X V Y AND Z (UNREPORTED) 16TH SEPTEMBER 2005 RECORDER NICHOLAS WOOD EXETER COUNTY COURT
FACTS:-
The claim arose out of abuse that occurred in the late 1960’s, when the Claimant (aged 12 to 14) years was detained at an approved school run by the Second Defendants. In 1973, following the Children and Young Persons Act 1969, the school ceased to be an approved school and the First Defendants took over managerial responsibility for it and any outstanding liabilities of the Second Defendants. Judgment was entered against the First Defendants only.
The Claimant was born in 1954. His father drank and was violent. The Claimant was convicted of a number of offences at the age of 12 and sent to an approved school where he arrived on the 31st August 1966. There were detailed records available that described the sort of boy that he was when he arrived and it appeared that he had the potential to be turned around. However by Xmas 1967, he was described as a very disturbed boy.
In May 1968 he was buggered by the school’s games master over a period of three months. In his criminal statement he described eight incidents and seven in his civil statement. In both statements he said that there were more incidents which he could not remember specifically.
He was released from the school at the age of 15 in 1969 and by 1970 he was in employment. Evidence was provided from the National Insurance Contributions office of the Inland Revenue to sow that he had numerous jobs thereafter up to 1990 to 1991.
His relationships with women did not thrive. He had two marriages and three children. His last relationship had ended in 1995 and since that time he had not been in any relationship. In 1996, he went into hospital. He had also taken drugs over the years and he still took cannabis. He began proceedings against the two Defendants in 2002.
HELD:-
Recorder Nicholas Wood said that the Claimant was obviously a vulnerable young man when he arrived at the approved school and easily led into mischief. However he was pretty robust and resilient, albeit apt to become emotional in dealing with authority.
Recorder Wood said that during the period in question he found that there were perhaps as many as 10 incidents of buggery. Each incident was a brutal rape of a powerless victim, a grave breach of trust by the perpetrator. Each act was done in callous and ruthless disregard of the pain and physical injury and the inevitability of deep emotional scarring. Most of these aspects of the abuse, combining with the less obvious psychological effects such as guilt and self-blame were indicators for quantum.
The other abuse that the Claimant suffered was of a much lesser order, and consisted of institutional violence spread over a period of 3 years.
The issue of causation
Recorder Wood said that he did not think that the Defendants could be held responsible for the Claimant witnessing a rape, or lesser misbehaviour towards the Claimant in the showers. The bizarre punishments were on the borderline of being tortious but the beatings by staff were well on the wrong side of the law and were of a particularly vicious and shocking kind.
It was impossible to conclude that either Claimant’s taking of drugs or difficulties with women could be attributed to the abuse complained of. The psychological effects of the abuse were buried until the “trigger” events of 1996 and this was supported by the psychiatrists. Recorder Wood said that the Claimant should not be held too literally to his own words, given his obvious emotional difficulties over the years. He had said in the witness box that he had tried hard to repress his memories and was in a state of shock when he started recovering these memories. Recorder Wood concluded that although his memories and feelings about the abuse were pretty well repressed until 1996, the Claimant was not conscious of such repression.
Both psychiatrists agreed that the Claimant suffered from psychiatric disorder as a direct result of sexual abuse suffering in childhood. Although the psychiatric experts said that the differences between them were of little consequence, Recorder Wood did not agree. He was not satisfied by either expert that the Claimant’s pre-care experience ever gave rise to anything other than a social disability, through what today would be called ineffective parenting. Accordingly he did not think that there was any occasion here for apportionment along the lines undertaken in the case of KR and Others v Bryn Alyn Community Homes [2003] EWCA Civ 85. The situation in this case was somewhat comparable with the case of Desmond in Coxon v Flintshire County Council (Scott Baker J, 26 July 2000, unreported).
However there was more difficulty in relation to whether the Claimant ever suffered ill effects sounding in damages payable by the Defendants during the period between his release from the school in 1969 and his discharge from hospital in 1996. Recorder Wood felt that if they constituted actionable material, the blame should lie with the Defendants.
Treatment
According to the experts, the Claimant should be amenable to treatment and some resolution might be expected to occur although there were bound to be residual effects. Recorder Wood found that 3 years of treatment was feasible with an initial six months of intensive treatment.
The only hard item of special damage was the prospective cost of therapy in the agreed sum of £5,000. Recorder Wood doubted its sufficiency however the Claimant was content with this sum.
Past loss of earnings
Loss of earnings was more problematic. There was nothing to suggest that the Claimant’s capacity for work up to 1996 would have been different, had it not been for the abuse. The Inland Revenue records ran out in 1991 and there was no documentary indication as to what the Claimant was doing between then and 1996, when he went into hospital. After that he was on incapacity benefit although he had been on income support before going into hospital.
The Claimant’s expert, Dr Veasey had said that whilst the Claimant was prejudiced in the work place by reason of his psychiatric disorder, he did not think that it was impossible for him to undertake some work. It would have been helpful if particular proposals would have been put to Dr Veasey in this case.
It was clear from the Bryn Alyn and Flintshire cases, that a broad brush approach needed to be adopted. Recorder Wood said that ideally there should be some data – some sort of indication of the scope of the Claimant’s skills and the market for them in the locality where he has lived or may be expected to live, and some sort of indication of going rates from time to time, assuming whatever might be the appropriate levels of demand. Here there was nothing to work on.
However some award should be made based on the formulas in those cases. Recorder Wood’s findings were as follows:-
Future loss of earnings capacity
In relation to this head of damage, Recorder Wood followed the conventional approach based on Smith v Manchester Corporation (1974) 17 KIR 1. He also referred to Herod v Birds Eye Foods Limited Kemp and Kemp 6/606 where Lawton LJ said that the degree of incapacity must depend upon the evidence before the court. There has to be a certain amount of speculation, but there should be some basic facts upon which the court could makes its forecast.
Recorder Wood made three findings:-
Pain, suffering and loss of amenity
Recorder Wood felt that the whole of the Claimant’s stay at the school was an ordeal of sorts, his experience being blighted by distressing, traumatic episodes. The appropriate award would be £25,000 for the actual experiences. He would award in addition the sum of £20,000 for the distress of being haunted by thoughts and images long repressed.
2% interest would be added to those sums from service of the proceedings.
Past loss of earnings
9 times £4,000 - £36,000
4% interest would be added to that sum for say 9 years - £12,960
Future loss of earnings
3 times £4,000 divided by 2 = £6,000
7 times £4,000 divided by 4 - £7,000.
Cost of therapy
£5,000
FACTS:-
The claim arose out of abuse that occurred in the late 1960’s, when the Claimant (aged 12 to 14) years was detained at an approved school run by the Second Defendants. In 1973, following the Children and Young Persons Act 1969, the school ceased to be an approved school and the First Defendants took over managerial responsibility for it and any outstanding liabilities of the Second Defendants. Judgment was entered against the First Defendants only.
The Claimant was born in 1954. His father drank and was violent. The Claimant was convicted of a number of offences at the age of 12 and sent to an approved school where he arrived on the 31st August 1966. There were detailed records available that described the sort of boy that he was when he arrived and it appeared that he had the potential to be turned around. However by Xmas 1967, he was described as a very disturbed boy.
In May 1968 he was buggered by the school’s games master over a period of three months. In his criminal statement he described eight incidents and seven in his civil statement. In both statements he said that there were more incidents which he could not remember specifically.
He was released from the school at the age of 15 in 1969 and by 1970 he was in employment. Evidence was provided from the National Insurance Contributions office of the Inland Revenue to sow that he had numerous jobs thereafter up to 1990 to 1991.
His relationships with women did not thrive. He had two marriages and three children. His last relationship had ended in 1995 and since that time he had not been in any relationship. In 1996, he went into hospital. He had also taken drugs over the years and he still took cannabis. He began proceedings against the two Defendants in 2002.
HELD:-
Recorder Nicholas Wood said that the Claimant was obviously a vulnerable young man when he arrived at the approved school and easily led into mischief. However he was pretty robust and resilient, albeit apt to become emotional in dealing with authority.
Recorder Wood said that during the period in question he found that there were perhaps as many as 10 incidents of buggery. Each incident was a brutal rape of a powerless victim, a grave breach of trust by the perpetrator. Each act was done in callous and ruthless disregard of the pain and physical injury and the inevitability of deep emotional scarring. Most of these aspects of the abuse, combining with the less obvious psychological effects such as guilt and self-blame were indicators for quantum.
The other abuse that the Claimant suffered was of a much lesser order, and consisted of institutional violence spread over a period of 3 years.
The issue of causation
Recorder Wood said that he did not think that the Defendants could be held responsible for the Claimant witnessing a rape, or lesser misbehaviour towards the Claimant in the showers. The bizarre punishments were on the borderline of being tortious but the beatings by staff were well on the wrong side of the law and were of a particularly vicious and shocking kind.
It was impossible to conclude that either Claimant’s taking of drugs or difficulties with women could be attributed to the abuse complained of. The psychological effects of the abuse were buried until the “trigger” events of 1996 and this was supported by the psychiatrists. Recorder Wood said that the Claimant should not be held too literally to his own words, given his obvious emotional difficulties over the years. He had said in the witness box that he had tried hard to repress his memories and was in a state of shock when he started recovering these memories. Recorder Wood concluded that although his memories and feelings about the abuse were pretty well repressed until 1996, the Claimant was not conscious of such repression.
Both psychiatrists agreed that the Claimant suffered from psychiatric disorder as a direct result of sexual abuse suffering in childhood. Although the psychiatric experts said that the differences between them were of little consequence, Recorder Wood did not agree. He was not satisfied by either expert that the Claimant’s pre-care experience ever gave rise to anything other than a social disability, through what today would be called ineffective parenting. Accordingly he did not think that there was any occasion here for apportionment along the lines undertaken in the case of KR and Others v Bryn Alyn Community Homes [2003] EWCA Civ 85. The situation in this case was somewhat comparable with the case of Desmond in Coxon v Flintshire County Council (Scott Baker J, 26 July 2000, unreported).
However there was more difficulty in relation to whether the Claimant ever suffered ill effects sounding in damages payable by the Defendants during the period between his release from the school in 1969 and his discharge from hospital in 1996. Recorder Wood felt that if they constituted actionable material, the blame should lie with the Defendants.
Treatment
According to the experts, the Claimant should be amenable to treatment and some resolution might be expected to occur although there were bound to be residual effects. Recorder Wood found that 3 years of treatment was feasible with an initial six months of intensive treatment.
The only hard item of special damage was the prospective cost of therapy in the agreed sum of £5,000. Recorder Wood doubted its sufficiency however the Claimant was content with this sum.
Past loss of earnings
Loss of earnings was more problematic. There was nothing to suggest that the Claimant’s capacity for work up to 1996 would have been different, had it not been for the abuse. The Inland Revenue records ran out in 1991 and there was no documentary indication as to what the Claimant was doing between then and 1996, when he went into hospital. After that he was on incapacity benefit although he had been on income support before going into hospital.
The Claimant’s expert, Dr Veasey had said that whilst the Claimant was prejudiced in the work place by reason of his psychiatric disorder, he did not think that it was impossible for him to undertake some work. It would have been helpful if particular proposals would have been put to Dr Veasey in this case.
It was clear from the Bryn Alyn and Flintshire cases, that a broad brush approach needed to be adopted. Recorder Wood said that ideally there should be some data – some sort of indication of the scope of the Claimant’s skills and the market for them in the locality where he has lived or may be expected to live, and some sort of indication of going rates from time to time, assuming whatever might be the appropriate levels of demand. Here there was nothing to work on.
However some award should be made based on the formulas in those cases. Recorder Wood’s findings were as follows:-
- The Claimant demonstrated an ability to work in a variety of jobs as soon as he left school. Periods not covered by the Inland Revenue records were explained.
- After the last employer on the record, the Claimant ceased work for reasons wholly unconnected with the abuse.
- After the Claimant’s discharge from hospital in 1996, the Claimant would have had the reasonable expectation of at least some work
- Such work would have been intermittent, for an assumed average of about 6 months a year, bringing annual net earnings of say £4,000 over the period in question, i.e. say 9 years to the date of this judgment. The working time and money being heavily discounted to reflect the irregular and intermittent pattern which was typical before 1991, also the Claimant’s physical disability and the possibility of some unforeseen interruptive influence.
Future loss of earnings capacity
In relation to this head of damage, Recorder Wood followed the conventional approach based on Smith v Manchester Corporation (1974) 17 KIR 1. He also referred to Herod v Birds Eye Foods Limited Kemp and Kemp 6/606 where Lawton LJ said that the degree of incapacity must depend upon the evidence before the court. There has to be a certain amount of speculation, but there should be some basic facts upon which the court could makes its forecast.
Recorder Wood made three findings:-
- The Claimant has a good prospect of ameliorating his condition to the extent of say, 75% and of doing it by say, 3 years from the date of judgment.
- Pending that achievement, the Claimant might be handicapped on the labour market to the extent of one half of his earning capacity.
- In the 25% likelihood of failure in the proposed therapy, the Claimant’s loss would be the totality of his assumed earnings capacity during the remainder of his working life, assumed at, say 7 years (postponed for the three years of therapy and then discounted to reflect the irregular and interimittent pattern typical before 1991, the Claimant’s physical disability, the possibility of some unforeseen influence which might terminate his working life and the benefit of accelerated payment.
Pain, suffering and loss of amenity
Recorder Wood felt that the whole of the Claimant’s stay at the school was an ordeal of sorts, his experience being blighted by distressing, traumatic episodes. The appropriate award would be £25,000 for the actual experiences. He would award in addition the sum of £20,000 for the distress of being haunted by thoughts and images long repressed.
2% interest would be added to those sums from service of the proceedings.
Past loss of earnings
9 times £4,000 - £36,000
4% interest would be added to that sum for say 9 years - £12,960
Future loss of earnings
3 times £4,000 divided by 2 = £6,000
7 times £4,000 divided by 4 - £7,000.
Cost of therapy
£5,000