Wage loss ruling will have significant ramifications in future claims for damages - Val Pitt

In July, we looked at a historic abuse claim in which the Court had to apply provisions regarding whether a fair trial was possible. On October 21, a judgement was issued in a further claim which this time focused on the valuation of damages to be awarded.

Val Pitt is a Senior Associate, Horwich Farrelly

A v Glasgow City Council concerned a claim for damages arising from sexual abuse perpetrated by a foster carer in the 1980s. The carer was convicted and sentenced to 10 years imprisonment. The council did not dispute that the abuse had occurred nor that they were vicariously liable for the actions of the foster carer.

Damages were sought for the pain and suffering endured by the pursuer, together with claims for past wage loss, future wage loss and pension loss. It was accepted that the pursuer should be awarded substantial damages for his pain and suffering. The main area of dispute surrounded the pursuer’s employment history and calculation of any consequent losses related to it.

The basic principle is that compensation in personal injury claims should seek to restore someone to the position they would have been in had the wrongful acts, i.e. the abuse, not taken place.

The pursuer achieved two As and two Bs at Higher. On leaving school, he had periods of short-term employment until he began to work for BT in 1997. He remained in employment until 2002 but left after suffering psychological problems and flashbacks of the abuse. He had further short-term employment and commenced a Pathway to Medicine course at college and a BSc in Marine Science, neither of which he completed due to his psychological issues. The pursuer’s position regarding his future employment was that, although he had applied for jobs, his continuing flashbacks were an impediment.

A Joint Expert Statement noted the abuse had substantially contributed to the pursuer’s PTSD. It was agreed that without the abuse, although the effects would have been less severe, it was possible the pursuer would still have suffered psychiatric problems related to other adverse childhood experiences. He had experienced psycho-sexual problems, unlikely to have developed if he had not been sexually abused. However, the experts stated that they found it difficult to identify a specific effect which the abuse had on the pursuer’s past and future ability to work.

The pursuer argued that had the abuse not taken place, he would have likely achieved employment as a field or project manager in communications. He sought recovery of the difference between the average earnings of an individual in that role and the earnings he had achieved, for past employment history and future losses. The Defenders argued there were significant and inexplicable gaps in the documentary evidence produced to substantiate the wage loss claim which meant that the pursuer’s evidence was uncorroborated. Without clear evidence for the Court to make a detailed assessment, damages ought to be awarded on a broad, lump sum basis.

Lord Brailsford, held that the pursuer was a credible, reliable witness and accepted that, despite inconsistencies highlighted by the Defenders, his accounts of his childhood, education and employment history were accurate. Although there were gaps in the documentary evidence, this wasn’t due to any fault of the pursuer and there was no evidence available to the Court to contradict his evidence. The pursuer was awarded total damages of £1.34 million, of which £125,000 was for the pain and suffering endured. The remaining sums consisted primarily of full past and future loss of earnings claimed and pension loss.

A noteworthy point arising from the judgement is that although the concept of corroboration is not necessary in civil cases, the burden of proof is upon a pursuer to establish their claim on the balance of probabilities.

Generally, Courts will require supportive evidence where it ought to be available to hold that an aspect of a claim has been established in full, as a means of providing checks and balances. However, in this case, the Court was prepared to take the approach of making a substantial award for wage loss in full, despite material gaps in the history, by accepting the pursuer’s evidence on the issue alone. This will have significant ramifications in future claims and seems likely to be revisited by the Courts in due course.

Val Pitt is a Senior Associate, Horwich Farrelly