On 21 August, Deputy Master Marzec handed down judgement in IMX v L [2024] KB-2023-002083. It is the second published judgement in an abuse claim since the publication of the 17^th edition of the Judicial College Guidelines (JCG) and it highlights some interesting features with regards to the assessment of damages as well as the protection of vulnerable witnesses.

The claimant (IMX) sought damages for her claim for sexual abuse, which had been perpetrated on her by the defendant (L) when she was aged between eight and 12. IMX was 60 years old at the date of the trial. L had been convicted in June 2021 of 16 occasions of sexual assault by touching, as well as one count of indecent assault by digital penetration, and had been sentenced to five years and four months' imprisonment. L had just been released from prison at the time of the hearing to assess damages in July 2024. L was in attendance but not legally represented in the claim.

L was IXL’s stepfather and she and her brother moved to live with L after their mother married him in 1972. IXL’s family life up until she moved to live with L was described as normal. 

IXL recounted how frightened, confused and anxious she was because of the abuse and how this led to her feeling suicidal, self-harming, suffering from bulimia, becoming agoraphobic and suffering panic attacks in her teenage years. IXL also turned to alcohol at an early stage, which led to her being expelled from the London College of Fashion, she turned to drugs in her thirties and continued using drugs after the birth of her children. 

IXL was granted special measures for the hearing of the assessment of damages and this included the following:

• She could give her evidence from a remote location, namely her counsel’s chambers; 
• L had to submit his questions for cross-examination of IXL to the judge two weeks before the trial;
• Such questions as were approved would be verbalised by the judge, who would, in effect conduct the cross-examination, and not be put by L himself;
• L was not permitted to address IXL directly during the hearing, and they would not see each other during the hearing.

IXL had been examined by Dr Cooling who made the following findings:-

• Recurrent depressive disorder of moderate severity, and the onset of this condition was in childhood. In his opinion, the abuse made a significant material contribution to her recurrent depression. IXL’s depressive disorder also involved her suffering from anxiety at a severe level.
• Complex PTSD and the PTSD was “entirely causally related” to the index sexual abuse.
• Consequential panic disorder, entirely caused by the index sexual assaults.
• Consequential harmful use of alcohol.
• Consequential obsessive compulsive disorder and an unspecified feeding or eating disorder.

Deputy Master Marzec indicated that he intended to assess damages in accordance with the approach adopted by Mr Justice Johnson in TVZ V Manchester City Football Club [2022] EWHC 7. He noted that in TVZ quantum was assessed by calculation of a sum for pain, suffering and loss of amenity (PSLA) arising from the long term psychiatric effects of the abuse and then separately compensation for the assaults and batteries themselves. Deputy Master Marzec noted that while Mr Justice Johnson’s remarks as to quantum in TVZ were obiter, the reasoning for making awards of damages on that basis was compelling. However the 16^th and 17^th editions of the JCG both move away from that as being the correct basis for the assessment of damages in claims of this nature.

On that basis, Deputy Master Marzec proceeded to make the following awards :-

General damages for the abuse  - £30,000, such sum taking account of three important aggravating factors:

• The fact that IXL was a young child of eight when the abuse started, and that she endured four years of terror, confusion, upset and humiliation, effectively having her childhood taken away from her. 
• That IXL had to deal with the immediate physical consequences of the abuse, including genital discomfort and infection.
• While the index assaults were not in the most serious category of sexual assaults they were a serious violation.

General damages as to the longer term psychiatric consequences were also assessed at £30,000. While IXL had fairly accepted the effects on her fell into the moderate bracket of injuries, it was noted that the injuries had troubled IXL for the whole of her life, for some 45 years, and had overshadowed that life.

The total general damages awarded was £60,000 and Deputy Master Marzec made it clear that he had included injury to feelings in both of the above heads of general damages rather than making a separate award for aggravated damages. That accords with JCG 17. 

Deputy Master Marzec also awarded £88,815 for future psychological treatment, £30,000 for educational detriment/loss of earnings  and £25,000 for future risk on the open labour market. Of note in the latter two awards were the comments that:

• In 1982, when IMX was 18, only a minority of young people attended university and therefore, absent evidence indicating that she was one of the minority, the likelihood was that she would not have attended university so a claim for a higher sum on the basis of higher educational attainment was not accepted.
• In assessing future loss of earnings regard was had to the fact IMZ was age 60 and thus likely nearing the end of her working life.

The total damages awarded were £177,415. Interest at 2% was allowed on the general damages from the date of the claim form and interest @ 2% over a period of 10 years was allowed in respect of the loss of earnings.