ERS v KIDS: Quantifying appropriate damages in child abuse litigation

Christopher Ratcliffe, Lecturer, NLS https://www.ntu.ac.uk/staff-profiles/law/christopher-ratcliffe

In civil proceedings a claimant who lacks the ability to conduct litigation, is a protected party. They appear through a litigation friend who makes decisions. If settlement can be agreed, a final safeguard to their best interests is the terms of that settlement require approval of the court.

The recent settlement approval in ERS v KIDS [2023] highlights the difficulties when quantifying appropriate damages in child abuse litigation. The case involved a vulnerable disabled child who suffered unimaginable systemic abuse at a playground operated by a charity. Expert medical evidence from a consultant psychiatrist opined that significant psychological and psychiatric injury had been caused, including PTSD, and the claimant required extensive treatment. At the time of the court’s approval the claimant was an adult appearing through their litigation friend as they lacked litigation capacity. The Medical prognosis was good, but by this point, the claimant had suffered with the abuse and its impact for six years. Added to this, the abuser denied any wrongdoing forcing the claimant to give evidence in a public forum during criminal proceedings. He was convicted and received thirteen years imprisonment. The claimant pursued the charity who had been entrusted with their care for restitution.

The overarching question is, how do you put a price on something like this? You cannot, but money is all the court can award the claimant.

In the early 1990s the Judicial College Guidelines (‘JCG’) were introduced. The purpose was to provide guidance and ensure consistency in judicial awards for general damages in injury claims. General psychiatric injury was covered in the guidance, but not specifically from abuse and early authority expressed disapproval for using the guidelines when dealing with psychiatric injury in abuse claims.

One of the first major child abuse litigations was Various v Leicestershire County Council which involved several claimants abused in local authority children’s homes. Potts J referred to the JCG in quantifying damages but commented that to the layman the awards may seem inadequate in comparison to the ordeals.

Four years later, Scott Baker J in Various v Flintshire County Council [2000] commented that whilst the JCG had a helpful section for psychiatric injury, for these claims, they were ‘no more than guidelines’ and on the ‘low side’. On appeal in C v Flintshire [2001], Ward L.J. stated that the ‘abuse of children in care … [fell] into a wholly different category from psychiatric damage that follow other personal injury’. He added that the guidelines did not take into account the duration of the suffering highlighting the practical limitations of the guidelines with respect to childhood abuse. A few years later in KR v Bryn Alyn Community [2003] the Court of Appeal, in increasing first instance awards, said the guidelines did not directly address the quantification of the issues before the court, but could provide a signpost.

Since that time the courts have wrestled with the adequate calculation of damages in abuse cases. Even today, most laypeople would likely consider some awards, particularly when reached by settlement, as grossly inadequate.

The general purpose of damages in tort law, as stated in Livingstone v Rawyards, is to return the claimant to the position they would have been in had the wrong not happened. Applying that to ERS, the claimant would be returned to the bubbly, lively, and relatively independent individual they were before the abuse. They would have no horrible memories of abuse and would have lived since absent that pendulous black cloud hanging over them. No amount of money can achieve that but this, and the probable future effects have to be put into a monetary figure. The Judge in ERS understood this, stating ‘no amount of money can turn back the clock’.

So, how can the calculation, no matter how inadequate, be made? There are many uncertainties and imponderables in the assessment. Firstly, identifying what needs to be compensated. Psychiatric injury does not show up on an X-ray. Experts are needed. This can be straightforward when only one expert is instructed but usually, in such complex claims, parties are given permission to adduce their own experts who can disagree on material factors. In AB v Chethams School of Music [2021] the Defendant’s expert opined that the claimant had a delusional disorder which allowed the Defendant to aver that the claimant was not providing a ‘deliberately false account’ but was ‘convincingly and honestly’ recollecting events that did not happen. If this position was accepted, the claimant would have failed to prove the abuse receiving nothing. The Claimant’s expert disagreed and the Judge found the claimant honest and reliable.

Furthermore, the claimant’s life must be forensically examined, from cradle to present day. The abuse, which may have occurred during a relatively small window of their life, has to be balanced against other parlous life experiences (pre or post abuse). What if pre-existing conditions have been exacerbated? A careful analysis of the extent to which the condition has been exacerbated is necessary and whether this has made any material difference to the claimant’s life. This can be difficult to untangle when experts reach different opinions usually from how they interpret and attach weight to life events. What can be seen from the case law, is that injury from childhood abuse is non-linear. There is no direct correlation between the seriousness of the abuse and the effects. Therefore, any attempt to develop a tariff system which calculates damages only by reference to a description of the abuse, would be grossly unfair.

In addition, the courts need to look into the future. With the help of experts, evidence, and the circumstances of the case a judgment on what is probable needs to be reached. That is not certain. With defendants resilient to provisional damages and the finality of judgments, claimants are faced with the perilous prospect of treatment not working or their condition becoming worse. The expert in ERS stated that with effective treatment and proper support, the claimant ‘is likely to recover’. Is ‘likely’ enough to give finality to an award?

Equally, assessing the future impact of childhood sexual abuse on earning potential is difficult. In A v Archbishop [2005] the situation was straightforward where the claimant had a documented employment history prior to a chance encounter with his childhood abuser which prevented him from working. However, where the abuse impacts upon the claimant’s subsequent education, employment prospects, and their ability to ever work, the court has to consider the impact upon the claimant’s earning potential when it was only that, a potential. A lump sum in accordance with authorities like Smith v Manchester and Blamire may be the only option, but it is very unlikely that these will represent anywhere near to what the claimant would have earned.

Despite the early disapproval of application of the JCG guidelines to claims of this nature, at the time of KR, the guidelines were in their sixth edition. Only now, following publication of the sixteenth edition (April 2022), is psychiatric injury from abuse covered following recommendations from the Independent Inquiry into Child Sexual Abuse (‘IICSA’) in September 2019 that while the quantification of damages is a matter for the courts, the Judicial College is best placed to provide guidance.

This isn’t intended to be a detailed analysis of the new guidelines but there are some points of note.

The new guidelines recognise that injury from abuse is non-linear. To fall within the ‘severe’ category, for example, a claimant will have ‘suffered serious abuse and/or severe and prolonged psychiatric injury’. The use of ‘and/or’ recognises that what may be considered ‘less serious’ abuse can still cause severe injury.

The guidelines recognise an ‘injury to feelings’ element to take account of, amongst other things, the indignity, suffering, and anger caused by the abuse.

It will be interesting to see how the courts use these guidelines in future cases. ERS referred to the guidelines in approving settlement of £150,000 for the claimant but was informed by Leading Counsel’s detailed advice.

While the guidelines may provide more certainty for the courts in awarding damages, it is unlikely that in their present form they will lead to more amicable legal proceedings. The guidelines are wide enough for substantial disagreement between the parties. Even if the parties were able to agree that a case falls into the ‘severe’ bracket, there is a £75,000 difference between the lowest and highest award. They do not go beyond general damages for pain, suffering, and loss of amenity, as matters beyond these will be unique in each case. Equally, parties will always hold their own views on what discount should be applied for litigation risks and early receipt.

ERS is a stark reminder of the limitations of money in cases of this nature. Indeed, the Judge commented that ‘at this point in time, it is simply the best we can do’. This comment alone indicates that despite years of case law, a public inquiry which examined restitution, and JCG amendments, there is still some way to go.

ERS v KIDS: Quantifying appropriate damages in child abuse litigation

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