The Court of Session has handed down a judgment in a claim for historic abuse and provided further guidance on several areas, including divisibility of psychiatric injury in abuse claims and the approach to be taken to quantification of consequential losses.
The pursuer, F, originally sought damages from five defenders relating to two distinct chapters of abuse. (The first chapter concerned abuse by a parish priest while F was a pupil at primary school. The second chapter of abuse was alleged to have occurred at boarding school). At proof, the case proceeded against the second defender only in respect of the first chapter of abuse.
F had been diagnosed with Complex Post-Traumatic Stress Disorder (CPTSD) and claimed for general damages and consequential losses as a result of the abuse, including past and future wages loss, pension loss and treatment costs.
The matter called in front of Lord Clark.
The parish priest had been convicted of serious sexual assaults against F. There was no dispute that the abuse had taken place. The key issue for the court was the extent to which other factors in his life beyond the abuse at primary school, having regard to whole circumstances, including the allegations of physical and serious sexual abuse at boarding school as well as other adverse life experiences suffered by F.
F’s allegations had developed over time. At proof, there were significant problems with F’s evidence to the court. For example, he had given previous accounts of serious sexual assault at his boarding school. In evidence, F denied that this had happened. As a result, there was a real difficulty drawing conclusions from his evidence alone.
It was largely accepted by the medical experts that F’s varying accounts made attribution of harm to each event challenging. However, medical experts agreed that the injury suffered by F was multifactorial.
The question for the court was attribution of harm and how the losses should be assessed as a result.
F sought to argue that the abuse at primary school had materially contributed to CPTSD. Therefore, the defender should be liable for that injury and the entire resulting loss.
They considered that full losses should be assessed on a multiplier multiplicand basis. This total figure should then be, where appropriate, discounted for other factors.
In relation to special damages, F argued that absent the abuse at primary school, he would have worked consistently until retirement. Accordingly, a substantial award for loss of past and future earnings would be required together with pension loss.
The defender’s position was that there were numerous other adverse life experiences over the last 50 years that had contributed to the development of CPTSD.
While the abuse at primary school and the abuse perpetrated at boarding school were the most significant contributors to the pursuer’s CPTSD, they were of equal causal significance, a reasonable estimate of the causal potency of each being 35% to 40%, respectively. In addition, the multifactorial nature of the injury made a multiplier multiplicand approach to special damages impossible.
The Interest on Damages (Scotland) Act 1958 empowers the courts in Scotland to award interest for any period between the date when the right of action arose and the date of the court decree (i.e. award). The rate of pre-decree interest is at the court’s discretion.
The parties differed as to the appropriate approach in relation to calculating interest.
The defender contended that the court ought to exercise its discretion and argued that but for the removal of limitation by virtue of the 2017 Act, the claim could not have been made. In addition, having regard to actuarial evidence demonstrating the likely consistent investment return, the interest rates in JM v Fife Council overcompensated.
The pursuer submitted that the court should follow the guidance of the Inner House in JM v Fife Council, awarding interest from date of incident. In addition, alternative investment options justified the rates applied in JM v Fife Council.
In relation to causation, Lord Clark held that: “The onus of proof is on the pursuer and he will succeed if he can prove that the delictual acts made a material contribution to his disability. However, if it is raised in evidence that factors other than those for which the defender is liable contributed to the injury, the defender is only liable for the relevant proportion which the delictual acts made.
“The diagnosed form of psychiatric injury suffered by the pursuer is CPTSD, which as the experts and parties agreed is multifactorial. It is therefore a divisible injury and it is for the court to assess the levels of contribution to this injury by the three main causes: the abuse at [primary school; the abuse at boarding school]; and the various other adverse factors”.
In relation to special damages, ascertaining how long the pursuer could properly have worked was very difficult. The judge observed that F’s work history was interrupted because of psychiatric injuries arising from the abuse and the other adverse experiences.
Taking the abuse at primary school out of the equation, F would not have had so many interruptions, but undoubtedly still would have had some interruptions caused by other issues.
Lord Clark noted that: “It is quite clear, including from parts of his own evidence and what he said to others, that the abuse at [boarding school] had a serious impact on him and would have continued to do so during his working career… he may well have managed to do more work… but when and at what rate cannot be determined and so again it is not possible to reach any accurate arithmetical figure”.
Accordingly, a Blamire/broadbrush approach was appropriate.
In relation to interest, his lordship noted that: “the court has a wide discretion in terms of the rate of interest to be applied and the period over which such interest accrues”.
In his view, only allowing interest to run from the 2017 Act would interfere with the wide discretion of the court. Having heard the actuarial evidence, he was not minded to assess interest rates on a specific and limited basis. However, he did not consider that interest should be assessed on the basis of a highly volatile investments which could result in significant gains.
He concluded that the same approach in JM v Fife Council should be applied.
Consequential losses can have a significant impact on the level of award, especially in Scotland. In particular, whether the court chooses to award a lump sum or assess losses on a multiplier/multiplicand basis.
A multiplier/multiplicand approach requires arithmetic accuracy. This approach is not appropriate where the court requires to assess the trajectory of a claimant’s life over several decades. The court is unable to predict accurately how an individual’s life might have turned out. There are bound to be several imponderables in life that must be factored in.
In this case, the court found that the best way of taking account of life’s uncertainties was the Blamire approach and awarded damages accordingly.
The decision in F provides helpful guidance and further demonstrates that courts in Scotland will seek to adopt consistent approaches on divisibility of injury and consequential losses.
Author: Laura Baxendale Partner was instructed on behalf of the second defender.
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