Court awards damages exceeding £1.3 million

The decision in A v Glasgow City Council

The Court of Session has delivered its judgment in A v Glasgow City Council in relation to damages for historic abuse suffered at the hands of a foster carer between 1983 and 1988. The court has awarded damages exceeding £1.3 million plus interest to be assessed. 

On 13 February 2019, the abuser was convicted of various offences including sexual assaults occasioned on the pursuer. The pursuer received £22,600 from the Criminal Injuries Compensation Authority in relation to the abuse. The pursuer was aged 50 at the date of proof.

It was admitted that the council were vicariously liable for the consequences of the conduct of the foster carer, known as WQ. The court accepted the pursuer’s evidence that he was “consistently seriously abused” by WQ including sexual abuse and daily threats of physical violence. The pursuer was found to be a reliable and credible witness.

The pursuer gave evidence that he achieved well at school and would have gone to university but for the abuse. He gave up a place at college and in the period thereafter was “just trying to survive”. Notwithstanding this, he obtained stable employment in operational management in a role advertised for ‘graduate job changers’ but this work was also impacted by his experiences of flashbacks and intrusive thoughts, and he had sporadic periods of unemployment. His continuing flashbacks were an impediment to his ability to obtain employment.

The court considered the pursuer’s history and found that he had suffered parental neglect prior to entering a children’s home at the age of 21 months and subsequent periods in foster care. It was accepted that this history predisposed him to psychiatric/psychological sequelae but, on balance, there was no evidence of causation and the court found that subsequent psychological/psychiatric illnesses should be attributed to the abuse sustained at the hands of WQ. As a result, the court was “satisfied on the balance of probabilities that the difficulties experienced by the pursuer in both his personal life and in relation to employment have been proved to be causally linked to the CSA perpetrated by WQ”.

Solatium was awarded in the sum of £135,000, of which £90,000 related to the period of abuse, £25,000 in respect of the psychological disorders from the end of the pursuer’s residence with WQ, and £20,000 for future psychological symptoms.

The court considered that there was sufficient evidence upon which to assess wage loss rather than making a lump sum award. Past wage loss was awarded in the sum of £584,874, future wage loss £370,561, pension loss £240,000 and treatment costs of £8,750.

Commentary

The Redress for Survivors (Historical Child Abuse in Care) (Scotland) Act 2021 received Royal Assent on 23 April 2021, but the empowering provisions of the Act are not yet in force. It is however, anticipated that the Act and the scheme will be fully in force by 1 January 2022.

The redress scheme payment amounts continue to be criticised by Survivor Groups, as the payments under the scheme are substantially lower than court awards and the A case highlights this disparity.  The scheme provides for 3 payments; a fixed rate payment of £10,000, an individually assessed payment of the fixed rate payment plus a further sum of £10,000, £30,000, £50,000, £70,000 or £90,000, and a next of kin payment of £10,000. 

A recently revised financial memorandum from the Scottish Government predicted an estimated average redress scheme payment of £35,500, with 85% of the payments expected to exceed the £10,000 fixed rate payment.

As Qualified One Way Cost shifting has finally arrived in Scotland (since 30 June 2021) alleviating most of the risks upon pursuers of being found liable in expenses of an unsuccessful action, many individuals eligible to claim under the scheme may be minded, or indeed encouraged to proceed with civil litigation, given the significant difference in compensation awards.