J.M (AP) V FIFE COUNCIL [2007] CSOH 18
FACTS:-
The Claimant sought damages from the Defendants in respect of sexual and non sexual abuse, which he suffered whilst a child in residential accommodation in a children’ home in Elie, Fife.
The Claimant was born in 1952 and was 54 at the date of giving evidence. He was involved in running a small charity in Liverpool and was also a magistrate. For the first six years of his life, he was placed with a foster mother, and this was a happy period of time. However her health began to fail and he was placed in a home run by Mr and Mrs G. When he was 8, Mr David Murphy (who went on to abuse him) came to work at the home.
Mr Murphy would encourage children to fight one another and he would humiliate the Claimant, on one occasion forcing him to stand naked on a cold stone cloakroom floor. He also physically assaulted the Claimant on a number of occasions. When the Claimant was about 8 ½ or 9 years old, the sexual abuse began. The abuse consisted on an almost daily basis of indecent touching, masturbation, oral sex and buggery. There would also be physical beatings. At the age of 15, the Claimant left the home.
In time, the Claimant spent a couple of years training in the catering industry, and he then travelled to London where his life fell apart and he lived on the streets, becoming a male prostitute for another two years. He made allegations to the owners of the care home in 1970 about Mr Murphy, and in 1971 he made allegations to the police in London, who told him to report the matter to Scottish police. He was dissuaded from that course by the Assistant Director of Social Work of the local authority, where the abuse had occurred. He had a number of jobs thereafter, and spent 15 years working at Westminster Hospital, where he became active in the trade union and in politics. He got married in 1979 and had two children, but he was divorced some years later.
The Claimant had difficulty showing affection to his children, and he had to keep on taking medication.
David Murphy was an employee of the Defendants, and he pled guilty to criminal charges of abuse. The Defendants admitted liability to make reasonable reparation to the Claimant. The issue for the court was the amount of damage properly to be assessed, and what approach the court should take to awarding interest on such damages.
HELD:-
Lord Menzies considered the evidence, which came from two witnesses, namely the Claimant and his wife. The Defendants adduced no evidence.
Lord Menzies summarised the submissions of the Claimant and the Defendants. The problem was that there were no Scottish cases that might assist in the assessment of an appropriate award for solatium (broadly pain and suffering).
There was little dispute as to the facts of this case. Lord Menzies said that he had regard to the various English authorities and to a lesser extent to the seventh edition of the Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases. However Irish caselaw appeared to be significantly more generous than those of English courts.
There were several factors that might be relevant in the assessment of such an award.
It was difficult to imagine a worse case of child abuse than this. There was some doubt about how long the abuse had occurred, but Lord Menzies found that it had occurred from about the 18th June 1961 to about 14th September 1966.
Whilst the Claimant was to some extent, emotionally disturbed before he went to the home, there was no evidence before Lord Menzies about the cause or extent of such disturbance, nor was it suggested by the Defendants that anyone else might have liability to make reparation to the Claimant.
There had been both short term and long term pain, but no psychiatric evidence about any such illness or condition. Lord Menzies said that the onus of proving the Claimant’s loss and damage rested with the Claimant. An important element of that loss, injury and damage might be psychiatric illness or psychological consequences. The court needed expert evidence to assess the cause, nature, extent or prognosis of such illness of condition on its own.
Lord Menzies said that it was necessary to approach quantification of solatium by looking at all the circumstances of the case and reaching a global figure. The most similar cases from the case of KR and Others versus Bryn Alyn Community (Holdings) Limited (In Liquidation) and Royal & Sun Alliance Plc [2003] EWCA Civ 85 were “DJ” and “GOM”. The absence of any need to apportion damages, distinguishes the present case from many of the English cases and suggests that an award should be greater than many of the English awards. It was not apparent from the Court of Appeal’s decision how much they awarded for the immediate effects of the abuse on the victim, and any such award seemed surprisingly low.
However the absence of psychiatric and/or psychological injury had to result in an award which was lower. If there had been psychiatric injury, and if the Claimant had not coped so well with his life, Lord Menzies would have awarded in excess of £100,000 for solatium. However he would award £75,000 for solatium.
In relation to interest, the period between the end of the abuse and the raising of the present action was more than 35 years. Interest could be awarded under Section 1 of the Interest on Damages (Scotland) Act 1971. There was no satisfactory evidence of the reasons for the delay in this case. Lord Menzies would award interest at the full judicial rate on the whole award of damages from the date of citation until payment.
FACTS:-
The Claimant sought damages from the Defendants in respect of sexual and non sexual abuse, which he suffered whilst a child in residential accommodation in a children’ home in Elie, Fife.
The Claimant was born in 1952 and was 54 at the date of giving evidence. He was involved in running a small charity in Liverpool and was also a magistrate. For the first six years of his life, he was placed with a foster mother, and this was a happy period of time. However her health began to fail and he was placed in a home run by Mr and Mrs G. When he was 8, Mr David Murphy (who went on to abuse him) came to work at the home.
Mr Murphy would encourage children to fight one another and he would humiliate the Claimant, on one occasion forcing him to stand naked on a cold stone cloakroom floor. He also physically assaulted the Claimant on a number of occasions. When the Claimant was about 8 ½ or 9 years old, the sexual abuse began. The abuse consisted on an almost daily basis of indecent touching, masturbation, oral sex and buggery. There would also be physical beatings. At the age of 15, the Claimant left the home.
In time, the Claimant spent a couple of years training in the catering industry, and he then travelled to London where his life fell apart and he lived on the streets, becoming a male prostitute for another two years. He made allegations to the owners of the care home in 1970 about Mr Murphy, and in 1971 he made allegations to the police in London, who told him to report the matter to Scottish police. He was dissuaded from that course by the Assistant Director of Social Work of the local authority, where the abuse had occurred. He had a number of jobs thereafter, and spent 15 years working at Westminster Hospital, where he became active in the trade union and in politics. He got married in 1979 and had two children, but he was divorced some years later.
The Claimant had difficulty showing affection to his children, and he had to keep on taking medication.
David Murphy was an employee of the Defendants, and he pled guilty to criminal charges of abuse. The Defendants admitted liability to make reasonable reparation to the Claimant. The issue for the court was the amount of damage properly to be assessed, and what approach the court should take to awarding interest on such damages.
HELD:-
Lord Menzies considered the evidence, which came from two witnesses, namely the Claimant and his wife. The Defendants adduced no evidence.
Lord Menzies summarised the submissions of the Claimant and the Defendants. The problem was that there were no Scottish cases that might assist in the assessment of an appropriate award for solatium (broadly pain and suffering).
There was little dispute as to the facts of this case. Lord Menzies said that he had regard to the various English authorities and to a lesser extent to the seventh edition of the Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases. However Irish caselaw appeared to be significantly more generous than those of English courts.
There were several factors that might be relevant in the assessment of such an award.
- The nature and severity of the abuse, and its character
- The frequency of the abuse
- The duration of the abuse
- The age of the Claimant at the time of the abuse
- The immediate effects of the abuse on the Claimant
- When any apportionment was required to reflect abuse by others
- The emotional and social consequences of the abuse for the Claimant
- Any psychiatric illness or psychological condition suffered by the Claimant as a result of the abuse
It was difficult to imagine a worse case of child abuse than this. There was some doubt about how long the abuse had occurred, but Lord Menzies found that it had occurred from about the 18th June 1961 to about 14th September 1966.
Whilst the Claimant was to some extent, emotionally disturbed before he went to the home, there was no evidence before Lord Menzies about the cause or extent of such disturbance, nor was it suggested by the Defendants that anyone else might have liability to make reparation to the Claimant.
There had been both short term and long term pain, but no psychiatric evidence about any such illness or condition. Lord Menzies said that the onus of proving the Claimant’s loss and damage rested with the Claimant. An important element of that loss, injury and damage might be psychiatric illness or psychological consequences. The court needed expert evidence to assess the cause, nature, extent or prognosis of such illness of condition on its own.
Lord Menzies said that it was necessary to approach quantification of solatium by looking at all the circumstances of the case and reaching a global figure. The most similar cases from the case of KR and Others versus Bryn Alyn Community (Holdings) Limited (In Liquidation) and Royal & Sun Alliance Plc [2003] EWCA Civ 85 were “DJ” and “GOM”. The absence of any need to apportion damages, distinguishes the present case from many of the English cases and suggests that an award should be greater than many of the English awards. It was not apparent from the Court of Appeal’s decision how much they awarded for the immediate effects of the abuse on the victim, and any such award seemed surprisingly low.
However the absence of psychiatric and/or psychological injury had to result in an award which was lower. If there had been psychiatric injury, and if the Claimant had not coped so well with his life, Lord Menzies would have awarded in excess of £100,000 for solatium. However he would award £75,000 for solatium.
In relation to interest, the period between the end of the abuse and the raising of the present action was more than 35 years. Interest could be awarded under Section 1 of the Interest on Damages (Scotland) Act 1971. There was no satisfactory evidence of the reasons for the delay in this case. Lord Menzies would award interest at the full judicial rate on the whole award of damages from the date of citation until payment.