Damages in abuse claims: new category of abuse in Judicial College Guidelines

The 16th edition of the Judicial College Guidelines has been released and, as had been widely expected, included for the first time a new category for general damages relating to sexual and physical abuse.

Whilst these Guidelines had always been used to reflect and categorise awards made by the courts for damages for personal injury, there had been relatively few reported decisions to justify a separate category. However, following the recommendations of the Independent Inquiry into Child Sexual Abuse (IICSA), the Judicial College has now decided to revise its Guidelines to include a freestanding section on abuse. 

A new section appears at chapter 4 (C) that makes it clear there should be a single award for damages relating to:

1. The abuse itself and the psychiatric injury which results from the abuse; and
2. An element for any indignity, mental suffering, humiliation, distress or anger (often previously characterised as aggravated damages).

The brackets of appropriate awards for general damages for abuse have been split as follows:

When undertaking an assessment of the appropriate level of general damages, the Guidelines have now codified and adopted the standard approach which had often been undertaken by the courts and those representatives involved in such cases to include:

• The nature and duration of the abuse and any physical injuries caused
• The 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
• If it involved an abuse of trust
• The extent to which treatment would be successful, any future vulnerability and the prognosis for psychiatric injury 

Additional factors are also included for those circumstances where an additional sum equivalent to aggravated damages would be justified. This includes whether there had been any manipulation to prevent the reporting of the abuse, or put blame on the victim, and even where the victim had to give accounts in criminal or civil proceedings of the abuse they suffered.

The extent to which these aggravating factors are applied in civil proceedings remains to be seen, particularly where claims are pursued on the basis of no fault vicarious liability. It may be that such factors are used most frequently where the individual abuser themselves are involved in the proceedings and their involvement enhances the level of indignity, mental suffering, humiliation, distress or anger caused to the victim. In addition, the repetition of the nature of the abuse and the extent of the abuse of trust would appear unnecessary, particularly where it is clear that a single award for general damages is proposed by the Guidelines (contrary to the recent obiter comments and approach taken by Johnson J of there being two separate general damages awards in TVZ & Others v Manchester City FC in which Keoghs acted for the defendant).