C V D AND ANOTHER [2006] EWHC 166(QB)
FACTS:-
From 1989 (when the Claimant was nine) to 1993, the Claimant was a pupil at the junior day school of an Abbey run by the Catholic Church (the Second Defendant). The First Defendant was the headmaster of the school throughout that period. The Claimant made three broad allegations of abuse against the First Defendant. There were occasions when the First Defendant touched his genitals whilst drying him with a towel after swimming lessons held by the local swimming paths. On another occasion the First Defendant videoed him and other members of his class whilst they were taking a shower. Thirdly the First Defendant had had pulled down his trousers and stared at his genitals. He had also fondled the Claimant’s penis. Both of these incidents had occurred in the infirmary of the school, and the first was called the “first infirmary incident” insofar as it did not involve any actual touching.
As a result of these incidents the Claimant had tried to kill himself at the age of 10, but he had not told anyone of what was happening. His father was made redundant and as a consequence became depressed. The Claimant’s relationship with his father deteriorated as did his general behaviour. Eventually he was sent to a boarding school in 1994 where he was beaten by other boys. In his later teenage years, he had sexual problems with his girlfriend. However he achieved good GCSE’s A-levels. He left school at the age of 18 and completed a one year art foundation course at Kingston University. However by this time he was drinking excessively and failed to take up a place at Camberwell Art School. He then went to China for three months to study martial arts in a monastery, before returning and then travelling to France and Italy. In Italy he had a nervous breakdown. He then returned to England, travelled to Taiwan and then returned again to begin a course at St Martin’s College of Art. However he left that course after a fight with one of his lecturers.
In 2001/2002 he told his martial arts instructor that he had been sexually abused. In 2004 he visited the school and spoke to the Abbot. He told him that he had been sexually abused by the First Defendant. The Abbot said that there had been suspicions about the First Defendant and he had been arrested and moved from the headmastership. However he had then been made Bursar. The Claimant contacted the police in February 2004 and gave a statement although he did not give the full details of the abuse. The police later decided to take no action against the First Defendant. He also contacted a solicitor in March 2004 and his claim was issued on the 18th October 2004 and served in February 2005.
The First Defendant denied these allegations save for the videoing, which he said was entirely innocent.
The matter came to trial and the Claimant gave evidence together with the expert evidence of Dr Robin Benians, a consultant psychiatrist. The First Defendant also gave evidence and the Defendants called expert evidence from Professor Anthony Maden. The Abbot of the Abbey when the Claimant was at school gave a statement under the Civil Evidence Act 1995.
The Claimant relied on allegations of sexual abuse made by others against the First Defendant as “similar fact” evidence. The Claimant’s solicitors had made a successful application for an order compelling the First Defendant to reply to a request for information seeking particulars of all allegations made to or about the First Defendant to the effect that he had indulged in any form of sexual behaviour about young boys whether by watching, touching or otherwise. The First and Second Defendants provided details of allegations made by three former pupils of the school who were referred to as “X”, “Y” and “Z”. The Second Defendant also had information about a fourth individual, who had intimated that he wanted to make a complaint against the First Defendant but had not done so.
HELD:-
Admissibility of the Defendants’ replies to requests for information
Mr Justice Field said that the evidence provided by the fourth individual was of no evidential value at all. However in relation to the allegations of X, Y & Z he had been asked to rule on their admissibility. The Claimant’s counsel said that he did not propose to call X, Y & Z. but would rely instead on what was set out in the replies. The Defendants argued that the allegations should not be admitted because they were not potentially probative. Justice Field had ruled on the authority of O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 that the Defendants’ replies were relevant and were accordingly admissible. The question of what weight should be attached to the allegations, was a matter to be dealt with at trial.
During the course of D1’s evidence at trial, Justice Field had asked if there had been any relevant disclosure in relation to the replies made by the Defendants. None had been disclosed and so the Defendants were directed to make a search overnight. The next day, documentation was produced by the First Defendant including an investigation of Y’s allegations and by the Second Defendant in relation to X’s allegations. The day after that, further documentation was produced by the First Defendant in relation to Y.
Justice Field said that if this information had been before him at the start of the trial, he would not have been hesitant about ruling that the allegation of X, Y and Z were admissible. He had required the First and Second Defendants to swear affidavits saying why full disclosure had not been made and confirming that there was nothing further to disclose. He was not impressed with the First Defendant’s approach to answering the Claimant’s request for information although he had not set out to mislead the court. He was satisfied that the Second Defendant (represented by the Abbott of the Abbey) had not misled the court. The First
Defendant was recalled to give evidence in relation to this new documentation.
What weight should be given to the similar fact evidence?
Justice Field said that he would exclude the whole of the incident concerning Y because there were strong grounds for suspecting that he was induced to make a false allegation by his father, who wanted to get back at the First Defendant for reporting the father’s alleged abuse to social services. Z’s allegations were admitted. X was not called as a witness – the Claimant’s counsel had decided not to call him as the Defendants’ replies to the request for information were a complete record of the allegations. When further documentation had been disclosed during the course of the trial, the Claimant’s counsel had again decided not to call X. The Defendants’ counsel referred the court to section 4(1) and (2) (a) to (d) of the Civil Evidence Act 1995.
“4(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regards to any circumstances from which an inference can be reasonably drawn as to the reliability or otherwise or the evidence.
(2) Regard may be had, in particular, to the following –
Justice Field said that with regard to the consideration in section 4(2)(a), the pre trial decision not to call X was reasonable and understandable. It was far from clear whether X would have been a willing witness.
In relation to section 4(2)(b), X’s statement was not made contemporaneously with the occurrence of the matters stated therein. Nonetheless the allegations he made were clear and unambiguous.
In relation to section 4(2)(c) those parts of the statement which related to what X had heard other boys say about the First Defendant would be excluded save to the extent that they were admitted.
With respect to section 4(2)(d) there was nothing to suggest that X had a motive for making false allegations.
The evidence suggested that the First Defendant had a sexual interest in boys. His admitted conduct towards boys was wholly unjustified.
The First Defendant’s contested evidence in response to the Claimant’s allegations could not be regarded as supporting X’s disputed allegations because X’s allegations were only admissible as being potentially probative of C’s allegations and so mutually supportive. However any admission by the First Defendant was supportive to X’s allegations, insofar it was relevant to those allegations.
Justice Field quoted the words of Lord Nicholls in Re H (minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 E-F:-
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in a particular case, that the more serious the allegation the less likely it is that the event occurred, and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
Justice Field found that X’s allegations were true. He found C to be an entirely convincing, reliable and credible witness. Professor Maden, one of the psychiatric experts had thought that he had exaggerated his behaviour when he was seen but Justice Field was of a different view. He may have lied to the police about the full extent of the abuse, but Justice Field did not think that he was lying to him.
The First Defendant on the other hand, was an unconvincing witness.
Were the videoing of C in the school showers and the actions of the First Defendant in the first infirmary incident (the one which did not involve any touching) actionable wrongs?
It was not disputed that if the First Defendant deliberately touched the Claimant’s genitals, that was a tort of trespass to the person in the form of a battery. The Claimant’s counsel submitted that the videoing was actionable because they involved a breach of duty by the Defendant and caused harm to the Claimant which amounted to psychiatric injury. Alternatively he submitted that if the harm was something less than psychiatric injury, the First Defendant was still liable on the authority of Wilkinson v. Downton [1897] 2 QB 57.
The principle in Wilkinson v Downton was examined by the House of Lords in Wainwright v Home Office [2003] UKHL 53 Lord Hoffman had pointed out at paragraph 46 of his judgment that there was a civil remedy provided under the Protection from Harassment Act 1997 albeit in limited circumstances. The principle in Wilkinson was that even if an intention to cause harm can be established, there must be a recognised psychiatric injury. Emotional distress was not enough and so for the video and first infirmary incident to be actionable, they had to have caused actionable injury.
Dr Benians, the psychiatrist called by the Claimant had said that the Claimant was suffering from Anti-social Personality Disorder (“ASPD”) and that the sexual abuse was at least a substantial cause of this condition. However Professor Maden, the Defendants’ expert said that the Claimant was not suffering from ASPD. Justice Field preferred the opinion of Professor Maden as he treated adults, whereas Dr Benians’ main experience was in treating children.
Justice Field said that he was satisfied that the Claimant had suffered and continued to suffer from mental abnormality as distinct from emotional distress. However he held that the video incident caused only emotional distress and for that reason was not actionable. However the first infirmary incident was a gross invasion of his privacy and it was one of the causes of the Claimant’s mental abnormality.
Justice Field then considered whether the circumstances were such that the necessary intention could be imputed to the First Defendant so as to come within the Wilkinson v Downton principle. There appeared to be three bases of imputation:-
In this case, the third basis could be applied. The First Defendant, behaving as he did during this first infirmary incident was reckless as to whether he caused psychiatric injury to the Claimant, and accordingly he was liable to the Claimant under the Wilkinson v Downton principle.
In relation to the video incident, it had been suggested that the case of Wainwright v Home Office provided support for a Wilkinson type claim. Lord Hoffman at paragraph 45 of his judgment had said that if the court wished to abandon the rule that damages for mere distress were not recoverable, imputed intention would not be enough. The Defendant had to act in a way which he knew to be unjustifiable, and either intended to cause harm or at least acted without caring whether he caused harm of not. Lord Justice Field said that Lord Hoffman was not promulgating a new basis of tortious liability for mere distress and so the Wainwright case did not provide support for a claim based on the video incident.
Causation and apportionment
Justice Field referred to the case of Various Claimants v Flintshire County Council (26th July 2000) in which Scott Baker J held that a Claimant had to show that the abuse he suffered had made a material contribution to his condition, and that damage should be apportioned (between abuse and other factors) on a common sense basis. In this case Justice Field felt that the actionable abuse had made a material contribution to the Claimant’s mental condition.
General damages
Reference had been made to the section dealing with psychiatric injury in the Judicial Studies Board Guidelines. Justice Field awarded £20,000.
Loss of earnings/Disadvantage in the labour market
The Claimant contended that but for the abuse, he would have settled into a degree course after his foundation year, from which he would have graduated in 2003. However as a consequence of the abuse, he would now graduate four years later, and will suffer a loss of earnings because his professional career would have been shortened. The Claimant’s counsel submitted that the four lost years were the four last years of the Claimant’s professional life with a net loss per annum of £30,000.
Justice Field said that there was an element of uncertainty here. He had to take into account (i) net earning only (ii) what the Claimant earned before 2004 (iii) the contingencies of life (iv) accelerated receipt and (v) the possibility that there might be some significant benefit to the Claimant in entering professional life when he was older. £15,000 would be awarded under this head.
Cost of treatment
The claim under this head appeared reasonable and Justice Field would award £3,000 under this head.
Loss of support
The Claimant said that his parents had supported his sister at University, but not him because of the breakdown in their relationship. His estimate was that he might have received about £5,000 a year for a period of four years. Justice Field said that there a number of uncertainties here, and he had to take into account that support of children was a discretionary matter. He would award £5,000.
Conclusion
Judgment was given in the total sum of £43,000 plus interest.
Justice Field said that an order had been made under CPR 39.24 concealing the identity of the parties. The Claimant’s counsel now submitted that the identities of the parties should be disclosed. Justice Field said that the public interest required that all the parties should be identified. Therefore the original order under CPR 39.24 should be discharged but a stay of the order should be granted for four weeks to allow the Defendants to apply for relief from the Court of Appeal.
FACTS:-
From 1989 (when the Claimant was nine) to 1993, the Claimant was a pupil at the junior day school of an Abbey run by the Catholic Church (the Second Defendant). The First Defendant was the headmaster of the school throughout that period. The Claimant made three broad allegations of abuse against the First Defendant. There were occasions when the First Defendant touched his genitals whilst drying him with a towel after swimming lessons held by the local swimming paths. On another occasion the First Defendant videoed him and other members of his class whilst they were taking a shower. Thirdly the First Defendant had had pulled down his trousers and stared at his genitals. He had also fondled the Claimant’s penis. Both of these incidents had occurred in the infirmary of the school, and the first was called the “first infirmary incident” insofar as it did not involve any actual touching.
As a result of these incidents the Claimant had tried to kill himself at the age of 10, but he had not told anyone of what was happening. His father was made redundant and as a consequence became depressed. The Claimant’s relationship with his father deteriorated as did his general behaviour. Eventually he was sent to a boarding school in 1994 where he was beaten by other boys. In his later teenage years, he had sexual problems with his girlfriend. However he achieved good GCSE’s A-levels. He left school at the age of 18 and completed a one year art foundation course at Kingston University. However by this time he was drinking excessively and failed to take up a place at Camberwell Art School. He then went to China for three months to study martial arts in a monastery, before returning and then travelling to France and Italy. In Italy he had a nervous breakdown. He then returned to England, travelled to Taiwan and then returned again to begin a course at St Martin’s College of Art. However he left that course after a fight with one of his lecturers.
In 2001/2002 he told his martial arts instructor that he had been sexually abused. In 2004 he visited the school and spoke to the Abbot. He told him that he had been sexually abused by the First Defendant. The Abbot said that there had been suspicions about the First Defendant and he had been arrested and moved from the headmastership. However he had then been made Bursar. The Claimant contacted the police in February 2004 and gave a statement although he did not give the full details of the abuse. The police later decided to take no action against the First Defendant. He also contacted a solicitor in March 2004 and his claim was issued on the 18th October 2004 and served in February 2005.
The First Defendant denied these allegations save for the videoing, which he said was entirely innocent.
The matter came to trial and the Claimant gave evidence together with the expert evidence of Dr Robin Benians, a consultant psychiatrist. The First Defendant also gave evidence and the Defendants called expert evidence from Professor Anthony Maden. The Abbot of the Abbey when the Claimant was at school gave a statement under the Civil Evidence Act 1995.
The Claimant relied on allegations of sexual abuse made by others against the First Defendant as “similar fact” evidence. The Claimant’s solicitors had made a successful application for an order compelling the First Defendant to reply to a request for information seeking particulars of all allegations made to or about the First Defendant to the effect that he had indulged in any form of sexual behaviour about young boys whether by watching, touching or otherwise. The First and Second Defendants provided details of allegations made by three former pupils of the school who were referred to as “X”, “Y” and “Z”. The Second Defendant also had information about a fourth individual, who had intimated that he wanted to make a complaint against the First Defendant but had not done so.
HELD:-
Admissibility of the Defendants’ replies to requests for information
Mr Justice Field said that the evidence provided by the fourth individual was of no evidential value at all. However in relation to the allegations of X, Y & Z he had been asked to rule on their admissibility. The Claimant’s counsel said that he did not propose to call X, Y & Z. but would rely instead on what was set out in the replies. The Defendants argued that the allegations should not be admitted because they were not potentially probative. Justice Field had ruled on the authority of O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 that the Defendants’ replies were relevant and were accordingly admissible. The question of what weight should be attached to the allegations, was a matter to be dealt with at trial.
During the course of D1’s evidence at trial, Justice Field had asked if there had been any relevant disclosure in relation to the replies made by the Defendants. None had been disclosed and so the Defendants were directed to make a search overnight. The next day, documentation was produced by the First Defendant including an investigation of Y’s allegations and by the Second Defendant in relation to X’s allegations. The day after that, further documentation was produced by the First Defendant in relation to Y.
Justice Field said that if this information had been before him at the start of the trial, he would not have been hesitant about ruling that the allegation of X, Y and Z were admissible. He had required the First and Second Defendants to swear affidavits saying why full disclosure had not been made and confirming that there was nothing further to disclose. He was not impressed with the First Defendant’s approach to answering the Claimant’s request for information although he had not set out to mislead the court. He was satisfied that the Second Defendant (represented by the Abbott of the Abbey) had not misled the court. The First
Defendant was recalled to give evidence in relation to this new documentation.
What weight should be given to the similar fact evidence?
Justice Field said that he would exclude the whole of the incident concerning Y because there were strong grounds for suspecting that he was induced to make a false allegation by his father, who wanted to get back at the First Defendant for reporting the father’s alleged abuse to social services. Z’s allegations were admitted. X was not called as a witness – the Claimant’s counsel had decided not to call him as the Defendants’ replies to the request for information were a complete record of the allegations. When further documentation had been disclosed during the course of the trial, the Claimant’s counsel had again decided not to call X. The Defendants’ counsel referred the court to section 4(1) and (2) (a) to (d) of the Civil Evidence Act 1995.
“4(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regards to any circumstances from which an inference can be reasonably drawn as to the reliability or otherwise or the evidence.
(2) Regard may be had, in particular, to the following –
- whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
- whether the original statement was made contemporaneously with the occurrence of existence of the matters stated;
- whether the evidence involves multiple hearsay;
- whether any person involved had any motive to conceal or misrepresent matters;”
Justice Field said that with regard to the consideration in section 4(2)(a), the pre trial decision not to call X was reasonable and understandable. It was far from clear whether X would have been a willing witness.
In relation to section 4(2)(b), X’s statement was not made contemporaneously with the occurrence of the matters stated therein. Nonetheless the allegations he made were clear and unambiguous.
In relation to section 4(2)(c) those parts of the statement which related to what X had heard other boys say about the First Defendant would be excluded save to the extent that they were admitted.
With respect to section 4(2)(d) there was nothing to suggest that X had a motive for making false allegations.
The evidence suggested that the First Defendant had a sexual interest in boys. His admitted conduct towards boys was wholly unjustified.
The First Defendant’s contested evidence in response to the Claimant’s allegations could not be regarded as supporting X’s disputed allegations because X’s allegations were only admissible as being potentially probative of C’s allegations and so mutually supportive. However any admission by the First Defendant was supportive to X’s allegations, insofar it was relevant to those allegations.
Justice Field quoted the words of Lord Nicholls in Re H (minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 E-F:-
“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in a particular case, that the more serious the allegation the less likely it is that the event occurred, and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”
Justice Field found that X’s allegations were true. He found C to be an entirely convincing, reliable and credible witness. Professor Maden, one of the psychiatric experts had thought that he had exaggerated his behaviour when he was seen but Justice Field was of a different view. He may have lied to the police about the full extent of the abuse, but Justice Field did not think that he was lying to him.
The First Defendant on the other hand, was an unconvincing witness.
Were the videoing of C in the school showers and the actions of the First Defendant in the first infirmary incident (the one which did not involve any touching) actionable wrongs?
It was not disputed that if the First Defendant deliberately touched the Claimant’s genitals, that was a tort of trespass to the person in the form of a battery. The Claimant’s counsel submitted that the videoing was actionable because they involved a breach of duty by the Defendant and caused harm to the Claimant which amounted to psychiatric injury. Alternatively he submitted that if the harm was something less than psychiatric injury, the First Defendant was still liable on the authority of Wilkinson v. Downton [1897] 2 QB 57.
The principle in Wilkinson v Downton was examined by the House of Lords in Wainwright v Home Office [2003] UKHL 53 Lord Hoffman had pointed out at paragraph 46 of his judgment that there was a civil remedy provided under the Protection from Harassment Act 1997 albeit in limited circumstances. The principle in Wilkinson was that even if an intention to cause harm can be established, there must be a recognised psychiatric injury. Emotional distress was not enough and so for the video and first infirmary incident to be actionable, they had to have caused actionable injury.
Dr Benians, the psychiatrist called by the Claimant had said that the Claimant was suffering from Anti-social Personality Disorder (“ASPD”) and that the sexual abuse was at least a substantial cause of this condition. However Professor Maden, the Defendants’ expert said that the Claimant was not suffering from ASPD. Justice Field preferred the opinion of Professor Maden as he treated adults, whereas Dr Benians’ main experience was in treating children.
Justice Field said that he was satisfied that the Claimant had suffered and continued to suffer from mental abnormality as distinct from emotional distress. However he held that the video incident caused only emotional distress and for that reason was not actionable. However the first infirmary incident was a gross invasion of his privacy and it was one of the causes of the Claimant’s mental abnormality.
Justice Field then considered whether the circumstances were such that the necessary intention could be imputed to the First Defendant so as to come within the Wilkinson v Downton principle. There appeared to be three bases of imputation:-
- The acts of the Defendant were calculated to cause psychiatric harm and were done with the knowledge that they were likely to cause such harm
- The psychiatric injury was sufficiently likely to result from the conduct complained of
- The Defendant was reckless as to whether psychiatric harm was caused
In this case, the third basis could be applied. The First Defendant, behaving as he did during this first infirmary incident was reckless as to whether he caused psychiatric injury to the Claimant, and accordingly he was liable to the Claimant under the Wilkinson v Downton principle.
In relation to the video incident, it had been suggested that the case of Wainwright v Home Office provided support for a Wilkinson type claim. Lord Hoffman at paragraph 45 of his judgment had said that if the court wished to abandon the rule that damages for mere distress were not recoverable, imputed intention would not be enough. The Defendant had to act in a way which he knew to be unjustifiable, and either intended to cause harm or at least acted without caring whether he caused harm of not. Lord Justice Field said that Lord Hoffman was not promulgating a new basis of tortious liability for mere distress and so the Wainwright case did not provide support for a claim based on the video incident.
Causation and apportionment
Justice Field referred to the case of Various Claimants v Flintshire County Council (26th July 2000) in which Scott Baker J held that a Claimant had to show that the abuse he suffered had made a material contribution to his condition, and that damage should be apportioned (between abuse and other factors) on a common sense basis. In this case Justice Field felt that the actionable abuse had made a material contribution to the Claimant’s mental condition.
General damages
Reference had been made to the section dealing with psychiatric injury in the Judicial Studies Board Guidelines. Justice Field awarded £20,000.
Loss of earnings/Disadvantage in the labour market
The Claimant contended that but for the abuse, he would have settled into a degree course after his foundation year, from which he would have graduated in 2003. However as a consequence of the abuse, he would now graduate four years later, and will suffer a loss of earnings because his professional career would have been shortened. The Claimant’s counsel submitted that the four lost years were the four last years of the Claimant’s professional life with a net loss per annum of £30,000.
Justice Field said that there was an element of uncertainty here. He had to take into account (i) net earning only (ii) what the Claimant earned before 2004 (iii) the contingencies of life (iv) accelerated receipt and (v) the possibility that there might be some significant benefit to the Claimant in entering professional life when he was older. £15,000 would be awarded under this head.
Cost of treatment
The claim under this head appeared reasonable and Justice Field would award £3,000 under this head.
Loss of support
The Claimant said that his parents had supported his sister at University, but not him because of the breakdown in their relationship. His estimate was that he might have received about £5,000 a year for a period of four years. Justice Field said that there a number of uncertainties here, and he had to take into account that support of children was a discretionary matter. He would award £5,000.
Conclusion
Judgment was given in the total sum of £43,000 plus interest.
Justice Field said that an order had been made under CPR 39.24 concealing the identity of the parties. The Claimant’s counsel now submitted that the identities of the parties should be disclosed. Justice Field said that the public interest required that all the parties should be identified. Therefore the original order under CPR 39.24 should be discharged but a stay of the order should be granted for four weeks to allow the Defendants to apply for relief from the Court of Appeal.