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The recent decision of the court in BJM v Eyre and others [2010] All ER (D) 139 (Nov) showed a different approach to quantifying compensation where a Claimant had problems pre- dating a period of abuse and would probably have suffered some sort of psychiatric injury in any event.

The Judge found the Claimant suffered post traumatic stress disorder solely attributable to a prolonged period of abuse. However, he found that the Claimant was targeted as a victim of abuse precisely because of his prior vulnerability which included a lack of self confidence, problems forming and maintaining satisfactory relationships and severe dyslexia. He found that the Claimant would have had some difficulties in any event even in the absence of abuse.

Whilst the Claimant sought £75,000.00 by way of general damages, the court awarded £70,000.00. The Judge said that in reaching that figure he took account of the damage that the Claimant would have suffered had the abuse not occurred. Interestingly he also awarded aggravated damages of £20,000.00 to reflect the appalling behaviour of the Defendants and the resulting injury to the Claimants feelings, loss of pride and dignity.

Previously, the leading authority in this situation was the Court of Appeal in the case of C v Flintshire County Council [2001] EWCA Civ 302. This case involved a vulnerable child in care who was subsequently abused by staff in a children’s home. At the time she went into care, the Claimant had already been subjected to various types of abuse and was already exhibiting behavioural problems which the Defendant alleged would have given rise to psychological injury in any event. However, in that case, the Judge did not apply any discount to the level of general damages awarded.

No doubt it was an important factor in the case that the Defendant was responsible for running the children’s home in which she was abused. The Judge said that the Claimant was put in the hands of the Defendant precisely because of her vulnerability. The Defendant knew of that vulnerability and the likely effect any mistreatment by carers would have. In that case, the court did not attempt to attribute responsibility between various causes of Claimant’s psychological injury because the Defendant should have taken particular care knowing what they did about the Claimant's problems. The Judge said that the Defendant could not complain that less weight than otherwise might be the case was given to the pre existing causes of the Claimant’s disability and adopted a much broader brush approach to the quantification of general damages.

Sallie Booth – Consultant, Sheffield