Legal update: the complexities of abuse

By Andrew Caplan
Lexology
October 30, 2015

http://www.lexology.com/library/detail.aspx?g=a402fff7-20f8-4406-8afa-f96a18601032

Few areas of personal injury law give rise to more controversy, sensitivities, publicity and sense of public outcry than child abuse.

While most of the publicity relates to criminal enquiries, this is an area where criminal and civil law intertwine and insurance plays a major role. These claims often involve allegations dating back decades and complex issues of liability, causation and quantum.

Degree of control

Over the last few years, the doctrine of vicarious liability has been widened, capturing more situations akin to employment.

Attempts to limit its scope arose in A v The Trustees of the Watchtower Bible and Tract Society and others [2015]. The defendant argued that Jehovah’s Witnesses were distinctive because they were not full-time clergymen, had a secular life as well as being members of the congregation, and were not fully integrated or controlled in their conduct.

In applying the two-stage test laid down by the Supreme Court in Catholic Child Welfare Society [2012], the court held that being a Jehovah’s Witness was a way of life, applying a strict moral code with oversight given by a judicial committee. There was also a hierarchical structure and a level of control over their behaviour. This was arguably more controlling than the relationship between an employer and employee.

In cases involving most religious and quasi-religious orders where some degree of control is exercised over the members, in furtherance of the aims of the organisation, and where through that medium the abuser establishes contact with the victim, then in most cases vicarious liability will be established.

Consenting adults

What if the relationship involves consenting adults? This was a key issue in JL v Bowen and the Scout Association [2015].

The priest had known the claimant for some years before physical sexual activity took place. The defendant argued the claimant had consented to the sexual relations, which occurred after the age of 16, even though the abuser had been convicted of several counts of indecent assault. The court held the abuser had groomed the claimant for many years. Although the claimant was over 16, he was unable to give his consent freely. When the claimant went to university and established his independence, the relationship became consensual and not one of abuse.

The changing scope of claims

Although most cases involve physical abuse, increased use of technology and social media is seeing the emergence of new types of claims. For example, inABC v West Heath 2000 Ltd [2015], the court held that where the sending of explicit text messages was intended to cause mental or emotional distress, and where psychological harm followed, these acts were tortious even though no physical assault was involved. This case demonstrates the expansion of the doctrine of causing intentional harm.

Impact on claims

Claimants’ lawyers now regularly formulate claims for future loss of earnings and handicap on the labour market, arguing underachievement as a result of the abuse. Claims dating back up to 50 years are not uncommon.

Where there has been a criminal conviction, or strong evidence of abuse, and the semblance of an explanation for the delay in bringing proceedings, there will rarely be a limitation defence. This is especially the case where there is traceable insurance.

The nature of these long-tail claims, including reputational impact, requires insurers to treat their approach to underwriting and claims handling differently. For example, it may be necessary to write on a claims-made basis rather than occurrence-based cover. Insurers will need to take a greater interest in their policyholders’ safeguarding policies and procedures.

In addition, claims staff should be suitably trained to handle this sensitive and distressing area of work, often involving a high degree of media and social interest.