DBAK v The Governors of the Fettes Trust: Patrimonial Loss for Childhood Sexual Abuse Requires Proof of a But‑For Career Path, Not Aspirational Reconstruction

1. Introduction

This action concerns damages for childhood sexual abuse committed by a schoolteacher (anonymised as “JX”) against the pursuer (“DBAK”) while he was a pupil at Fettes College junior school during 1977–1979. The defenders, The Governors of the Fettes Trust, admitted fault and vicarious liability and accepted liability to pay damages. The litigation therefore turned not on responsibility for the assaults, but on quantification—most significantly whether the pursuer’s childhood abuse caused a long-term impairment of his earning capacity and thus justified large awards for past and future wage loss and pension loss.

The pursuer’s case was distinctive: he had worked throughout adult life, including self-employment in financial services and later property development. His patrimonial claim depended on establishing that, but for the abuse, he would have achieved better school results, obtained a university degree, and pursued a higher-earning “business management” type career. The defenders argued that this career reconstruction was speculative; that the pursuer’s actual earnings were uncertain due to issues in his financial disclosure; and that, in any event, causation between the abuse and alleged career loss was not proven.

2. Summary of the Judgment

Lord Young held:

• The pursuer did suffer PTSD for a limited period beginning during the abuse, diminishing within about a year of the abuse ending, and was largely symptom-free by the time he left school.
• Solatium was assessed at £40,000 (£35,000 past; £5,000 future), with past interest calculated in accordance with JM v Fife Council 2008 CSIH 63, producing interest of £57,604.
• The pursuer failed to prove patrimonial loss: he did not establish on the balance of probabilities that, but for the abuse, he would have obtained the qualifications for and completed a business management degree and pursued the hypothesised corporate career path.
• Decree was granted for £97,604 (solatium plus interest), with interest from decree at 8% until payment; expenses were reserved.

3. Analysis

3.1 Precedents Cited

(a) Solatium calibration in sexual abuse cases

• D v The Bishops Conference for Scotland [2022] CSOH 46 (and also referenced as D v The Bishop's Conference of Scotland [2022] CSOH 46): Lord Young used this as comparative support for the level of solatium, particularly the “alternative assessment” noted at para [86] of that decision. The case also later informed (obiter) discussion of whether gains on sale of a home can be relevant to patrimonial calculations where circumstances are exceptional.
• A & B v C [2018] CSOH 65: Cited as a comparator for awards to different victims (Lord Young referred to the award for “victim B”). It also served a structural role in Lord Young’s taxonomy of how sexual abuse can affect work patterns (e.g., intermittent working, absence, deterioration).
• LXA v Wilcox 2018 Kemp & Kemp Q1-002.1: Used as an additional comparator for solatium in sexual abuse claims.
• Judicial Studies Guideline for sexual abuse 4(C)(c)(moderate): Used to anchor the award within guideline brackets and ensure consistency.
• D v The Bishops Conference of Scotland 2022 SLT 816: Mentioned in submissions (for valuation), reflecting the defenders/pursuer’s debate around appropriate ranges, though the court ultimately grounded its selection in the materials listed at para [73].

(b) Interest on solatium

• JM v Fife Council 2008 CSIH 63: Central to the methodology. Lord Young applied the approach of splitting the past solatium into components (abuse period vs subsequent reaction) and applying different interest rates (4% and 2%) from the end of the abuse.

(c) Approach to future loss: multiplier/multiplicand and when to use a lump sum

• Bullock v Atlas Ward Structures Ltd [2008] EWCA Civ 194: Cited in submissions for the orthodox multiplier/multiplicand approach to future loss.
• F v Chalmers [2025] CSOH 23: Cited both in submissions and by the court. Lord Young relied on it particularly for the proposition that where the evidence does not permit precise calculation, a lump-sum/Blamire-type approach may be appropriate; and (importantly) that methodological choice follows, rather than replaces, proof that a loss exists.
• Blamire v South Cumbria Health Authority 1993 PIQR Q1: Raised by the defenders to argue that uncertainty cannot be solved by methodology where loss is unproven. Lord Young later indicated that if patrimonial loss had been established, the uncertainties would likely have made a Blamire award the appropriate tool.

(d) Proof of loss and “free choice” breaking causal chains

• Ronan v Sainsbury's Supermarkets Ltd [2006] EWCA Civ 1074: The defenders relied on it for the proposition that the appropriate method of calculation only arises once loss is proved. Lord Young also used its reasoning (paras [24]–[25]) to support the idea that a claimant’s later free choice can break the causal link between wrongdoing and alleged earnings trajectory—here, the move into property development as a positive lifestyle choice.

(e) Comparative fact patterns on employability and abuse impacts

• AB v The English Province of the Congregation of Christian Brothers [2022] SC Edin 7: Used to illustrate a common pattern where abuse victims cannot develop a stable employment history—contrasted with the pursuer’s uninterrupted work history.
• CAX v PQR 2023 EWHC 3198: Used as an instructive comparator on evidential proof of educational ambition and achievability. Lord Young highlighted that in CAX the claimant’s later steps (NVQs and acceptance to a degree course) provided concrete evidence that the hypothesised career path was realistically achievable, despite earlier disruption.

(f) Whether gains on sale of a principal private residence may matter (obiter)

• Hanks v Ministry of Defence 2007 EWHC 966: Cited for the proposition that where an injury-induced change in life circumstances enables a claimant to undertake substantial renovation works (and generate enhanced gains), those gains may be relevant in assessing loss.
• D v The Bishop's Conference of Scotland 2022 CSOH 46: Cited for the (exceptional) approach of giving credit for house-sale gains where the uninjured counterfactual would not have included home ownership at all (priesthood counterfactual).

3.2 Legal Reasoning

(a) Liability conceded; the case became a pure quantification and causation dispute

The defenders’ admissions (fault, vicarious liability, and liability in damages) narrowed the dispute to: (i) the nature and duration of psychiatric injury; (ii) the appropriate solatium; and (iii) whether the pursuer proved that abuse caused a materially worse educational outcome leading to substantial earnings and pension losses.

(b) Psychiatric injury: PTSD accepted but time-limited

Lord Young preferred the evidence of Dr Scott and Dr Reynolds over Professor Mezey on the core question whether PTSD criteria were met. However, the court’s finding was carefully delimited:

• PTSD existed during abuse and for a short post-abuse period.
• Acute symptoms diminished within about a year or so after abuse ended.
• By school-leaving, the pursuer was “largely symptom free”.

This temporal limitation mattered. It meant that any claim of long-term occupational disablement would need to be proved through educational/career causation rather than ongoing psychiatric incapacity.

(c) Solatium: seriousness of repeated non-penetrative abuse recognised; “non-penetrative” treated as largely irrelevant

The judgment is notable for rejecting any simplistic downgrading of harm because abuse was non-penetrative. The court emphasised the frequency, duration, abuse of trust, semi-public context, anticipatory dread, and shame. These factors drove solatium to £40,000 notwithstanding substantial recovery and a largely untroubled adult life.

(d) Patrimonial loss: the “but for” educational/career chain must be proved step-by-step

Lord Young structured the pursuer’s patrimonial case into a chain (para [77]):

1. Better exam results sufficient for admission to a business management degree.
2. Successful completion of that degree.
3. Desire and commitment to pursue the hypothesised long-term business career.

The pursuer failed principally because the evidence did not allow the court to conclude that the counterfactual chain was probable rather than possible. Key deficits included:

• No evidence of mid-1980s entry requirements for business management courses; the court was left to assume likely requirements (e.g., multiple Highers) and to observe that the pursuer’s actual performance was “very far below” what would likely be needed.
• No statistical evidence on outcomes (dropout rates, degree classes, occupational trajectories) to support the reconstructed path.
• Timing point: by the time of Highers (post-Fettes, five years after abuse ended), PTSD was no longer present at diagnostic threshold, making it harder to attribute later educational underachievement solely to abuse.
• Comparators (siblings): the pattern of university success in the family did not support a strong inference that the pursuer would probably have completed a degree.
• Absence of later steps to obtain qualifications as a mature student. Lord Young contrasted this with CAX v PQR 2023 EWHC 3198, where later qualifications and acceptance to a degree course evidenced achievability.

(e) “Free choice” and the career pivot: property development as an intervening voluntary decision

Even if some educational impact from abuse was accepted, Lord Young held that the 2003 decision to leave financial services for property development was a “positive choice” for lifestyle and interest reasons, not one forced by abuse-related impairment. This contributed to breaking the causal link between wrongdoing and the claimed career loss, supported by Ronan v Sainsbury's Supermarkets Ltd [2006] EWCA Civ 1074 (paras [24]–[25] as cited).

(f) The employment expert evidence: the court’s critique of the “graduate premium” assumption

A particularly important feature is the court’s observation at para [88]: Keith Carter’s Model 1 (non-graduate) and Model 2 (graduate) produced identical salary progressions (aside from early years). While the court did not treat this as determinative, it highlighted that:

• There was no discussion of evidence establishing a graduate wage premium in the relevant sector.
• There was no evidence of access barriers to business management roles without a degree.
• Thus, even if a degree had been obtained, the evidential basis for concluding it would have produced materially higher earnings was thin.

This is a cautionary point for future quantification exercises: vocational models should demonstrate not only plausible career ladders but also why the ladder is more probable and more remunerative in the counterfactual world.

(g) Credibility and income uncertainty: not decisive on causation, but relevant to methodology (obiter)

Although patrimonial loss failed on causation, Lord Young addressed the defenders’ criticisms of the pursuer’s financial reliability. He:

• Rejected the notion that omissions from a litigation-prepared property list, by itself, undermined the case (para [93]).
• Rejected criticism about lack of vouching for renovation costs because no evidence showed overstatement and no retrospective audit had been attempted (para [94]).
• Accepted that the Airbnb omission was unconvincingly explained and likely involved a decision not to disclose to HMRC (para [95]).
• Made a strong adverse credibility finding regarding BD1: while accepting the partnership did not own BD1, he found the pursuer deliberately gave false information to his tax accountants and later gave an inaccurate account to the court (para [96]).
• Expressed concern about the DevCo affidavits and late disclosure of proceeds (para [97]).

The court indicated that had patrimonial loss been established, these uncertainties would likely have driven it toward a Blamire-style lump sum rather than precise year-by-year computation (para [92]).

(h) Principal private residence (“PPR”) gains: a developing theme in Scots quantification (obiter)

Lord Young offered an extended discussion (paras [98]–[102]) on whether gains from renovation and sale of principal residences should be considered in patrimonial loss assessments. He noted limited authority but drew on:

• D v The Bishop's Conference of Scotland 2022 CSOH 46 (special counterfactual where no home would have been bought absent abuse), and
• Hanks v Ministry of Defence 2007 EWHC 966 (profit from renovating a private residence attributable to changed circumstances).

Lord Young’s obiter view is that where a claimant’s lifestyle/career path enables substantial time and effort to be deployed in developing a PPR—producing outsized gains—those gains may be relevant, especially if the counterfactual career would have made such gains unlikely. In this case, the court formed the impression that the pursuer and his wife periodically prioritised renovating high-value PPRs in a way resembling business strategy, meaning that reduced “business income” during those periods should not automatically be attributed to defenders (paras [100]–[101]).

3.3 Impact

(a) Evidential discipline in “lost career” abuse claims

The decision reinforces that in childhood abuse damages claims, large patrimonial awards premised on an alternative professional career require concrete proof. Courts will not infer a degree and corporate career merely from:

• attendance at an elite school,
• general intelligence, or
• later dissatisfaction with outcomes.

Practically, pursuers advancing educational/career counterfactuals should expect to require:

• historical university entry requirements (or expert evidence on them),
• evidence of likely degree completion and classification,
• evidence that the claimant would probably have pursued that path (actions, applications, later efforts), and
• labour-market evidence establishing why the hypothesised qualifications materially increase earnings (graduate premium, access restrictions, promotion rates).

(b) Expert modelling: plausibility is not enough; the model must answer “why this claimant, and why this premium?”

The critique of identical Model 1/Model 2 earnings highlights a broader point: vocational evidence must link credentials to outcomes. A model that simply lists salary progressions may be vulnerable if it does not show why the claimant’s lack of credentials caused exclusion from, or disadvantage within, the relevant labour market.

(c) Financial credibility can shape methodology—even if it does not decide causation

The judgment signals that tax irregularities or misleading communications with accountants may not always defeat a claim, but they can push courts toward rough justice (Blamire) if loss is otherwise proven. It also underscores forensic risk: credibility findings in one area (financial disclosure) can influence the court’s confidence in counterfactual narratives.

(d) PPR gains as an emerging quantification issue in mixed “home + business” property activity

Lord Young’s obiter discussion suggests increasing judicial willingness to scrutinise whether “home upgrades” are functionally part of a claimant’s income-generation strategy. If developed further in future cases, this could influence how courts assess earnings in property-centric careers, particularly where taxable accounts understate economic benefit by excluding tax-free home-sale gains.

4. Complex Concepts Simplified

• Solatium: Scots law’s award for non-financial harm—pain, suffering, and loss of amenity. Here it compensates for the abuse’s psychological and emotional impact.
• Patrimonial loss: financial loss (e.g., lost earnings, pension loss).
• Vicarious liability: liability imposed on an employer/organisation for wrongdoing by an employee in the course of employment or closely connected to it. The defenders admitted this.
• PTSD diagnostic threshold: the legal relevance is not the label itself but whether symptoms were present, how long they lasted, and whether they impaired functioning. The court found PTSD existed but was short-lived.
• Multiplier/multiplicand: the standard way to calculate future loss of earnings: annual loss (multiplicand) × number of years adjusted for contingencies (multiplier).
• Blamire award (from Blamire v South Cumbria Health Authority 1993 PIQR Q1): a lump-sum approach used when future loss exists but cannot be calculated precisely due to uncertainties.
• Interest on solatium (JM v Fife Council 2008 CSIH 63): Scots courts commonly apply different interest rates to different components of past solatium, often distinguishing the abuse period from later reaction and applying interest from the end of the abuse.

5. Conclusion

DBAK v The Governors of the Fettes Trust [2026] CSOH 5 offers a clear message on quantification in historic sexual abuse litigation: while serious abuse warrants meaningful solatium (here, £40,000 plus interest), substantial patrimonial claims founded on “lost education and career” require rigorous proof of a probable counterfactual pathway. Lord Young’s step-by-step analysis shows that courts will not award life-changing earnings and pension sums on aspirational narratives unsupported by concrete educational, labour-market, and behavioural evidence.

The judgment also contains important obiter guidance: where a claimant’s earning picture is blurred by property activity and repeated principal-residence renovations, courts may consider whether home-sale gains should be taken into account when assessing true economic position; and where financial evidence is unreliable, a Blamire approach may be the only workable methodology—provided, however, that loss is first proved.