piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Damages for abuse

The Claimant in KCR v The Scout Association [2016] EWHC 597 (QB) suffered sustained abuse by a Cub Scout Group Leader when a young boy in the 1980s. In 2003 the abuser was convicted of a large number of sexual offences against boys including the Claimant. As might be expected, given recent trends in this area of law, the Defendant admitted that it was vicariously liable for the abuser’s actions. The court was therefore concerned solely with the assessment of damages. The case had one feature that is depressingly common and one that is rather unusual. It is also, in more general terms, a helpful illustration of how courts may approach the difficult issues that cases of this kind throw up. It is often the case that victims of abuse are peculiarly vulnerable individuals. Sometimes this gives the abuser the opportunity to perpetrate abuse (for example, if a child is in care) or prevents the abuse being detected (because there is no-one the child can trust enough to confide in). The correlation (or at least frequent concurrence) of pre-existing vulnerability and abuse makes determining issues of causation in such cases difficult, because children who have experienced traumatic childhoods may already be destined to lead difficult adult lives in any event. In this case, the Claimant’s parents separated when he was four or five years old after his father had been violent towards his mother. He began using drugs in his teens and subsequently obtained his income principally from drug-dealing, with the exception of a few short-lived periods when he was in employment. He had a number of convictions for offences relating to drugs, firearms, dishonesty and violence.   The Claimant contended that he was entitled to a Blamire award for loss of earnings, past and future, on the basis that his inability to find sustained employment was a result of the abuse he had suffered. The Defendant accepted that the Claimant was entitled to general damages, but disputed the loss of earnings claim, contending that it was his “lifestyle choices” rather than the abuse that had prevented him being in sustained employment. The Defendant further contended that, even if factual causation was established, much of the Claimant’s loss should be deemed irrecoverable as a matter of public policy because it arose from the consequences of the Claimant’s own criminal conduct. After a careful analysis of the facts, the court preferred the Defendant’s case on causation. As a result, it did not have to go on to consider the application of the ex turpi maxim. It assessed general damages at £48,000 and dismissed the claim for aggravated damages with reference to Richard v Howie [2004] EWCA Civ 1127. The unusual feature of the case was that at the time he was subject to the abuse, and for some time afterwards, the Claimant and another boy effectively blackmailed the abuser when they realised they could demand from him rewards of money and material possessions in return for keeping quiet about the abuse. The Defendant contended that it should be given credit for the sums thereby extorted from the abuser by the Claimant. It was prayed in aid in support of this submission that the Claimant had himself described the payments in his witness statement to the police as “compensation”. Such a submission is so obviously unattractive that it is perhaps surprising that it was ever advanced and it is not at all surprising that it was rejected by the judge, who held (a) that the payments were gifts and hence could not properly be considered as compensation and (b) that as a matter of public policy the Claimant’s damages should not be reduced as the Defendant suggested. The judge reached the right conclusion, but for the wrong reasons. The payments were not gifts; they were, on the facts, part of a bargain between the Claimant and the abuser whereby the abuser sought to buy the Claimant’s silence so that he could continue to perpetrate abuse (of the Claimant and of others). The real reason the Defendant was not entitled to credit for the payments was that they did not relate to the subject matter of the claim, which was damages for the effect of the abuse on the Claimant in terms of pain, suffering, anguish etc. The abuser made the payments so that he could continue his abuse, not to compensate the Claimant for the effects of that abuse. Because the Defendant’s contention could have been dismissed for that reason, the resort to public policy was unnecessary and possibly unhelpful for future cases where the same or similar issues arise. There may be cases where it would be appropriate for a defendant to be given credit for payments made by an abuser. Suppose an abuser later repented of their abuse and wrote to their former victim expressing contrition for the harm they had caused and enclosing a cheque which the victim banked. Such cases are likely to be exceptional, but as and when they do occur then on what principle of public policy should a defendant who was vicariously liable for the abuser’s actions not be entitled to have that payment taken into account? There will be cases at the margins which will be difficult to decide, but the principle that should be applied remains whether the payments were genuinely compensatory or whether, as here, they were really the price that the abuser was willing to pay to avoid detection. A victim extorting money from an abuser may be unusual but it is not unprecedented. A case that sticks in the mind from criminal law lectures is R v Camplin (“the chapati pan case”) where the defendant murdered his abuser, who he had been blackmailing in return for not revealing the abuse of another boy called “Jumbo”: see the report from the Court of Appeal [1978] QB 254 at 257C. Many of the abuse cases currently working their way through the courts involve wealthy abusers who may have made payments to their victims. How to treat those payments is therefore an issue which the courts are likely to have to address again before too long.

Vicarious liability: extension, extension, extension

 “The law of vicarious liability is on the move” are the opening words to the opinion of Lord Reed in Cox v Ministry of Justice [2016] UKSC 10 (quoting Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56). The Supreme Court has handed down two judgments in the field of vicarious liability (Cox and Mohamud v WM Morrison [2016] UKSC 11) which continue to extend its scope. The five policy reasons for the vicarious liability relationship identified in the Christian Brothers case have effectively been narrowed to three in Cox - a case in which the Supreme Court found that the prison service was vicariously liable for the negligence of a prisoner working in a prison kitchen. In Mohamud the Supreme Court stuck to the articulation of the law in Lister v Hesley Hall [2002] 1 AC 215 but elaborated saying that the court has to consider (1) what functions or “field of activities” have been entrusted by the employer to the employee (a question to be approached “broadly”) and (2) whether there was a sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable. That broad approach meant that the employer of an attendant at a petrol station was vicariously liable for the attendant’s violent attack on the claimant on the petrol station forecourt. For more detailed analysis of these decisions see 1 Chancery Lane Personal Injury Briefing March 2016. Photograph courtesy of Freefoto.com                                                                 http://www.freefoto.com/thanks.jsp

A Head for Heights

  “… I was out in the garden with my stepladder today. Not my real ladder. I don't get on with my real ladder …” I was reminded of this old one liner when reading the latest instalment of the government’s Red Tape Challenge This is the revised guidance issued by the Health and Safety Executive (HSE) on working at height. This is now much simpler and sets out in clear terms what the law requires and the nature of an individual's responsibilities. It should be part of every personal injury lawyer’s tool kit. The new guidance is available free online: http://www.hse.gov.uk/pubns/indg401.pdf More than 1 million British businesses and 10 million workers are estimated to carry out jobs involving some form of working at height every year. The Work at Height Regulations (WAHR) 2005 (SI 2005/735) set out the law as it applies in Great Britain. These regulations have not changed. However key changes to HSE guidance include: Simple advice about the dos and don'ts of working at height. The dispelling of some of the persistent myths about health and safety law (Example – “I am working at height if I’m walking up and down a staircase at work. No, you are not. Work at height does not include walking up and down a permanent staircase in a building”). Targeted advice to help businesses in different sectors manage serious risks sensibly and proportionately. Helping workers to be clearer about their own responsibilities for working safely. The new guidance was produced with the support of various bodies including the British Retail Consortium, and the trade unions. It is also timely. Falls remain one of the biggest causes of serious workplace injury with more than 40 people killed and 4,000 others suffering major injuries every year. For lawyers, the guidance sets out clearly and informatively what employers need to do to protect their employees when they are working at height whilst at the same time making clear what can reasonably expected of employees to take responsibilities for their own safely. The emphasis is less on formal qualifications and more on competence. This means having the necessary skills, knowledge and experience for the work being carried out. Hardly new advice but a valuable reminder nonetheless!  

Vicarious Liability for Sex Abusers: Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2)

Just this morning, the Supreme Court has given judgment in the historic child abuse case of Catholic Child Welfare Society v Various Claimants (1) The Institute of Christian Brothers (2) [2012] UKSC 56. A fuller report will appear on the PiBlawg, no doubt in due course.     Lord Phillips, giving the sole judgement of the Court held that there are two stages in establishing vicarious liability: (a)    first whether the relationship between the abuser and the defendant was capable of giving rise to vicarious liability; and (b)   secondly examination of the connection that linked the relationship between them and the abuser’s wrongful conduct. Applying this test, the Institute, an unincorporated association, was vicariously liable for the acts of abuse committed by its members who worked in a school under a contract of employment with a third party.   This case may be of inadvertent pertinence in the coming years in light of what the Press suggest it likely to be a veritable avalanche of civil claims brought by victims of child abuse, brought in the wake of the allegations made against Jimmy Savile and others working at the BBC and other institutions. The nature of the employment is likely to be of paramount importance in such cases, especially in those where the alleged abuser is deceased and/or impecunious.   Lord Faulks QC and Alistair Hammerton of 1 Chancery Lane appeared for the Second Respondents.  

Vicarious liability - a whole new world

in JGE v The Trustees of the Portsmouth Roman Catholic Diocesan Trust [2012] EWCA Civ 938 the Court of Appeal explored the "new world" of vicarious liability outside of the strict confines of an employer/employee relationship.    The seeds of this extension to vicarious liability were sown in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005]. But once the "touchstone" of employment is no longer a requirement, how will the court decide whether there is vicarious liability?    The Court of Appeal were at pains to emphasise that a "close connection" between tortfeasor and the defendant was not either necessary or sufficient. There are plenty of very close connections that do not lead to vicarious liability - such as parent/child, or spouses.    Rather, the test is the extent to which the relationship is close enough as to be akin to one of employment. This requires looking at the hallmarks of the employer-employee relationship. The Court of Appeal considered that the "control test" set out in Ready Mix Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497 had become an unrealistic guide as times had changed and the emphasis on control had been relaxed. The Court of Appeal examined the authorities and attempted to distil them into a single sentence:   "an employee is one who is paid a wage or salary to work under some, if only slight, control of his employer in his employer’s business for his employer’s business. The independent contractor works in and for his own business at his risk of profit or loss."   The Court of Appeal analysed the relationship between a priest and the bishop as follows. Although they depend very much on the particular facts of this case, the way the court examined them is very useful:-   a) The bishop had some control over the priest: he could supervise and effect improvements in performance, and eliminate risks of harm to others.  b) The priest was integrated into the church organisation and structure.  c) The priest's remuneration was more like a wage than being in business on his own account.    The result was that the role of priest was akin to being an employee and that the Defendant was vicariously liable for his conduct.    The significance of this decision comes from the fact that the labour market is in the process of structural change. More and more people have new, flexible forms and patterns of work which are very different to the traditional dichotomy of employment or self-employment. Health and safety regulations take account of this in many cases. And now the law of vicarious liability seems to have caught up. 

Employee, or not an Employee: that is the question

EL v Children’s Society [2012] EWHC 365 (QB) On 24th February 2012 the decision in EL v Children’s Society was handed down. Whilst it is a first instance decision, the judgment of Haddon Cave J is a useful and interesting read in regard to whether or not acts are carried out in the discharge of employment obligations. The Claimant claimed damages for the sexual abuse he had suffered in childhood whilst living in a children’s home run by the Defendant charity. The Claimant had been taken into the Defendant Charity's care and had lived at the home for various periods between 1949 and 1959. In 2008, he contacted the Defendant complaining that, between 1956 and 1959, he had been sexually assaulted by the House Parents' son. The Claimant contended that the House Parents had entrusted the running of the home to their Son when they were out, and also entrusted specific tasks to him. He submitted that the House Parent’s son had therefore (i) been used to discharge the Defendant's obligations towards the children in the home, (ii) that the Son’s abuse was closely connected with his role at the home and (iii) that, notwithstanding the absence of a formal employment relationship, those circumstances gave rise to vicarious liability on the Defendant's part for the Son's torts. The Claimant failed on the facts in his claim against the Defendant charity. On the evidence, the House Parents’ Son had never been left in charge of the home, whether formally or informally, and he had never been engaged by them to act as their relief at the home at any stage or on any occasion. The Claimant accepted that on each of the occasions when abuse was committed the House Parents were also present in the home. The Son was at the home only because he happened to be the House Parents' son. In so far as he had used his "position" to commit acts of abuse, it was his status as the House Parents' son which gave him an "air of authority" and nothing else.