For the first time since their inception in 1992, the Judicial College Guidelines (“JCG”) have introduced a subcategory specific to abuse. This detailed post looks at the background to this change including the ways in which general damages have been awarded in abuse claims to date as well as what the 16th edition of the JCG now says.

This post is published in two separate parts.

The first (this) part aims to provide the context necessary to fully understand the significance of the changes in the 16th edition. That context consists of the way in which parties and courts have approached general damages arising from abuse to date under various heads of general damages. It also looks at how the JCG has approached the circumstances of abuse in relation to PSLA and considers the practical difficulties that arise from the inconsistency of approach to date.

The second part looks at the content of the 16th edition itself. It sets out what the 16th edition now says, what it adds and clarifies and what perhaps remains open for debate.

The authors hope that the two parts of this post will be read together but for those short on time, they can be read in isolation.

Part 1: general damages in abuse claims to date

Parties and courts have taken a variety of approaches to general damages in the context of abuse claims. The variety is between both the category (or categories) of general damages sought/ awarded and the financial value attributed to them. This part sets out what those various approaches are and why it has been problematic. We will consider the different categories of general damages sought, agreed and/or awarded to date and the history of sexual abuse awards within the context of the Judicial College Guidelines (JCG).

The authors hope that this context gives the reader a fuller understanding of the significance and need for the new Chapter 4(C) in the 16th edition of the JCG.

The available heads of loss for general damages

Most types of sexual abuse ultimately constitute trespasses to the person in the form of assaults and/or batteries. As a result, there are a number of heads of general damages that a claimant can recover in principle in connection with the nature or “fact of” abuse, provided they are carefully pleaded:

  1. Aggravated damages;
  2. Exemplary damages;
  3. Injury to feelings; and
  4. Pain, suffering and loss of amenity.

Aggravated damages

This head of loss is not recoverable per se in claims arising from negligence but is recoverable in claims arising from trespasses to a person. Aggravated damages arise where there is “exceptional or contumelious conduct or motive on the part of a defendant in committing the wrong or … subsequent to the wrong” causing “mental distress” to the claimant (Law Commission report 247, para 1.3). That is, they arise because of the tortfeasor’s behaviour which does not necessarily have to occur at the same time as the abusive act. A common example of this in civil claims arising from abuse is where a perpetrator refuses to admit the abuse in criminal proceedings before eventually being found guilty.

Aggravated damages are compensatory in nature, not punitive, as set out in Rookes v Barnard [1964] AC 1129. The Law Commission recommended statutory clarification of this point in 1997 noting that the label of “aggravated damages” was somewhat misleading, suggesting instead “damages for mental distress” (report, para 1.9). That recommendation was rejected.

It is important to recognise that the Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127 held it was generally inappropriate to award aggravated damages in assault claims in addition to damages for injury to feelings. That decision has been generally ignored by the courts and criticised in legal textbooks. McGregor suggests that excluding aggravated damages in assault cases would be contrary to principle particularly given their availability elsewhere for defamation and damage to land: 42-007.

There is no definitive judicial or other authority that tells us how much should be awarded in a particular case or whether they should be awarded as a matter of course in abuse claims. In some cases courts have chosen to award a percentage of PSLA, in others they have taken a more abstract approach. There is currently no right answer as “there is no conventional award” (Gulati v MGN [2015] EWHC 1482 (Ch) at 206).

Another equally challenging problem is that aggravated damages are often bound together with either PSLA or injury to feeling damages. The definition of aggravated damages in the case of Appleton v Garrett was in fact the same as the definition of injury to feelings damages in McGregor. However,  these two heads of loss are not always combined, for example in BDA v Quirino [2015] EWHC 2974 (QB)These various issues make it difficult for practitioners to firstly advise clients as to whether to make a claim for aggravated damages or not, and secondly to unpick the value of awards/ settlements in previous case law to compare with their own.

Examples of aggravated damages being awarded in abuse claims include FKP v Lampitt [2015] EWHC 3368 (QB), WCC v Steer [2019] EWH 1874 (QB) and FZO v Andrew Adams and another [2019] EWHC 1286 (QB). An example of aggravated damages awarded alongside an award for injury to feelings is BDA v Quirino [2015] EWHC 2974 (QB)Examples of aggravated damages being reflected within PSLA include Re S [1994] and BXB v Watch Tower and another [2020] EWHC 156 (QB).

Exemplary damages

This head of loss is recoverable in principle in abuse claims because they are trespasses to the person. As mentioned above, exemplary damages are intended to be punitive in nature rather than compensatory. They can however only be awarded if one of the narrow circumstances set out in Rookes applies:

  1. Where the conduct was oppressive, arbitrary or unconstitutional conduct carried out by government servants (for example the police, the armed forces);
  2. Where the defendant’s conduct was carried out for profit; or
  3. Where exemplary damages are expressly permitted by statute. Note that they are expressly excluded in the context of fatal accidents by section 1 of the LR(MP)A 1934.

Exemplary damages were awarded in sexual abuse claims in Kuddus v CC of LP [2002] 2 AC 122 and AT, NT, ML, AK v Dulghieru [2009] EWHC 225 (QB).

Injury to feelings damages

This head of loss is properly recoverable in a claim arising from an assault and therefore sexual abuse (Lane v Holloway [1968] 1 QB 379 CA). It is intended to reflect the “indignity, mental suffering, disgrace and humiliation caused” by the tort in question (McGregor on Damages 20th Edn 42-001). This head of loss is quite frequently awarded in employment tribunals in claims arising from harassment or discrimination in the workplace. In that legal forum, awards are made on the basis of the “Vento guidelines” as set out by the Court of Appeal in Vento v CC of Yorkshire [2002] EWCA Civ 1871. The Vento guidelines consist of three bands, each of which addresses different levels of seriousness and has figures set out within it. The available awards range from £900 to £45,600.

However, the Vento guidelines do not apply beyond the employment tribunals and there is no comparable set of guidelines in the context of civil litigation. This has not prevented claimants from pleading this head of loss or being awarded them in sexual abuse claims. It does however mean that this head of loss can only be quantified by reference to case law and has been inconsistently allowed/ disallowed by the courts. There is also a lack of clarity as to how injury to feelings damages differ from aggravated damages, as evidenced by the fact that McGregor defines aggravated damages by reference to injury to feelings (“aggravated damages come into the picture where the injury to the claimant’s feelings is increased by…” at para 42-002).

An example of injury to feelings damages awarded in an abuse claim is BDA v Quirino [2015] EWHC 2974 (QB).


This is the most traditional head of loss and is claimed in every personal injury claim, including those arising from abuse. The measure of PSLA in civil claims is determined primarily by reference to the JCG and secondarily by reference to comparator cases. In abuse claims the (lead) injury claimed tends to be psychological/ psychiatric. Whilst there may have been physical injuries associated with the physical nature of abuse, these are usually significantly outweighed in severity by the (life) long psychological impact of having been abused and coming to terms with it. Therefore, PSLA awards for sexual abuse are usually awarded by reference to Chapter 4 which deals with psychological and psychiatric injury. However, the amounts that have been awarded in practice have varied widely, in large part due to the lack of clear guidance to date as to how to assess these claims. We look at the historic approach of the JCG to PSLA in more detail below.

The problematic inconsistency of approach 

It is relatively unsurprising that there has been confusion and inconsistency as to how to pursue general damages arising from abuse given the lack of guidance or binding authority on the correct approach (the only formal guidelines being the JCG for PSLA). However, the extent of the inconsistency is alarming as demonstrated below.

The first examples relate to the quantum of awards made for injury to feelings in abuse and non-abuse settings. A girl who was groomed, controlled and raped six times by her karate teacher aged 14-18 received £25,000 for injury to feelings and aggravated damages combined (BDA v Quirino [2015] EWHC 2974 (QB); whereas Sir Elton John received £50,000 in today’s money for injury to feelings when the Mirror published a story suggesting that he had an eating disorder (Elton John v Mirror Group Newspapers (MGN) Ltd [1995] The Times, 14 December). Sir Cliff Richard received £210,000 for injury to feelings and aggravated damages when the BBC broadcast footage of the police raiding his house in connection with a child sexual abuse investigation (Richard v BBC [2018] EWHC 1837 (Ch)). This cannot possibly reflect modern society’s views as to the relative indignity caused by rape, libel and invasion of the right to privacy.

The next examples show the disparity between separate awards for aggravated damages. A child who was raped on one occasion was awarded £17,000 in JXL v Britton [2014] EWHC 2571 (QB) whereas an adult who was raped on one occasion was awarded £70,000 in Griffiths v Williams 21.11.95 CA unreported. Awards of £15,000 were made to both a claimant who was systematically abused by her grandfather as a child over five years including forced sexual touching, use of sex toys and two attempted rapes in GLB v TH [2012] EWHC 3904 (QB) and also to a claimant whose brother-in-law digitally penetrated her once, tried to get into bed with her once and pulled her towards him once in PBX v JXD (2019). These authors do not suggest that aggravated damages should not have been awarded in these four cases, but observe that the amounts awarded do not seem to correlate with the relative seriousness of the suffered abuse.

Finally, a large number of cases have a global award made for PSLA which is said to include a sum for aggravated damages or injury to feelings. In those cases, it is impossible to understand what proportion of the award is for the fact of the abuse and what proportion is for the injury caused. For obvious reasons this is unhelpful for the practitioner who needs to advise her client on how much they can expect to recover for each constituent head of non-pecuniary loss. Unless both the nature and severity of the abuse and the nature and severity of the injury caused to her client are similar to that in the reported case, the award in the reported case is unlikely to be of any assistance. It is important to note that there is not necessarily a correlation between the extent of the abuse suffered and the extent of the psychiatric injury caused by sexual abuse; some claimants suffer only mild, short-term psychiatric injuries from multiple rapes committed over many years, while others suffer lifelong debilitating psychiatric injuries from one-off “less serious” incidents of abuse. This is why the fact of the abuse requires distinct consideration and quantification.

The JCG and how it responds to change

The JCG were introduced in 1992 to encourage consistency of awards and settlements by incorporating known data into guidelines to be applied to individual cases. They have been regularly updated ever since to allow them to keep pace with socio-economic factors (e.g. inflation and public perception), updates in the law (e.g. the Heil v Rankin uplift) and developments in medicine and science (e.g. newly recognised conditions or symptoms). It is because of these regular updates that they are such an invaluable and relevant resource for practitioners and judges alike.

The way in which the JCG update tends to be relatively incremental, with an edition flagging that an area is on the move and the following editions effecting the change. The development of the guidance in relation to facial injuries (Chapter 9) is a good example of this: the early editions of the JCG had heavily gendered approach which generally allowed women to recover more than men. This was reflective of the public perception that it was worse for a woman to have a modified cosmetic appearance than a man. The 7th to 10th editions acknowledged that the courts had “invariably” distinguished between genders in the past, but did suggest that change was on the way. In the 11th edition, the JCG questioned the distinction stating that it was “open to serious doubt that gender itself can be a proper or indeed lawful factor in determining the level of general damages … older cases in particular may need to be viewed with a degree of caution”. The 12th and 13th editions repeated the guidance of the 11th but said that they awaited a judicial decision that entirely did away with the gendered approach. The 14th and 15th editions stated that the distinction had not been retained, that the distinction had resulted in overlapping and wide brackets and that they “will” be narrowed in the future.

The trigger for the evolution of Chapter 9  is not very different to that in respect of abuse-related injuries in Chapter 4. We now have a much more informed understanding of the complex and multi-faceted ways in which the fact of abuse affects a person’s ability to cope with everyday parts of life (including intimate relationships, relating to their children when of an age of their own abuse, feelings of shame, lack of confidence and lack of trust). This is the case not just societally but also within the scientific and medical community.

The JCG on injuries arising from sexual abuse

The first specific references to claims arising from sexual abuse appear in the 6th edition of the JCG, published in 2002. There are two distinct references in that edition, both of which are in the chapter for psychiatric injury.

The first reference is in the preamble to the chapter and has remained the same for 20 years.

Edition Text
6th to 15th editions Where cases arise out of sexual and/or physical abuse in breach of parental, family, or other trust, involving victims who are young and/or vulnerable, awards will tend to be at the upper end of the relevant bracket to take into account (A)(vii) below.


It is immediately surprising that this section was not updated for 20 years given the many advancements in understanding and awareness of abuse in that period. These advancements were due in large part to media coverage of abuse in e.g. Jimmy Saville (breaking news in 2011), Harvey Weinstein (breaking in 2018 and triggering the Me Too movement in the UK), the uncovering of historic abuse in the Catholic Church, in schools and large organised sex abuse rings in Operation Yewtree (2012) and Operation Hydrant (2014).

There are a number of problems with the preamble quoted above. Firstly, it conflates an award for pain, suffering and loss of amenity with an award for the “fact of” abuse. Secondly, it does not define “young and/or vulnerable”: does young just mean children, or children below a certain age, if so what? Does vulnerable mean vulnerable in terms of the claimant’s own characteristics, their socio-economic background, their relationship with the perpetrator or something else? Thirdly, it equates sexual abuse with physical abuse without acknowledging the huge differences between their nature and the nature of their impact on an individual. Fourthly, it does not address the many ways in which abuse can differ from case to case other than the element of breach of trust: e.g. the overall duration of the abuse, the claimant’s age at the time, the frequency of abuse, the duration of individual instances of abuse, whether physical and/or emotional abuse, what type of physical abuse.

The second specific reference to abuse is in the same chapter but under the narrative to subsection (A) for “psychiatric injury more generally” at (vii). That narrative always contained a list of factors to be considered in a particular case in order to assess the appropriate level of PSLA. The evolution of the text specific to abuse is summarised in the table below.

Edition Text
6th to 10th editions (A)(vii) (a) whether the injury results from sexual and/or physical abuse and/or breach of trust;

(vii) (b) if so, the nature of the relationship between victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.

11th to 14th editions (A)(vii) Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provide a useful starting point in the assessment of general damages in such cases. It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate.


15th edition (A)(vii) Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provide a useful starting point in the assessment of general damages in such cases. It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognized or even denied. Awards should take into account not only the psychiatric effects of the abuse on the injured party but also the immediate effects of the abuse at the time that it was perpetrated, including feelings of degradation. Aggravated damages may be appropriateCases of prolonged and frequent physical and sexual abuse of a child over many years by a person in a position of trust, involving penetrative violation, are likely to fall into (A)(a) or (B)(a) and reflect aggravated damages, leading to an award towards the top end of the bracket.



The 11th edition introduced a much more specific approach to claims arising from abuse than the previous editions. That text was retained in the editions that followed up to and including the 15th edition, although the 15th edition added some further detail as underlined above. It is interesting to note that since the 11th edition the JCG have acknowledged the potential for aggravated damages in these claims.

The 11th edition was markedly more detailed than 10th and the 15th edition was also markedly more detailed than the 14th.  However, in our view the 15th edition was not a perfect or complete solution.

First, like the preamble, (A) conflates the awards for psychiatric injury and the fact of the abuse. On the one hand, it recognises that the JC Guidelines are just a “starting point” and that the award for psychiatric injury in an abuse claim is “likely to form only part of the injury for which damages will be awarded”. On the hand, it lists interchangeably factors that are relevant to the award for psychiatric injury (such as delay in diagnosis or treatment) with factors that are relevant to the award for the fact of the abuse (such as abuse of trust and feelings of degradation). The impression created is that all of these factors should be considered together to arrive at a global award for non-pecuniary loss based on the JCG. It is therefore not surprising that courts often adopt this approach. The guidance further says that in particular circumstances the award should “reflect” aggravated damages, meaning that the aggravated damages sum can be unspecified and included within the PSLA award itself. This means that the awards made in those cases cannot be relied upon for future reference as there is no boundary between the baseline PSLA and the aggravated damages. What (A) fails to state in terms is that the brackets for psychiatric injuries in Chapter 4 should be used to evaluate the psychiatric injury element of an abuse claim only and that a separate award should be made for any injury to feelings / aggravated damages caused by the abuse. Of course one of the problems here is that there is no equivalent of the JCG to quantify claims for injury to feelings / aggravated damages. In practical terms practitioners and parties are left without alternative guidelines for quantifying the fact of the abuse. This increases reliance on the JCG as a complete answer to the quantification of non-pecuniary loss which is problematic.

A second problem is that (A) acknowledges that the fact of abuse of trust increases the awardable damages, but not that the nature of sexuaabuse has (or should have) the same effect. This is a significant oversight – the facts of what the claimant suffered should surely form the starting point of any assessment of non-pecuniary loss.

Thirdly, (A) says only that aggravated damages “may” be awarded, not that they “will” be. There is no guidance as to what sort of cases should attract aggravated damages awards or reasoning for why it should not be all of them.

Fourthly, the final passage (added only in the 15th edition) seems to suggest that if all the criteria are met except for penetrative violation, the abuse will not warrant an award in the “severe” bracket. An example of facts that do not meet this penetrative criteria is a child who is sexually abused by someone in a position of trust by being forcibly masturbated or forced to masturbate, over a number of years. This cannot be a sensible distinction: often the fact and duration of the abuse is what gives rise to the long-term psychological sequelae, irrespective of whether there is penetration or not.

Finally, it is worth remembering that this part of the guidance is only in (A) so does not strictly apply to claimants who have a diagnosis of PTSD who fall under (B). Those claimants then do not even have the baseline guidance on sexual abuse (except for the preamble). This highlights the lack of guidance and consistency available to sexual abuse claimants across the board.

The overall result of these problems with the JCG’s historic approach to abuse claims is inconsistency. Legal practitioners cannot confidently advise their clients on what type or level of award is likely to be appropriate in their case and they and judges struggle to find a coherent line of authority upon which to rely. There is a risk of under-compensating the “fact of” the abuse given the way in which the JCG have addressed them to date and little way of checking awards against each other where different elements are globally awarded under one head of loss.

In the 15th edition, the overall introduction to the JCG stated that the editorial board was considering a designated section for claims arising from sexual abuse. That suggests that it was aware that there were still issues with the guidance as drafted. That change of course came with the 16th edition and is discussed in Part 2 of this blog available here.

This analysis was written by Mike Rawlinson QC, Nina Ross and Megan Griffiths of chambers.