04 August, 2023
The High Court has recently approved a damages settlement in a claim arising from sexual abuse of a child, whilst attending a play centre, by an employee of that facility. The case is ERS (a protected party by Mrs, her mother and Litigation Friend) v Kids (Charity No. 275936).
The facts of this case are extremely sad. The Claimant was a child at the time of the abuse. She was living with Downs Syndrome, learning difficulties, speech impediment, visual impairment, ADHD and thyroid problems. The Judgment refers to her as "extremely vulnerable".
The Defendant is a registered charity named KIDS. They ran an after-school activity centre and adventure playground for children with disabilities and learning difficulties in Islington.
A male employee of the Defendant repeatedly sexually abused the Claimant in the soft play area, the toilets, and in the wooded area of the grounds. This involved vaginal and anal rape, digital penetration of the Claimant's vagina, kissing and intimate touching, and forcing the Claimant to touch his penis. Violence ensued should the Claimant have refused to comply.
The Judgment states "she was for months sexually abused and beaten when she tried to protect herself and refuse to engage in unwanted sexually activity with an adult male who was there to support and protect her."
We reiterate that the Claimant was a child throughout. At the time of the Judgment, she was 22 years old.
The Claimant had made various disclosures that the male employee was kissing her and touching her to other members of staff, but no action was taken. The police were eventually notified by another KIDS employee on 1 November 2017. The male employee pleaded not guilty, and a full trial took place. He was found guilty and subsequently sentenced.
While the Defendant admitted liability in respect of the vicarious liability for the male employee's criminal conduct, it disputed liability with respect to breaches of safeguarding. The Claimant's legal team accepted this. The remaining issue was therefore of quantum.
The Judgment noted that abuse had deeply damaged many aspects of the Claimant's life. She was noted to self-harm and be fragile. It is like "walking on eggshells" every day.
An expert report was obtained from Dr Michael Shaw, Consultant Psychiatrist. His view was that the Claimant suffered from PTSD and severe, single episode depressive disorder, without psychotic symptoms.
The court was to consider whether the proposed settlement of damages, agreed between parties, was in the best interests of the Claimant.
The latest edition of the Judicial College Guidelines (16th edition) contains, for the first time, a separate section providing guidelines for appropriate awards for claimants who have suffered sexual and/or physical abuse. Chapter 4 (C) sets out three separate award brackets, ranging from ' less severe ' cases (£9,730 to £20,570) up to ' severe ' cases (£45,000 to £120,000) with ' moderate ' in between those two ranges.
The description given of cases where an award in the ' severe ' category should be made is where:
"…the injured person will have suffered serious abuse and/or severe and prolonged psychiatric injury. At the upper end, the abuse would have had serious effects on their ability to cope with education, work, and sustain personal and sexual relations. There may be elements of false imprisonment. Where, despite the seriousness of the abuse and problems caused, the prognosis is good, the lower end of the bracket is appropriate. The majority of cases in this bracket fall within the range of £55,000 to £90,000."
The Court found that the abuse suffered by the claimant was very serious noting that "the sustained abuse of a highly vulnerable child living with disabilities falls within the severe category."
The Judgment states "It lasted for months, and included both sexual and physical violence. The psychological and psychiatric consequences are also very serious. They remain with her. She has a grave psychiatric condition. However, with effective treatment and appropriate support, she is likely to recover.
The Court approved damages in the sum of £150,000.
Here we see damages being approved which exceed the 'severe' Judicial Guidelines bracket (£45,000-£120,000). It is unfortunate that the Judgment does not provide a reason for exceeding this bracket, although it is likely to be a result of the cost of ongoing treatment.
It is reassuring to see that the Courts are taking the new Judicial Guidelines seriously and applying the brackets appropriately to reflect both the extreme vulnerability of Claimants and the abhorrent nature of the abuse. The new Guidelines will provide clarity and certainty to both Claimants and Defendants.
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