This first instance represents a further important development in the law governing personal injury claims for historic sexual abuse.
The claimant, MG, who was 43 at trial, had been a pupil at the Canterbury RC High School (the second defendant). Thomas Street (the first defendant) was employed at the school as a German teacher. On 13th January 2014 Street pleaded guilty to 5 counts of indecently assaulting the claimant. He was sentenced to an 18 month suspended sentence. The abuse, which HHJ Smith found to be at the lower end of the scale for the purpose of the judicial sentencing guidelines, consisted of massaging the claimant when he was in his underwear and, on at least one occasion, lying on top of the claimant when Street was also dressed only in his underwear. Despite the low level of this abuse the claimant sought to recover loss of earnings in excess of £500,000. His case was that as a result of the abuse he had misused illegal drugs, principally heroin, until 2013, when he had successfully undergone a detoxification programme. While misusing drugs the claimant had led a chaotic life style; he had been unable to hold down any permanent job or successfully complete two university courses, for periods he had been homeless. He sought a calculated award for past and future loss of earnings based on the assertion that but for his drug use he would have been a teacher.
While admitting that the abuse covered by the convictions had occurred the School raised a limitation defence, arguing that it was prejudiced in having to meet and investigate such a large claim in damages more than 25 years after the abuse had occurred. It also submitted that the claim for loss of earnings was irrecoverable. The claimant’s use of drugs was illegal and so, as a matter of public policy, he was not entitled to any benefit or to recover any loss that flowed from it. Alternatively, the claimant’s decision to take drugs was so unreasonable that it broke any causal connection with the abuse. Street, who was unrepresented at trial, did not advance a limitation defence and so the judge was required to make factual findings and consider the case in damages against him irrespective of any decision on limitation relating to the School.
The School’s limitation defence succeeded. Despite its admission of vicariously liable for the abuse the judge did not exercise his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period. He held that the delay did mean that the School was prejudiced in meeting the very large claim for loss of earnings. In reaching this decision he relied upon the judgments in the Court of Appeal of RE v GE  EWCA Civ 287 and Bowen and the Scout Association v JL  EWCA Civ 82. Importantly, when determining limitation, he made factual findings about the reliability of the claimant’s evidence. While accepting that the claimant was “a man of integrity”, given the passage of time, the judge held that he could not rely upon his unsupported account. Applying the Court of Appeal’s decision in Bowen this meant that in the absence of other evidence, which was absent, the judge found he could not fairly try the claim for loss of earnings.
When considering the claim against Street the judge accepted the School’s submissions that the claimant could not recover the lost earnings which flowed from his misuse of heroin and other illegal drugs. In arriving at this decision he held that “claims arising from sexual abuse did not form a special category of claims in which different considerations apply” (§70) and so approached the question as he would have in any other personal injury claim. Relying on McKew v Holland & Ors  HL 20, Smith v Youth Justice Board for England and Wales  EWCA Civ 99 and Rahman v Arerose Ltd  QB 351 the judge found that the use of illegal drugs was an unreasonable choice by the claimant which prevented recovery of losses arising from that use.
Perhaps more significantly the judge also accepted the School’s public policy argument. He considered both of the recent decisions of the Supreme Court in Hounga v Allen  WLR 2889 and Patel v Mizra  UKSC 42 but found that, in a tortious rather than contractual claim, neither altered the test set out by Lord Hoffmann in Gray v Thames Trains Ltd  1 AC 1339, “you cannot recover for damage which is the consequence of your own criminal act”. Applying that test the judge held that, “The Claimant’s loss of earnings were caused by his own criminal act in using drugs. They were not caused by Street’s conduct”. Despite finding that the approach in Gray was still good law the judge went on to consider the public interest test set out by Lord Toulson in Patel. Applying that test he came to the same conclusion, “Denial of the claim is a proportionate response to the illegality”.
In assessing damages against Street HHJ Smith dismissed the entirety of the claim for special damages and awarded general damages of £15,000.
This decision has two important lessons for those involved in claims for personal injury arising from historic abuse. First, where there is a significant claim for special damages it cannot be assumed that even if liability is admitted the limitation period will be disapplied. This may lead those advising claimants to exercise some caution when pleading extravagant ‘but for’ claims for loss of earnings. Second, a claimant will not be able to recover special damages where that loss flows from his or her illegal activity, including misuse of illegal drugs.
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Adam Weitzman QC was instructed by Ceri-Sian Williams of Browne Jacobson Solicitors.