Challenges in pursuing compensation in abuse claims

Challenges in pursuing compensation in abuse claims

money (2)What does the decision in KCR v Scout Association tell us about the court’s approach to compensation claims in respect of historic abuse? David McClenaghan, a partner and solicitor-advocate at Bolt Burdon Kemp specialising in child abuse compensation claims, believes this case highlights the growing difficulties facing claimants and the lengths defendants will go to to frustrate claims.

In KCR v Scout Association [2016] EWHC 587, the Queen’s Bench Division, in a case where liability was admitted in respect of historic sexual abuse by a scout camp leader, heard evidence in respect of the amount of an award of damages for the claimant who had been one of the victims. The court allowed an award for pain, suffering and loss of amenity but rejected any award for past or future loss of earnings, for handicap on the open labour market or for therapy and gave no separate award by way of aggravated damages.

What issues did this case raise? Why is it significant?

While liability was admitted in this case at an early stage, the defendant disputed:

  • the extent of the abuse suffered by the claimant
  • the psychological impact of that abuse, and
  • the losses which the claimant had suffered as a result of the abuse

During the period of the abuse itself, the abuser had presented the claimant with gifts and money, which is all too common in these claims as part of the grooming process. An unusual feature of the claim was that the abuser continued to provide the claimant with money and gifts even after the abuse came to a conclusion and well into adulthood. At trial, the defendant raised the additional argument that these gifts amounted to ‘compensation’ for which the claimant should give credit. They argued that these gifts and money essentially meant that the claimant had already been partly compensated for the abuse.

What did the court decide?

The court accepted that the abuse in this case was severe and prolonged but came to the conclusion that the psychological injury suffered by the claimant as a result of the abuse was not significant. Prior to trial, the defendant had made two relatively low offers to settle the claim which were not acceptable. The sum awarded to the claimant by the court, £48,000 plus interest, exceeded the defendant’s offers and the claimant was therefore successful at trial. Furthermore, the court, rightly, concluded that the gifts received by the claimant during the course of the abuse were just that and therefore the claimant’s compensation should not be reduced to give credit for these.

How does this fit in with other developments in this area? Do you have any predictions for future developments?

Unfortunately, claimants face growing hurdles in bringing claims for childhood abuse—from overcoming limitation to establishing liability and causation—and this case makes it clear that defendants will continue to conjure up arguments to prevent the claimants from succeeding in their claims, even if these are as unsavoury as the argument of ‘double recovery’ raised here. What this case also highlights, however, is that claimants who suffer sexual abuse but are largely psychologically unaffected by the abuse, are still entitled to substantial amounts of compensation for the abuse itself.

There is a trend of damages in child abuse compensation claims increasing and this shows no signs of abating. This case involved prolonged abuse but it was not at the most serious level (ie rape/buggery) and the claimant suffered only a minor psychiatric injury. Despite this, the claimant was awarded substantial damages.

It was also important for claimants that the defendant’s argument that the claimant had already received compensation (through the gifts and money received from his abuser) was dismissed.

David McClenaghan joined Bolt Burdon Kemp in 2010 and has successfully brought claims on behalf of clients who have suffered abuse at the hands of Scout leaders, Boys’ Brigade Captains, clergymen (Roman Catholic Church, Church of England, Church in Wales, Evangelical Church), youth club leaders, teachers, sports coaches, foster carers, care home staff and family members.

Interviewed by Lucy Karsten. 

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

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