KCR v The Scout Association

In assessing damages for historic sexual abuse, the court must distinguish the abuse itself from its later consequences. Both the physical abuse and psychiatric injury caused by it are compensable. The claimant bears the burden of proving the causal link between the abuse and each alleged loss.

Loss of earnings is not recoverable where the evidence shows that unemployment resulted from voluntary criminal conduct, drug dealing or convictions rather than the abuse. Therapy costs require proof that treatment is likely to be undertaken and beneficial. Injury to feelings arising from an assault forms part of ordinary general damages; a separate award of aggravated damages is reserved for a wholly exceptional case.

The claimant sought damages from The Scout Association, which admitted vicarious liability for serious sexual abuse committed by a Cub Scout group leader during the 1980s. Judgment had previously been entered for damages to be assessed. The assessment concerned general damages, psychiatric injury, past and future loss of earnings, handicap on the labour market, therapy costs, aggravated damages and alleged credit for benefits received from the abuser.

The central issues were the extent and consequences of the abuse, the reliability of the claimant’s evidence, psychiatric causation, and whether the claimed losses were caused by the abuse or by the claimant’s subsequent choices and criminal conduct.

1. General approach. The claimant had to prove that the abuse caused the alleged effects on education, personality, relationships and employment. The court assessed the nature, severity and duration of the abuse, its immediate consequences and any long-term psychiatric harm.
2. Findings on causation. The court accepted that the abuse was more frequent and extensive than the abuser’s records suggested, including some digital penetration and analingus. It found no impairment of education or earning capacity caused by the abuse. Drug use, drug dealing, offending, relationship violence and resulting convictions were matters of personal choice or consequences of the claimant’s dissocial personality disorder and substance misuse.
3. Psychiatric injury and therapy. The court rejected the diagnosis of chronic post-traumatic stress disorder on the evidence. The only psychiatric illness proved to have resulted from the abuse was an adjustment disorder during the police investigation between December 2002 and late 2003. No therapy award was made because the claimant was unlikely to engage consistently and the treatment was unlikely to benefit him.
4. Aggravated damages. Applying the guidance in Richardson v Howie [2004] EWCA Civ 1127, injury to feelings was included in ordinary general damages. The circumstances did not approach the wholly exceptional case warranting a separate aggravated-damages award.
5. Assessment and disposition. Taking account of the claimant’s young age, the duration and frequency of the abuse, the breach of trust, the involvement of other children and the adjustment disorder, the court awarded £48,000 for pain, suffering and loss of amenity. No sums were awarded for earnings, labour-market handicap, therapy or aggravated damages. Benefits received from the abuser were treated as gifts and did not reduce the award.

First-instance assessment of damages following judgment entered on 10 April 2015 for damages to be assessed. No appeal history was stated.