The 17th edition of the Judicial College Guidelines has now been published. For a general overview of new Guidelines and the impact of inflation, see the article by Natalie Larnder, our Head of Market Affairs, here. In this article, Christopher Wilson, an Associate in Keoghs abuse and public sector team, takes a closer look at the new guidance in respect of awards for injuries resulting from sexual abuse.
Originally, the Judicial College provided no specific guidance in respect of psychiatric injury resulting from physical and sexual abuse. However, this changed when they published the 16th edition of their guidelines back in April 2022. The 17th edition, therefore, reflects the first substantive change to guidance in this area. Given the inflationary pressures of the last 12–18 months, it was always going to be inevitable that there would be a not insignificant increase in the value of recommended settlements in this area. However, what was not expected was: a) the introduction of a completely new bracket of damages; or b) the extent of the increase in recommended valuations for such abuse.
By way of comparison, the two most recent editions for damages in sexual and physical abuse claims are below:
| 16th Edition | 17th Edition | |
| Less Severe | £9,730 – £20,570 | £11,870 – £25,100 |
| Moderate | £20,570 – £45,000 | £25,100 – £54,920 |
| Moderately Severe | N/A | £54,920 – £109,830 |
| Severe | £45,000 – £120,000 | £109,930 – £183,050 |
The most dramatic change can be found at the higher ‘severe’ end of the brackets, with the addition of a new ‘moderately severe’ bracket in place of the lower end of the ‘severe’ bracket. There has also been an increase in the top valuation of more than 52%. This is clearly way beyond increases linked to inflation.
The Guidelines themselves suggest that the rise is attributable to a “small cluster of decisions concerning damages for sexual abuse, including image-based abuse … which has led to … adjustments to the brackets”. As alluded to, damages awards can be rare in this area and there are a limited number of cases that the Judicial College could be referring to. In FGX v Gaunt [2023], the claimant was awarded general damages of £60k after suffering from PTSD after her ex-partner shared inappropriate images of her that he had obtained during their relationship via a concealed camera. Of course, Georgia Harrison also successfully sued her ex-partner, Stephen Bear, for general damages totalling £120k after he shared sexually explicit images of her online without her consent.
Alternatively, given the ‘small cluster’ of cases upon which to base such dramatic increases, it is possible that the obiter comments of Mr Justice Johnson in TVZ & Others v Manchester City FC [2022] have been taken into consideration. Although the claimants were ultimately unsuccessful in that case, Johnson J proceeded to set out what the claimants would have been awarded had their claims succeeded. In doing so, he adopted an unusual approach of making separate awards for the abuse and pain, suffering loss of amenity, which included the psychiatric injury suffered. This approach, inevitably, resulted in larger quantum awards than had been the case in other matters. By way of an example, one claimant was provisionally awarded £65k for the abuse itself and a further £85k for the pain, suffering and loss of amenity, representing a total general damages award of £150k. To put this in context, in a case involving similarly serious allegations of abuse and a diagnosis of complex PTSD (FZO v Adams (1) & London Borough of Haringey [2019]), the claimant received a general damages award of £85k (albeit £113k once adjusted with inflation). This still falls a fair way short of the figures referenced by Johnson J.
The TVZ judgment was only handed down three months prior to the publication of the 16th Edition of the Guidelines and it is possible that it was too late for it to be applied to that edition of the JC’s guidance. However, it is possible that it has now had an influence on the valuation of general damages in this field even though the claimants were unsuccessful, albeit Johnson J’s approach of valuing the abuse and PSLA separately has not been adopted.
The Judicial College’s latest guidance is inevitably going to have some impact on ongoing claims, not only in respect of the expectations of claimants but also in reserving strategy. In such circumstances, it seems sensible for all parties to undertake a process of reviewing each claim and reserves to ensure their interests are protected.
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