The High Court have confirmed that the Personal Injuries Guidelines do not apply to child sexual abuse cases in Kelly Kemmy v Stephen Murray and Tusla, The Child and Family Agency.
By way of background, the plaintiff was taken into care by the second named defendant in 2001 who then placed her in the foster care of the first named defendant where she remained until July 2019. When the plaintiff was eleven years old the first named defendant began to sexually abuse her, and this continued until 2015 when the plaintiff was eighteen years old. The plaintiff reported the abuse in 2019, and the first named defendant was convicted of rape and sentenced to twelve years imprisonment with the final year suspended.
The plaintiff issued proceedings against both defendants. The plaintiff and Tusla reached a settlement of €250,000 plus High Court costs, with the plaintiff maintaining her right to pursue the second named defendant. In February 2024, Coffey J granted judgment in default of appearance as against the second named defendant and ordered that damages be assessed before a judge without a jury.
The court considered the legal principles relating to general damages for child sexual abuse and turned to the 2005 case of MN v SM which is the preeminent authority in this respect. Denham J found that there were three elements to balance when assessing the level of general damages which are fairness to the plaintiff, fairness to the defendant and proportionality to the general scheme of damages awarded by a court. The court also noted that the factors to be considered when assessing damages were the nature and duration of the psychological injury suffered by the plaintiff, the nature and severity, timing and duration of the sexual abuse suffered.
Denham J in MN considered awards for psychiatric damage under the Personal Injuries Guidelines with damages ranging from minor to severe. The court in this case noted that the quantum for damages set out in the Guidelines for psychiatric damages was considerably less than the amount awarded in MN. This court noted that the difference may be attributable to the fact that the psychiatric condition with which the plaintiff was diagnosed in that case is but one component of the wider injury inflicted upon her.
The court considered whether the Guidelines apply to child sexual abuse cases. The plaintiff and the Attorney General made submissions on this point and found the Guidelines do not apply to actions such as this. The court found that the parties were correct in their submissions.
The court considered the Civil Liability and Courts Act 2004 and its interpretation of personal injuries actions which excludes actions claiming damages for false imprisonment or trespass to the person. As such the Guidelines do not apply to civil claims for child sexual abuse. This logic is reinforced by section 17 of the PIAB Act 2003, which permits PIAB to refuse to provide an assessment in certain circumstances including where “the relevant claim arises out of a trespass to the person, because the making of an assessment of the claim by the means to which assessors are limited to employing by this act would not respect the dignity of the claimant”.
The court noted that although the Guidelines do not apply here, the court might consider them as part of its overall assessment. The court went on to consider whether child sexual abuse cases can attract general damages approaching or at the upper limit and the court found that in cases of repeated rape over a child’s lifetime that results in psychiatric injury or other lifelong consequences then the injury may be characterised as being at or near the top of the compensation range. The court considered the factors set out in MN when deciding on quantum which were the nature and duration of the psychological injury suffered by the plaintiff, the nature and severity, timing and duration of the sexual abuse suffered. The court also considered the fairness to the plaintiff and the defendant, and the proportionality of damages awarded in other cases of child sexual abuse, to the scheme of general damages and to the currently prevailing upper limit on general damage when considering quantum.
The court characterised the abuse of the plaintiff in this case as the ‘worst case scenario’. The court awarded €450,000 in general damages taking into account the factors set out in MN. The court then went on to consider special damages and noted that if it weren’t for the abuse the plaintiff would have graduated in 2019 and with an additional year would have received a level 8 degree and would have been working as a social worker by 2020. The court awarded €64,555 for past loss of earnings and €30,447 for future loss of earnings. The court also considered the costs of future treatment and awarded €33,000. The total award ordered by the court was €450,000 for general damages and €128,000 for special damages, totalling €578,000.
The court accepted the Attorney Geneal’s submissions that Tusla and the first named defendant, Mr Murray, were concurrent wrongdoers and as such reduced the total damages recoverable by €250,000, leaving a balance of €328,000 to be paid by the first named defendant.