The decision is notable for its detailed consideration of whether the abuse caused any adverse impact on the pursuer's education and subsequent earning capacity.
DBAK v The Governors of the Fettes Trust [2026] CSOH 5
The defenders accepted they were vicariously liable for the abuse carried out by their former employee. Whilst the defenders accepted that damages were payable to the pursuer, their position was that those damages should be restricted to compensating him for the injury to his mental health. The pursuer's position was that the abuse had resulted in him suffering long-term financial loss by adversely impacting his education and subsequent career prospects.
The pursuer reported becoming disengaged from his studies following the abuse and felt that the "building blocks" of his education were missing as he found himself unable to concentrate at school. As a result, he achieved poor exam results. After leaving school, the pursuer worked in a range of retail and hospitality jobs, where he often worked in managerial roles. Around 1994, the pursuer began a career in financial services. From 2003 onwards, the pursuer left his career in financial services to build a property development business with his wife, which had at times produced significant profits.
Although the pursuer had a somewhat successful business, he argued that, but for the abuse, he would likely have attended university and pursued a higher-paying professional career in business, finance or law. The pursuer's claim for damages amounted to more than £2.5 million, including substantial claims for past and future wage loss and pension loss. The defenders argued that the pursuer's claim should be limited to the injury to his mental health, as the pursuer had failed to establish a causal link between the abuse and his subsequent career.
Proving the Causal Link
The main issue for the court to consider was whether the pursuer had established a causal link between the abuse and his losses. In other words, he required to prove that had the abuse not occurred (1) he would have achieved the qualifications necessary to attend university, (2) he would have successfully completed the university course and (3) he had the desire and commitment to pursue a long-term career in business, finance or law.
The court heard from psychological and psychiatric experts whose opinions differed on whether the pursuer had suffered Post-Traumatic Stress Disorder ("PTSD") as a result of the abuse. Lord Young accepted the pursuer's expert evidence that the pursuer had developed PTSD during the abuse and shortly thereafter. However, Lord Young found that the pursuer's symptoms had largely resolved by the time the pursuer left Fettes in the mid-1980s.
The court also heard expert evidence from an employment expert, who considered comparator earnings models for men without a university degree and men with a university degree who graduated in the late 1980s. Although the pursuer had experienced periods of relatively high earnings, particularly during successful phases of his property development work, the expert evidence showed that his overall earnings generally fell below the comparator models over the course of his working life. However, Lord Young was not persuaded that this established loss was a result of the abuse.
The court placed emphasis on the evidential gaps in the pursuer's case. Firstly, there was little evidence about the university entry requirements for a business management course during the relevant period and the likelihood that the pursuer would have successfully completed a degree. Secondly, the pursuer's family background did not support the argument that the pursuer was likely to have achieved a university degree but for the abuse. The court compared the pursuer's academic performance to that of his siblings. Lord Young considered the pursuer's brother, who also attended Fettes, as his "closest comparator". Although his brother's exam results were marginally better and he was accepted into university, he did not complete his degree. The pursuer had an older sister who did not attend university and a younger sister who had obtained a university degree.
The court attached importance to the pursuer's decisions later in life. It was acknowledged that the pursuer did not attempt to obtain higher education qualifications as a mature student. Instead, he made the "positive decision" to move away from financial services into property development with his wife. Lord Young considered this a "perfectly sound decision" motivated by lifestyle reasons and job satisfaction, rather than one that was forced on him as a result of the effect of the abuse.
The Court's Decision
The court awarded the pursuer £40,000 for pain and suffering, together with interest of £57,604. However, the court refused the pursuer's claims for past and future loss of earnings and pension loss on the basis that the pursuer had failed to prove the causal link between the abuse, the adverse impact on his education, failure to obtain a university degree and a higher paid role. Ultimately, the court placed little weight on the arguments made by the pursuer that many of his contemporaries at Fettes College went on to achieve successful careers in law, finance and the military.
Lord Young held that the pursuer's failure to obtain a business management degree did not place him at a disadvantage in accessing business management roles. Furthermore, he opines that the pursuer was always likely to have set up his own business to follow in the footsteps of his father, who he greatly admired, as well as there being aspects of his personality which suggest a better fit with being his own boss. He states at para 103:
“The pursuer would be entitled to compensation for the loss of earning capacity brought about by the effect of the abuse, but the defenders are not liable to underwrite the profitability of his business in poor trading years… even if the pursuer had obtained a business degree… there is a real chance that he would have chosen, at some stage, to move to a self-employed occupation”
This decision highlights the difficulties that pursuers face when proving financial loss in historical abuse cases. Even in cases where the court accepts that the abuse resulted in an injury, it remains essential to prove the causal link between that injury and any subsequent losses.
