VARIOUS CLAIMANTS V FLINTSHIRE COUNTY COUNCIL 26TH JULY 2000 HIGH COURT (Unreported)
FACTS:-
The case concerned group litigation, under the name “North Wales Children’s Homes Litigation”. Mr Justice Scott Baker decided the issue of quantum of eleven claims arising out of child abuse at various children’s homes in North Wales.
HELD:-
Mr Justice Scott Baker considered the difficult question of putting into monetary terms compensation for the abuse that each individual had suffered, and most particularly the effect that it had had on him or her. He had heard evidence from a Dr C N Jones, which he accepted, to the effect that children who are abused tend to develop psychological problems in adult life more frequently than children who have not had such experiences. There was no one specific psychiatric syndrome or mental illness associated with childhood abuse, although there were a number of common features.
Some survivors of childhood abuse went on to develop symptoms typical of post traumatic stress disorder. Survivors of abuse also had higher rates of various non-specific psychiatric conditions. Reported rates of alcohol and drug abuse were higher in survivors of abuse and there were higher rates of criminal and anti social behaviour. There was also a higher rate of sexual dysfunction and survivors tended to experience great difficulty in forming long lasting trusting emotional relationships and this might be partly related to sexual problems.
The difficulty was predicting how a particular Claimant’s life would have progressed had he been properly treated. Another expert, Dr Bronks said that while there was no difficulty in accepting the general principle that ill-treatment and neglect in childhood could lead to psychiatric disorder, it was very much more difficult and often impossible to know whether or to what extent this had occurred in any individual case.
There was also issues of recollection, since much of the abuse occurred so long ago. Justice Scott Baker said that he had taken particular care not to reject one aspect of a Claimant’s evidence just because that Claimant was disbelieved on another. He did not find it surprising that Claimants had made late disclosures but he had found great difficulty, where a Claimant had given conflicting accounts on different occasions.
There was an issue of law as to what was capable of happening in these children’s homes and what actually happened. Justice Scott Baker said that if the homes were not properly supervised, there was an increased risk of sexual and physical abuse. There was clear evidence from the Waterhouse Report that there had been mismanagement of the children’s homes in question. The Defendant’s poor supervision did render it likely that the children would be abused by the staff, and it was by this route that in Justice Scott Baker’s judgment, liability could be established.
Standard of proof
Justice Scott Baker referred to the case of H (Minors) [1996] AC 563. In that case the court said that the more serious the allegation, the less likely it is that the event occurred, and hence the stronger should be the evidence.
Causation/apportionment of damage
Once the breach of duty has been established, the next issue was to identify the damage. Damage to the personality or psychological difficulty was much more difficult, particularly where there were competing causes. The first question was whether the Defendant’s breach of duty made a material contribution to the particular Claimant’s condition. It was enough that it was not so small that the law should not take account of it.
It would be the wrong approach to discount any of the Claimant’s damage simply because there was a chance that he or she would have suffered from similar problems in later life. Justice Scott Baker said that he had paused to consider the question whether it had been proved to the ordinary civil standard that matters other than the abuse had caused or contributed to the Claimant’s problem.
The court had to do its best in each individual case, after weighing up all the evidence. What justice did demand was that the court should make the best estimate that it could, in the light of the evidence, making the fullest allowances in favour of the Claimants for the uncertainties known to be involved in any apportionment. The burden was on the negligent defendant to show who had contributed to the Claimant’s injury.
Justice Scott Baker said that there was an impossibility of making a precise apportionment between what the Defendants’ negligence had caused and what has been caused by other factors. He had taken a broad view and done his best to reach a fair conclusion on the whole of the evidence. It was very much a matter of feel.
Criminal offences by Claimants
A number of the Claimant had criminal convictions. Justice Scott Baker was not satisfied in any of the cases that the criminal convictions were the result of the abuse. However even if the causal link were proven, there were public policy reasons why the court would not lend its aid to a Claimant who relied on his own criminal or immoral act.
Lost earning capacity
A number of Claimants had alleged that the abuse had affected their ability to work. In none of the cases had a detailed Schedule of Loss been advanced. It had not been possible to assess the case on a conventional basis. There were other factors which had affected the Claimants’ ability to work. Justice Scott Baker had awarded a round sum for past loss of earnings.
In relation to future loss of earning capacity, the conventional approach would be followed based on Smith v Manchester Corporation (1974) 17 KIR 1. The loss did not have to be established on the balance of probabilities. There had to be a certain amount of speculation but there must be some basic facts upon which the court can make its forecast.
Therapy
There were a number of cases where there was a claim for therapy. The question was – was the treatment necessary and appropriate to the extent that the Claimant was likely to benefit? Would the Claimant take it up? Was it wholly or partly attributable to the abuse? For how long was it required, how frequently and at what cost?
Pain, suffering and loss of amenity
Justice Scott Baker referred to the Judicial Studies Board guidelines as helpful, although they predated at the time of judgment, the Court of Appeal’s decision in Heil v Rankin 2000 PIQR 187. Psychiatric damage attracted damages in severe cases in the range of £25,000 to £50,000, in moderately severe cases, £9,000 to £25,000 and downwards accordingly for the moderate and minor cases. Post traumatic stress disorder was treated separately, and the awards in the most severe cases were said to fall in the range of £28,500 to £40,000.
Justice Scott Baker referred to the Beck litigation before Potts J, in which one of the Claimants was awarded £80,000 for pain, suffering and loss of amenity. She had suffered many rapes, one act of buggery and substantial physical, emotional and mental abuse over a period of three years. That award would be worth £87,200 in today’s value.
In Heil v Rankin, the court had left for another day any view on the submission that the existing guidelines for psychiatric injury were too low. Justice Scott Baker said that the JSB Guidelines did seem to be on the low side. He found the award of £80,000 in the Beck case useful as providing an upper marker for the kind of damage the present Claimants had suffered.
Expert evidence
There were 14 different experts. This had created a great deal of unnecessary duplication and consequently cost. Justice Scott Baker commented that one of the difficulties for the expert, was that the cornerstone of any opinion would be the abuse or facts eventually established at trial. He referred to the Ikarian Reefer [1993] 2 Lloyds Reports 68 where the court set out some of the duties and responsibilities of expert witnesses. Furthermore there had been little attempt in arranging for the experts to meet to try and identify their differences.
Amanda Coxon
Ms. Coxon was born on the 20th January 1965, and was at the date of trial 35. She was in Chevet Hey from 13th September 1979 to 15th February 1980 and in Bersham Hall from 12th June 1980 to 7th January 1981. She alleged that she was bullied at Chevet Hey and that she was physically and sexually abused at Bersham Hall.
She was the eldest of three children and only had hazy memories of her childhood. Her mother was physically and emotionally abusive and she was bullied at school. At the age of 14 she went to work in a club in Holywell and began a relationship with a boy who drank there. She thought that she was pregnant and was beaten by her father. She then asked her GP if she could go into care and was placed at Chevet Hey. There she was physically abused by other children in front of staff and raped by an unknown man (although the rape formed no part of her case).
Justice Scott Baker felt that the regime here was lax and that Ms. Coxon was entitled to compensation for what had happened there.
In February 1980, Ms. Coxon returned home. She was then sent to Bersham Hall on 12 June 1980. There children were given pocket money and cigarettes. Justice Scott Baker said that the giving of cigarettes seemed to be an abdication of responsibility. Ms. Coxon ran away on three or four occasions. She was locked in the care home’s secure unit. The conclusion of the Waterhouse Report was that this secure unit had been used illegally, and Justice Scott Baker regarded such use as negligent as well as false imprisonment. She was then seriously physically assaulted by the deputy superintendent.
She was also sexually abused by a care worker, a Mr Hart. The abuse amounted to indecent touching and she had vague memories of having sex with this man. She had told the Waterhouse Tribunal that after the first incident, nothing else had happened. The care worker gave evidence and he denied everything.
Justice Scott Baker concluded that the first incident of indecent touching had taken place. Mr Hart was not a convincing witness. He had denied that he ever knew Ms. Coxon even though she produced a card from him. There was a climate in which staff could take liberties with children in the knowledge that no-one was likely to take the child’s side. Therefore the Defendants were liable for this assault, and it was accepted that the assault had taken place.
Ms. Coxon also suffered a barrage of verbal abuse from staff and residents. In January 1981 she was transferred to Silverbrook Children’s Home in Pontypridd and after a couple of months, she was returned to her mother. She was then place with foster parents, returned to a convent school and then she took up a series of temporary jobs in shops and a youth training scheme. None of the jobs lasted very long because by then Miss Coxon had developed a serious drink problem. She moved around the country, staying with various boyfriends and suffering from serious psychological and physical symptoms. Eventually she married a drug addict, and her situation deteriorated even further. She was out of work, taking and supplying drugs and she was suffering from panic attacks and self destructive behaviour.
She then moved in with a man called Tim, stopped taking drugs and gave birth to a son and a daughter. Eventually she married Tim, who went to work in Saudi Arabia. After his departure, she became ill again but was helped by a friend. Tim returned from Saudi Arabia and then found another job in Oman. Whilst there she was raped by a man whom she was helping to paint murals. They came back to England and she gave evidence to the Waterhouse Inquiry. In August 1998 she separated from Tim and for the last year had had a settled relationship with another man, as well as regular employment.
The Claimant’s medical expert was Mrs C B Garland, a consultant clinical psychologist. The Defendants had called a Dr Kathryn Abel.
Justice Scott Baker said that there was no doubt that the Claimant was of well above average intelligence. Ms. Garland had said that the prolonged maltreatment to which she was subjected, had produced a degree of hardened mistrust in the adult world. However Justice Scott Baker felt that her evidence was somewhat partisan. She had concentrated too much on her treatment in care rather than at the rather broader picture of what had been happening at other stages in the Claimant’s life. He had gained more assistance from Dr Abel who had put produced the following percentages:-
Justice Scott Baker did not think that in this case there was sufficient precision to be able to make assessment in terms of percentages. This was not a case where one was dealing with statistical risks such as epilepsy following a head injury. He considered the history of the Claimant’s life and the available evidence. He thought that the ill treatment at Chevet Hey and more particularly at Bersham Hall had a very significant effect on Miss Coxon’s later life and employment prospects. However there were other factors. She was a great deal better now albeit vulnerable.
He would assess pain suffering and loss of amenity at £35,000.
In relation to loss of earnings capacity, the Claimant was said to be earning £100 to £125 per day. Justice Scott Baker was satisfied that the abuse had affected her earning capacity, and had she not been abused she would probably have had some work from time to time. He would assess this figure at £20,000 to the date of trial and for future handicap on the labour market, he would put the figure at £5,000.
He would award £10,010 for therapy and the cost of travel would be £709.80 taking into account accelerated benefit.
Total award - £70,719.80.
Stephen Cross
Mr Cross was born on the 25th October 1969 and he was at the date of trial, 30. His claim arose out of the time that he was at Cartrefle between November 1984 and April 1986. He claimed abuse by a man named Norris, who was the officer in charge of the home. The involved leering at him when he was naked, this happened at least eight times and on two or three occasions when he was in the shower grabbing hold of his penis. There were other occasions when he would grab and pull out a clump of pubic hair.
The Claimant had had an unhappy childhood. His father was violent to his mother and both parents were violent to him. At the age of 14 he was taken into care by the local authority and placed with foster parents for nine months. He was then placed at Cartrefle. At first things were alright, and he looked on Norris as something of a father figure. However Norris became threatening although he did not use violence on the Claimant.
Justice Scott Baker accepted that there had been threats of violence.
The Claimant had left Cartrefle at 16 and took on two training courses but there were no suitable jobs. In 1989 he worked for about six months with a tyre company in Wrexham but left after assaulting the foreman. In 1993 he worked for six months in a vineyard. Thereafter he had suffered from depression and remained unfit for work. There had been a number of suicide attempts and he suffered from nightmares.
Justice Scott Baker did not find the Claimant a convincing witness, as he frequently contradicted himself. He did not accept that the Cartrefle abuse contributed to his suicide attempts. His own psychiatric expert, Dr Friedman said that it had been difficult to obtain a coherent account from him. However the abuse by Norris had exacerbated and reinforced his problems. With reasonable care, it was likely that he might well have had a more settled adult life with a greater likelihood of employment. Justice Scott Baker said that he did not think that the Claimant’s subsequent life would have been very different. He did not think it was established that the Cartrefle experiences had exacerbated his employment problems to the extent that he had earned any less than would otherwise have been the case.
Therefore the abusive events that were either proved or admitted in the case fell at the lower end of the scale. This was not a case that called for therapy, the only heading for damages was for pain, suffering and loss of amenity, which would be assessed in the sum of £7500.
Elizabeth Ann Davies
The Claimant was born on the 19th May 1962 and at the date of trial was 38. She was placed at Little Acton Assessment Centre in Box Lane, Wrexham between the 28th June 1977 and the 4th August 1977 when she was 15. She alleged physical and sexual abuse there. The head of the home was a man named Bird.
She alleged that she was made to sit in a cold bath with her clothes on, and then made to eat toast with nasty tasting sauces on it. Then she was made to sit in a chair whilst two of the other girls cut her hair off. Mr Wilson, the deputy head of the home then made her go upstairs to a bedroom. She was then raped by the deputy of the home, a Mr Bird. In her written statement, she said that only the head of the home, Mr Bird was involved in the rape. In evidence in chief she said that it was Wilson who made her go upstairs to the bedroom and on cross examination, she said that it was Bird who took her upstairs.
Her evidence was difficult. At times she was very distressed and she also had difficulty in telling her story. The allegation of rape was not made until long after the event and there were other serious inconsistencies in her account.
Justice Scott Baker had to ask whether it was more likely than not that she was raped by Mr Bird, who denied the allegations. There was no independent evidence to support that claim. On the other hand the following matters were cause for concern:-
However the allegations of physical assault and sexual assault did not stand or fall together.
The Waterhouse inquiry had commented on her evidence. There was evidence of a termination in December 1977, but the medical evidence indicated that the conception occurred after the Claimant had left Little Acton in August 1977. She had given evidence to North Wales police in 1992 to the effect that no abuse had occurred at Little Acton. However there was evidence from other residents at Little Acton that bullying took place there.
The Claimant had admitted having intercourse with a boy after she came out of Little Acton. There was also evidence of previous sexual activity.
Mr Wilson had been suspended on the 15th July 1977 for a relationship with a boy for which he was subsequently prosecuted.
Mr Bird denied all the allegations, however a report commissioned by Clwyd County Council criticised his management of Little Acton Assessment Centre quite severely. He was a weak individual who was not up to the job, but there was nothing that supported an allegation of rape. However the evidence did support the kind of background that would have allowed the hair cutting episode to occur. The Claimant’s mother gave evidence as to the state of her hair, and there was also supportive evidence from her social worker and a houseparent.
Therefore the sole incident to be compensated was that of the bath/hair episode. Justice Scott Baker was not persuaded that it was responsible for any of the other problem she suffered in later life. The appropriate award was £2500.
Terence Desmond
The Claimant was born in 1962 and was 38 at the time of trial. He was at Bryn Estyn for two years between 1976 and 1978. He was sexually abused by Peter Howarth and Paul Wilson. The assaults consisted of oral sex, masturbation, indecent assaults and sexual acts with Mr Howarth’s dog. He was also assaulted by two other members of staff.
The Claimant had had an unsettled childhood. After leaving Bryn Estyn he had not been able to work, having difficulty with authority. He had had a relationship and two children, but that had broken up. He had a substantial record as a petty criminal. He was anti social and got into fights as well as uncontrollable fits of rage. He had sexual difficulties as well as nightmares.
His medico legal expert, Professor Green said that he would require a period of therapy over two years and that he suffered from Post Traumatic Stress Disorder Major Depressive Disorder. He showed some signs of Antisocial Personality Disorder. There were some documents from pre Bryn Estyn. At that time there was some optimism for the Claimant’s future, but he was already displaying a significant degree of anti social behaviour. He had been described as below average intelligence.
The Defendant’s expert diagnosed mild Post Traumatic Stress Disorder as well as a personality disorder. He did not think that treatment would make a significant difference to him. There were a number of factors that put the Claimant at a very high risk of developing personality disorder irrespective of the abuse. The abusive experiences had contributed to the cause of his personality disorder by 10 – 15%. The PTSD had had a small but significant effect on his ability to work. His low IQ suggested that he would have remained at the bottom of the labour market. It was also speculative whether he would take up any therapy offered to him.
Justice Scott Baker said that he was satisfied that the Claimant would have suffered from a personality disorder in any event. However the sole cause of his PTSD was the abuse at Bryn Estyn. The Claimant had also developed a major depressive disorder.
In summary, the Claimant required compensation for the fact of the abuse which was:-
He also required compensation for what it had done to his life from 1976 to the present and the legacy that it would leave for the future. The Claimant was not entitled to seek compensation for a life of crime.
For pain, suffering and loss of amenity, the award would be £50,000.
In relation to loss of earning capacity, the Claimant had not worked for ten years and before that never managed to hold down a job for very long. The contribution to these problems from the abuse should be assessed at £20,000.
In relation to future disadvantage in the job market, the Claimant was now 38 and he had another 27 years potential working life ahead of him, with some improvement if treatment were given. A figure of £17,500 would be awarded.
In relation to therapy, the Claimant had said in evidence that he was motivated to begin this. Justice Scott Baker would make an award of £6525 along the lines of Professor Green’s recommendations.
Garym Jones
This Claimant had no problems until he was 14 years of age, when he got into petty thieving and made a bomb hoax call. He was first sent to Bersham Hall for six weeks and then to Bryn Estyn for nine months, from where he absconded. He claimed that he had been threatened, his clothes were removed and he was forced to wear shorts, which embarrassed and humiliated him. He was then sent to Bersham Hall. There he was punched by a member of staff and he described the regime as being one of intense fear. A man named Blackman was also unpleasant to him. He was ridiculed for being tall and gangling and for his poor English, since Welsh was his first language. He was at Bersham Hall for six weeks in 1973.
The allegations in relation to Bersham Hall only emerged after he made his claim in July 1999. No mention was made of it to the Claimant’s medical expert, Dr Jones and the Claimant did not give evidence to the Waterhouse Inquiry. Justice Scott Baker did not regard the late inclusion of his claim as adverse to his credibility and regarded his account as correct.
After a while at Bryn Estyn, the Claimant noticed that certain boys were asked up to a member of staff, a Mr Howarth’s flat and also that these boys appeared to be favoured. The Claimant decided to try and get on the list of boys chosen to go up. On the first visit, Howarth put his hand inside the Claimant’s pyjamas. He also witnessed on other occasions Howarth fondling other boys. After this he said that he did not want to go to the flat. He had made a limited disclosure to his mother in front of the principal, Mr Arnold but there was some confusion about how this happened.
The Claimant and Defendant’s solicitors had each instructed medical experts, Dr Jones and Dr Bronks, but ended up relying on the other party’s expert. Neither were called to trial and there was inconsistency in the accounts that the Claimant had given to each expert.
The Claimant said that he absconded from Bryn Alyn on at least 18 occasions. He described various incidents of physical assault and humiliation by staff. When he was only 15, he was sent to Glamorgan Farm School in South Wales. Here the regime was tough with physical violence very much the norm, but he was never sexually abused here and was better able to cope.
The Claimant said that just over two years in various children’s homes turned him into a hardened bully and wife beating adult with a serious criminal record. His offences were mainly drink related and he reacted to problems with violence. Since leaving care, he had never been out of care for more than a year or two at a time.
Justice Scott Baker said that it had to be borne in mind that the Claimant did have problems prior to being sent into care. The problem was the absence of social services records.
Over his working life, he had had 10 or 12 jobs. His longest period of single employer was as a tree planter and feller. He had worked for six months as a concreter but had to leave because of a back injury in 1995 or 1996. He received incapacity benefit and was unfit for work for reasons unrelated to the abuse. In January 1999 he was sent to a probation hostel and started to speak of his experiences in care. Since he left the hostel, his mental state had improved.
The Claimant had a brother with a serious drug problem and a criminal record.
Justice Scott Baker said that it was not suggested that the prison sentences arose out of anything but the Claimant’s own free will. Dr Bronks said that absent the abuse in care, his approach to particular situations might have been different. Dr Jones said that with proper management and care, the behaviour that led him into care might have improved.
The sexual aspect of the abuse was not serious, but the physical and emotional aspect was more serious. Dr Bronks apportioned the effect of the abuse as follows:-
Bersham Hall – 30 per cent
Bryn Estyn – 60 per cent
Neath – 10 per cent
The difficulty was the lack of evidence pre abuse. Justice Scott Baker felt that whilst he had clearly had problems prior to going into care, the experience in care had a very significant effect on his subsequent life, although not quite as great as the Claimant believed. The figure for pain, suffering and loss of amenity would be assessed at £30,000.
As for disadvantage in the job market, damages would be assessed at £10,000.
Peter Jones
The Claimant was born in 1959. His claim arose out of abuse whilst he was at Bersham Hall (December 1972 to July 1973) and Bryn Estyn (March 1974 to August 1975).
The Claimant had a bad start in life, but by contrast to the other Claimants he had in more recent years made some success of his life. He was a self employed decorator and painter. He had led an honest and violence free life for the last 15 years. He had also overcome his drink problem although amphetamine dependency remained.
As a child, his father had left home when he was three. His mother entered into a relationship with a man who was violent and sadistic and made him steal.
Whilst at Bersham Hall he was indecently assaulted by a member of staff named Leake who caressed his genitals, masturbated him and performed oral sex on him. This continued whenever Leake was on duty. The abuse extended over a period of over four months and occurred three of four times a fortnight. He was also abused by another member staff by the name of Taylor, who would kiss him, fondle his genitals and rub his penis against the Claimant’s body. He would also put his penis between the Claimant’s arm and chest and masturbate him to ejaculation. This happened some four or six times. He was also taken to Taylor’s flat on five or six occasions, and bathed and stroked. The Claimant also suffered from the harsh regime at Bersham Hall.
He was sent home but quickly resorted to his former behaviour with the result that he was sent to Bryn Estyn the following March. He was made to fight an older boy in a boxing ring by another member of staff, Goldswain, who used to strike the boys with a trainer which he kept in his hand. The Claimant was also set to clean a swimming pool, and kept in it whilst it was being filled up. He was accused of a break in at the office (which he denied) and this led to his being sent to a Borstal having been promised a favourable report.
Justice Scott Baker accepted the Claimant’s evidence that when he went to Bersham Hall, he was someone who stole and played truant, but he was not violent. This was something that came about as a result of his time at Bersham Hall and Bryn Alyn.
The Claimant had had three children with one woman and a number of relationships with others. He had difficulty with trust, which extended beyond his personal life to his business life. He spent a total of five of six years in custody for violent offences. Justice Scott Baker that although the treatment in these institutions was a contributory factor to his personality, it was by no means the sole factor. He was keen to take up the offer of therapy that both parties’ medical experts had recommended.
The Defendants admitted the abuse by Leake and Taylor, together with responsibility for what Taylor had done, but there was the issue of whether they were responsible for what Leake had done. The Claimant argued that there was no evidence of any external supervision of Bersham Hall by the Defendants. The Defendants owed a direct non-delegable duty of care towards the Claimant. Alternatively the Defendants were responsible for Leake’s conduct by reason of Taylor’s failure to report it.
Justice Scott Baker said that the recent case of Trotman v North Yorkshire County Council [1999] IRLR 98 closed the door on any claim based on vicarious liability. However the Defendants were vicariously liable for Taylor’s breach of duty in failing to draw his employer’s attention to the abuse. The Defendants also owed a direct duty to the Claimant to take all reasonable steps to provide a safe home for them. There was not a shred of evidence to suggest other than that Leake was put in charge of the home and left to get on with it, with no supervision at all. Proper supervision would have (a) made it a much great risk for the senior management to undertake such abuse and (b) would probably have resulted in any abuse being discovered.
Justice Scott Baker then turned to the medical evidence. The Claimant’s expert was Dr Friedman and the Defendant’s expert, Professor Zeitlin. There was a suggestion that some of the Claimant’s problems could have been caused by organic brain damage. However neither expert seemed to think that this made any difference to their reports.
Dr Friedman and Professor Zeitlin were agreed in their diagnosis of personality disorder and amphetamine abuse. Justice Scott Baker had records of the Claimant’s pre abuse problems. In his judgment, the causes of his violent and anti social behaviour were to be found in his treatment at home and at Bersham Hall and Bryn Estyn.
It was not suggested that his criminal offending was anything other than as a free agent. The sexual abuse was sustained and serious and his life had been affected. Justice Scott Baker took into account the fact of the abuse and the longer terms effects.
The appropriate figure for pain, suffering and loss of amenity would be £25,000.
In relation to loss of advantage in the job market, no award would be made. The Claimant had sought compensation for the first 10 years before he was self employed, and during some of that time he was in prison or out of work. The question was whether it was established on the balance of probabilities that the abuse he suffered caused him to earn less during that period than would have been the case had he not been abused. Justice Scott Baker was not satisfied about this, and as to future loss there was no reason to suppose that the Defendants had put him at any disadvantage in the job market.
In relation to therapy, Dr Friedman had thought that 100 sessions were necessary at £75 per session. There were problems with finding a therapist in the Claimant’s locality, and no clear evidence on that point. Taking a broad view, Justice Scott Baker would fix the figure at £5,000.
Ian McCloughlin
The Claimant was born on the 24th July 1964 and at the time of trial, he was 35. He was in Bryn Estyn from the 25th November 1978 to the 12th December 1978, in Bersham Hall from 12th December 1978 to the 9th March 1979. He was eventually again at Bryn Estyn from 25th July 1980 to the 16th August 1980.
The Claimant had five sisters and two brothers and his father was a motor mechanic, who was violent to both him and his siblings. His parents separated and he ran away from home. He began committing thefts.
He was placed at Bryn Estyn where he was abused on one occasion by Howarth, a house master. The abuse consisted of mutual masturbation. He absconded and was transferred to Bersham Hall. There he was bullied and he was struck in the face by a housemaster.
After leaving Bersham Hall, he returned to crime and was eventually sent to Risley Remand Centre.
There was evidence of his personality and problems as a child.
Justice Scott Baker said that it was unrealistic to conclude that but for the harsh and uncaring regime at Bersham Hall and the sexual abuse at Bryn Estyn, his life would have turned out differently. His offending had become a way of life from an early stage. He had had a relationship with a woman and a son by her, but this had broken down. In 1989 he met his present wife, and there were problems in that relationship. He had begun a business recently but not with much success. In the past he had sporadic employment.
Justice Scott Baker said that the evidence did not support a claim for either loss
of earnings or being at a disadvantage in the job market.
The Claimant’s psychiatrist, Dr Jones did not recommend treatment. However he did say that the Claimant’s sexual dysfunction was likely to be due to the abuse complained of. The pre care experiences would have led to some problems, but not to the entirety of the problem he had had. The abuse in care had contributed to the personality disorder and that contribution was a significant one. However the Claimant’s periods in custody and his criminal acts were caused by his own free decision.
The award would be £24,000 for pain, suffering and loss of amenity.
David May
The Claimant was born in 1968. He was at Bryn Estyn between 8th February 1982 and 20th February 1983. He had two elder and one younger sister. His parents separated but not until he was 17. He started getting into trouble at the age of nine and at the age of 12, a care order was made.
He was placed at Bryn Estyn in Clwyd House. There was a lot of bullying that went on, but nothing was done by staff. There was a climate of violence and the excessive use of force in the day to day contact between staff and residents. Also children were allowed to control other children under a system called “top dog”.
Whilst at Bryn Estyn, Norris called him into his office and asked him about sex with girls. He then made inappropriate comments about the size of the Claimant’s genitals. There were then other occasions when Norris made subtle threats against the Claimant.
The Defendants had called a social worker, who had visited the Claimant at Bryn Estyn. The Claimant had not made any complaint to this social worker, but Justice Scott Baker did not think that was of much consequence given that the two did not get on. However the social worker’s evidence did give an independent picture of the Claimant’s personality at the time.
Contemporaneous documents showed that he had enjoyed his stay at Bryn Estyn. Justice Scott Baker felt that this was illustrative of the management’s failure to understand his needs and feelings. He frequently absconded.
The Claimant said that when he left Bryn Alyn he was a total mess. Justice Scott Baker said that this was substantially correct but the difficult question was what he would have been like, had he not been abused at Bryn Estyn.
However he had been seriously sexually abused by two men, Preece and Williams for which he received an award of £8,000 from the Criminal Injuries Compensation Board. There was no mention in the documents from the CICB about any earlier abuse but there was reference in medical notes prior to the Claimant making the application to the CICB.
The Claimant had never had any regular form of employment and had been in and out of prison. He had a relationship with a woman, and a child but that broke up. He went on to have two further relationship both of which produced children, but these had run into difficulties.
The Claimant’s medico legal expert, Dr Friedman made a diagnosis of post traumatic stress disorder, personality disorder and alcohol dependence syndrome. The PTSD was directly attributable to his experiences of in Bryn Estyn and his alcohol abuse and other difficulties were largely his way of trying to deal with unpleasant intrusive memories. According to the Dr Friedman, the Claimant would have had a more settled life.
Justice Scott Baker could not accept Dr Friedman’s evidence that the abuse by Preece and Williams would have unlikely but for what happened in the home. There was a gap of about two years between leaving Bryn Estyn and meeting these two men. He did accept Dr Friedman’s evidence that Norris behaviour over 12 months did frighten May significantly and had a damaging effect on him. The sexual humiliation also had an effect. However the most important factors leading to the Claimant’s problems neither predated nor postdated his time in Bryn Estyn. Dr Friedman had apparently produced his report before he had sight of the material documents, and his conclusions were not justifiable in light of the documents and the whole of the evidence.
Dr Friedman had recommended psychotherapy, but Justice Scott Baker was quite unpersuaded that he would do undertake such a course of treatment. What happened to him at Bryn Alyn was only a small part of his problems and consequently no claim for treatment was made out. Nor was there any claim for being at a disadvantage on the labour market.
The award for pain suffering and loss of amenity would be £15,000.
Marcus Roberts
The Claimant was born in 1960. He alleged abuse by a house mother by the name of Heather Lynn when he was at a care home, Upper Downing between the 20th October 1975 and the 12th January 1976. The Claimant’s father was a policeman and his mother a radiographer. He was the eldest child of four brothers. A younger brother died of a drug overdose in 1993.
The Claimant had had an unhappy childhood. He was frequently assaulted by his parents and blamed for misdemeanours by his brothers. He was also bullied at school. He began truanting and committing offences and so he was sent to Upper Downing. There his housemother instigated sexual activity with him, which included sexual intercourse and oral sex. This occurred repeatedly. The Claimant would become shaky before intercourse and the housemother would calm the Claimant down with alcohol. He found later in life that alcohol alleviated this problem.
On the 12th January 1976 he moved to Little Acton. The housemother sent him a number of letters. She took him off site in a car on one or two occasions and they had sexual intercourse again. Justice Scott Baker said that although Roberts was confused by the relationship, he was satisfied that he nevertheless obtained some pleasure from it.
In February 1976, a number of letters from Heather Lynn were discovered in his possession but no action was taken against her. He was not happy at Little Acton and after about four months, he was moved to Cartrefle. At some point, Heather Lynn was also moved there. There was some confusion about his evidence but the relationship appeared to continue. Then it ended and she started a relationship with another boy. He was then moved to Neath Farm in Glamorgan. Contemporaneous documents showed that the reason for this was that the Claimant was in further trouble.
At Neath Farm he was badly bullied but nothing that happened there was the responsibility of the Defendants.
He left care at 18 and found work, but started taking drugs. He was in and out of prison, at one point receiving a 2 ½ year sentence for robbery and another sentence for stealing shotguns. Finally he came out of prison, and got a job with Hotpoint for whom he worked for six years. He bought his own flat. He also attended a number of clinics and undertook a number of detoxification programmes. He had given up heroin, but still drank heavily and took cannabis as well as a number of prescribed drugs. He was now on sickness benefit.
The Claimant’s medical expert was a Mrs Cohen. However she had not seen the Claimant before producing her report, and appeared to rely on the report of a psychologist who had seen him. Mrs Cohen concluded that the sexual abuse by Heather Lynn was one of the causes of the Claimant’s drug abuse and that he required treatment to address his post traumatic symptoms. She also concluded that the Claimant’s sexual and relationship problems were directly caused by the traumatic sexual abuse by Heather Lynn with family background making a minor contribution to the relationship problems but not the sexual ones. The drug abuse was caused by a range of factors. Overall a significant proportion of his adult problems could be attributed to his abusive experiences in care. However she included within that period of time, his experiences in Neath Farm, for which the Defendants were not responsible.
Mrs Cohen had said that sexual abuse by females was a subject that was generally unreported, but there was emerging evidence that its consequences were more serious than had been previously recognised. She identified four factors suggesting damage, which were:-
The Defendant’s expert, Professor Zeitlin, did not think that damage was indicated in this case. Pubertal and post pubertal males had a very high sexual drive and it was very difficult to look at what sexualisation meant. Justice Scott Baker said that in his view, there was no evidence of sexualisation in this case, nor betrayal of trust, nor stigmatisation. The final factor, powerlessness was not relevant in this case. He preferred the evidence of Professor Zeitlin. The relationship with Heather Lynn lasted about eight weeks, it was instigated by her but he was not coerced. He obtained some physical pleasure but his primary emotion was confusion. The vast majority of his problems had their root in the way he was treated at home, at Neath Farm and the drug abuse.
General damages would be assessed at £5,000. The abuse had not affected his employment situation at all, nor was there any established claim for psychotherapy.
Stephen Wakefield
The Claimant was born in 1956. He was at Bersham Hall between March and May 1973 and in Chevet Hay between May and December 1973. He was the youngest of three brothers and two sisters. His eldest brother went into care but he did not. He was taken into care because he had committed a burglary. He was placed at Bersham Hall and claimed that he was sexually abused there on two occasions by a member of staff by the name of Michael Taylor. Both incidents involved mutual masturbation. The Claimant also alleged that he was at Bersham Halls, there was further abuse by a man named Stevens who made the Claimant have anal intercourse with him. Soon after that, Stevens then moved in with the Claimant’s mother at which point the intercourse stopped.
However there was a problem with the chronology. The evidence suggested that Stevens had abused the Claimant before he went to Bersham Hall. Justice Scott Baker concluded that it was likely that the abuse by Stevens preceded that of Taylor. The Claimant was not a reliable historian.
The Claimant also had another friend by the name of Gary Cooke, who was a youth leader. He also had a sexual relationship with Cooke and at the age of 16 ½ he went to live with him.
When the Claimant was 17 ½ he joined the Army but he left after a short time and formed a relationship with a local girl in Wrexham. This lasted about 18 months and they had a daughter.
The Claimant gave evidence to the Waterhouse Enquiry and found the experience extremely harrowing. His employment history was erratic and for most of his adult life, he had been out of work. He took an overdose in 1994 and was in hospital for six months with brain damage. He was in receipt of long term sickness benefit.
The Claimant’s medical expert was Dr Dawn Henderson, a clinical psychologist. The Defendant called Dr Kathryn Abel, a research fellow in psychological medicine at King’s College, London.
Dr Henderson had said that there was no significant difference between herself and Dr Abel in their findings on examination. She said that in her opinion the Claimant’s abuse experiences appeared to have had a significantly negative effect on his emotional health, although they were not the sole cause of his difficulties. However Dr Henderson said that she had not read the social services records when she wrote her report and that these records made no substantial difference to her conclusion. She had also been under the impression that that the abuse by Taylor had been sustained when the Claimant was 14 whereas in fact he was 16 at the time. Again she said that this made no difference to her conclusion.
Justice Scott Baker said that he did not find Dr Henderson to be a very convincing witness. He was satisfied that the Claimant had misled both Dr Henderson and Dr Abel about which abuse came first, although it was not suggested that he had deliberately done so.
Dr Abel’s evidence was that the abuse by Taylor was relatively minor in the context of everything else that was happening and Justice Scott Baker accepted that conclusion. The two incidents of abuse by Taylor could not be held responsible for nor did they materially contribute to any of the sad events that followed later in the Claimant’s life. Quantum for pain, suffering and loss of amenity would be assessed at £2,000.
David Wynne
The Claimant was born in 1968. He was at Bersham Hall from the 10th March 1981 to the 18th September 1981 and from the 23rd October 1982 to the 10th December 1982. He was then at Chevet Hay until January 1985.
At the age of four, the Claimant and his twin sister were put in the care of Clwyd County Council Social Services Department. They were placed with foster parents, who adopted the Claimant. He was harshly treated by his parents and he was relieved to go into care.
At Bersham Hall he was humiliated by staff because of his stutter and physically assaulted by staff. He was frequently put in the secure unit, and made to wear just his pyjamas. He could also recall being required to strip naked and stand in the corner with no clothes on. Sometimes he was ordered to take his clothes off in front of female staff.
Between his two spells at Bersham Hall, the Claimant spent about 12 months in a foster placement but this came to an end because Wynne was abusing solvents and stealing.
He went back to Bersham Hall and the culture of violence continued as before. On more than one occasion, a member of staff had washed his private parts. This had made him distressed and embarrassed.
The Claimant was then moved to Chevet Hey but the violence started to re-emerge when staff from Bersham Hall and Bryn Estyn moved to that home. Staff continued to physically assault the children. The Claimant was also threatened by staff, and at one point, a staff member threatened him with a revolver. One member of staff, Marshall Jones set his Alsatian dogs on the children in his back garden. On two occasions, Mr Jones made the Claimant suck his penis.
A female member of staff, Jackie Thomas expected boys to have sex with her. The Claimant was given alcohol and cannabis. Sometimes other people would have sex in the flat in front of the boys. Ms. Thomas also had an interest in the occult and she and the boys would play a Ouija board. The Claimant did have sex with Ms. Thomas. He gave evidence to the effect that he found this stimulating but on another level, he knew what he was doing was wrong and felt dirty about it. He was also buggered by Dave Birch, another member of staff at Mr Birch’s house. He began glue sniff and well as self harming.
He finally left care but was given no help to set up on his own.
His life after care involved excessive alcohol consumption, offending and large proportion of his time in prison. He was eight weeks in a psychiatric unit. He suffered from nightmares, flashbacks, low self image and he found it difficult to establish relationships. At present he had been off drink for over a year.
The abuse by Birch and Marshall Jones was disputed by the Defendant. There were allegations of physical abuse against Marshall Jones by other children but no sexual abuse. Marshall Jones was now dead.
The allegation of sexual abuse against Birch was made very late in the day. Birch denied this emphatically and he had been acquitted of sexual abuse against other complainants. Justice Scott Baker said that he did not find Birch a particularly impressive witness. He had sought to give the impression that there had been little wrong at the homes where he worked. On the other hand, Justice Scott Baker had serious doubts about various aspects of the Claimant’s credibility.
Justice Scott Baker had come to the very clear conclusion that sexual abuse was not proved against either Jones or Birch.
The Defendant had called Michael Barnes, a member of staff who was alleged to have physically assaulted the Claimant. Mr Barnes also expressed surprise at the allegations against another member of staff, Roberts. The Waterhouse Report had concluded that he had used physical violence against children, but he had been away from Bersham Halls during the Claimant’s second stay there. Justice Scott Baker was prepared to conclude that he had been generally aggressive and that Roberts had been guilty of one incident of assault when he threw a television set at the Claimant.
There were three medical experts, Mrs Garland, Dr Friedman and Professor Zeitlin. Justice Scott Baker criticised the evidence of Mrs Garland and said that her evidence was not objective.
Dr Friedman said that the Claimant’s symptoms were not sufficiently severe to warrant a diagnosis of post traumatic stress disorder. He had had a very disturbed adult life and what happened at Bersham Hall and Chevet Hey had played a major part in his problems. However Dr Friedman said that he did not have access to many of the documents until after he had seen the Claimant, so he could not question him on them. He concluded that 50% of the Claimant’s problems were due to his abuse in care, but conclusion was based on what the Claimant had told him.
The expert from whom Justice Scott Baker had obtained most assistance was Professor Zeitlin. He had said that the characteristics of abuse most commonly linked to later disturbance were:-
Even in well run children’s home, only a small proportion of the children made satisfactory adjustments. About 50% of children with conduct disorders made satisfactory adjustment to adults life and that ignored loading factors such as early separation. The Claimant was a very high risk of not making the adjustments. This was a case where a great deal of help was obtained from the documents.
Justice Scott Baker said that the proven or admitted abuse was physical abuse over a period of six months in 1981 and six weeks in 1982 and over two years at Chevet Hey. The length of time over which the abuse took place was of some importance as was the young age of the complainant when it began. There was also sexual abuse by Jackie Thomas at Chevet Hey, although the Claimant’s evidence suggested that it had not had a long term effect on him. However the evidence of Professor Zeitlin was the most persuasive of the three experts. The writing was already on the wall for the Claimant by the time he went to Bersham Hall. The figure for pain, suffering and loss of amenity would be assessed at £14,000, but the claim for loss of earnings or being at a disadvantage on the job market was not made out.
Limitation
Justice Scott Baker then addressed the issue of limitation. The Claimant had reached his 21st birthday on the 3rd May 1992, but proceedings were not commenced until 16th July 1999. The Defendants contended that it was up to the Claimant to prove that his “date of knowledge” for the purposes of section 14 of the Limitation Act 1980 was later. The Claimant had been telling people about the abuse more than three years before he issued proceedings. His evidence was that it was only when he was seen by Dr Morris, a prison doctor two years ago, that he found that he could speak honestly and in detail to someone about what had happened to him in care. However he also said that he always knew that what was done to him by his adoptive mother was also wrong. Consequently for the purposes of section 14, the Claimant was out of time.
However that was not the end of the matter. Section 33 of the Limitation Act 1980 gave the court discretion to allow the matter to proceed. Justice Scott Baker considered the provisions of Section 33(1) and Section 33(3), and he concluded that it would be equitable to allow the action to proceed. There was minimal prejudice to the Defendants who had largely admitted the aspects of the claim that he had found proven. It would have been otherwise for the allegations that he found unproven. It was very painful for the Claimants in these cases to relive the events and the Waterhouse Enquiry had brought matters into the public domain. Justice Scott Baker did not think the evidence on the matters which he had found established was any less cogent that they would have been had the action been brought in time. Consequently limitation would be waived.
Summary
Claimant
Pain, Suffering and Loss of amenities
Past Loss of earnings
Future Loss of earnings
Psycho-
therapy
Total
COXON
35,000
20,000
5,000
10,719.80
70,719.89
CROSS
7,500
7,500
DAVIES
2,500
2,500
DESMOND
50,000
20,000
17,500
6,525
94,025.00
GARYM JONES
30,000
10,000
40,000
PA JONES
25,000
5,000
30,000
MCCLOUGHLIN
24,000
24,000
MAY
15,000
15,000
ROBERTS
5,000
5,000
WAKEFIELD
2,000
2.000
WYNNE
14,000
14,000
FACTS:-
The case concerned group litigation, under the name “North Wales Children’s Homes Litigation”. Mr Justice Scott Baker decided the issue of quantum of eleven claims arising out of child abuse at various children’s homes in North Wales.
HELD:-
Mr Justice Scott Baker considered the difficult question of putting into monetary terms compensation for the abuse that each individual had suffered, and most particularly the effect that it had had on him or her. He had heard evidence from a Dr C N Jones, which he accepted, to the effect that children who are abused tend to develop psychological problems in adult life more frequently than children who have not had such experiences. There was no one specific psychiatric syndrome or mental illness associated with childhood abuse, although there were a number of common features.
Some survivors of childhood abuse went on to develop symptoms typical of post traumatic stress disorder. Survivors of abuse also had higher rates of various non-specific psychiatric conditions. Reported rates of alcohol and drug abuse were higher in survivors of abuse and there were higher rates of criminal and anti social behaviour. There was also a higher rate of sexual dysfunction and survivors tended to experience great difficulty in forming long lasting trusting emotional relationships and this might be partly related to sexual problems.
The difficulty was predicting how a particular Claimant’s life would have progressed had he been properly treated. Another expert, Dr Bronks said that while there was no difficulty in accepting the general principle that ill-treatment and neglect in childhood could lead to psychiatric disorder, it was very much more difficult and often impossible to know whether or to what extent this had occurred in any individual case.
There was also issues of recollection, since much of the abuse occurred so long ago. Justice Scott Baker said that he had taken particular care not to reject one aspect of a Claimant’s evidence just because that Claimant was disbelieved on another. He did not find it surprising that Claimants had made late disclosures but he had found great difficulty, where a Claimant had given conflicting accounts on different occasions.
There was an issue of law as to what was capable of happening in these children’s homes and what actually happened. Justice Scott Baker said that if the homes were not properly supervised, there was an increased risk of sexual and physical abuse. There was clear evidence from the Waterhouse Report that there had been mismanagement of the children’s homes in question. The Defendant’s poor supervision did render it likely that the children would be abused by the staff, and it was by this route that in Justice Scott Baker’s judgment, liability could be established.
Standard of proof
Justice Scott Baker referred to the case of H (Minors) [1996] AC 563. In that case the court said that the more serious the allegation, the less likely it is that the event occurred, and hence the stronger should be the evidence.
Causation/apportionment of damage
Once the breach of duty has been established, the next issue was to identify the damage. Damage to the personality or psychological difficulty was much more difficult, particularly where there were competing causes. The first question was whether the Defendant’s breach of duty made a material contribution to the particular Claimant’s condition. It was enough that it was not so small that the law should not take account of it.
It would be the wrong approach to discount any of the Claimant’s damage simply because there was a chance that he or she would have suffered from similar problems in later life. Justice Scott Baker said that he had paused to consider the question whether it had been proved to the ordinary civil standard that matters other than the abuse had caused or contributed to the Claimant’s problem.
The court had to do its best in each individual case, after weighing up all the evidence. What justice did demand was that the court should make the best estimate that it could, in the light of the evidence, making the fullest allowances in favour of the Claimants for the uncertainties known to be involved in any apportionment. The burden was on the negligent defendant to show who had contributed to the Claimant’s injury.
Justice Scott Baker said that there was an impossibility of making a precise apportionment between what the Defendants’ negligence had caused and what has been caused by other factors. He had taken a broad view and done his best to reach a fair conclusion on the whole of the evidence. It was very much a matter of feel.
Criminal offences by Claimants
A number of the Claimant had criminal convictions. Justice Scott Baker was not satisfied in any of the cases that the criminal convictions were the result of the abuse. However even if the causal link were proven, there were public policy reasons why the court would not lend its aid to a Claimant who relied on his own criminal or immoral act.
Lost earning capacity
A number of Claimants had alleged that the abuse had affected their ability to work. In none of the cases had a detailed Schedule of Loss been advanced. It had not been possible to assess the case on a conventional basis. There were other factors which had affected the Claimants’ ability to work. Justice Scott Baker had awarded a round sum for past loss of earnings.
In relation to future loss of earning capacity, the conventional approach would be followed based on Smith v Manchester Corporation (1974) 17 KIR 1. The loss did not have to be established on the balance of probabilities. There had to be a certain amount of speculation but there must be some basic facts upon which the court can make its forecast.
Therapy
There were a number of cases where there was a claim for therapy. The question was – was the treatment necessary and appropriate to the extent that the Claimant was likely to benefit? Would the Claimant take it up? Was it wholly or partly attributable to the abuse? For how long was it required, how frequently and at what cost?
Pain, suffering and loss of amenity
Justice Scott Baker referred to the Judicial Studies Board guidelines as helpful, although they predated at the time of judgment, the Court of Appeal’s decision in Heil v Rankin 2000 PIQR 187. Psychiatric damage attracted damages in severe cases in the range of £25,000 to £50,000, in moderately severe cases, £9,000 to £25,000 and downwards accordingly for the moderate and minor cases. Post traumatic stress disorder was treated separately, and the awards in the most severe cases were said to fall in the range of £28,500 to £40,000.
Justice Scott Baker referred to the Beck litigation before Potts J, in which one of the Claimants was awarded £80,000 for pain, suffering and loss of amenity. She had suffered many rapes, one act of buggery and substantial physical, emotional and mental abuse over a period of three years. That award would be worth £87,200 in today’s value.
In Heil v Rankin, the court had left for another day any view on the submission that the existing guidelines for psychiatric injury were too low. Justice Scott Baker said that the JSB Guidelines did seem to be on the low side. He found the award of £80,000 in the Beck case useful as providing an upper marker for the kind of damage the present Claimants had suffered.
Expert evidence
There were 14 different experts. This had created a great deal of unnecessary duplication and consequently cost. Justice Scott Baker commented that one of the difficulties for the expert, was that the cornerstone of any opinion would be the abuse or facts eventually established at trial. He referred to the Ikarian Reefer [1993] 2 Lloyds Reports 68 where the court set out some of the duties and responsibilities of expert witnesses. Furthermore there had been little attempt in arranging for the experts to meet to try and identify their differences.
Amanda Coxon
Ms. Coxon was born on the 20th January 1965, and was at the date of trial 35. She was in Chevet Hey from 13th September 1979 to 15th February 1980 and in Bersham Hall from 12th June 1980 to 7th January 1981. She alleged that she was bullied at Chevet Hey and that she was physically and sexually abused at Bersham Hall.
She was the eldest of three children and only had hazy memories of her childhood. Her mother was physically and emotionally abusive and she was bullied at school. At the age of 14 she went to work in a club in Holywell and began a relationship with a boy who drank there. She thought that she was pregnant and was beaten by her father. She then asked her GP if she could go into care and was placed at Chevet Hey. There she was physically abused by other children in front of staff and raped by an unknown man (although the rape formed no part of her case).
Justice Scott Baker felt that the regime here was lax and that Ms. Coxon was entitled to compensation for what had happened there.
In February 1980, Ms. Coxon returned home. She was then sent to Bersham Hall on 12 June 1980. There children were given pocket money and cigarettes. Justice Scott Baker said that the giving of cigarettes seemed to be an abdication of responsibility. Ms. Coxon ran away on three or four occasions. She was locked in the care home’s secure unit. The conclusion of the Waterhouse Report was that this secure unit had been used illegally, and Justice Scott Baker regarded such use as negligent as well as false imprisonment. She was then seriously physically assaulted by the deputy superintendent.
She was also sexually abused by a care worker, a Mr Hart. The abuse amounted to indecent touching and she had vague memories of having sex with this man. She had told the Waterhouse Tribunal that after the first incident, nothing else had happened. The care worker gave evidence and he denied everything.
Justice Scott Baker concluded that the first incident of indecent touching had taken place. Mr Hart was not a convincing witness. He had denied that he ever knew Ms. Coxon even though she produced a card from him. There was a climate in which staff could take liberties with children in the knowledge that no-one was likely to take the child’s side. Therefore the Defendants were liable for this assault, and it was accepted that the assault had taken place.
Ms. Coxon also suffered a barrage of verbal abuse from staff and residents. In January 1981 she was transferred to Silverbrook Children’s Home in Pontypridd and after a couple of months, she was returned to her mother. She was then place with foster parents, returned to a convent school and then she took up a series of temporary jobs in shops and a youth training scheme. None of the jobs lasted very long because by then Miss Coxon had developed a serious drink problem. She moved around the country, staying with various boyfriends and suffering from serious psychological and physical symptoms. Eventually she married a drug addict, and her situation deteriorated even further. She was out of work, taking and supplying drugs and she was suffering from panic attacks and self destructive behaviour.
She then moved in with a man called Tim, stopped taking drugs and gave birth to a son and a daughter. Eventually she married Tim, who went to work in Saudi Arabia. After his departure, she became ill again but was helped by a friend. Tim returned from Saudi Arabia and then found another job in Oman. Whilst there she was raped by a man whom she was helping to paint murals. They came back to England and she gave evidence to the Waterhouse Inquiry. In August 1998 she separated from Tim and for the last year had had a settled relationship with another man, as well as regular employment.
The Claimant’s medical expert was Mrs C B Garland, a consultant clinical psychologist. The Defendants had called a Dr Kathryn Abel.
Justice Scott Baker said that there was no doubt that the Claimant was of well above average intelligence. Ms. Garland had said that the prolonged maltreatment to which she was subjected, had produced a degree of hardened mistrust in the adult world. However Justice Scott Baker felt that her evidence was somewhat partisan. She had concentrated too much on her treatment in care rather than at the rather broader picture of what had been happening at other stages in the Claimant’s life. He had gained more assistance from Dr Abel who had put produced the following percentages:-
- 50 per cent to experiences at home
- 30 per cent to personality and family factors
- 20 per cent to experiences in care
Justice Scott Baker did not think that in this case there was sufficient precision to be able to make assessment in terms of percentages. This was not a case where one was dealing with statistical risks such as epilepsy following a head injury. He considered the history of the Claimant’s life and the available evidence. He thought that the ill treatment at Chevet Hey and more particularly at Bersham Hall had a very significant effect on Miss Coxon’s later life and employment prospects. However there were other factors. She was a great deal better now albeit vulnerable.
He would assess pain suffering and loss of amenity at £35,000.
In relation to loss of earnings capacity, the Claimant was said to be earning £100 to £125 per day. Justice Scott Baker was satisfied that the abuse had affected her earning capacity, and had she not been abused she would probably have had some work from time to time. He would assess this figure at £20,000 to the date of trial and for future handicap on the labour market, he would put the figure at £5,000.
He would award £10,010 for therapy and the cost of travel would be £709.80 taking into account accelerated benefit.
Total award - £70,719.80.
Stephen Cross
Mr Cross was born on the 25th October 1969 and he was at the date of trial, 30. His claim arose out of the time that he was at Cartrefle between November 1984 and April 1986. He claimed abuse by a man named Norris, who was the officer in charge of the home. The involved leering at him when he was naked, this happened at least eight times and on two or three occasions when he was in the shower grabbing hold of his penis. There were other occasions when he would grab and pull out a clump of pubic hair.
The Claimant had had an unhappy childhood. His father was violent to his mother and both parents were violent to him. At the age of 14 he was taken into care by the local authority and placed with foster parents for nine months. He was then placed at Cartrefle. At first things were alright, and he looked on Norris as something of a father figure. However Norris became threatening although he did not use violence on the Claimant.
Justice Scott Baker accepted that there had been threats of violence.
The Claimant had left Cartrefle at 16 and took on two training courses but there were no suitable jobs. In 1989 he worked for about six months with a tyre company in Wrexham but left after assaulting the foreman. In 1993 he worked for six months in a vineyard. Thereafter he had suffered from depression and remained unfit for work. There had been a number of suicide attempts and he suffered from nightmares.
Justice Scott Baker did not find the Claimant a convincing witness, as he frequently contradicted himself. He did not accept that the Cartrefle abuse contributed to his suicide attempts. His own psychiatric expert, Dr Friedman said that it had been difficult to obtain a coherent account from him. However the abuse by Norris had exacerbated and reinforced his problems. With reasonable care, it was likely that he might well have had a more settled adult life with a greater likelihood of employment. Justice Scott Baker said that he did not think that the Claimant’s subsequent life would have been very different. He did not think it was established that the Cartrefle experiences had exacerbated his employment problems to the extent that he had earned any less than would otherwise have been the case.
Therefore the abusive events that were either proved or admitted in the case fell at the lower end of the scale. This was not a case that called for therapy, the only heading for damages was for pain, suffering and loss of amenity, which would be assessed in the sum of £7500.
Elizabeth Ann Davies
The Claimant was born on the 19th May 1962 and at the date of trial was 38. She was placed at Little Acton Assessment Centre in Box Lane, Wrexham between the 28th June 1977 and the 4th August 1977 when she was 15. She alleged physical and sexual abuse there. The head of the home was a man named Bird.
She alleged that she was made to sit in a cold bath with her clothes on, and then made to eat toast with nasty tasting sauces on it. Then she was made to sit in a chair whilst two of the other girls cut her hair off. Mr Wilson, the deputy head of the home then made her go upstairs to a bedroom. She was then raped by the deputy of the home, a Mr Bird. In her written statement, she said that only the head of the home, Mr Bird was involved in the rape. In evidence in chief she said that it was Wilson who made her go upstairs to the bedroom and on cross examination, she said that it was Bird who took her upstairs.
Her evidence was difficult. At times she was very distressed and she also had difficulty in telling her story. The allegation of rape was not made until long after the event and there were other serious inconsistencies in her account.
Justice Scott Baker had to ask whether it was more likely than not that she was raped by Mr Bird, who denied the allegations. There was no independent evidence to support that claim. On the other hand the following matters were cause for concern:-
- the lateness of the complaint
- her inconsistency about who told her to go to the bedroom
- that she told Dr Shapiro, one of the medico legal experts that she wasn’t certain Bird had raped her
- the fact that she had a termination in December 1977 but made no reference to Bird
- the inherent likelihood of rape occurring in the circumstances she described
- her inconsistent evidence to the police
- her failure to tell Dr Herbert about being raped. Dr Herbert was seeing her for therapeutic purposes
- the fact that she made a claim to the Criminal Injuries Compensation Board that did not include any allegation of rape.
However the allegations of physical assault and sexual assault did not stand or fall together.
The Waterhouse inquiry had commented on her evidence. There was evidence of a termination in December 1977, but the medical evidence indicated that the conception occurred after the Claimant had left Little Acton in August 1977. She had given evidence to North Wales police in 1992 to the effect that no abuse had occurred at Little Acton. However there was evidence from other residents at Little Acton that bullying took place there.
The Claimant had admitted having intercourse with a boy after she came out of Little Acton. There was also evidence of previous sexual activity.
Mr Wilson had been suspended on the 15th July 1977 for a relationship with a boy for which he was subsequently prosecuted.
Mr Bird denied all the allegations, however a report commissioned by Clwyd County Council criticised his management of Little Acton Assessment Centre quite severely. He was a weak individual who was not up to the job, but there was nothing that supported an allegation of rape. However the evidence did support the kind of background that would have allowed the hair cutting episode to occur. The Claimant’s mother gave evidence as to the state of her hair, and there was also supportive evidence from her social worker and a houseparent.
Therefore the sole incident to be compensated was that of the bath/hair episode. Justice Scott Baker was not persuaded that it was responsible for any of the other problem she suffered in later life. The appropriate award was £2500.
Terence Desmond
The Claimant was born in 1962 and was 38 at the time of trial. He was at Bryn Estyn for two years between 1976 and 1978. He was sexually abused by Peter Howarth and Paul Wilson. The assaults consisted of oral sex, masturbation, indecent assaults and sexual acts with Mr Howarth’s dog. He was also assaulted by two other members of staff.
The Claimant had had an unsettled childhood. After leaving Bryn Estyn he had not been able to work, having difficulty with authority. He had had a relationship and two children, but that had broken up. He had a substantial record as a petty criminal. He was anti social and got into fights as well as uncontrollable fits of rage. He had sexual difficulties as well as nightmares.
His medico legal expert, Professor Green said that he would require a period of therapy over two years and that he suffered from Post Traumatic Stress Disorder Major Depressive Disorder. He showed some signs of Antisocial Personality Disorder. There were some documents from pre Bryn Estyn. At that time there was some optimism for the Claimant’s future, but he was already displaying a significant degree of anti social behaviour. He had been described as below average intelligence.
The Defendant’s expert diagnosed mild Post Traumatic Stress Disorder as well as a personality disorder. He did not think that treatment would make a significant difference to him. There were a number of factors that put the Claimant at a very high risk of developing personality disorder irrespective of the abuse. The abusive experiences had contributed to the cause of his personality disorder by 10 – 15%. The PTSD had had a small but significant effect on his ability to work. His low IQ suggested that he would have remained at the bottom of the labour market. It was also speculative whether he would take up any therapy offered to him.
Justice Scott Baker said that he was satisfied that the Claimant would have suffered from a personality disorder in any event. However the sole cause of his PTSD was the abuse at Bryn Estyn. The Claimant had also developed a major depressive disorder.
In summary, the Claimant required compensation for the fact of the abuse which was:-
- serious
- committed over a substantial period by several people
- both physical and sexual
- inflicted at a vulnerable age
He also required compensation for what it had done to his life from 1976 to the present and the legacy that it would leave for the future. The Claimant was not entitled to seek compensation for a life of crime.
For pain, suffering and loss of amenity, the award would be £50,000.
In relation to loss of earning capacity, the Claimant had not worked for ten years and before that never managed to hold down a job for very long. The contribution to these problems from the abuse should be assessed at £20,000.
In relation to future disadvantage in the job market, the Claimant was now 38 and he had another 27 years potential working life ahead of him, with some improvement if treatment were given. A figure of £17,500 would be awarded.
In relation to therapy, the Claimant had said in evidence that he was motivated to begin this. Justice Scott Baker would make an award of £6525 along the lines of Professor Green’s recommendations.
Garym Jones
This Claimant had no problems until he was 14 years of age, when he got into petty thieving and made a bomb hoax call. He was first sent to Bersham Hall for six weeks and then to Bryn Estyn for nine months, from where he absconded. He claimed that he had been threatened, his clothes were removed and he was forced to wear shorts, which embarrassed and humiliated him. He was then sent to Bersham Hall. There he was punched by a member of staff and he described the regime as being one of intense fear. A man named Blackman was also unpleasant to him. He was ridiculed for being tall and gangling and for his poor English, since Welsh was his first language. He was at Bersham Hall for six weeks in 1973.
The allegations in relation to Bersham Hall only emerged after he made his claim in July 1999. No mention was made of it to the Claimant’s medical expert, Dr Jones and the Claimant did not give evidence to the Waterhouse Inquiry. Justice Scott Baker did not regard the late inclusion of his claim as adverse to his credibility and regarded his account as correct.
After a while at Bryn Estyn, the Claimant noticed that certain boys were asked up to a member of staff, a Mr Howarth’s flat and also that these boys appeared to be favoured. The Claimant decided to try and get on the list of boys chosen to go up. On the first visit, Howarth put his hand inside the Claimant’s pyjamas. He also witnessed on other occasions Howarth fondling other boys. After this he said that he did not want to go to the flat. He had made a limited disclosure to his mother in front of the principal, Mr Arnold but there was some confusion about how this happened.
The Claimant and Defendant’s solicitors had each instructed medical experts, Dr Jones and Dr Bronks, but ended up relying on the other party’s expert. Neither were called to trial and there was inconsistency in the accounts that the Claimant had given to each expert.
The Claimant said that he absconded from Bryn Alyn on at least 18 occasions. He described various incidents of physical assault and humiliation by staff. When he was only 15, he was sent to Glamorgan Farm School in South Wales. Here the regime was tough with physical violence very much the norm, but he was never sexually abused here and was better able to cope.
The Claimant said that just over two years in various children’s homes turned him into a hardened bully and wife beating adult with a serious criminal record. His offences were mainly drink related and he reacted to problems with violence. Since leaving care, he had never been out of care for more than a year or two at a time.
Justice Scott Baker said that it had to be borne in mind that the Claimant did have problems prior to being sent into care. The problem was the absence of social services records.
Over his working life, he had had 10 or 12 jobs. His longest period of single employer was as a tree planter and feller. He had worked for six months as a concreter but had to leave because of a back injury in 1995 or 1996. He received incapacity benefit and was unfit for work for reasons unrelated to the abuse. In January 1999 he was sent to a probation hostel and started to speak of his experiences in care. Since he left the hostel, his mental state had improved.
The Claimant had a brother with a serious drug problem and a criminal record.
Justice Scott Baker said that it was not suggested that the prison sentences arose out of anything but the Claimant’s own free will. Dr Bronks said that absent the abuse in care, his approach to particular situations might have been different. Dr Jones said that with proper management and care, the behaviour that led him into care might have improved.
The sexual aspect of the abuse was not serious, but the physical and emotional aspect was more serious. Dr Bronks apportioned the effect of the abuse as follows:-
Bersham Hall – 30 per cent
Bryn Estyn – 60 per cent
Neath – 10 per cent
The difficulty was the lack of evidence pre abuse. Justice Scott Baker felt that whilst he had clearly had problems prior to going into care, the experience in care had a very significant effect on his subsequent life, although not quite as great as the Claimant believed. The figure for pain, suffering and loss of amenity would be assessed at £30,000.
As for disadvantage in the job market, damages would be assessed at £10,000.
Peter Jones
The Claimant was born in 1959. His claim arose out of abuse whilst he was at Bersham Hall (December 1972 to July 1973) and Bryn Estyn (March 1974 to August 1975).
The Claimant had a bad start in life, but by contrast to the other Claimants he had in more recent years made some success of his life. He was a self employed decorator and painter. He had led an honest and violence free life for the last 15 years. He had also overcome his drink problem although amphetamine dependency remained.
As a child, his father had left home when he was three. His mother entered into a relationship with a man who was violent and sadistic and made him steal.
Whilst at Bersham Hall he was indecently assaulted by a member of staff named Leake who caressed his genitals, masturbated him and performed oral sex on him. This continued whenever Leake was on duty. The abuse extended over a period of over four months and occurred three of four times a fortnight. He was also abused by another member staff by the name of Taylor, who would kiss him, fondle his genitals and rub his penis against the Claimant’s body. He would also put his penis between the Claimant’s arm and chest and masturbate him to ejaculation. This happened some four or six times. He was also taken to Taylor’s flat on five or six occasions, and bathed and stroked. The Claimant also suffered from the harsh regime at Bersham Hall.
He was sent home but quickly resorted to his former behaviour with the result that he was sent to Bryn Estyn the following March. He was made to fight an older boy in a boxing ring by another member of staff, Goldswain, who used to strike the boys with a trainer which he kept in his hand. The Claimant was also set to clean a swimming pool, and kept in it whilst it was being filled up. He was accused of a break in at the office (which he denied) and this led to his being sent to a Borstal having been promised a favourable report.
Justice Scott Baker accepted the Claimant’s evidence that when he went to Bersham Hall, he was someone who stole and played truant, but he was not violent. This was something that came about as a result of his time at Bersham Hall and Bryn Alyn.
The Claimant had had three children with one woman and a number of relationships with others. He had difficulty with trust, which extended beyond his personal life to his business life. He spent a total of five of six years in custody for violent offences. Justice Scott Baker that although the treatment in these institutions was a contributory factor to his personality, it was by no means the sole factor. He was keen to take up the offer of therapy that both parties’ medical experts had recommended.
The Defendants admitted the abuse by Leake and Taylor, together with responsibility for what Taylor had done, but there was the issue of whether they were responsible for what Leake had done. The Claimant argued that there was no evidence of any external supervision of Bersham Hall by the Defendants. The Defendants owed a direct non-delegable duty of care towards the Claimant. Alternatively the Defendants were responsible for Leake’s conduct by reason of Taylor’s failure to report it.
Justice Scott Baker said that the recent case of Trotman v North Yorkshire County Council [1999] IRLR 98 closed the door on any claim based on vicarious liability. However the Defendants were vicariously liable for Taylor’s breach of duty in failing to draw his employer’s attention to the abuse. The Defendants also owed a direct duty to the Claimant to take all reasonable steps to provide a safe home for them. There was not a shred of evidence to suggest other than that Leake was put in charge of the home and left to get on with it, with no supervision at all. Proper supervision would have (a) made it a much great risk for the senior management to undertake such abuse and (b) would probably have resulted in any abuse being discovered.
Justice Scott Baker then turned to the medical evidence. The Claimant’s expert was Dr Friedman and the Defendant’s expert, Professor Zeitlin. There was a suggestion that some of the Claimant’s problems could have been caused by organic brain damage. However neither expert seemed to think that this made any difference to their reports.
Dr Friedman and Professor Zeitlin were agreed in their diagnosis of personality disorder and amphetamine abuse. Justice Scott Baker had records of the Claimant’s pre abuse problems. In his judgment, the causes of his violent and anti social behaviour were to be found in his treatment at home and at Bersham Hall and Bryn Estyn.
It was not suggested that his criminal offending was anything other than as a free agent. The sexual abuse was sustained and serious and his life had been affected. Justice Scott Baker took into account the fact of the abuse and the longer terms effects.
The appropriate figure for pain, suffering and loss of amenity would be £25,000.
In relation to loss of advantage in the job market, no award would be made. The Claimant had sought compensation for the first 10 years before he was self employed, and during some of that time he was in prison or out of work. The question was whether it was established on the balance of probabilities that the abuse he suffered caused him to earn less during that period than would have been the case had he not been abused. Justice Scott Baker was not satisfied about this, and as to future loss there was no reason to suppose that the Defendants had put him at any disadvantage in the job market.
In relation to therapy, Dr Friedman had thought that 100 sessions were necessary at £75 per session. There were problems with finding a therapist in the Claimant’s locality, and no clear evidence on that point. Taking a broad view, Justice Scott Baker would fix the figure at £5,000.
Ian McCloughlin
The Claimant was born on the 24th July 1964 and at the time of trial, he was 35. He was in Bryn Estyn from the 25th November 1978 to the 12th December 1978, in Bersham Hall from 12th December 1978 to the 9th March 1979. He was eventually again at Bryn Estyn from 25th July 1980 to the 16th August 1980.
The Claimant had five sisters and two brothers and his father was a motor mechanic, who was violent to both him and his siblings. His parents separated and he ran away from home. He began committing thefts.
He was placed at Bryn Estyn where he was abused on one occasion by Howarth, a house master. The abuse consisted of mutual masturbation. He absconded and was transferred to Bersham Hall. There he was bullied and he was struck in the face by a housemaster.
After leaving Bersham Hall, he returned to crime and was eventually sent to Risley Remand Centre.
There was evidence of his personality and problems as a child.
Justice Scott Baker said that it was unrealistic to conclude that but for the harsh and uncaring regime at Bersham Hall and the sexual abuse at Bryn Estyn, his life would have turned out differently. His offending had become a way of life from an early stage. He had had a relationship with a woman and a son by her, but this had broken down. In 1989 he met his present wife, and there were problems in that relationship. He had begun a business recently but not with much success. In the past he had sporadic employment.
Justice Scott Baker said that the evidence did not support a claim for either loss
of earnings or being at a disadvantage in the job market.
The Claimant’s psychiatrist, Dr Jones did not recommend treatment. However he did say that the Claimant’s sexual dysfunction was likely to be due to the abuse complained of. The pre care experiences would have led to some problems, but not to the entirety of the problem he had had. The abuse in care had contributed to the personality disorder and that contribution was a significant one. However the Claimant’s periods in custody and his criminal acts were caused by his own free decision.
The award would be £24,000 for pain, suffering and loss of amenity.
David May
The Claimant was born in 1968. He was at Bryn Estyn between 8th February 1982 and 20th February 1983. He had two elder and one younger sister. His parents separated but not until he was 17. He started getting into trouble at the age of nine and at the age of 12, a care order was made.
He was placed at Bryn Estyn in Clwyd House. There was a lot of bullying that went on, but nothing was done by staff. There was a climate of violence and the excessive use of force in the day to day contact between staff and residents. Also children were allowed to control other children under a system called “top dog”.
Whilst at Bryn Estyn, Norris called him into his office and asked him about sex with girls. He then made inappropriate comments about the size of the Claimant’s genitals. There were then other occasions when Norris made subtle threats against the Claimant.
The Defendants had called a social worker, who had visited the Claimant at Bryn Estyn. The Claimant had not made any complaint to this social worker, but Justice Scott Baker did not think that was of much consequence given that the two did not get on. However the social worker’s evidence did give an independent picture of the Claimant’s personality at the time.
Contemporaneous documents showed that he had enjoyed his stay at Bryn Estyn. Justice Scott Baker felt that this was illustrative of the management’s failure to understand his needs and feelings. He frequently absconded.
The Claimant said that when he left Bryn Alyn he was a total mess. Justice Scott Baker said that this was substantially correct but the difficult question was what he would have been like, had he not been abused at Bryn Estyn.
However he had been seriously sexually abused by two men, Preece and Williams for which he received an award of £8,000 from the Criminal Injuries Compensation Board. There was no mention in the documents from the CICB about any earlier abuse but there was reference in medical notes prior to the Claimant making the application to the CICB.
The Claimant had never had any regular form of employment and had been in and out of prison. He had a relationship with a woman, and a child but that broke up. He went on to have two further relationship both of which produced children, but these had run into difficulties.
The Claimant’s medico legal expert, Dr Friedman made a diagnosis of post traumatic stress disorder, personality disorder and alcohol dependence syndrome. The PTSD was directly attributable to his experiences of in Bryn Estyn and his alcohol abuse and other difficulties were largely his way of trying to deal with unpleasant intrusive memories. According to the Dr Friedman, the Claimant would have had a more settled life.
Justice Scott Baker could not accept Dr Friedman’s evidence that the abuse by Preece and Williams would have unlikely but for what happened in the home. There was a gap of about two years between leaving Bryn Estyn and meeting these two men. He did accept Dr Friedman’s evidence that Norris behaviour over 12 months did frighten May significantly and had a damaging effect on him. The sexual humiliation also had an effect. However the most important factors leading to the Claimant’s problems neither predated nor postdated his time in Bryn Estyn. Dr Friedman had apparently produced his report before he had sight of the material documents, and his conclusions were not justifiable in light of the documents and the whole of the evidence.
Dr Friedman had recommended psychotherapy, but Justice Scott Baker was quite unpersuaded that he would do undertake such a course of treatment. What happened to him at Bryn Alyn was only a small part of his problems and consequently no claim for treatment was made out. Nor was there any claim for being at a disadvantage on the labour market.
The award for pain suffering and loss of amenity would be £15,000.
Marcus Roberts
The Claimant was born in 1960. He alleged abuse by a house mother by the name of Heather Lynn when he was at a care home, Upper Downing between the 20th October 1975 and the 12th January 1976. The Claimant’s father was a policeman and his mother a radiographer. He was the eldest child of four brothers. A younger brother died of a drug overdose in 1993.
The Claimant had had an unhappy childhood. He was frequently assaulted by his parents and blamed for misdemeanours by his brothers. He was also bullied at school. He began truanting and committing offences and so he was sent to Upper Downing. There his housemother instigated sexual activity with him, which included sexual intercourse and oral sex. This occurred repeatedly. The Claimant would become shaky before intercourse and the housemother would calm the Claimant down with alcohol. He found later in life that alcohol alleviated this problem.
On the 12th January 1976 he moved to Little Acton. The housemother sent him a number of letters. She took him off site in a car on one or two occasions and they had sexual intercourse again. Justice Scott Baker said that although Roberts was confused by the relationship, he was satisfied that he nevertheless obtained some pleasure from it.
In February 1976, a number of letters from Heather Lynn were discovered in his possession but no action was taken against her. He was not happy at Little Acton and after about four months, he was moved to Cartrefle. At some point, Heather Lynn was also moved there. There was some confusion about his evidence but the relationship appeared to continue. Then it ended and she started a relationship with another boy. He was then moved to Neath Farm in Glamorgan. Contemporaneous documents showed that the reason for this was that the Claimant was in further trouble.
At Neath Farm he was badly bullied but nothing that happened there was the responsibility of the Defendants.
He left care at 18 and found work, but started taking drugs. He was in and out of prison, at one point receiving a 2 ½ year sentence for robbery and another sentence for stealing shotguns. Finally he came out of prison, and got a job with Hotpoint for whom he worked for six years. He bought his own flat. He also attended a number of clinics and undertook a number of detoxification programmes. He had given up heroin, but still drank heavily and took cannabis as well as a number of prescribed drugs. He was now on sickness benefit.
The Claimant’s medical expert was a Mrs Cohen. However she had not seen the Claimant before producing her report, and appeared to rely on the report of a psychologist who had seen him. Mrs Cohen concluded that the sexual abuse by Heather Lynn was one of the causes of the Claimant’s drug abuse and that he required treatment to address his post traumatic symptoms. She also concluded that the Claimant’s sexual and relationship problems were directly caused by the traumatic sexual abuse by Heather Lynn with family background making a minor contribution to the relationship problems but not the sexual ones. The drug abuse was caused by a range of factors. Overall a significant proportion of his adult problems could be attributed to his abusive experiences in care. However she included within that period of time, his experiences in Neath Farm, for which the Defendants were not responsible.
Mrs Cohen had said that sexual abuse by females was a subject that was generally unreported, but there was emerging evidence that its consequences were more serious than had been previously recognised. She identified four factors suggesting damage, which were:-
- traumatic sexualisation
- betrayal
- stigmatisation
- powerlessness
The Defendant’s expert, Professor Zeitlin, did not think that damage was indicated in this case. Pubertal and post pubertal males had a very high sexual drive and it was very difficult to look at what sexualisation meant. Justice Scott Baker said that in his view, there was no evidence of sexualisation in this case, nor betrayal of trust, nor stigmatisation. The final factor, powerlessness was not relevant in this case. He preferred the evidence of Professor Zeitlin. The relationship with Heather Lynn lasted about eight weeks, it was instigated by her but he was not coerced. He obtained some physical pleasure but his primary emotion was confusion. The vast majority of his problems had their root in the way he was treated at home, at Neath Farm and the drug abuse.
General damages would be assessed at £5,000. The abuse had not affected his employment situation at all, nor was there any established claim for psychotherapy.
Stephen Wakefield
The Claimant was born in 1956. He was at Bersham Hall between March and May 1973 and in Chevet Hay between May and December 1973. He was the youngest of three brothers and two sisters. His eldest brother went into care but he did not. He was taken into care because he had committed a burglary. He was placed at Bersham Hall and claimed that he was sexually abused there on two occasions by a member of staff by the name of Michael Taylor. Both incidents involved mutual masturbation. The Claimant also alleged that he was at Bersham Halls, there was further abuse by a man named Stevens who made the Claimant have anal intercourse with him. Soon after that, Stevens then moved in with the Claimant’s mother at which point the intercourse stopped.
However there was a problem with the chronology. The evidence suggested that Stevens had abused the Claimant before he went to Bersham Hall. Justice Scott Baker concluded that it was likely that the abuse by Stevens preceded that of Taylor. The Claimant was not a reliable historian.
The Claimant also had another friend by the name of Gary Cooke, who was a youth leader. He also had a sexual relationship with Cooke and at the age of 16 ½ he went to live with him.
When the Claimant was 17 ½ he joined the Army but he left after a short time and formed a relationship with a local girl in Wrexham. This lasted about 18 months and they had a daughter.
The Claimant gave evidence to the Waterhouse Enquiry and found the experience extremely harrowing. His employment history was erratic and for most of his adult life, he had been out of work. He took an overdose in 1994 and was in hospital for six months with brain damage. He was in receipt of long term sickness benefit.
The Claimant’s medical expert was Dr Dawn Henderson, a clinical psychologist. The Defendant called Dr Kathryn Abel, a research fellow in psychological medicine at King’s College, London.
Dr Henderson had said that there was no significant difference between herself and Dr Abel in their findings on examination. She said that in her opinion the Claimant’s abuse experiences appeared to have had a significantly negative effect on his emotional health, although they were not the sole cause of his difficulties. However Dr Henderson said that she had not read the social services records when she wrote her report and that these records made no substantial difference to her conclusion. She had also been under the impression that that the abuse by Taylor had been sustained when the Claimant was 14 whereas in fact he was 16 at the time. Again she said that this made no difference to her conclusion.
Justice Scott Baker said that he did not find Dr Henderson to be a very convincing witness. He was satisfied that the Claimant had misled both Dr Henderson and Dr Abel about which abuse came first, although it was not suggested that he had deliberately done so.
Dr Abel’s evidence was that the abuse by Taylor was relatively minor in the context of everything else that was happening and Justice Scott Baker accepted that conclusion. The two incidents of abuse by Taylor could not be held responsible for nor did they materially contribute to any of the sad events that followed later in the Claimant’s life. Quantum for pain, suffering and loss of amenity would be assessed at £2,000.
David Wynne
The Claimant was born in 1968. He was at Bersham Hall from the 10th March 1981 to the 18th September 1981 and from the 23rd October 1982 to the 10th December 1982. He was then at Chevet Hay until January 1985.
At the age of four, the Claimant and his twin sister were put in the care of Clwyd County Council Social Services Department. They were placed with foster parents, who adopted the Claimant. He was harshly treated by his parents and he was relieved to go into care.
At Bersham Hall he was humiliated by staff because of his stutter and physically assaulted by staff. He was frequently put in the secure unit, and made to wear just his pyjamas. He could also recall being required to strip naked and stand in the corner with no clothes on. Sometimes he was ordered to take his clothes off in front of female staff.
Between his two spells at Bersham Hall, the Claimant spent about 12 months in a foster placement but this came to an end because Wynne was abusing solvents and stealing.
He went back to Bersham Hall and the culture of violence continued as before. On more than one occasion, a member of staff had washed his private parts. This had made him distressed and embarrassed.
The Claimant was then moved to Chevet Hey but the violence started to re-emerge when staff from Bersham Hall and Bryn Estyn moved to that home. Staff continued to physically assault the children. The Claimant was also threatened by staff, and at one point, a staff member threatened him with a revolver. One member of staff, Marshall Jones set his Alsatian dogs on the children in his back garden. On two occasions, Mr Jones made the Claimant suck his penis.
A female member of staff, Jackie Thomas expected boys to have sex with her. The Claimant was given alcohol and cannabis. Sometimes other people would have sex in the flat in front of the boys. Ms. Thomas also had an interest in the occult and she and the boys would play a Ouija board. The Claimant did have sex with Ms. Thomas. He gave evidence to the effect that he found this stimulating but on another level, he knew what he was doing was wrong and felt dirty about it. He was also buggered by Dave Birch, another member of staff at Mr Birch’s house. He began glue sniff and well as self harming.
He finally left care but was given no help to set up on his own.
His life after care involved excessive alcohol consumption, offending and large proportion of his time in prison. He was eight weeks in a psychiatric unit. He suffered from nightmares, flashbacks, low self image and he found it difficult to establish relationships. At present he had been off drink for over a year.
The abuse by Birch and Marshall Jones was disputed by the Defendant. There were allegations of physical abuse against Marshall Jones by other children but no sexual abuse. Marshall Jones was now dead.
The allegation of sexual abuse against Birch was made very late in the day. Birch denied this emphatically and he had been acquitted of sexual abuse against other complainants. Justice Scott Baker said that he did not find Birch a particularly impressive witness. He had sought to give the impression that there had been little wrong at the homes where he worked. On the other hand, Justice Scott Baker had serious doubts about various aspects of the Claimant’s credibility.
Justice Scott Baker had come to the very clear conclusion that sexual abuse was not proved against either Jones or Birch.
The Defendant had called Michael Barnes, a member of staff who was alleged to have physically assaulted the Claimant. Mr Barnes also expressed surprise at the allegations against another member of staff, Roberts. The Waterhouse Report had concluded that he had used physical violence against children, but he had been away from Bersham Halls during the Claimant’s second stay there. Justice Scott Baker was prepared to conclude that he had been generally aggressive and that Roberts had been guilty of one incident of assault when he threw a television set at the Claimant.
There were three medical experts, Mrs Garland, Dr Friedman and Professor Zeitlin. Justice Scott Baker criticised the evidence of Mrs Garland and said that her evidence was not objective.
Dr Friedman said that the Claimant’s symptoms were not sufficiently severe to warrant a diagnosis of post traumatic stress disorder. He had had a very disturbed adult life and what happened at Bersham Hall and Chevet Hey had played a major part in his problems. However Dr Friedman said that he did not have access to many of the documents until after he had seen the Claimant, so he could not question him on them. He concluded that 50% of the Claimant’s problems were due to his abuse in care, but conclusion was based on what the Claimant had told him.
The expert from whom Justice Scott Baker had obtained most assistance was Professor Zeitlin. He had said that the characteristics of abuse most commonly linked to later disturbance were:-
- early age
- by a person who is close
- that it is penetrative
- that it persists over time
Even in well run children’s home, only a small proportion of the children made satisfactory adjustments. About 50% of children with conduct disorders made satisfactory adjustment to adults life and that ignored loading factors such as early separation. The Claimant was a very high risk of not making the adjustments. This was a case where a great deal of help was obtained from the documents.
Justice Scott Baker said that the proven or admitted abuse was physical abuse over a period of six months in 1981 and six weeks in 1982 and over two years at Chevet Hey. The length of time over which the abuse took place was of some importance as was the young age of the complainant when it began. There was also sexual abuse by Jackie Thomas at Chevet Hey, although the Claimant’s evidence suggested that it had not had a long term effect on him. However the evidence of Professor Zeitlin was the most persuasive of the three experts. The writing was already on the wall for the Claimant by the time he went to Bersham Hall. The figure for pain, suffering and loss of amenity would be assessed at £14,000, but the claim for loss of earnings or being at a disadvantage on the job market was not made out.
Limitation
Justice Scott Baker then addressed the issue of limitation. The Claimant had reached his 21st birthday on the 3rd May 1992, but proceedings were not commenced until 16th July 1999. The Defendants contended that it was up to the Claimant to prove that his “date of knowledge” for the purposes of section 14 of the Limitation Act 1980 was later. The Claimant had been telling people about the abuse more than three years before he issued proceedings. His evidence was that it was only when he was seen by Dr Morris, a prison doctor two years ago, that he found that he could speak honestly and in detail to someone about what had happened to him in care. However he also said that he always knew that what was done to him by his adoptive mother was also wrong. Consequently for the purposes of section 14, the Claimant was out of time.
However that was not the end of the matter. Section 33 of the Limitation Act 1980 gave the court discretion to allow the matter to proceed. Justice Scott Baker considered the provisions of Section 33(1) and Section 33(3), and he concluded that it would be equitable to allow the action to proceed. There was minimal prejudice to the Defendants who had largely admitted the aspects of the claim that he had found proven. It would have been otherwise for the allegations that he found unproven. It was very painful for the Claimants in these cases to relive the events and the Waterhouse Enquiry had brought matters into the public domain. Justice Scott Baker did not think the evidence on the matters which he had found established was any less cogent that they would have been had the action been brought in time. Consequently limitation would be waived.
Summary
Claimant
Pain, Suffering and Loss of amenities
Past Loss of earnings
Future Loss of earnings
Psycho-
therapy
Total
COXON
35,000
20,000
5,000
10,719.80
70,719.89
CROSS
7,500
7,500
DAVIES
2,500
2,500
DESMOND
50,000
20,000
17,500
6,525
94,025.00
GARYM JONES
30,000
10,000
40,000
PA JONES
25,000
5,000
30,000
MCCLOUGHLIN
24,000
24,000
MAY
15,000
15,000
ROBERTS
5,000
5,000
WAKEFIELD
2,000
2.000
WYNNE
14,000
14,000