Jonathan Wheeler talks about the many battles he and APIL are to fight, such as child sexual abuse, the perception of a ‘compensation culture’, and bereavement damages, in what is, in reality, a short space of time
‘Exponential’ is how Jonathan Wheeler, the new president of the Association of Personal Injury Lawyers (APIL) describes the unprecedented rise in the number of victims of child abuse coming forward to seek legal advice. ‘We’re seeing it from all walks of life – whether it’s private schools, the Scouts, the church, and celebrities,’ says Wheeler who leads the child abuse compensation team at Bolt Burdon Kemp.
April 2015 saw the police reveal that more than 1,400 men had been investigated over claims of historical child sex abuse since the Jimmy Savile scandal first came to light. Perhaps as a direct result of the intense media spotlight shone upon Savile’s scandalous past, as well as other high-profile celebrities, the number of reported sexual abuse offences committed against children has risen dramatically.
Official figures show at least a 60 per cent increase in the number of offences reported to the police over the last four years, although that figure continues to rise as the months roll on. As well as being the new head honcho of the influential lobbying organisation, Wheeler has held the post of co-ordinator of APIL’s child abuse special interest group for the past two years, and is also the treasurer of the Association of Child Abuse Lawyers (ACAL).
‘People say it’s the “Jimmy Savile effect”,’ remarks Wheeler. ‘You can’t turn on the TV or look in a newspaper without it being there. It’s going to trigger people; make them think. Hopefully they will become more comfortable talking to people in authority, the police, the courts, even lawyers, because they realise they weren’t necessarily alone.’
Even though the independent enquiry into historic sex abuse, led by senior New Zealand judge Lowell Goddard, has yet to get off the ground, Wheeler says he and his colleagues have high hopes for it being able to uncover the extent to which public bodies have breached their duty of care to protect children from sexual predators.
‘There have been people already saying they haven’t got trust in it, but certainly from a legal point of view, you’ve got to say: “Let’s give it the best shot”,’ he adds. ‘If people come forward, are listened to, and get the compensation they deserve, it could put their lives back on track. Just giving back to people the talent that they had, the education or occupational opportunities they lost – it must be a good thing.’
The personal injury profession has not garnered the most sympathetic press over recent years. The profession’s reputation was hardly enhanced when the former Lord Chancellor, Chris Grayling, railed against a perceived ‘compensation culture’, and vowed to tackle ‘ambulance-chasing that all too often is about generating opportunities to earn fees’.
Yet Wheeler dismisses any suggestion that lawyers now see victims of child abuse as the next big cash cow for exploitation. Neither does he believe that the high-profile convictions of such public figures as Rolf Harris, Stuart Hall, Gary Glitter, and Max Clifford – as well as acquittals of Coronation Street’s William Roache and Michael Le Vell – will kick start a tidal wave of fraudulent claims made by opportunistic con artists against soft-target celebrities.
‘We have this almost “deserving” injured and “non-deserving” injured,’ he says, ‘but I would have thought the injured people most deserving of compensation would be those who’ve been abused and have already gone through a hellish process in trying to be believed.
‘My clients, who have been abused, are perhaps among the most deserving of our help as personal injury lawyers and I can’t see much opportunity for mudslinging against my profession, when all they’re trying to do is facilitate these people in trying to get their lives back on track. But who knows what the Daily Mail might write.’
Wheeler adds that the opportunity for fraud in such cases is very limited, because most claimants will have already gone through a criminal process even if their abuser has died, such as in the case of Savile. ‘If you interview someone who says they’ve been abused as a child – and you look into the whites of their eyes– people don’t make that up. Sometimes you might be the first person they’ve ever told,’ he adds.
Still, claimants face an uphill battle to recover compensation for their traumas, whether it be via the civil or criminal routes. The Criminal Injuries Compensation Authority (CICA), the government scheme to compensate victims of crime – including child sexual abuse – and described by Wheeler as ‘very bureaucratic’, has long been in the new APIL chief’s firing line.
In 2013, Wheeler, in his capacity as treasurer of ACAL – and in conjunction with APIL fellow Neil Sugarman – wrote to the Liberal Democrat peer and barrister Lord Carlile in hopes that improvements could be made to the scheme. Two years on, and despite his criticisms that few members of the public would know of the CICA scheme’s existence, and that time limits to apply for compensatory awards are arbitrarily applied by the authority, little progress appears to have been made.
‘The government have clearly issued some sort of diktat to say: “This is public money, we’re in an age of austerity, and we don’t want to pay out”. They’ve already changed the scheme in 2012 to make the compensation much less. It’s not the same with a civil claim for compensation,’ he adds. Yet even civil claims have their limitations when seeking compensation for cases of sexual abuse, which begs the question: is the law doing enough for victims?
‘I don’t think damages are ever enough,’ admits Wheeler. ‘Again, it’s “deserving” and “undeserving”. You hear about the money being paid out in the phone-hacking scandal, but when you look at how much someone gets for being raped, it’s less than getting your phone hacked for three months because you’re a celebrity. I’m not necessarily saying the victims of phone-hacking should have less, I’m saying my clients should have more. It’s not an either-or situation.’
The cynical observer might scoff at a personal injury lawyer arguing that damages for their client should be higher, but Wheeler’s motives remain pure. ‘They’re never going to get their lives back. They’re never going to live the life they could have lived. That is pretty devastating.
‘If they were abused as children, their education has been disrupted, and with it the whole of their occupational opportunities. The key is to somehow make them productive members of society again, and, as claimant lawyers, we plug away at it. But that’s another campaign,’ he says.
As APIL’s new president, Wheeler is taking over the reins of a whole range of issues important to the organisation and its members, such as the reform of bereavement damages, and psychiatric harm for secondary victims. ‘It’s all very well saying it should just be a marker, but I’m sorry, no,’ insists Wheeler. ‘Someone has actually killed someone negligently, recklessly, or criminally. Why should it have to be a marker? I don’t understand that at all. Damages should actually say something. It is the court and society’s way of saying: “This has been a grievous loss to you, and it was wrong”. If Scotland can make it work, why on earth can’t England and Wales?’
In contrast to the position taken south of the border, section 1(4) of the Damages (Scotland) Act 1976 provides for no statutory limit for bereavement awards to family members in fatal claims in Scotland. Furthermore, claimants pursuing such claims have a right to a jury trial, meaning there has often been a difference between the level of damages awarded by a judge over a jury.
A survey, commissioned by APIL in 2013, found that 80 per cent said the Scottish system for bereavement damages was fairer. The majority of those surveyed declared that the fixed sum of £12,980, paid by the liable party in England and Wales was not high enough, with 57 per cent saying a figure of more than £100,000 would be appropriate.
Many respondents also suggested the list of people eligible to receive bereavement damages should be extended to include the parents, children, cohabitee, and fiancé of the person killed and be regardless of age. However, none of these people are eligible for bereavement damages outside Scotland.
APIL’s former president, Matthew Stockwell, said at the time: ‘It is particularly distasteful to me that parents of a child under the age of 18 should be entitled to bereavement damages but, once the child is 18, they are not. It is unnatural for a parent to suffer the loss of a child, and that loss is no less if the child happens to be over the age of 18.’
Likewise, Wheeler is adamant that the law of bereavement damages should not continue to be a postcode lottery, and is enthusiastic at the idea of England and Wales learning from the Scottish experience. ‘This is a good idea because it is society saying: “I’m sorry, this shouldn’t have happened to you”. Why shouldn’t there be a jury of 12 good men and women to say: “This is actually how much”. It would make my life as a lawyer certainly more interesting to have jury trials,’ he admits.
Opening the floodgates
Last year marked the 25th anniversary of the Hillsborough tragedy. Yet over a quarter of a century since the events of that fateful day when 96 football fans lost their lives, the law on psychiatric injury remains in the legal dark ages.
The case of Alcock v Chief Constable of South Yorkshire  1 AC 310 is one that still irks many personal injury practitioners, especially in a modern world which now contains rolling 24-hour news coverage and social networking, which has both developed and increased the speed – if not always the accuracy – of reporting, and helped to bring observers much closer to events, however horrific, as they unfold.
‘The law has to be brought up to date,’ argues Wheeler. ‘Most people didn’t have mobile phones, we didn’t have the internet, and so the whole way that you perceive events is completely different than it was 26 years ago. How you experience the event, and also your proximity to it, has changed. The law has to keep up.
‘There’s a finite category of people who can actually benefit under the secondary victim laws and that needs to change as well. The only reason it was restricted was because of a policy at the time that they didn’t want to open the floodgates.’
Despite a Law Commission report from 1998 which sought to simplify the law in this area, successive governments have made clear that there is little to no intention of changing the status quo. No doubt there will be some that will continue to agree with the current law on the basis of a predisposition to opposing the apparently pervasive ‘compensation culture’ in the UK.
While the government may assume APIL’s intention is simply to drum up more lucrative work for its members, some of its campaigns have been aimed at saving the taxpayer money, such as its recent and successful crusade against a ‘needless injury’, pressure ulcers.
‘Ninety-five per cent of the most severe pressure ulcers can be prevented and yet it was costing the NHS £1.8m to deal with them,’ explains Wheeler. ‘If you’ve got this black hole in the NHS budget, why on earth are you not dealing with this? NHS Improving Quality have come back to us and said they’re really looking at this, so we’re going to be monitoring that.’
Wheeler has also teamed up with Felicity Gerry QC of 36 Bedford Row to set up a working group looking at vulnerable witnesses in civil disputes as part of the Advocate’s Gateway project. APIL’s president is firmly of the belief that the family courts are now leading the way on protecting vulnerable witnesses.
‘It’s all to do with helping vulnerable witnesses give their best evidence in civil disputes,’ he says. ‘It’s building on the work already done in the family and criminal courts, but also in view of EU directive 2012/29/EU coming in November. We need to recognise when there is vulnerability and how to deal with that. There’s a lot of resource within the criminal and family jurisdictions that we just don’t have in civil justice.’
Compulsory liability insurance
APIL is also pushing for compulsory public liability insurance, which Wheeler claims is needed to stop institutions from avoiding their legal liabilities. ‘We have a lot of clients with perfectly valid claims against public-facing companies, which don’t have insurance,’ he explains. ‘When you hit them with a claim they go bust, they liquidate the company, but then they set up down the road doing exactly the same thing. They seem to be untouchable, and that is wrong.
‘I have a client who was abused as a child in a private school which didn’t have public liability insurance. It has since gone into administration so the abuse that my client suffered is not being compensated, and that is appalling.’
Wheeler is adamant that this is an issue that needs to be looked at, and may easily go hand in hand with compulsory employer’s liability insurance, as an add-on policy. ‘It’s going to drive up safety standards because if things are compulsory, people have to get insurance, and if their insured risk is such a high one they shouldn’t be businesses anyway,’ he adds.
However, Wheeler is under no illusions that regardless of how vehemently APIL pursues this campaign, it will likely receive an equally strong push back from the insurance industry, a situation he thinks is bizarre. ‘We’re actually giving them business. Yet everything that we come out with is met with: “No, no, and no”. Nevertheless we do a lot of engagement with the insurance industry behind the scenes.’
As examples of this, Wheeler points to APIL’s work with the Forum of Insurance Lawyers (FOIL) on a new mediation project, as well as a serious injury code, which involves members of the Association of British Insurers (ABI). In addition, he now sits on the insurance fraud taskforce with members of insurance firms. ‘We get on very well,’ he says. ‘There is a lot to be said for collaborative working. But with compulsory public liability insurance, there is something there. At least we can get around the table with them.’
Although many might feel daunted at the prospect of spearheading several large campaigns, Wheeler is relishing the opportunity, while maintaining a sense of pragmatism. ‘For me it’s a complete privilege and I’m proud of it, it’s just a case of wanting to get something accomplished.
‘Every president has had great ideas, but I think I was naïve enough to think that I’d get all this stuff through. You look at mesothelioma, that took ten years, but it’s one of our proudest achievements. None of this is a quick fix, but we’re still here.’
This article first appeared in Solicitors Journal and is reproduced with kind permission.