In the High Court case of Kelly Kemmy vs Stephen Murray & Tusla, it was determined that the Personal Injuries Guidelines (the "Guidelines") do not apply to the assessment of damages in respect of cases concerning child sex abuse.
Background
In 2001, the plaintiff was taken into the care of the second defendant, Tusla, who subsequently placed her in foster care with the first defendant, Mr Murray. When the plaintiff was 11 years of age, Mr Murray started to sexually abuse her. The abuse, which included rape, continued until the November or December 2015, when the plaintiff was 18 years old. In July 2019, the plaintiff reported the abuse to Gardaí. Her report led to Mr Murray being convicted of rape and being sentenced to 12 years in prison.
Thereafter, the plaintiff issued proceedings seeking damages for negligence as against Tusla for placing her in the foster care of Mr Murray, and damages for personal injuries and rape, sexual assault, battery, false imprisonment and trespass to person as against Mr Murray. The plaintiff mediated a settlement with Tusla in the amount of €250,000 and also secured judgment in a separate case against Mr Murray.
Applicability of the Personal Injuries Guidelines
The court considered the legal principles relating to general damages for child sexual abuse and turned to the 2005 case of MN v SM[1]
As to whether the Guidelines applied, the Court considered the Civil Liability Act 1961 (the 1961 Act) the Personal Injuries Assessment Board Act 2003 (the 2003 Act) and the Civil Liability and Courts Act 2004 (the 2004 Act ). The court focused on the contrasting definitions of “civil wrong” in the 2003 Act and “personal injuries action” in the 2004 Act, and was satisfied that civil claims for child sexual abuse fell within the 2003 Act but not the 2004 Act, and in those circumstances, the statutory requirement upon the court to have regard to the Guidelines under s.22 of the 2004 Act therefore does not apply.
Assessment of damages
Having regard to categories of psychiatric injury in the Guidelines, Ms Justice Egan noted that the quantum of general damages for psychiatric injury is considerably less than the amounts which were awarded in other cases of severe child sexual abuse. The Judge concluded that the figures set out in the Guidelines for psychiatric damage could not represent the appropriate compensation band in this case given the wider trauma suffered.
Applying MN, Ms Justice Egan considered that in addition to the duration of the psychological injury suffered, the court must also consider nature and severity, timing and duration of the sexual abuse suffered - matters not reflected in the Guidelines.
The judge observed that the plaintiff’s case involved a continuum of abuse and oppression and that the plaintiff should be compensated not only for the long-term consequences of her abuse, but for the immediate physical trauma and humiliation of each rape.
Having reviewed the relevant caselaw, Ms Justice Egan determined that general damages fell short of the highest category of award, in the Guidelines reaching a total of €450,000 for past and future pain and suffering. The court was further satisfied that the evidence supported an award of special damages at €128,000.
Finding Tusla’s proportionate share of liability for the plaintiff’s injury could not be said to exceed €250,000 in circumstances where the effect of its shortcomings was minor compared to the trauma caused by Mr Murray, Ms Justice Egan reduced the plaintiff’s total award by €250,000 to €328,000.
Comment
In the assessment of psychological damages concerning cases of sexual abuse, insurers should note that the Personal Injuries Guidelines will not apply and typically higher awards will be made.
[1] MN v SM 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.
