The recent case of C v WH [2015] EWHC 2687 (QB) highlights the increasingly interconnected worlds of criminal law and personal injury claims relating to sexual abuse. 

C v WH – What Happened?

By 2010 C had developed a sexual relationship with Mr Whillock. C was a pupil at a special educational needs school where Mr Whillock, C’s 39-year senior, was Vice Principal, Head of Boarding and co-author of the school’s Child Protection Policy. In 2010 the relationship between the two came to light after another teacher found inappropriate texts and images on C’s phone. It came to light that C had sent indecent images of herself to Mr Whillock and had engaged in text message exchanges of a sexual nature.

Mr Whillock was prosecuted and pleaded guilty in 2010 to four counts of possession of indecent images and was sentenced to a community order and prevented from contacting C for 3 years. The prosecution was unsupported by C who at this time C said she still loved Mr Whillock. C became very upset about the prosecution and went through a period of acute distress, self-harm, suicidal threats and attempts. This resulted in a diagnosis of Adjustment Disorder and signs of Personality Disorder. In 2013 C, encouraged by her father, brought civil proceedings for personal injury resulting from the psychological harm she alleged was caused by the sexual abuse suffered at the hands of Mr Whillock against the school. The school accepted vicarious liability for Mr Whillock, the Pt 20 Defendant (third party) but sought 100% contribution from Mr Whillock for any damages he may have to pay C. The claim was put on two bases: that C was physically assaulted and was thus entitled to damages for those assaults; or if there was no physical contact amounting to an assault the emotional manipulation of C and the encouragement of her to take and send indecent photos of herself and the messages exchanged amounted to an intentional infliction of harm (as per Rhodes v OPO [2015] UKSC 32).

The psychiatrists on behalf of the Claimant and Defendant agreed that due to various factors, C’s anxiety and behavioural problems predated her relationship with Mr Whillock. However, in allowing the claim the court stated that “it was primarily the disclosure of the indecent images and texts which initiated the severe problems which the Claimant then developed”. Further, it mattered not that it was the disclosure of the abuse rather than the abuse itself that initiated the serious mental health problems which C suffered in January 2010. £51,370 in damages was awarded for the adjustment disorder, anxiety, self-harm and other issues C suffered had suffered.

Necessity of a criminal prosecution?

In C v WH the court accepted that the extent of the sexual abuse encompassed the texts and indecent images. This had already been successfully prosecuted and thus was a relatively easy conclusion for the court to reach. In criminal prosecutions the case must be proved “beyond reasonable doubt” – in other words a jury must be “sure”. In civil litigation the court need only be persuaded to the lower standard of “on the balance of probabilities”. Consequently where a civil court is asked to litigate a matter already proved in the criminal court the task of a claimant becomes far less burdensome.

However, the court here also made further findings about Mr Whillock’s behaviour that fell beyond what was addressed in the criminal arena. The judge concluded that Mr Whillock’s ulterior motive was to have some kind of sexual relationship with C and that sexual touching, fondling and digital penetration of C had taken place. These acts did not form part of the criminal charges, and demonstrates that there is no requirement in civil claims for a criminal prosecution to have succeeded or indeed brought.

Types of civil damages

There are various types of damages that are available in a personal injury claim. These include general damages (for pain, suffering and loss of amenity) and special damages for past and future losses. General damages are determined by previous case law. The Judicial College Guidelines (JCG) provide bracket awards which vary according to the type of injury. In most sexual assault with no physical injuries (as in C v WH), the award granted in general damages is to compensate for psychiatric injuries. The JCG bracket for cases of severe psychiatric injury is £40,300 to £85,000.

Depending on the circumstances of the case, a victim may also be able to request aggravated damages. These types of damages are only awarded in exceptional cases and were considered inappropriate in C v WH. They aim to compensate claimants for injury to feelings when distress was exacerbated by the circumstances in which the injury was caused or by the conduct of the defendant after the act was committed. In C v WH the Judge held that aggravated damages are only to be awarded where the compensation element is not in itself sufficient to properly compensate the claimant. In this case the Judge found that the level of damages awarded amounted to sufficient compensation without there being a need for aggravated damages to be awarded.

Victims can also claim for special damages. This will depend on the circumstances of the case and include past and future losses. Past losses relate to expenses that a victim or their family incurred that they would not have incurred but for the sexual assault. This could for example be the cost of seeking therapy or having to relocate. Future losses are those that will arise because of the injury such as future loss of earnings and the costs of future therapy.

The Criminal Injuries Compensation Authority (CICA)

Another way of obtaining compensation is by applying to the CICA, a government funded scheme which can compensate victims according to a list of tariffs based on the type of injury sustained. This is generally a one-off payment in compensation for the injury sustained and does not relate to past or future losses. The highest award available for injuries arising out of sexual abuse is approximately £44,000. Whilst it is possible to make an application to the CICA in parallel with a civil claim, if a claimant is later awarded compensation through a successful civil claim they will most likely be asked to repay the amount awarded through the CICA scheme to avoid double recovery.

Blurred lines

In this new age of ‘sexting’ and ‘revenge porn’ there is much talk of the risk of prosecutions for the young, internet-savvy age. No person of good character wants a sexual offence recorded against their name. As C v WH has shown, the lesser discussed but very real parallel issue is that of civil claims for compensation. Whilst the facts of the C v WH case encompass exceptional allegations of grooming and professional impropriety, the reasoning behind the award of damages remains applicable to all. Claims can be made in parallel with criminal proceedings or absent prosecutions being instigated or proved. Indeed even if the offending behaviour itself does not underlie the damages awarded, the alleged effect of it on the claimant may be able to.

Therefore those engaged in ‘sexting’ or the uploading of offensive media to online platforms may find themselves facing civil claims predicated on the effect caused by the disclosure. This is something that all parties to the process need to be mindful of. Kingsley Napley is experienced in bringing and defending civil claims and criminal prosecutions relating to sexual abuse. Please speak to Sophie Wood of the criminal department or Terry Donovan and Eurydice Cote of the personal injury team for more information.