Historical Sexual Abuse - The Impact of Illegal Conduct on Claims for Damages

Article

03 October, 2018

Claims for damages as a consequence of abuse show no signs of abating and remain a significant expense to Local Authorities. Claims for damages are often based upon an argument by the victim that the abuse they suffered has directly contributed to difficulties in their lives, such as, loss of earning potential.

M.G. v (1) Thomas Street & (2) The Governors of St Augustine of Canterbury RC High School (2018) is the first case to consider the impact of illegal conduct of the claimant, allegedly arising from the emotional impact of the abuse, on their claim for damages.

The claimant, MG, was abused by his German Teacher when at school. As an adult, MG, brought a claim for damages against both the Teacher and the school. The claim was defended by the Local Authority on behalf of the school. MG claimed that the abuse suffered by him directly contributed to a chaotic lifestyle that included illicit drug misuse between 1993 and 2013, leading to him being unable to secure long-term employment until 2013.

The question therefore arose as to whether an illegal act (illicit substance misuse) that led to a failure to obtain long-term employment (and therefore a loss of earnings) rendered the claim for loss of earnings void on the grounds of illegality.

The defence of illegality, and its impact on claims for damages has been considered by the courts on numerous occasions and most recently by the Supreme Court in the case of Patel v Mizra [2016] UKSC 42. In applying the principles from Patel, HHJ G Smith held: "in my judgment, claims arising from sexual abuse do not form a special category of claims in which different considerations apply. It is therefore highly persuasive that in all cases of which I am aware in which the issue has been considered by the court, the same decision has been reached." Accordingly, the claim for loss of earnings against the school was dismissed as the loss was caused by the use of illegal drugs and not the abuse suffered.

Forbes comment

Although this is only a County Court judgment, the case is significant as it is the first historic sexual abuse claim against a Local Authority to consider illegality of illegal drug use on the part of the claimant. Local Authorities should be aware of this case and consider its impact upon ongoing or future claims for loss of earnings.

It is also worth noting that HHJ G Smith drew a distinction between the use of legal substances to manage the emotional impact of abuse and the use of illegal drugs. He stated: "Where an injured party turns to a legal substance to deal with distress caused by a tortious act, then on the face of it such conduct would not be unreasonable." This begs the question, that if MG had turned to alcohol only and it could be proven that this was as a result of the abuse, and it could be proven that this affected his employment prospects, potentially his claim could have succeeded.

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