AB and OTHERS V NUGENT CARE [2010] EWHC 1005
FACTS:-
These cases were part of the Nugent Care Society Group, which had come before the Court of Appeal in AB and Others v Nugent Care Society [2009] EWCA Civ 827. Three Claimants were suing the Defendant in relation to abuse that they had suffered, whilst in the Defendant’s care.
HELD:-
JA - Introduction
JA was born on the 18th May 1956 and he was taken into care at the age of 13 from an impoverished and problematic family life. He was sent to St Aidan’s in October 1969 and remained there until May 1971. He was sexually abused by a care worker. The abuse amounted to two indecent assaults and then one where he was forced to give the care worker oral sex. He was also sexually abused by other inmates of St Aidan’s. JA was then sent to another care home, St Thomas More and then to Borstal.
Mr Justice Irwin considered the evidence. He found that JA was generally credible in his account. Both the medical experts agreed that he had not been unaltered by his difficulties. He also considered the corroborating evidence. Some of the witnesses had refused to give evidence, one had died, some were helpful to the Claimant’s case and others gave evidence which was unreliable. One witness had been a Claimant, whose claim had been turned down on the grounds of limitation, but in Irwin J’s view that did not make his evidence unreliable.
The care worker had been the subject of Crown Court proceedings in 2001 in relation to three of the other witnesses. He was acquitted in relation to those charges and in relation to JA’s allegations, he was again acquitted.
Irwin J said that he would bear in mind that compensation might be a motivation for exaggeration by Claimants in these cases. The care worker died in 2007 and there was no witness evidence from him. No attempt had been made by the Defendant’s solicitors to get his criminal statement in a case that had been issued in 1999. There was no other factual evidence from the Defendant save for a statement from a senior social worker and one from an assistant matron at St Aidan’s. She denied seeing any evidence of abuse at St Aidan’s, although she was suspicious of another care worker, who was later convicted of abuse. The senior social worker outlined the steps taken by her and her predecessor to gather evidence. Much of the documentation relating to St Aidan’s was missing, many of the former staff members were either deceased or were too old and frail to assist, or they had been unwilling to assist.
Limitation in relation to JA
Irwin J considered the view of the experts on limitation. In relation to “date of knowledge” this point was conceded by JA. In relation to Section 33 of the Limitation Act 1980, Irwin J said that he would follow the approach to the exercise of discretion under the 1980 Act set out fully in AB and Others v The Nugent Care Society [2009] EWHC 481.
It was 22 years from the end of the primary limitation period to the issue of proceedings. The delay by the Claimant was principally because of a strong desire to suppress and avoid this episode of his life, which was accepted by the experts. This was a classic case where the nature and impact of the abuse had contributed to the delay. There was no doubt that the evidence relating to the abuse was rendered less cogent by the delay before issue, however the principal loss of evidence was from the abuser. Irwin J had to ask whether the absence of that evidence should weigh against a Claimant, who had no control over the grant of discretion.
This consideration might be relevant to the question arising under Section 33(3)(b) which said:-
“the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;”
Irwin J said that he would approach this factor as one to be weighed in each individual case. In this case, the care worker faced a host of allegations from different Claimants. Irwin J was not persuaded that the evidence here was rendered less cogent to any great degree by the absence of the care worker.
There was evidence from a former matron at St Aidan’s but this was unhelpful to the Defence.
In relation to Section 33(3)(c), there was no relevant conduct on the part of the Defendants here, in the sense of any improper conduct causing delay to the carriage of the case by the Claimant. There had been excessive delay since the claims were issued for which both parties bore responsibility.
In relation to Section 33(3)(d), there was no relevant disability.
In relation to the reasons for the delay (Section 33(3)(a) and (e)), there was no significant delay once the Claimant had in fact realised that he could take legal proceedings, even though he remained reluctant to do so.
No delay arose from seeking legal or medical advice. (Section 33(3)(f)).
Finally Irwin J had to ask whether the claim was proportionate. It seemed that it was. Both sides’ experts agreed that, if proven, the abuse made a significant contribution to the Claimant’s problem.
For the reasons set out above, Irwin J would extend the limitation period permitting this action to proceed.
Liability, causation and quantum in relation to JA
Irwin J said that he found the Claimant a good witness, and that he accepted that there were at least three episodes of sexual abuse at the hands of the abuser. However the experts had disagreed on the attribution of the abuse. Irwin J said that these were very difficult waters. One should conclude that all the different components might have a major effect; that the effect might vary greatly from individual to individual and that it was difficult to draw any precise conclusions from the scientific literature.
The consensus between the experts was that he had suppressed the memories of what took place and had in effect put them in a box. Had he been an adequately looked after child once he reached St Aidan’s, it seemed sensible to think that he was young enough to improve more rapidly. Although his symptoms fell short of a formal psychiatric injury, the effects had been marked.
Irwin J considered the following authorities:-
· 18th Edition of McGregor on Damages at paragraph 37-001
· Richardson v Howie [2005] PIQR Q3 CA
· Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379
General damages would be awarded at £10,000 together with interest at 2% from the 1st January 2000.
JPM
Limitation had already been extended in the case of JPM.
Irwin J said that he had heard evidence from a teacher (who later became second deputy headmaster) at St Aidan’s. He was there from 1951 to 1982. Another was employed as a maintenance worker and gardener at St Aidan’s from 1966 to 1978. JPM alleged abuse by both together with another man, who worked at the home. The abuse consisted of indecent assaults, attempted buggery and oral sex.
The Claimant had also been bullied at St Aidan’s and witnessed sexual activity between the boys.
In March 1999, JPM made a Criminal Injuries Compensation claim, but this claim was not properly progressed. There was some corroborative evidence supporting JPM’s account. The Defendant’s medical expert felt that JPM had made responses that could not be interpreted as meaning that he was an unreliable informant. However the Claimant’s expert took a different view, and put the Claimant’s responses down to the sexual abuse.
The Defendant also had factual evidence. They called one man, a Mr Barber who worked at St Aidan’s from 1951 to 1982. He said that he had seen nothing amiss at St Aidan’s. One of the alleged abusers also gave evidence and he denied any misbehaviour. Irwin J said that he found neither witness compelling. They seemed concerned to put forward a view of St Aidan’s as a much more benign place than seemed at all credible.
Irwin J took the view that JPM had been abused at St Aidan’s as he alleged. In relation to the consequences of that abuse, the Defendant’s expert had said that 70% of the Claimant’s difficulties would have been determined by pre-care factors, emphasising on this occasion also genetic inheritance. Irwin J found this difficult to accept. In the case of JA, his family had a history of alcoholism, but JA had no such history. By contrast in JPM, there was no family history of alcoholism but JPM had an alcohol problem. Nonetheless the Defendant’s expert laid the same stress on genetics and inherited tendencies.
The Claimant’s expert took a different view, saying that the alleged sexual abuse had more of an effect on the Claimant. Both experts agreed that the effects did not extend to causing any occupational disadvantage. Irwin J would conclude that the sexual abuse to JPM at St Aidan’s did make some separate contribution to his difficulties. However it seemed likely that he would have been an offender and that he would have had a difficult life in any event. He preferred the analysis of the Claimant’s expert.
Irwin J would make two separate awards. The abuse here was significant, repeated and from more than one abuser, and it lasted for months at least. The award for general damages would be £25,000. The Claimant had also suffered from PTSD and Irwin J would award £12,500. The total of general damages would therefore be £37,500. Interest would be awarded at 2% per annum since February 2002, which was agreed at 16% and therefore interest would be awarded in the sum of £6,000.
Irwin J did not accept that JPM would go through any extensive psychotherapy, but it was likely that he would benefit and accept some counselling or therapy. Irwin J would award £2,000.
RM
RM was born in 1955. In late 1967 he was sent to Menlove Avenue Assessment Centre, and from there to St Vincent’s. In October 1969 he went to St Aidan’s until November 1971. Thereafter he spent time in and out of prison, but eventually he settled down with his long term partner and he had two children. Initially when he was contacted by the police in the late nineties, he denied that any sexual abuse had occurred. However later on, he made allegations of abuse at St Vincent’s and St Aidan’s. It was not entirely clear who the abusers were and the police were not able to identify many of the men he described. He proceeded to give a number of statements to the police.
In July 1998, the Claimant made an application to the Criminal Injuries Compensation Authority. Eventually that application was rejected in 2002.
In the course of the civil litigation, the Claimant was examined by a consultant psychiatrist, and this was the only psychiatric evidence before Irwin J. There was also a report from a clinical psychologist. The psychiatrist said that RM’s account of having more frequent and more intrusive memories of what had occurred was not unusual in people who had suffered abusive experiences. He also said that the most important psychological consequence of RM’s abusive experiences was the marked change that had occurred since the disclosure to police officers investigating the abuse in care. He made a formal diagnosis of post traumatic stress disorder.
RM said in oral evidence that he had not given out the full story. He accepted that he had lied in his first statement, and there were inconsistencies between his statements made at different times.
Irwin J considered the other witness evidence, some of which appeared to corroborate the Claimant’s account, but others which were clearly flawed.
Limitation
In relation to limitation, the Claimant’s primary limitation period expired on his 21st birthday in 1976, and the claim was issued on the 26th May 1999. The issue of knowledge had been conceded in the case of RM.
In relation to Section 33 of the Limitation Act 1980, Irwin J said that the evidence bearing on the abuse had been rendered to a marked degree less cogent by the delay before issue. A significant number of key witnesses for the defence had died, often many years before the issue of proceedings. The most striking feature of this case was the difficulty of the Claimant’s successive accounts. It was particularly hard to see how the truth could be established whilst in these institutions.
There was no relevant conduct on the part of the Defendants in the sense of any improper conduct causing delay to the carriage of the case by the Claimant. Both sides had delayed since the issue of proceedings. There was no relevant disability within the meaning of Section 33(3)(d).
There was no significant delay once the Claimant realised that he could in fact take legal proceedings, and no delay arose from seeking legal or medical advice.
Was the claim proportionate? It would be a proportionate claim, if the abuses complained of were established, since the claimed abuse was serious.
Irwin J said that there was a real risk of injustice if this claim were allowed to proceed. For those reasons, he would decline to extend the limitation period.
FACTS:-
These cases were part of the Nugent Care Society Group, which had come before the Court of Appeal in AB and Others v Nugent Care Society [2009] EWCA Civ 827. Three Claimants were suing the Defendant in relation to abuse that they had suffered, whilst in the Defendant’s care.
HELD:-
JA - Introduction
JA was born on the 18th May 1956 and he was taken into care at the age of 13 from an impoverished and problematic family life. He was sent to St Aidan’s in October 1969 and remained there until May 1971. He was sexually abused by a care worker. The abuse amounted to two indecent assaults and then one where he was forced to give the care worker oral sex. He was also sexually abused by other inmates of St Aidan’s. JA was then sent to another care home, St Thomas More and then to Borstal.
Mr Justice Irwin considered the evidence. He found that JA was generally credible in his account. Both the medical experts agreed that he had not been unaltered by his difficulties. He also considered the corroborating evidence. Some of the witnesses had refused to give evidence, one had died, some were helpful to the Claimant’s case and others gave evidence which was unreliable. One witness had been a Claimant, whose claim had been turned down on the grounds of limitation, but in Irwin J’s view that did not make his evidence unreliable.
The care worker had been the subject of Crown Court proceedings in 2001 in relation to three of the other witnesses. He was acquitted in relation to those charges and in relation to JA’s allegations, he was again acquitted.
Irwin J said that he would bear in mind that compensation might be a motivation for exaggeration by Claimants in these cases. The care worker died in 2007 and there was no witness evidence from him. No attempt had been made by the Defendant’s solicitors to get his criminal statement in a case that had been issued in 1999. There was no other factual evidence from the Defendant save for a statement from a senior social worker and one from an assistant matron at St Aidan’s. She denied seeing any evidence of abuse at St Aidan’s, although she was suspicious of another care worker, who was later convicted of abuse. The senior social worker outlined the steps taken by her and her predecessor to gather evidence. Much of the documentation relating to St Aidan’s was missing, many of the former staff members were either deceased or were too old and frail to assist, or they had been unwilling to assist.
Limitation in relation to JA
Irwin J considered the view of the experts on limitation. In relation to “date of knowledge” this point was conceded by JA. In relation to Section 33 of the Limitation Act 1980, Irwin J said that he would follow the approach to the exercise of discretion under the 1980 Act set out fully in AB and Others v The Nugent Care Society [2009] EWHC 481.
It was 22 years from the end of the primary limitation period to the issue of proceedings. The delay by the Claimant was principally because of a strong desire to suppress and avoid this episode of his life, which was accepted by the experts. This was a classic case where the nature and impact of the abuse had contributed to the delay. There was no doubt that the evidence relating to the abuse was rendered less cogent by the delay before issue, however the principal loss of evidence was from the abuser. Irwin J had to ask whether the absence of that evidence should weigh against a Claimant, who had no control over the grant of discretion.
This consideration might be relevant to the question arising under Section 33(3)(b) which said:-
“the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;”
Irwin J said that he would approach this factor as one to be weighed in each individual case. In this case, the care worker faced a host of allegations from different Claimants. Irwin J was not persuaded that the evidence here was rendered less cogent to any great degree by the absence of the care worker.
There was evidence from a former matron at St Aidan’s but this was unhelpful to the Defence.
In relation to Section 33(3)(c), there was no relevant conduct on the part of the Defendants here, in the sense of any improper conduct causing delay to the carriage of the case by the Claimant. There had been excessive delay since the claims were issued for which both parties bore responsibility.
In relation to Section 33(3)(d), there was no relevant disability.
In relation to the reasons for the delay (Section 33(3)(a) and (e)), there was no significant delay once the Claimant had in fact realised that he could take legal proceedings, even though he remained reluctant to do so.
No delay arose from seeking legal or medical advice. (Section 33(3)(f)).
Finally Irwin J had to ask whether the claim was proportionate. It seemed that it was. Both sides’ experts agreed that, if proven, the abuse made a significant contribution to the Claimant’s problem.
For the reasons set out above, Irwin J would extend the limitation period permitting this action to proceed.
Liability, causation and quantum in relation to JA
Irwin J said that he found the Claimant a good witness, and that he accepted that there were at least three episodes of sexual abuse at the hands of the abuser. However the experts had disagreed on the attribution of the abuse. Irwin J said that these were very difficult waters. One should conclude that all the different components might have a major effect; that the effect might vary greatly from individual to individual and that it was difficult to draw any precise conclusions from the scientific literature.
The consensus between the experts was that he had suppressed the memories of what took place and had in effect put them in a box. Had he been an adequately looked after child once he reached St Aidan’s, it seemed sensible to think that he was young enough to improve more rapidly. Although his symptoms fell short of a formal psychiatric injury, the effects had been marked.
Irwin J considered the following authorities:-
· 18th Edition of McGregor on Damages at paragraph 37-001
· Richardson v Howie [2005] PIQR Q3 CA
· Hugh Martins v Mohammed Choudhary [2007] EWCA Civ 1379
General damages would be awarded at £10,000 together with interest at 2% from the 1st January 2000.
JPM
Limitation had already been extended in the case of JPM.
Irwin J said that he had heard evidence from a teacher (who later became second deputy headmaster) at St Aidan’s. He was there from 1951 to 1982. Another was employed as a maintenance worker and gardener at St Aidan’s from 1966 to 1978. JPM alleged abuse by both together with another man, who worked at the home. The abuse consisted of indecent assaults, attempted buggery and oral sex.
The Claimant had also been bullied at St Aidan’s and witnessed sexual activity between the boys.
In March 1999, JPM made a Criminal Injuries Compensation claim, but this claim was not properly progressed. There was some corroborative evidence supporting JPM’s account. The Defendant’s medical expert felt that JPM had made responses that could not be interpreted as meaning that he was an unreliable informant. However the Claimant’s expert took a different view, and put the Claimant’s responses down to the sexual abuse.
The Defendant also had factual evidence. They called one man, a Mr Barber who worked at St Aidan’s from 1951 to 1982. He said that he had seen nothing amiss at St Aidan’s. One of the alleged abusers also gave evidence and he denied any misbehaviour. Irwin J said that he found neither witness compelling. They seemed concerned to put forward a view of St Aidan’s as a much more benign place than seemed at all credible.
Irwin J took the view that JPM had been abused at St Aidan’s as he alleged. In relation to the consequences of that abuse, the Defendant’s expert had said that 70% of the Claimant’s difficulties would have been determined by pre-care factors, emphasising on this occasion also genetic inheritance. Irwin J found this difficult to accept. In the case of JA, his family had a history of alcoholism, but JA had no such history. By contrast in JPM, there was no family history of alcoholism but JPM had an alcohol problem. Nonetheless the Defendant’s expert laid the same stress on genetics and inherited tendencies.
The Claimant’s expert took a different view, saying that the alleged sexual abuse had more of an effect on the Claimant. Both experts agreed that the effects did not extend to causing any occupational disadvantage. Irwin J would conclude that the sexual abuse to JPM at St Aidan’s did make some separate contribution to his difficulties. However it seemed likely that he would have been an offender and that he would have had a difficult life in any event. He preferred the analysis of the Claimant’s expert.
Irwin J would make two separate awards. The abuse here was significant, repeated and from more than one abuser, and it lasted for months at least. The award for general damages would be £25,000. The Claimant had also suffered from PTSD and Irwin J would award £12,500. The total of general damages would therefore be £37,500. Interest would be awarded at 2% per annum since February 2002, which was agreed at 16% and therefore interest would be awarded in the sum of £6,000.
Irwin J did not accept that JPM would go through any extensive psychotherapy, but it was likely that he would benefit and accept some counselling or therapy. Irwin J would award £2,000.
RM
RM was born in 1955. In late 1967 he was sent to Menlove Avenue Assessment Centre, and from there to St Vincent’s. In October 1969 he went to St Aidan’s until November 1971. Thereafter he spent time in and out of prison, but eventually he settled down with his long term partner and he had two children. Initially when he was contacted by the police in the late nineties, he denied that any sexual abuse had occurred. However later on, he made allegations of abuse at St Vincent’s and St Aidan’s. It was not entirely clear who the abusers were and the police were not able to identify many of the men he described. He proceeded to give a number of statements to the police.
In July 1998, the Claimant made an application to the Criminal Injuries Compensation Authority. Eventually that application was rejected in 2002.
In the course of the civil litigation, the Claimant was examined by a consultant psychiatrist, and this was the only psychiatric evidence before Irwin J. There was also a report from a clinical psychologist. The psychiatrist said that RM’s account of having more frequent and more intrusive memories of what had occurred was not unusual in people who had suffered abusive experiences. He also said that the most important psychological consequence of RM’s abusive experiences was the marked change that had occurred since the disclosure to police officers investigating the abuse in care. He made a formal diagnosis of post traumatic stress disorder.
RM said in oral evidence that he had not given out the full story. He accepted that he had lied in his first statement, and there were inconsistencies between his statements made at different times.
Irwin J considered the other witness evidence, some of which appeared to corroborate the Claimant’s account, but others which were clearly flawed.
Limitation
In relation to limitation, the Claimant’s primary limitation period expired on his 21st birthday in 1976, and the claim was issued on the 26th May 1999. The issue of knowledge had been conceded in the case of RM.
In relation to Section 33 of the Limitation Act 1980, Irwin J said that the evidence bearing on the abuse had been rendered to a marked degree less cogent by the delay before issue. A significant number of key witnesses for the defence had died, often many years before the issue of proceedings. The most striking feature of this case was the difficulty of the Claimant’s successive accounts. It was particularly hard to see how the truth could be established whilst in these institutions.
There was no relevant conduct on the part of the Defendants in the sense of any improper conduct causing delay to the carriage of the case by the Claimant. Both sides had delayed since the issue of proceedings. There was no relevant disability within the meaning of Section 33(3)(d).
There was no significant delay once the Claimant realised that he could in fact take legal proceedings, and no delay arose from seeking legal or medical advice.
Was the claim proportionate? It would be a proportionate claim, if the abuses complained of were established, since the claimed abuse was serious.
Irwin J said that there was a real risk of injustice if this claim were allowed to proceed. For those reasons, he would decline to extend the limitation period.