Most sex abuse claims are settled out of court. Trials are expensive and stressful for the participants, so the parties usually negotiate a settlement. However, you cannot assume that the other side will take a sensible approach, and if they refuse to do so then the inevitable destination of any claim is a courtroom. As lawyers, we talk to our clients about trials and we plan the conduct of our cases according to the principles that are likely to be applied at trial. But what does going to trial actually involve? How does a court look at the issues in a sex abuse trial?
One of the leading sex abuse compensation trials was the case of C v D. The claimant’s barrister in that trial was Justin Levinson, a barrister we instruct ourselves in sex abuse cases. To give our clients a taste of what goes on at trial and the particular way in which judges and courts dissect and analyse the legal issues, we have prepared this short case study:
The case of C v D involved a claim for compensation brought by a victim of sex abuse, who was abused as a boy by the headmaster of the school he attended. The person bringing the claim is known as the ‘Claimant’ or “C” for short. There were two defendants. The second defendants ("D2") were the trustees of an abbey that was responsible for two day schools for boys, a junior school and a senior school, both of which were operated in accordance with the ethos of the Roman Catholic Church. The headmaster of that school, a Catholic priest, was the first defendant (“D1”). The claimant was a pupil at the junior day school from 1989 to 1993. C claimed compensation from D1 alleging that he sexually abused him whilst at the junior school. The claim against D 2 was brought against them as the employer of D1 on the basis that they were “vicariously liable” for the abuse he committed.
The Compensation Claim
C’s claim was for compensation for:
a) mental distress,
b) disadvantage in the labour market,
c) being denied financial support by his parents once he had left school.
He alleged the abuse had a devastating effect on him, and had turned him into a troublesome and aggressive young man. This led to him falling out with his parents and losing their financial support. It also delayed his education and the commencement of his professional career.
The Allegations of sex abuse
The allegation of abuse were broadly classified as follows:
1. Occasions when D1 touched C’s genitals whilst drying him with a towel after swimming
2. An occasion when D1 videoed C and other members of his class whilst they were taking a shower
3. Two occasions when D1 sexually assaulted C while they were alone in the school infirmary.
D1 adamantly denied most of the allegations, but did admit that he videoed C and his classmates in the shower.
C gave evidence on his own behalf and called a psychiatrist to give expert evidence on his psychiatric history and present condition. C's school reports and medical records were also put in evidence. The court was told that C had been so upset about what D1 was doing to him he tried to take his own life. Although C was later removed from the school, and therefore from the abuse, C’s behaviour got progressively worse and he began to drink. By the age of 18 he was drinking a bottle of whisky a day. Although he had made good academic progress he did not continue with a college course and he drifted for some time until he had a breakdown. He contemplated suicide, heard voices and had hallucinations. Eventually he improved enough to begin an honours degree and get his life back on track. He felt able to visit the junior school and tell the Abbot he had been sexually abused by D1. The Abbot told C that he had heard rumours about D1 and of his reputation. C was angry to be told that the school had been aware of D1's behaviour but had done nothing about it. He therefore decided to report his complaints to the police and to bring a civil claim. At trial C was accused of bringing the claim because he regarded D1 as an “easy target” and because he wanted to take revenge on his parents by attacking the Catholic Church.
D1 told the court he was ordained as a priest in 1975 and became headmaster of the junior school in 1984. He said that his sexual orientation was “fairly neutral” and he was not attracted to males or females. He wasn’t aware of any rumours about him in the school. He denied touching C inappropriately whilst towelling him dry or assaulting him in the infirmary. He said that when the school purchased a video camera he used it to record a "video diary" of events such as sports days, concerts, plays and special assemblies. This included a record of the building of the new Sports Hall. Soon after its completion he videoed C's class in a PE lesson which included video of some of the boys in the showers.
"Similar Fact" evidence
C relied on allegations of sexual abuse made by three former pupils of the junior school against D1 as what lawyers call "similar fact" evidence. These allegations first came to C's attention when he made his civil claim. None of the boys were called to give evidence at the trial. Although such evidence has to be handled with care, D1's admission that he touched one of the boy’s genitals strongly suggested to the judge that D1 did have a sexual interest in boys and must have realised that touching them was wholly unjustified. Similarly D1 admitted watching a boy shower on an Austrian holiday.
Who was telling the truth?
The judge said he found C to be “an entirely convincing, reliable and credible witness”. He accepted it was difficult for him to talk about the allegations of sexual abuse, but his evidence “had the ring of truth". By contrast the judge found D1 to be an unconvincing witness, describing his evidence as lacking “spontaneity” and being “carefully rehearsed”. The court therefore concluded that C was telling the truth.
The medical evidence
Before a court can award compensation for non-physical injuries it needs to be convinced that a formal psychiatric injury has been caused. C’s psychiatrist confirmed that C was suffering from Anti-social Personality Disorder, primarily caused by the abuse. D1’s expert disagreed with the diagnosis. The judge preferred the opinion of D1’s expert that C was not suffering from ASPD, but was nevertheless satisfied that C was suffering from mental abnormality.
Causation and apportionment
The judge ruled that for C to be compensated for his mental abnormality he had to show that the abuse had made a “material contribution” to his condition. If it had done so then he would need to apportion the damage caused by abuse and that caused by other factors on a “common sense” basis. The actionable abuse practised on C by D1 was described by the judge as ”mild” when compared to more serious abuse the courts see. There were also other factors that would have contributed to C's mental state. Nevertheless he concluded that the abuse had indeed made a material contribution to C's mental condition and C would therefore be entitled to receive compensation.
Compensation for Psychiatric Injury
Although the judge accepted C had been through a period of painful mental abnormality his prognosis was good. Furthermore the actionable abuse was only one of the causes of the injury. C was therefore awarded £20,000.
Compensation for Loss of earnings/Disadvantage in the labour market
C claimed that “but for” the abuse he would have settled into a degree course earlier, so the abuse had caused him to graduate four years later, thus shortening his professional career (and his earnings) by four years. However, the judge was uncertain when C would have graduated “but for” the abuse and adopting what he called a “common sense approach to apportionment” he awarded C £15,000 for his lost earnings.
Cost of treatment
The judge acknowledged C would require private psychotherapy treatment and awarded him £3,000 for that cost.
Loss of support
Because of the breakdown in his relationship with his parents C did not enjoy their financial support through college. However, again the judge pointed to the uncertainties, awarding £5,000 for the loss of their support.
Vicarious Liability of D2
D2 was found to be “unquestionably vicariously liable for the abuse D1 inflicted on C”. C therefore obtained judgement against both defendants for £43,000.
This case demonstrate how the emotion of a sex abuse case is put to one side at trial while legal principles are applied. The court will approach a case like this on a logical step-by-step basis, looking in turn at the nature of the breaches alleged, the evidence to support those allegations, the expert medical evidence, whether there is a causal link between the breach and the injury/loss alleged, and any apportionment due to other unrelated factors. Only when satisfied that the case had been proved and that actionable abuse had been suffered did the judge then turn to assessing the amount of compensation it would be appropriate to award. The compensation award itself is broken down into various categories of loss and it is evident just how subjective this process is with the judge himself referring to the use of common sense principles.
For guidance on claiming compensation for sex abuse or exploitation call our Free helpline in confidence on 0808 1391597 or email a member of our team.