Jimmy Savile's victims still have serious obstacles to overcome

As the allegations against the late Jimmy Savile continue to mount, a question for victims who are able to establish they have been abused will be whether they can recover compensation.

In theory it would be possible to bring a claim against Savile’s estate based on trespass. It happened in the case of Amanda Lawson v Ann Glaves-Smith, executor of the estate of Christopher John Dawes deceased [2006] EWHC 2865 (QB) where a female claimant sued her abuser after his death.

But will there be any money residing in the estate? Savile died around a year ago, and it is quite possible that the probate process is not yet complete. Much of his money, it seems, was given away to various charities, who may not have expended the funds as yet. Some of these charities have indicated that they would like to give the money to child abuse charities.

Vicarious liability

A number of commentators have suggested that a claim lies against the BBC and the hospitals who employed Savile. Such a claim, if based on trespass to the person might be based on the premise that the BBC is vicariously liable.

Ever since the case of Lister v Hesley Hall [2001] 1 WLR 311 institutions with the care of children have been prepared to admit that they are liable for the tortious acts of their own employees. However the recent case of JGE v The Portsmouth Roman Catholic Diocese [2012] EWCA Civ 938 demonstrates the limits to that doctrine.

In JGE, a diocese was held vicariously liable for the abuse of one of its priests, even though he had no contract of employment with the diocese, and according to the defendant, it had little or no control over what he did. The Court of Appeal was split two to one in favour of vicarious liability and the issue is now going to the Supreme Court.

We do not as yet know whether Savile had contracts of employment with any of the institutions where he committed abuse, nor whether his role as an entertainer necessarily meant that he was charged with the care of children. There has to be some close connection between what the abuser is doing and the abuse itself. Opportunity by itself is not enough as was made clear by the Court of Appeal in the case of A v Hoare [2006] EWCA Civ 395.

Facilitating abuse

Potentially there are claims against anyone who facilitated the abuse, or conspired to make it happen. Certainly there are criminal sanctions available under section 14 of the Sexual Offences Act 2003 and its forerunner, section 23 of the Sexual Offences Act 1956. A civil claim would be based on conspiracy or potentially straight negligence in allowing the abuse to occur, for which the individual, or conceivably his employer, might be liable. In theory a person can be liable for failing to report their own abuse or the concealment of abuse. Lord Steyn commented in Lister that such a claim might be possible, and it remains an option if vicarious liability fails.

In passing, it should be said that the Protection from Harassment Act 1997 provides an alternative and highly useful cause of action in these types of cases, although it is anticipated most of these claims will pre-date the Act.

Procedural hurdles

The standard of proof in a child abuse claim is a high one, and higher than for instance a claim involving a road traffic accident. In the case of R H (minors) (Sexual Abuse: Standard of Proof [1996] AC 563 it was stressed that the more serious the allegation, the less likely it was that the event had occurred, and so the evidence had to be stronger before the court concluded that abuse had taken place.

There is also the hurdle of limitation. Normally in a case involving the conviction of an abuser, the court will exercise its discretion under section 33 of the Limitation Act 1980 to disapply limitation. However it is not certain how a court might react to a number of separate claims, brought against a deceased tortfeasor where there may be nothing more in the way of evidence than the victim’s statement and videotapes of Savile’s shows.

The claims against the hospitals on the other hand might produce more in the way of documentary evidence, and possibly statements from nurses and doctors. Claims based on trespass to the person are less vulnerable to the limitation defence than claims based in negligence, given that the core issue – in this case: “did it happen?” – should be simpler. Nonetheless limitation will still only be waived in exceptional circumstances.

Finally it is likely that claims will be made to the Criminal Injuries Compensation Authority. CICA has been prepared to admit claims long after the two-year time limit has expired, even where there has been no prosecution or conviction. These claims are less attractive than those brought in the civil forum given the absence of any costs and the lower awards based on the tariff system. They are also notoriously long and tortuous, frequently ending up before the First Tier Tribunal at appeal stage.

Child abuse compensation claims can take years to resolve, and frequently they await the outcome of criminal proceedings, or the kind of investigation that is underway at the BBC. We can only wait and see what happens to these claims in the future.