JXL AND ANOTHER V BRITTON [2014] EWHC 2571 (QB)
FACTS:-
JXL and SXC were sisters. In 1989 when they were children the Defendant raped them. JXL was 10 or 11 years old at the time, and SXC was 7 or 8. JXL was raped twice, and JXL once. The Defendant was acquitted at his trial of the first count in relation to SXC, but convicted of the second offence relating to the occasion when both Claimants were raped. He was sentenced on 13 Apr 2012 to a total of 22 years custody: he received a sentence of 7 years for the rape of SXC, 7 years for the rape of JXL and 8 years for another rape of a child. These three sentences were consecutive. Other concurrent sentences were imposed in relation to other children.
The Claimants issued civil proceedings against the Defendant and judgement with damages to be assessed was entered. The Defendant had appeared at trial saying that he had not read the trial bundle. He also made a number of other points, including denying liability.
JUDGEMENT:-
Mr Andrew Edis QC said that the Defendant had repeatedly refused to open correspondence from the Claimants' solicitors which always had a reference to Rule 39 of the Prison Rules on the outside. Judge Edis concluded that the Defendant had deliberately failed to take part in these proceedings and that he ought not to adjourn the hearing to allow him to read the Trial Bundle. He had in mind the expense which this would cause to the Claimants which would be, in reality, irrecoverable.
Judge Edis concluded that justice could be done by taking the points he made which were truly relevant to the amount of damages into account without hearing oral evidence from anyone. He would not have permitted the Defendant to cross-examine the Claimants in any event for the reasons which applied in criminal proceedings by virtue of section 34 of the Youth Justice and Criminal Evidence Act 1999. That was not to say that a litigant in person could never cross-examine a Claimant in a civil case where the allegation was a sexual crime. In each such case there must be a balancing exercise to ensure that a fair trial took place. In this case, given the very limited factual issues which there were, the absence of any defence evidence, and the fact that the psychiatric evidence was being presented in writing under a direction given previously, Judge Edis considered that cross-examination would serve very little useful purpose.
Judge Edis referred to Rule 32.1 of the Civil Procedure Rules, which was the power of the court to control evidence. For this reason he conducted this hearing without any oral evidence, exercising his power under that Rule.
Edis J went over the facts of the case. JXL relied on the medical report of Consultant Psychiatrist Dr Jane O'Neill. Dr O'Neill said that all the consequences she identified were caused by the Defendant's criminal conduct to her. JXL therefore suffered vaginal rape, and a subsequent sexual assault when the defendant attempted to touch her breasts and hug her. This had caused permanent Post-Traumatic Stress Disorder ('PTSD'), with symptoms of flashbacks, hypervigilance, and psychosexual aversion/poor libido. Special losses were pleaded in JXL's Schedule of Special Damages at £84,174. This was a claim for past loss of earnings and a modest sum in future costs of treatment. JXL also contended that the rape and subsequent sexual assault to which she was made subject were of a nature such that an award of aggravated damages ought to follow.
JXL's claim was for a total compensatory award of £75,000 general damages and £84,174 in past losses and treatment costs.
SXC also relied on the expert medical report of Consultant Psychiatrist Dr Jane O'Neill dated 6 Jun 2013. Dr O'Neill said that all the consequences she identified were caused by the defendant's criminal conduct to her. SXC therefore suffered vaginal rape on two separate occasions, within a couple of weeks. These events caused her to suffer from Emotionally Unstable Personality Disorder ('EUPD'), with symptoms of poor self-esteem, fear of rejection, recurrent self-harm, substance abuse namely marijuana, crack cocaine and vodka, suicidal ideation and unstable mood. She suffered from Substance Dependency (Cocaine and Alcohol). She had suffered PTSD, the symptoms of which were comparable to those sustained by JXL, The EUPD and PTSD both began 24 years ago (when SXC was 7/8 years of age) and the symptoms had continued to date. 18 months of intensive therapy was expected to reduce her symptoms in the future, but she would always have some permanent symptoms of both EUPD and PTSD. She also claimed aggravated damages.
SXC's claim was for £105,000 in general damages and £167,360 in special damages.
Both Claimants had relied on a case AT & ors v Dulghieru [2009] EWCH 225.Essentially, the claim was advanced in three parts: damages for the rape, damages for the psychiatric consequences of the rape, and aggravated damages. The expression "aggravating features" had been used in identifying the factors which required a substantial award of general damages for the rapes themselves. There was also a claim to aggravated damages as a separate head. Judge Edis said that Dulghieru did not justify this approach. There was nothing in the judgment where the Judge assessed general damages for pain suffering and loss of amenity where he identified "aggravating features" as playing a part in that stage of the assessment.
An award for aggravated damages was justified in a case of this kind, but Judge Edis considered that he should approach the assessment of general damages in a two stage way. First, he should assess a sum which was designed to compensate each claimant for pain suffering and loss of amenity. This sum should reflect the approach taken in Griffiths v. Williams (Court of Appeal 21 November 1995, unreported), and Lawson v. Glaves-Smith (Executor) [2006] EWCH 2865.
In Dulghieru it was said that rape had come to be treated in a quite different category from personal injury cases in general. That was confirmed by the Judicial College Guidelines 12th Edition. This reflected the valuing of the harm to the victim, and not any of the factors which might additionally justify and award for aggravated damages. Abuse of trust was relevant at this stage only if it had played a part in causing harm to the victim, as it commonly would.
The aggravated damages award would reflect the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendant. It was at this stage that the issue of abuse of trust was most likely to be relevant. In the present case, the element of trust was not the dominant feature of the offending. The Defendant was trusted to have the care of the claimants in his home when they were visiting his niece and daughter. This was trust of a different order from that which was placed in a parent, teacher or other carer. Nevertheless any adult who was in caring for a child in the absence of her parents did have a level of responsibility for that child.
In the end, where aggravated damages were awarded were compensatory and not punitive and the court must assess the total of the final award to ensure that it was proportionate in the result.
In these circumstances, the judge would award damages under this head as follows:-
JXL - £32,500;
SXC - £40,000.
In relation to aggravated damages, the judge would make an award of £25,000 in the case of SXC and £15,000 in the case of JXL.
In relation to special damages, JXL’s claim was in three parts. The claim for loss of earnings was based on the proposition that she was delayed in qualifying as a nurse for 8 years because of the educational disruption caused by her psychiatric condition. There were also two claims for the cost of medical treatment. Judge Edis would allow these claims which were supported by the medical evidence in their entirety, and award £84,174.
SXC claim was also in three parts. Although a claim for future loss of earnings could be sustained on the medical evidence, none had been advanced. In reality this was likely to be academic given the means of the Defendant. There was, therefore, only a claim for past loss of earnings at the minimum wage from age 18 to date. He would accept the medical evidence that this inability to work was caused by the combination of psychiatric illnesses from which this Claimant suffered. In these circumstances, he would allow these claims also, and award £167,360.
The resulting judgments, exclusive of interest would be:-
JXL: £131,674
SXC: £232,360
Interest would also be awarded.
Judge Edis said that the Defendant’s ability to pay the judgment sum and costs would be considered at any enforcement proceedings, and was irrelevant to the exercise which he had to perform.
FACTS:-
JXL and SXC were sisters. In 1989 when they were children the Defendant raped them. JXL was 10 or 11 years old at the time, and SXC was 7 or 8. JXL was raped twice, and JXL once. The Defendant was acquitted at his trial of the first count in relation to SXC, but convicted of the second offence relating to the occasion when both Claimants were raped. He was sentenced on 13 Apr 2012 to a total of 22 years custody: he received a sentence of 7 years for the rape of SXC, 7 years for the rape of JXL and 8 years for another rape of a child. These three sentences were consecutive. Other concurrent sentences were imposed in relation to other children.
The Claimants issued civil proceedings against the Defendant and judgement with damages to be assessed was entered. The Defendant had appeared at trial saying that he had not read the trial bundle. He also made a number of other points, including denying liability.
JUDGEMENT:-
Mr Andrew Edis QC said that the Defendant had repeatedly refused to open correspondence from the Claimants' solicitors which always had a reference to Rule 39 of the Prison Rules on the outside. Judge Edis concluded that the Defendant had deliberately failed to take part in these proceedings and that he ought not to adjourn the hearing to allow him to read the Trial Bundle. He had in mind the expense which this would cause to the Claimants which would be, in reality, irrecoverable.
Judge Edis concluded that justice could be done by taking the points he made which were truly relevant to the amount of damages into account without hearing oral evidence from anyone. He would not have permitted the Defendant to cross-examine the Claimants in any event for the reasons which applied in criminal proceedings by virtue of section 34 of the Youth Justice and Criminal Evidence Act 1999. That was not to say that a litigant in person could never cross-examine a Claimant in a civil case where the allegation was a sexual crime. In each such case there must be a balancing exercise to ensure that a fair trial took place. In this case, given the very limited factual issues which there were, the absence of any defence evidence, and the fact that the psychiatric evidence was being presented in writing under a direction given previously, Judge Edis considered that cross-examination would serve very little useful purpose.
Judge Edis referred to Rule 32.1 of the Civil Procedure Rules, which was the power of the court to control evidence. For this reason he conducted this hearing without any oral evidence, exercising his power under that Rule.
Edis J went over the facts of the case. JXL relied on the medical report of Consultant Psychiatrist Dr Jane O'Neill. Dr O'Neill said that all the consequences she identified were caused by the Defendant's criminal conduct to her. JXL therefore suffered vaginal rape, and a subsequent sexual assault when the defendant attempted to touch her breasts and hug her. This had caused permanent Post-Traumatic Stress Disorder ('PTSD'), with symptoms of flashbacks, hypervigilance, and psychosexual aversion/poor libido. Special losses were pleaded in JXL's Schedule of Special Damages at £84,174. This was a claim for past loss of earnings and a modest sum in future costs of treatment. JXL also contended that the rape and subsequent sexual assault to which she was made subject were of a nature such that an award of aggravated damages ought to follow.
JXL's claim was for a total compensatory award of £75,000 general damages and £84,174 in past losses and treatment costs.
SXC also relied on the expert medical report of Consultant Psychiatrist Dr Jane O'Neill dated 6 Jun 2013. Dr O'Neill said that all the consequences she identified were caused by the defendant's criminal conduct to her. SXC therefore suffered vaginal rape on two separate occasions, within a couple of weeks. These events caused her to suffer from Emotionally Unstable Personality Disorder ('EUPD'), with symptoms of poor self-esteem, fear of rejection, recurrent self-harm, substance abuse namely marijuana, crack cocaine and vodka, suicidal ideation and unstable mood. She suffered from Substance Dependency (Cocaine and Alcohol). She had suffered PTSD, the symptoms of which were comparable to those sustained by JXL, The EUPD and PTSD both began 24 years ago (when SXC was 7/8 years of age) and the symptoms had continued to date. 18 months of intensive therapy was expected to reduce her symptoms in the future, but she would always have some permanent symptoms of both EUPD and PTSD. She also claimed aggravated damages.
SXC's claim was for £105,000 in general damages and £167,360 in special damages.
Both Claimants had relied on a case AT & ors v Dulghieru [2009] EWCH 225.Essentially, the claim was advanced in three parts: damages for the rape, damages for the psychiatric consequences of the rape, and aggravated damages. The expression "aggravating features" had been used in identifying the factors which required a substantial award of general damages for the rapes themselves. There was also a claim to aggravated damages as a separate head. Judge Edis said that Dulghieru did not justify this approach. There was nothing in the judgment where the Judge assessed general damages for pain suffering and loss of amenity where he identified "aggravating features" as playing a part in that stage of the assessment.
An award for aggravated damages was justified in a case of this kind, but Judge Edis considered that he should approach the assessment of general damages in a two stage way. First, he should assess a sum which was designed to compensate each claimant for pain suffering and loss of amenity. This sum should reflect the approach taken in Griffiths v. Williams (Court of Appeal 21 November 1995, unreported), and Lawson v. Glaves-Smith (Executor) [2006] EWCH 2865.
In Dulghieru it was said that rape had come to be treated in a quite different category from personal injury cases in general. That was confirmed by the Judicial College Guidelines 12th Edition. This reflected the valuing of the harm to the victim, and not any of the factors which might additionally justify and award for aggravated damages. Abuse of trust was relevant at this stage only if it had played a part in causing harm to the victim, as it commonly would.
The aggravated damages award would reflect the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendant. It was at this stage that the issue of abuse of trust was most likely to be relevant. In the present case, the element of trust was not the dominant feature of the offending. The Defendant was trusted to have the care of the claimants in his home when they were visiting his niece and daughter. This was trust of a different order from that which was placed in a parent, teacher or other carer. Nevertheless any adult who was in caring for a child in the absence of her parents did have a level of responsibility for that child.
In the end, where aggravated damages were awarded were compensatory and not punitive and the court must assess the total of the final award to ensure that it was proportionate in the result.
In these circumstances, the judge would award damages under this head as follows:-
JXL - £32,500;
SXC - £40,000.
In relation to aggravated damages, the judge would make an award of £25,000 in the case of SXC and £15,000 in the case of JXL.
In relation to special damages, JXL’s claim was in three parts. The claim for loss of earnings was based on the proposition that she was delayed in qualifying as a nurse for 8 years because of the educational disruption caused by her psychiatric condition. There were also two claims for the cost of medical treatment. Judge Edis would allow these claims which were supported by the medical evidence in their entirety, and award £84,174.
SXC claim was also in three parts. Although a claim for future loss of earnings could be sustained on the medical evidence, none had been advanced. In reality this was likely to be academic given the means of the Defendant. There was, therefore, only a claim for past loss of earnings at the minimum wage from age 18 to date. He would accept the medical evidence that this inability to work was caused by the combination of psychiatric illnesses from which this Claimant suffered. In these circumstances, he would allow these claims also, and award £167,360.
The resulting judgments, exclusive of interest would be:-
JXL: £131,674
SXC: £232,360
Interest would also be awarded.
Judge Edis said that the Defendant’s ability to pay the judgment sum and costs would be considered at any enforcement proceedings, and was irrelevant to the exercise which he had to perform.