B V LONDON BOROUGH OF EALING AND ANOTHER [2008] EWHC 1262 (QB)
FACTS:-
The Claimant was the daughter of the Second Defendant. The First Defendant was the local authority in whose area the Claimant grew up.
The claim arose out of injuries sustained as a result of physical and emotional abuse inflicted on the Claimant by her father during her childhood. The father had in particular (a) threatened to kill the Claimant (b) beat the Claimant on practically a daily basis from the age of about 3 to about 17 with his hands, a cane, a wooden clothes brush, a length of cable or a leather belt. He had assaulted the Claimant’s mother and siblings. He also required his daughter to dress in front of him until she was about 18, and he would caress the Claimant unnecessarily when he tucked her into bed until she was about 14. He threatened the Claimant that if she told anyone about the abuse, she would be taken into care and separated from her siblings. He also called the Claimant derogatory names and told her that she should become a prostitute.
The claim against the First Defendant arose out of the alleged negligence of the social workers employed by the local authority, who failed to protect her from abuse.
Although proceedings had been served on the Second Defendant and he was aware of the claim, he had taken no part in the action although he had been served with the appropriate documentation. The court had heard evidence from a psychiatrist, Dr Trevor Friedman and also two of the Claimant’s brothers.
Dr Friedman said that the Claimant had developed significant psychological problems. She gave a clear history of anxiety disorder which affected her education. She was referred for therapy and counselling. She now presented with mild to moderate symptoms of agoraphobia and she was fearful of being out in public by herself or travelling long distances. She could overcome her anxieties if it was essential. In Dr Friedman’s view, her current symptoms of anxiety were related to a number of factors and it was obviously difficult to be certain as to the causation of her current problems. However her upbringing had probably been a major component in her lifelong symptoms of anxiety and she had generally underperformed in terms of her education and employment abilities. In his opinion there was a moderate relationship between her abuse in childhood and under her subsequent adult difficulties.
Dr Friedman suggested treatment which would cost £1500 and five or six sessions of focused psychotherapy in relation to her abusive upbringing. The cost of such additional treatment would be about £700.
There were also references in Dr Friedman’s report to periods of time when the Claimant was drinking excessively, although he did not believe that she reached the threshold for alcohol dependence syndrome. He felt that she would be helped by a brief intervention to help her control her excessive use of alcohol. Such treatment would cost £500. In his view, whilst it was difficult to be precise as to percentage effect upon her adult education and attainment of her abusive experiences, it would be reasonable to attribute 10% to 20% of her difficulties to her father’s abusive behaviour. In relation to her excessive use or abuse of alcohol, he recorded that his general view was that the cause of the Claimant’s alcohol dependency was complex and only to a small extent related to her childhood abusive experiences. He put forward a range of between 5% to 10%.
HELD:-
His Honour Judge McKenna sitting as a Judge of the High Court said that he accepted the substance of the expert evidence of Dr Friedman, and it was against that evidential background that he approached quantification of the Claimant’s losses.
Pain, suffering and loss of amenity
A useful starting point was Jake Pierce v Doncaster Metropolitan Borough Council [2007] EWCA 2968. In this case, the Claimant claimed damages against a local authority on the grounds that they had failed to protect him from child abuse at home. He was beaten, underfed and suffered general neglect. However in this case there was clear evidence of far more frequent assaults, pretty much on a daily basis and there was also clear evidence that the campaign of assaults caused the Claimant to suffer recognised psychiatric disorders.
Judge McKenna also referred a passage from the judgement of Scott-Baker J in the case of Various Claimants v Flintshire County Council 26th July 2000 Mr Justice Scott-Baker (Unreported). This judgement dwelt on the issues of causation and the apportionment of damage.
Taking all the factors into account Judge McKenna would award the sum of £33,500 in respect of pain, suffering and loss of amenity.
Loss of earnings
There was no doubt that the Claimant’s educational attainment had been adversely impacted by the treatment that she suffered at the hands of her father. She had achieved 8 GCSE’s and had started an A level course but was unable to complete it. She had worked on and off in 2001 and 2002 for six months, but had not worked since that time. She had two children, the first born in 2002 and the second born in 2005 but these were not the only factors impacting on her employment history. Judge McKenna was satisfied, on the balance of probabilities, that such support would have enabled the Claimant to obtain at least some level of employment.
Clearly there were a number of imponderables at play in a case of this type, which rendered the conventional multiplier/multiplicand approach to the assessment of past losses inappropriate. Judge McKenna said that he had been urged to take a broad brush approach to the calculation of pass loss and indeed future loss with a view of awarding a lump sum.
To all intents and purposes the Claimant had been unemployed for some seven years prior to trial. During that time she had given birth to two children. Doing the best he could and adopted a mesne figure of 15%, given Dr Friedman’s 10% to 20% range, in respect of past losses a figure of £11,000 would be awarded.
Turning to future loss, this would be approached on a lump sum basis and again there were a number of imponderables. The Claimant’s prognosis was good but there was a risk of relapse, which would result in a loss of earnings in the future. The Claimant would always be hampered by gaps in her curriculum vitae and the level of education actually attained, unless she took time out of the labour market to make up for lack of higher qualifications. She would also have to pay for the cost of that education. Doing the best he could, and giving due allowance to all of the factors to which Dr Friedman had referred, Judge McKenna would award for future loss a lump sum of £22,000.
Treatment costs
The cost of treatment (£2700) would be allowed in full, to which would be added the cost of travel expenses in the sum of £100.
There was an issue as to whether there should be some apportionment of therapy costs. Judge McKenna had been referred to the case of KR and Others v Bryn Alyn Community (Holdings) Limited (In Liquidation) and Royal and Sun Alliance plc [2003 EWCA Civ 85.
Compensation for excessive alcohol consumption
Counsel for the Claimant had referred Judge McKenna to the case of Eagle v Chambers [2004] EWCA Civ 1033. In that case, the Claimant had been a smoker before she was injured. In her injured state she began to smoke excessively and to waste some of the cigarettes that she was contemplating smoking. The judge awarded a sum for cigarettes wasted in the past, but not for the cost in any increased number of cigarettes. On appeal Waller LJ had said that only if the medical evidence were to convince a court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes could the extra consumption be a head of damage.
Judge McKenna would adopt that approach. Dr Friedman considered that the causes of the alcohol dependency were complex and only a small extent related to childhood abusive experiences. He suggested a range of 5% to 10% and Judge McKenna would take a mesne figure of 7.5%. Counsel for the Claimant had helpfully calculated the excess alcohol consumed to date at around £14,300, taking forward the figures as set out in the Schedule of Loss. Judge McKenna accepted those figures, and he would award £1072 in respect of this element of the claim.
In addition there would be interest.
FACTS:-
The Claimant was the daughter of the Second Defendant. The First Defendant was the local authority in whose area the Claimant grew up.
The claim arose out of injuries sustained as a result of physical and emotional abuse inflicted on the Claimant by her father during her childhood. The father had in particular (a) threatened to kill the Claimant (b) beat the Claimant on practically a daily basis from the age of about 3 to about 17 with his hands, a cane, a wooden clothes brush, a length of cable or a leather belt. He had assaulted the Claimant’s mother and siblings. He also required his daughter to dress in front of him until she was about 18, and he would caress the Claimant unnecessarily when he tucked her into bed until she was about 14. He threatened the Claimant that if she told anyone about the abuse, she would be taken into care and separated from her siblings. He also called the Claimant derogatory names and told her that she should become a prostitute.
The claim against the First Defendant arose out of the alleged negligence of the social workers employed by the local authority, who failed to protect her from abuse.
Although proceedings had been served on the Second Defendant and he was aware of the claim, he had taken no part in the action although he had been served with the appropriate documentation. The court had heard evidence from a psychiatrist, Dr Trevor Friedman and also two of the Claimant’s brothers.
Dr Friedman said that the Claimant had developed significant psychological problems. She gave a clear history of anxiety disorder which affected her education. She was referred for therapy and counselling. She now presented with mild to moderate symptoms of agoraphobia and she was fearful of being out in public by herself or travelling long distances. She could overcome her anxieties if it was essential. In Dr Friedman’s view, her current symptoms of anxiety were related to a number of factors and it was obviously difficult to be certain as to the causation of her current problems. However her upbringing had probably been a major component in her lifelong symptoms of anxiety and she had generally underperformed in terms of her education and employment abilities. In his opinion there was a moderate relationship between her abuse in childhood and under her subsequent adult difficulties.
Dr Friedman suggested treatment which would cost £1500 and five or six sessions of focused psychotherapy in relation to her abusive upbringing. The cost of such additional treatment would be about £700.
There were also references in Dr Friedman’s report to periods of time when the Claimant was drinking excessively, although he did not believe that she reached the threshold for alcohol dependence syndrome. He felt that she would be helped by a brief intervention to help her control her excessive use of alcohol. Such treatment would cost £500. In his view, whilst it was difficult to be precise as to percentage effect upon her adult education and attainment of her abusive experiences, it would be reasonable to attribute 10% to 20% of her difficulties to her father’s abusive behaviour. In relation to her excessive use or abuse of alcohol, he recorded that his general view was that the cause of the Claimant’s alcohol dependency was complex and only to a small extent related to her childhood abusive experiences. He put forward a range of between 5% to 10%.
HELD:-
His Honour Judge McKenna sitting as a Judge of the High Court said that he accepted the substance of the expert evidence of Dr Friedman, and it was against that evidential background that he approached quantification of the Claimant’s losses.
Pain, suffering and loss of amenity
A useful starting point was Jake Pierce v Doncaster Metropolitan Borough Council [2007] EWCA 2968. In this case, the Claimant claimed damages against a local authority on the grounds that they had failed to protect him from child abuse at home. He was beaten, underfed and suffered general neglect. However in this case there was clear evidence of far more frequent assaults, pretty much on a daily basis and there was also clear evidence that the campaign of assaults caused the Claimant to suffer recognised psychiatric disorders.
Judge McKenna also referred a passage from the judgement of Scott-Baker J in the case of Various Claimants v Flintshire County Council 26th July 2000 Mr Justice Scott-Baker (Unreported). This judgement dwelt on the issues of causation and the apportionment of damage.
Taking all the factors into account Judge McKenna would award the sum of £33,500 in respect of pain, suffering and loss of amenity.
Loss of earnings
There was no doubt that the Claimant’s educational attainment had been adversely impacted by the treatment that she suffered at the hands of her father. She had achieved 8 GCSE’s and had started an A level course but was unable to complete it. She had worked on and off in 2001 and 2002 for six months, but had not worked since that time. She had two children, the first born in 2002 and the second born in 2005 but these were not the only factors impacting on her employment history. Judge McKenna was satisfied, on the balance of probabilities, that such support would have enabled the Claimant to obtain at least some level of employment.
Clearly there were a number of imponderables at play in a case of this type, which rendered the conventional multiplier/multiplicand approach to the assessment of past losses inappropriate. Judge McKenna said that he had been urged to take a broad brush approach to the calculation of pass loss and indeed future loss with a view of awarding a lump sum.
To all intents and purposes the Claimant had been unemployed for some seven years prior to trial. During that time she had given birth to two children. Doing the best he could and adopted a mesne figure of 15%, given Dr Friedman’s 10% to 20% range, in respect of past losses a figure of £11,000 would be awarded.
Turning to future loss, this would be approached on a lump sum basis and again there were a number of imponderables. The Claimant’s prognosis was good but there was a risk of relapse, which would result in a loss of earnings in the future. The Claimant would always be hampered by gaps in her curriculum vitae and the level of education actually attained, unless she took time out of the labour market to make up for lack of higher qualifications. She would also have to pay for the cost of that education. Doing the best he could, and giving due allowance to all of the factors to which Dr Friedman had referred, Judge McKenna would award for future loss a lump sum of £22,000.
Treatment costs
The cost of treatment (£2700) would be allowed in full, to which would be added the cost of travel expenses in the sum of £100.
There was an issue as to whether there should be some apportionment of therapy costs. Judge McKenna had been referred to the case of KR and Others v Bryn Alyn Community (Holdings) Limited (In Liquidation) and Royal and Sun Alliance plc [2003 EWCA Civ 85.
Compensation for excessive alcohol consumption
Counsel for the Claimant had referred Judge McKenna to the case of Eagle v Chambers [2004] EWCA Civ 1033. In that case, the Claimant had been a smoker before she was injured. In her injured state she began to smoke excessively and to waste some of the cigarettes that she was contemplating smoking. The judge awarded a sum for cigarettes wasted in the past, but not for the cost in any increased number of cigarettes. On appeal Waller LJ had said that only if the medical evidence were to convince a court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes could the extra consumption be a head of damage.
Judge McKenna would adopt that approach. Dr Friedman considered that the causes of the alcohol dependency were complex and only a small extent related to childhood abusive experiences. He suggested a range of 5% to 10% and Judge McKenna would take a mesne figure of 7.5%. Counsel for the Claimant had helpfully calculated the excess alcohol consumed to date at around £14,300, taking forward the figures as set out in the Schedule of Loss. Judge McKenna accepted those figures, and he would award £1072 in respect of this element of the claim.
In addition there would be interest.