of any award was to put D back into the position in which he would have been, but for the abuse and its consequences, not a better position. In doing so, the court identified several key points that were required to be taken into account, which in effect diminished the loss:
Given the above difficulties, the court decided that the only way forward was to treat the consequential loss issues as containing imponderables of such significance as to warrant the Blamire approach.
Applying the Blamire approach, the court concluded that on the evidence, there was support for the benefits in kind in the priesthood giving rise to consequential loss of some significance, on the broad basis that they result in a higher figure than D’s post-laicisation income and that they are by no means wholly set-off by that income and the financial benefits of not being in the priesthood.
It was therefore acknowledged that a reasonably significant amount was due, however, the post-laicisation benefits could not be ignored.
The broad conclusion was therefore that the total figures for past and future loss relied upon by D fell to be reduced. As a result of the adjustments and the imponderables, the sums sought were required to be reduced by roughly 50% and then reduced further by taking into account past and future gains. Following a broad-brush approach, the court concluded that a sum of £400,000 for consequential loss was a fair and reasonable award, with £140,000 for the past and £260,000 for the future.
Following the introduction of the Limitation (Childhood Abuse) (Scotland) Act 2017, the court requires to assess the trajectory of a claimant’s life over several decades in an effort to quantify lifelong losses.
The court does not have a crystal ball to predict the outcome of every ‘sliding doors’ moment to accurately assess how an individual’s life might have turned out. There are bound to be several imponderables in life that have to be factored in. In this case, the court found that the best way of taking account of life’s uncertainties was the Blamire approach and awarded damages accordingly.
For more information, please contact Laura Baxendale – Associate and Khadija Sarwar - Solicitor
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