Lord Menzies issued his opinion in the case JM v Fife
Council on 18th January 2007. This is the first Scottish
decision dealing with the issue of damages in historic child abuse
cases. It also dealt with the issue of interest, and specifically
whether or not interest should follow the usual rule in Scotland
and be awarded from the date of the abuse/injury, or whether the
Court should use it's discretion, and award interest from a later
date.
There has been a spate of recent decisions concerning historic
child abuse cases centering on the issue of timebar. This, of
course, is one of the few legal arguments that can be run in
connection with these types of cases. These arguments can be
successful in knocking out a claim of this nature as the recent
cases of AB & ors v Sister Bernard Mary Murray & ors (2
June 2005) and MP v Sister Zoe O'Neill (16 June 2006)
aptly illustrate. In the present case, however, a decision was
taken pre-litigation to admit liability, and forego the right to
argue these points. The only issue, therefore, was quantification
of damages.
Factual Position
The pursuer was taken into care from birth, and for the first 6
years of his life lived with foster carers. When his foster mother
fell ill, he was placed in a Children's Home, owned and operated by
Fife Council. At some point in 1960 David Murphy came to work at
the home, and in October 1961 the house parents in charge retired,
and David Murphy took over. He began sexually abusing the pursuer
in mid June 1961, when the pursuer was 8 years old.
Evidence was led from the pursuer in relation to the abuse, and
the effects that had on him. Evidence was also heard from his
ex-wife, with whom he remains on good terms. It was held, having
heard this evidence, that the abuse lasted until September 1966,
when the pursuer left the home to go to foster parents. He was 14
years old. The evidence in relation to the abuse was not challenged
by the defenders, and is described by Lord Menzies as being at the
worst end of the scale, and as akin to torture.
It is also clear that the pursuer raised the issue of his abuse
with Fife Council in 1970, he also gave a full statement to the
Police in 1971. He further conceded that he had discussed his abuse
with a number of doctors over the years. He had told his wife. In
cross examination it was accepted that in spite of the horrific
abuse that he had suffered at the hands of David Murphy, he had
made a real success of his life, both in terms of his work, and his
family.
Damages
The pursuer sought damages for solatium only. This related to
the immediate injury of the abuse itself, and the enduring
emotional, social and psychiatric sequelae. No expert psychiatric
evidence was led with regard to the pursuer's mental health, and
the effect that the abuse had on it. The pursuer gave evidence of
depression, and it was argued that if the defenders wanted to
suggest that this had not been caused by the abuse it was for them
to adduce the evidence. The pursuer sought an award of
£175,000.
The defenders sought an award of between £35,000 £50,000, which
was in line with English decisions. They argued that without expert
evidence the pursuer had not addressed the issue of his mental
health, and whether it was connected to the abuse. The court could
not, therefore, take this into account.
Lord Menzies noted that a number of factors had to be taken into
account when considering damages. These covered such things as
nature and severity of abuse; age of the child; and frequency and
duration of abuse. The immediate effects on the pursuer also
require consideration, along with the emotional and social
consequences, and any psychiatric condition suffered.
Whilst the majority of the factors in this case could be judged
to be extreme, and indicative of a high award, the later two
mentioned pointed to a lower award. The pursuer had achieved a lot
in his life in spite of the abuse, so the emotional and social
sequelae were not as pronounced as in other cases. He also held
that in the absence of expert opinion any psychiatric illness could
not be considered. He awarded £75,000 which was to be considered at
the high end of the scale. If psychiatric illness had been proved,
the award would have exceeded £100,000.
Interest
The pursuer asked the court to award interest on damages from
the date of the injury. The injury was the physical abuse. This
would equate to the full judicial rate for a period of just over 40
years. The defenders argued that the Interest on Damages (Scotland)
Act 1971, allowed the court discretion to move away from that rule,
particularly if there has been inordinate delay. In this case as
there was no explanation by the pursuer as to why he had not raised
a claim earlier, when he had raised it with other bodies, use of
the discretion was justified. Interest was awarded from date of
citation (June 2002), at the full judicial rate.
Implications of The Decision
The decision is interesting, in terms of offering guidance to
insurers in connection with awards in this field. However, Lord
Menzies was careful to emphasise that each case must be considered
on its own merits. It is most helpful for it's attempt to cap
awards at a level far below that sought by the pursuer. His
Lordship's indication that this award is at the top end of the
scale, will hopefully make pursuers agents take a more realistic
approach when it comes to settlement.
The decision in relation to interest is also fairly case
specific, but does send out a message that the judiciary will
exercise their discretion in relation to interest, particularly
where an award in the usual fashion would be unduly punitive. The
issue of knowledge on the part of the pursuer is, however, crucial,
and therefore this might simply lead to S19A constructive knowledge
arguments being run again at proof. That notwithstanding in most
cases where psychiatric harm is plead, the date of injury, and
therefore the date from which interest can be sought, is the date
of onset of the psychiatric injury. This is usually some time after
the physical abuse has ended. Therefore, the extended period over
which interest was sought in this case may be a fairly rare
occurrence, and the general application of this aspect of the case
not as far reaching as the determination on solatium.
Kate Shaw / Katy Nisbet