KXW, TXS AND MXK V ROBERT BLACKMORE (Unreported) 27TH APRIL 2007 Judge Barrett QC CHICHESTER COUNTY COURT
FACTS:-
Each Claimant was bringing a separate action claiming damages for the physical, sexual assault, emotional pain and suffering and long term psychological harm which he had suffered as a result of sustained and abusive conduct between 1999 and 2003.
MXK was born on the 6th December 1988. At the time of trial he was 18 years old and he alleged abuse from 1999. This was disputed by the Defendant who said the abuse did not begin until 2001. KXW was born on the 20th February 1990 and was first abused by the Defendant in early 2002. TXS was born on the 7th May 1991 and he was first abused in 2001.
The Claimants lived in the same neighbourhood and knew each other. The Defendant and his wife lived nearby and became acquainted socially with the Claimants’ mothers at that time, through his work as an insurance salesman. He appeared to be a smart and respectable member of the community, who proceeded to groom their children by offering them money and treats. He also offered to pay utility bills for them and offered members of their family work. He pretended that he was a magistrate, a social worker and a foster carer.
MXK was abused sometime after June 2001 when he was 12 years old and this continued until MXK made a disclosure at the end of October 2003.
All three Claimants were repeatedly buggered by the Defendant who was later convicted on counts of anal rape on all three Claimants and at the time of trial, was in prison. MXK and KXW were regularly employed by the Defendant. He paid them to helping his battery business over various weekends thereby being able to take them away on business overnight. He also took all three Claimants on trips abroad. Other children were also abused by the Defendant.
At the criminal trial, the Defendant pleaded guilty to 6 counts of indecent assault. Three of the counts were in respect of TXS, one in respect of KXW and two in respect of TXS. There were five other convictions arising out of three charges of rape and three of indecent assault but it was not clear to which victims these related. He was sentenced to seven years with an extended period of licence for a further period of 3 years.
The Claimants commenced their action on the 21st June 2006. Judgment was entered on the 21st November 2006 and trial took place in April 2007. The Defendant appeared in person.
HELD:-
His Honour Judge Barratt QC said that he should take the date of the first abuse on MXK to be after June 2001. The Claimant was rather vague about the date in question, whereas the Defendant gave a plausible reason for the start date. In each case there were significant aggravating factors. In the case of MXK, he was promised a share on the Defendant’s business. All three Claimants were taken on holidays, given presents as well as alcohol and cigarettes.
Judge Barratt considered each case individually.
MXK had a history of learning difficulties as well as behaviour problems and being bullied. However he was a lively pupil, and described as likeable. However from 2000 he was getting into trouble and by 2004 there was a record of marked deterioration in his academic progress. His attendance record was very poor and his inability to cope with stress significant. By 2005 he was due in court.
In KXW’s case, his behaviour began to change after the abuse began. He became aggressive, invariably absent, uncommunicative and anti–social. In adulthood he had become lazy, had had a few jobs which did not last, and drank excessively. His mother had entered into an Acceptable Behaviour Contract with Sussex Police in relation to his behaviour. He did not trust people and was aggressive. He hoped to start a three year plumbing course in September 2007.
In TXS’ case, he had refused to accept any help or counselling since the abuse came to light, although he had told the court that he would reconsider this. He had experienced behavioural problems prior to the abuse and had been expelled from two schools. He was well liked at school but at home he was easily provoked, swore loudly and lashed out. He had been in trouble with the police and had started to drink heavily.
Expert medical evidence was given by Dr Lowestein. He emphasised the debilitating life time risks of damage to each Claimant’s self esteem, the reduced capacity to form and sustain intimacy and cohabitation, and the real handicap in the labour market in situations of stress and unfairness. Cognitive therapy could improve this issue over at least 24 sessions within 12 to 24 months. It was impossible to say how well each Claimant would respond to treatment and their reduced intellectual capacity reduced its prospects to that extent. Dr Lowestein gave no qualification as to the risk or the degree to which treatment would or could reduce it. He concluded that only 75% of their problems could be attributed to the Defendant’s abuse.
Judge Barratt noted that the older two Claimants, MXK and KXW had commenced vocational training. MXK was half way through a 3 year course in bricklaying and various City and Guild certificates. KXW was helping his father in the plumbing business and intended to attend a plumbing course for three years in September 2007. It was too early to make the same assessment of TXS who was about to leave school and start a tree surgeon’s course.
Quantification of general damages
The award of general damages in each case was as follows:-
1) MXK - £33,000
2) KXW - £30,000
3) TXS - £33,000
Aggravated damages
Judge Barratt mentioned a number of cases where aggravated damages had been paid. In Parrington v Marriott (1998) CYL there was an award of £25,000 for general damages and £30,000 aggravated damages. In B (a child) v D (2001) the award was £33,000 general damages and £20,000 aggravated damages. In Appleton v Garrett [1996] PIQR P1 Dyson J awarded aggravated damages in the sum of 15% of general damages. This was to reflect the heightened sense of injury or grievance for unnecessary dental treatment. The general principle was that aggravated damages should not exceed by more than two times the amount awarded in general damages. Judge Barratt proposed in each case to award an aggravated sum of 33% of the general damages in each case.
1) MXK - £11,000
2) KXW - £10,000
3) TXS - £11,000
Smith v Manchester
Judge Barratt had been invited to consider an award in the sum of one year’s gross loss of earnings in the sum of £25,000. He felt that there should be some discount. This was a life time risk, which might never occur and Dr Lowestein had not offered any figure for that risk over the period of a lifetime. MXK and KXW had commenced training in careers for which there would always be considerable demand. He would not award more than £7500 to each Claimant, and in the case of TXS he would enhance that award by £1000 because of his great emotional difficulties, although his ambition to be a tree surgeon appeared realistic and so the enhancement was limited by that consideration.
Special Damages
There was no dispute on this matter. The sums claimed were awarded together with travel to the Crown Court and travel to medical appointments.
1) MXK - £3110
2) KXW - £2675
3) TXS - £2575
Interest
General damages would be increased by an interest rate of 2%, save for Smith v Manchester damages, which were for future loss. 3% would be awarded on special damages, that being half the special interest rate of interest.
All matters of costs, examination of the Defendant’s means, interim awards and enforcement should be adjourned. However the Defendant would be ordered to pay the Claimants’ costs subject to detailed assessment.
FACTS:-
Each Claimant was bringing a separate action claiming damages for the physical, sexual assault, emotional pain and suffering and long term psychological harm which he had suffered as a result of sustained and abusive conduct between 1999 and 2003.
MXK was born on the 6th December 1988. At the time of trial he was 18 years old and he alleged abuse from 1999. This was disputed by the Defendant who said the abuse did not begin until 2001. KXW was born on the 20th February 1990 and was first abused by the Defendant in early 2002. TXS was born on the 7th May 1991 and he was first abused in 2001.
The Claimants lived in the same neighbourhood and knew each other. The Defendant and his wife lived nearby and became acquainted socially with the Claimants’ mothers at that time, through his work as an insurance salesman. He appeared to be a smart and respectable member of the community, who proceeded to groom their children by offering them money and treats. He also offered to pay utility bills for them and offered members of their family work. He pretended that he was a magistrate, a social worker and a foster carer.
MXK was abused sometime after June 2001 when he was 12 years old and this continued until MXK made a disclosure at the end of October 2003.
All three Claimants were repeatedly buggered by the Defendant who was later convicted on counts of anal rape on all three Claimants and at the time of trial, was in prison. MXK and KXW were regularly employed by the Defendant. He paid them to helping his battery business over various weekends thereby being able to take them away on business overnight. He also took all three Claimants on trips abroad. Other children were also abused by the Defendant.
At the criminal trial, the Defendant pleaded guilty to 6 counts of indecent assault. Three of the counts were in respect of TXS, one in respect of KXW and two in respect of TXS. There were five other convictions arising out of three charges of rape and three of indecent assault but it was not clear to which victims these related. He was sentenced to seven years with an extended period of licence for a further period of 3 years.
The Claimants commenced their action on the 21st June 2006. Judgment was entered on the 21st November 2006 and trial took place in April 2007. The Defendant appeared in person.
HELD:-
His Honour Judge Barratt QC said that he should take the date of the first abuse on MXK to be after June 2001. The Claimant was rather vague about the date in question, whereas the Defendant gave a plausible reason for the start date. In each case there were significant aggravating factors. In the case of MXK, he was promised a share on the Defendant’s business. All three Claimants were taken on holidays, given presents as well as alcohol and cigarettes.
- The Defendant’s betrayal of parental trust – the Defendant had cunningly, deliberately and repeatedly deceived the Claimants’ parents. He failed to acknowledge his guilt at the first opportunity and required the Claimant to be ready at court to give evidence against him.
- The Defendant’s apparent affluence and wealth. The Defendant owned real assets both at home and abroad.
- The grave nature of the extent and duration of the sexual abuse – oral sex, mutual masturbation and anal rape was involved, and committed in the presence of the other Claimants. There was also one physical assault on MXK.
Judge Barratt considered each case individually.
MXK had a history of learning difficulties as well as behaviour problems and being bullied. However he was a lively pupil, and described as likeable. However from 2000 he was getting into trouble and by 2004 there was a record of marked deterioration in his academic progress. His attendance record was very poor and his inability to cope with stress significant. By 2005 he was due in court.
In KXW’s case, his behaviour began to change after the abuse began. He became aggressive, invariably absent, uncommunicative and anti–social. In adulthood he had become lazy, had had a few jobs which did not last, and drank excessively. His mother had entered into an Acceptable Behaviour Contract with Sussex Police in relation to his behaviour. He did not trust people and was aggressive. He hoped to start a three year plumbing course in September 2007.
In TXS’ case, he had refused to accept any help or counselling since the abuse came to light, although he had told the court that he would reconsider this. He had experienced behavioural problems prior to the abuse and had been expelled from two schools. He was well liked at school but at home he was easily provoked, swore loudly and lashed out. He had been in trouble with the police and had started to drink heavily.
Expert medical evidence was given by Dr Lowestein. He emphasised the debilitating life time risks of damage to each Claimant’s self esteem, the reduced capacity to form and sustain intimacy and cohabitation, and the real handicap in the labour market in situations of stress and unfairness. Cognitive therapy could improve this issue over at least 24 sessions within 12 to 24 months. It was impossible to say how well each Claimant would respond to treatment and their reduced intellectual capacity reduced its prospects to that extent. Dr Lowestein gave no qualification as to the risk or the degree to which treatment would or could reduce it. He concluded that only 75% of their problems could be attributed to the Defendant’s abuse.
Judge Barratt noted that the older two Claimants, MXK and KXW had commenced vocational training. MXK was half way through a 3 year course in bricklaying and various City and Guild certificates. KXW was helping his father in the plumbing business and intended to attend a plumbing course for three years in September 2007. It was too early to make the same assessment of TXS who was about to leave school and start a tree surgeon’s course.
Quantification of general damages
The award of general damages in each case was as follows:-
1) MXK - £33,000
2) KXW - £30,000
3) TXS - £33,000
Aggravated damages
Judge Barratt mentioned a number of cases where aggravated damages had been paid. In Parrington v Marriott (1998) CYL there was an award of £25,000 for general damages and £30,000 aggravated damages. In B (a child) v D (2001) the award was £33,000 general damages and £20,000 aggravated damages. In Appleton v Garrett [1996] PIQR P1 Dyson J awarded aggravated damages in the sum of 15% of general damages. This was to reflect the heightened sense of injury or grievance for unnecessary dental treatment. The general principle was that aggravated damages should not exceed by more than two times the amount awarded in general damages. Judge Barratt proposed in each case to award an aggravated sum of 33% of the general damages in each case.
1) MXK - £11,000
2) KXW - £10,000
3) TXS - £11,000
Smith v Manchester
Judge Barratt had been invited to consider an award in the sum of one year’s gross loss of earnings in the sum of £25,000. He felt that there should be some discount. This was a life time risk, which might never occur and Dr Lowestein had not offered any figure for that risk over the period of a lifetime. MXK and KXW had commenced training in careers for which there would always be considerable demand. He would not award more than £7500 to each Claimant, and in the case of TXS he would enhance that award by £1000 because of his great emotional difficulties, although his ambition to be a tree surgeon appeared realistic and so the enhancement was limited by that consideration.
Special Damages
There was no dispute on this matter. The sums claimed were awarded together with travel to the Crown Court and travel to medical appointments.
1) MXK - £3110
2) KXW - £2675
3) TXS - £2575
Interest
General damages would be increased by an interest rate of 2%, save for Smith v Manchester damages, which were for future loss. 3% would be awarded on special damages, that being half the special interest rate of interest.
All matters of costs, examination of the Defendant’s means, interim awards and enforcement should be adjourned. However the Defendant would be ordered to pay the Claimants’ costs subject to detailed assessment.