Part 2: the new guidance

Introductory

It is worth setting out why the 16th edition of the Judicial College Guidelines (“JCG”) is so significant for those of us acting in claims arising from abuse. We have done this in detail in Part 1 of our blog but will summarise below.

Until the 6th edition of the JCG there was no specific narrative or description dedicated to injuries arising from sexual or other abuse. They were dealt with under the broad umbrella of psychiatric injury. The 6th edition introduced two brief factors specific to abuse claims, the 14th edition significantly extended the narrative on abuse claims and the 15th edition extended it further. The 15th edition also flagged an editorial intention to consider whether a sexual abuse specific category ought to be created in the near future.

All of the references to date have been contained within the chapter for psychiatric/ psychological injuries (historically chapter 6, now chapter 4) and within subsection (A) “psychiatric injury generally”. That means they have always been subsumed in the same categories and brackets as all psychiatric/ psychological injuries that do not meet the diagnostic threshold of PTSD. This has now changed as the 16th edition gives injuries arising from abuse their own category within the chapter at (C).

The 16th edition on injuries arising from sexual abuse

There are three separate parts of the 16th edition which set out and explain the new approach to injuries arising from abuse.

The first is the introduction to the JCG as a whole. Lambert J explains that, since the 15th edition in which she had noted the potential need for a specific category, the editing board had decided in favour of implementing that in the 16th edition. The introduction states that this is in line with the relatively recent recommendation of the IICSA for a “free-standing category reflecting awards for sexual abuse”.  That is, whilst the issue was in the editors’ minds when publishing the 15th edition in 2019, the subsequent external recommendation was a key factor in making the move. This is reassuring evidence that the JCG has its eyes open to third party analyses of its work, allowing it to make revisions in line with the current social climate as it has always aimed to do.

The second is the introduction to Chapter 4, psychiatric and psychological damage which states that in claims arising from abuse “in addition to psychological injury and the physical injuries inflicted, awards often include an element for injury to feelings caused by the abuse itself and by any denial of the offences and the need for the injured person to relive the abuse in court or other proceedings”.

This acknowledges the way in which these awards have been dealt with to date i.e. by other categories of general damages, sometimes subsumed within PSLA and sometimes not. These are discussed in detail in Part 1. The reference to “court or other proceedings” is presumably inclusive of criminal proceedings in which the perpetrator is brought to justice and which, absent a guilty plea, often requires the claimant to relive the abuse and consider afresh the impact it had on them. This is a common feature of historic abuse claims and is known to exacerbate or trigger psychological symptoms. The fact that this is highlighted in the JCG should reassure those claimants who have had to go through that experience that that is being taken into account.

The third is the new section itself, found in Chapter 4 (C) “sexual and/or physical abuse”. There is a lengthy narrative at the outset which applies to all three sub-brackets within Chapter 4(C). It reads:

The cases in this section include damages for the sexual and/or physical abuse itself as well as any psychiatric injury caused to the injured person. In many cases there is also an element in the award of general damages for the indignity, mental suffering, humiliation, distress, or anger caused by such an attack. This is sometimes characterised as aggravated damages, but more properly is injury to feelings and is included in the brackets below. Where the element for injury to feelings has been broken down in reported cases, which is usually where there is significant injury, the range is usually in the region of £15,000 to £25,000.

The factors to be taken into account in valuing general damages for the abuse and the psychiatric injury in claims of this nature are as follows:

  • the nature and duration of the abuse and any physical injuries caused;
  • the nature and duration of the 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;
  • abuse of trust;
  • the extent to which treatment would be successful;
  • future vulnerability;
  • prognosis for psychological injury.

Aggravating features which would lead to an additional sum for injury to feelings include:

  • the nature of the abuse;
  • the level of abuse of trust;
  • any manipulation following the abuse to stop reporting of the abuse, or to seek to put blame on the injured party;
  • the need for the injured party to give accounts and evidence of the abuse in criminal or civil proceedings, or in any other relevant investigation.

The three sub-sections of (C) based on severity are relatively briefly described given the amount of detail in the general narrative as set out above. In essence they separate injuries into three broad categories:

Subsection Financial bracket
(a)    severe £45,000 to £120,000

The bracket anticipates most awards will be from £55,000 to £90,000
(b)   moderate £20,570 to £45,000
(c)    less severe £9,730 to £20,570

We will focus on three aspects of Chapter 4(C) in our analysis below: the financial awards, the scope of the bracket and its impact on damages for injury to feelings, aggravated and exemplary damages.

The financial awards

There is no doubt going forward that Chapter 4(C) applies to all claims for psychological/ psychiatric injury arising from sexual and/or physical abuse, whatever diagnosis or diagnoses are made.

That means that the starting and ending points are slightly higher under (C) than they are without an element of abuse, which is in line with the JCG intention of recognising the additional particular features of injury arising from abuse. See side-by-side comparison below:

Upper limit Lower limit
(A) psychiatric damage generally £115,730 £1,540
(B) PTSD £100,670 £3,950
(C) sexual and/or physical abuse £120,000 £9,730

Practitioners will note from the highest bracket within (C) that there is an editorial expectation that most of these cases will actually fall between £55,000 and £90,000. On those figures, the highest anticipated award then is more like £90,000 which is in fact considerably lower than the awards available under (A) and (B). This can be seen as at odds with the overall shift to recognise the aggravated nature of abuse-induced injuries and may require clarification in subsequent editions.

Value aside, the internal expectation built into (C)(a) is comparable to the internal expectation in (B)(b). That has not presented significant difficulty in practice in the context of (B)(b) and it is hoped that the same will be the case for (C)(a), particularly given that it is clear from the narrative and overall financial limits that the editorial intention was to enhance available damages in the context of abuse, not reduce them.  However, it is possible that this will result in pushback from defendants in claims where amounts in excess of £90,000 are sought unless the claimant can demonstrate that the abuse was, in effect, exceptional.

The scope of Chapter 4(C)

Whilst Chapter 4(C) is dedicated to abuse, it is not just for sexual abuse as it also applies to claims arising from physical abuse. On the plain language used, it seems that this means physical abuse whether it is associated with sexual abuse or not. The “and/or” language has been used throughout the history of the JCG’s references to abuse before the creation of Chapter 4(C). It is one way in which these authors consider that the historic approach has been problematic: see Part 1. Given that the 16th edition sets out a list of specific factors to consider under (C), these authors consider that the “or” element is not so problematic here. However, the “and” element remains difficult to interpret. Whilst many (most) forms of sexual abuse involve an element of physical abuse, many (or most) forms of physical abuse do not involve an element of sexual abuse. Further, systematic sexual abuse often includes instances of physical abuse without sexual abuse. It is difficult for practitioners to untangle how the “and” should be interpreted to differentiate these cases fairly and consistently. These authors expect that this will come from case law and that that will be summarised in future editions of the JCG.

The impact on damages for injury to feelings, aggravated and exemplary damages. 

The specific reference to injury to feelings damages is found in the general narrative of Chapter 4(C) quoted in full above. It states that general damages typically awarded to reflect the “indignity, mental suffering, humiliation, distress or anger” arising from the nature of the tort (abuse) are now to be included within the PSLA figures for which the JCG have set guidelines. The intention behind this is to set a precedent for the form in which claimants are compensated for the “fact of” abuse. Historically (including recently) there has been a wide variety in approaches between claims, both in the positions taken by legal representatives and the positions endorsed by the judiciary. These have included making awards for PSLA subsuming injury to feelings damages, PSLA with injury to feelings damages, PSLA with aggravated damages or PSLA with exemplary damages. The JCG here is asserting that the first of these approaches is the appropriate one.

It is anticipated that this part of Chapter 4(C) will clarify the approach in relation to injury to feelings awards by preventing their recoverability in addition to an award for PSLA as expressly set out by the JCG. However, it is also anticipated that the position will not be so straightforward in respect of aggravated or exemplary damages (though these authors note that exemplary damages are very rarely sought/ awarded in the context of abuse).

The JCG suggests that injury to feelings damages have been pursued to date under the term “aggravated damages”. This has been the case in some instances but not in all: e.g. BDA v Quirino [2015] EWHC 2974 (QB) where separate awards were made for each of these two heads of loss. These authors note the different intentions behind these two categories of damages as set out in detail in Part 1 of this blog. Therefore, it is anticipated that there will be some debate as to the appropriateness of aggravated damages alongside PSLA in the wake of the 16th edition. These authors also note that aggravated damages are not available in all actions for negligence and only arise in abuse claims because the ultimate tort is a trespass to the person. It is also notable that the 11th to 15th editions of the JCG stated that in these cases “aggravated damages may be appropriate” with no further guidance on where or when. These authors suggest that that level of comment is as far as the JCG ought to go in relation to non-PSLA heads of loss.

These authors can see why injury to feelings can fairly neatly fit under the umbrella of damages for pain, suffering and loss of amenity. However, it is more difficult to see the same for aggravated or exemplary damages. These heads of loss are justified by the broader circumstances of the abuse and the perpetrator’s conduct surrounding (but not directly related to) the abuse. That is, they are further away from the PSLA umbrella and different categories of damages altogether serving different purposes. The JCG are confined to guiding on the meaning of PSLA and it seems to authors that on the basis that aggravated and exemplary damages do not easily fit within that means that they are beyond the scope of the JCG.

For an analysis of how aggravated damages, exemplary damages and injury to feelings damages have been applied to abuse claims to date, please refer to Part 1.

The JCG also notes that in reported cases with an injury to feelings element this is typically between £15,000 and £25,000. One question that remains outstanding then is what happens when this amount might take an award outside its allotted sub-bracket: for example a claimant whose abuse is considered to sit at the top of Chapter 4(C)(b) so £45,000, but for whom the additional feelings of humiliation and shame warrant an injury to feelings element of £15,000. If the elements were added together that would give them an award of £60,000 which takes them to the lower-mid of the severe bracket at Chapter 4(C)(a). Is that appropriate? One suspects that the courts will take an in-the-round approach to avoid overcompensation by double-counting the impact of the abuse, but that in some case the injury for feelings element will be capable of moving a person up a bracket. It’s worth remembering that as in all claims for PSLA, the guidelines are ultimately there as just that: guidelines. Therefore, there is no bar to awards being made beyond the expected bracket where the facts warrant that approach.

The JCG do not suggest whether or not it recommends specifying the amount of PSLA attributed to injury to feelings. One suspects that this would be good practice to allow the award to be unpicked later on, particularly where the injury to feelings element moves a claimant into a higher bracket.

Conclusions

There is no doubt that the 16th edition marks a huge step forward in the civil assessment of PSLA damages arising from abuse. It gives them their own category, recognises that they can and often should attract a premium as a result of the injury to feelings element and acknowledges the impact that specific factors can have on a person’s recovery and prognosis, such as criminal proceedings. However, there remain elements that will require clarification and/or re-evaluation in future editions, such as how the editors see the interplay with aggravated damages and how the internal expectation bracket should be used in practice. Overall though, this brings improved clarity to a previously chaotic area of law.

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