AMANDA COXON v FLINTSHIRE COUNTY COUNCIL [2001] EWCA Civ 302

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Scott-Baker)
[2001] EWCA Civ 302Case No B3/2000/3345Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 13th February 2001
Between
AMANDA COXONClaimant/RespondentFLINTSHIRE COUNTY COUNCIL(Formerly Clwyd County Council)Defendant/Appellant
Before
Lord Justice HenryLord Justice WardLord Justice BuxtonMr S Maskrey QC and Mr A Nashashibi (instructed by Messrs Browne Jacobson, Nottingham) appeared on behalf of the Appellant Defendant.Mr R F Owen QC and Mr R Gregory (instructed by Messrs Uppal Taylor, Nottingham) appeared on behalf of the Respondent Claimant.Date 13 February 2001

LORD JUSTICE HENRY:

[1]I will ask Lord Justice Ward to give the first judgment.

LORD JUSTICE WARD: Amanda Coxon is a victim of abuse. She was the victim of her parents' physical and emotional abuse and she was bullied at school. At the age of 14 she was received into the defendant local authority's care and placed in one of their children's homes. Over the five months she was there she was bullied by her fellow inmates without intervention by staff members. After a short spell back home she was admitted into care again and over the next seven months was subjected to physical, emotional and sexual abuse at the hands of members of the staff of that children's home. Her life has been blighted by abuse. On 26th July 2000 Mr Justice Scott-Baker awarded her £35,000 for pain, suffering and loss of amenities; £20,000 for loss of past earnings and £5,000 for future loss of earnings; and he awarded her over £10,000 for the cost of future psychotherapy. The local authority now no longer contest their liability, but appeal each of those awards on the basis that they were each too high - so high as to be wrong. There is no suggestion that the judge acted on any wrong principle of law, so the issue is whether his awards were so extremely high that he made an entirely erroneous estimate of the damages for the injuries properly attributable to the local authority's wrongdoing.

[3]Miss Coxon was born in January 1965. She is now 36 years old. She has a sister who is some 18 months younger than she is and a brother who is four or five years her junior. She has only hazy memories of her childhood, but recollects being hit frequently by her mother, who would constantly tell her that she "had a life until she had children". She felt that she had been singled out because she was her father's favourite and that engaged her mother's disapproval. She was bullied at her second primary school. When the family moved she was bullied at her new school for being "posh" and "a bit of a clever clogs". At the age of eight she went to live with her grandparents, where she was happy save for the fact that her father, in particular, made plain that he was disapproving. When she returned to her parents she was again bullied at school because she was outspoken and blunt. She ran away from school. At the age of 14 she went to work in a club run by her father. She began a relationship with a boy, began to drink and began a sexual relationship with him. She thought she might be pregnant. Her mother was extremely angry with her and said that she would have to have an abortion. She felt that her own feelings had not even been considered. Her father beat her over the affair. In the event, she was not even pregnant. She went to the general practitioner and said that she would rather go into care, where she would be better looked after. As the judge observed, "This was a statement she was going to come to regret bitterly." She was received into voluntary care in September 1979 and went to Chevet Hay Children's Home.[4]It is material to state that she was at that time some 14 years eight months old. The judge held that she had left behind her a "not very auspicious home life". In presenting the history, Dr Abel recorded that:
"Reading the social work notes, it is clear that there had been much conflict in the mother/daughter relationship leading up to the time of her going to Chevet Hay in September 1979. A lot of this seems to have surrounded her differential relationship with her mother and father. This produced a lot of rivalry."
[5]There was a suggestion in the report of Dr Damle that she might have been sexually abused by her father. She appears to have denied to Dr Abel that she had been abused by her father, though she seems to have suggested that, although they were always close, his kissing her on the mouth was inappropriate. The judge was dismissive of the allegation of sexual abuse.[6]He said that he had "looked with some care at the contemporaneous documents to see what light, if any, they threw upon Miss Coxon's personality and behaviour when she went into care". He noted her mother's own description of the events as at 10th September 1979, when the mother recorded that Tracey had been very difficult at home, had slept away from home for three nights, was without remorse or shame and had been rejected by her father. The local authority record at the time of her being received into care stated:
"Tracey has been causing her mother all sorts of problems (staying out late, drinking and also saying that she was pregnant - when she was not)."

The judge's finding was:

"There is no doubt she was a bright and articulate child. She is of well above average intelligence. She was at the time she went into care a difficult and unruly child from a troubled background, missing her father and beyond her mother's control. She was presenting considerable behavioural difficulties."
[8]That, therefore, is the best picture we have of this child at the critical moment when she was received into care.[9]The next stage is to consider what happened to her at Chevet Hay during her stay there from September 1979 until February 1980. She had not been there long before she began to be bullied by two other girls, who tied her to a bed, shaved off her eyebrows and stuck there pieces of red fluff they had cut from a pair of slippers. They poured cold water over her. On another occasion one of those girls jumped up and down on a bed next to her with a Stanley knife, saying that she hated her and was going to kill her. As Miss Coxon tried to defend herself, her left thumb was quite badly cut. Being articulate and outspoken and being a little overweight, she was teased and unpopular. She was also physically abused by two older boys, who kicked her about the body and face, leaving the imprint of a plimsoll on her face. Another boy dragged her round the stairwell to the dining room in the presence not only of other children but also of members of staff, who did nothing to stop it. The judge's conclusion was:
"Whilst I do not think what happened at Chevet Hey left a great deal in the way of permanent psychological scars (it was relatively insignificant in relation to the various other traumas she suffered in her life) I do think Miss Coxon is entitled to compensation for what she was subjected to during the time she was there and for the legacy, such as it was, that it left."
[10]The next relevant period dates from 15th February 1980, when she persuaded her mother to have her back home. Her parents were living apart and, when she could not fulfil her wish to live with her father, she apparently threatened to kill herself. She may well have suffered some depressive episode. That led to a case conference, followed by a place of safety order.[11]She was placed at Bersham Hall on 12th June 1980. There she suffered significant abuse. She ran away on three or four occasions. After the first, she was placed in the secure unit and kept there for three days. After the second, she was kept in the secure unit for two weeks. The judge found that the use of the unit was plainly contrary to law and that there were infringements of liberty that ought not to have been tolerated. Later in his judgment he had to observe, with reference to Dr Abel's views, that "she did not have in mind the full horror of what Miss Coxon went through in the secure unit" [ my emphasis added ].[12]She was subjected to a serious assault by the deputy superintendent at Bersham Hall.

The judge said of this:

"Miss Coxon was subjected to a serious assault by the deputy superintendent at Bersham Hall, Chris Thomas. When she refused to go to her room he got hold of her by the arms and dragged her roughly into the bedroom. Then he threw her onto the bed and sat on top of her, shaking her. He completely lost his temper. She was left crying on the bed. Perhaps significantly, another member of the staff witnessed the incident but did nothing about it. Mr Owen makes the point that an incident of this kind is particularly serious and damaging, perpetrated as it was by a person in authority within the setting of a children's home. The claimant went there expecting to be safe and properly cared for. He says this incident played a material part in Miss Coxon's subsequent problems and in particular her inability to trust people and form normal relationships."
[13]In not disapproving that submission, I take the judge to be accepting it. I certainly would have done so.[14]She was also subjected to an indecent assault by a care assistant who took a particular interest in her and who she liked.

The judge gave this account of that incident:

"While she was at Bersham Hall a care assistant called Mike Hart came to work there. He was an ex merchant seaman and, according to Miss Coxon, took a particular interest in her. She thought he was nice because he flattered her, called her `Lady Tracy Cooper' and talked to her. He used to read palms and said he practised hypnotism. He told her she would never have to work for a living and would marry a man from overseas. One day he took her into the television room where eventually there were just the two of them. He told her she was special, that he could not help himself and that she was different from all the rest. He then touched her all over her body including her private parts both outside and inside her clothing. She felt let down because she had trusted him. She did not tell anyone because he told her not to and because, from past experience, nothing would have been done about it anyway. She also said, as he was the nicest person she had met at Bersham Hall, she did not want to get him into trouble and she believed him when he told her he was sorry."
[15]That is not the whole of the story.

The judge also held:

"While she was at Bersham Hall Miss Coxon suffered a constant barrage of verbal abuse from both staff and residents. She was persistently denigrated and came to believe she was bad and useless."
[16]Once again it is necessary to try to establish the difference between the nearly 15½-year-old girl who entered Bersham Hall and the girl who left it seven months later, a fortnight before her 16th birthday.[17]In the care proceedings before the Juvenile Court Dr Hughes, a consultant child psychiatrist, wrote in about July 1980:
"In my opinion if this girl is to mature into a reasonably secure and useful member of society she will need a longer period of rehabilitation in the kind of environment that will offer her the proper help she needs and to which she is entitled. At present she is unwilling to accept this and unaware of the dangers to which she is subjecting herself."

The judge concluded:

"I have no doubt that Miss Coxon was an extremely difficult girl to handle ... and that she presented serious problems that were quite independent of the abuse she suffered at Chevet Hey and Bersham Hall."
[19]Of that abuse at Bersham Hall, he found:
"In my judgment Miss Coxon's experiences in care, not least the assault on her by Mr Hart, had a devastating effect upon her. In particular it undermined her trust in people especially those with whom she had any kind of close relationship."
[20]This is, in my judgment, a very important finding. That she should feel bad and useless is significant, having regard to the life she lived thereafter.[21]She was moved from Bersham Hall to another home for which this local authority was not responsible, where "she had a very bad time over the two months or so she was there". She then returned to her mother, but their relationship quickly deteriorated because she regarded her mother as "quite evil to her". She was placed with foster parents and returned to a fee paying school, where she could not stay as no one could afford to pay her fees. There followed a series of temporary jobs in shops and a youth training scheme, none of which lasted long because by then she had a serious drink problem and her experiences with men had left her damaged and vulnerable. She left her foster parents, who had been good to her, in the spring or early summer of 1982, aged 17. She could not cope with her nannying job. She could not cope at drama school. She could not cope with part-time work. The judge described how "she felt worthless" (which links back to the earlier finding I have stressed). She had various relationships with various men by the time she was 19. She went through periods of not being able to go out or wash; and then she would bathe five times a day and go out all the time. She became heavily involved in drugs and started picking up men. The judge recorded that, "Her life became one of despair." She was still a teenager.[22]At 20 she married a man who was a heavy drug taker. By now Miss Coxon was out of work, taking and supplying drugs, and suffering from panic attacks and self-destructive behaviour. At a party to celebrate her second wedding anniversary she met a man 20 years her senior who was not involved in drink and drugs and who seemed, at least for a while, to offer her some sanctuary from her style of life. She began to live with him. They have two children, a son born in 1989 and a daughter born in December 1991. It was not a happy relationship. Entirely predictably, she had chosen a man who began to abuse her. She felt bullied and blackmailed into staying with him. She was finally able to separate from him in August 1998.

The judge found:

"For the last year she has had a settled relationship with another man; she has regular employment and she lives no longer in fear but still has fear."
[23]Towards the end of 1997 Miss Coxon was approached by the Waterhouse Tribunal into the child abuse scandal in the children's homes in North Wales.

The judge found:

"Like many others she had mixed feelings and although she found going to the Enquiry a frightening experience is glad she did because it enabled her to unlock her feelings and bring them out into the open. She now feels much more positive about everything. For a while she still felt trapped because Tim still dominated her and she still had to have sexual intercourse with him in order to survive. However, things have gradually got better. Only after she received counselling did she realise and appreciate that the things that happened to her when she was in care were not her fault."
[24]Dealing with her current symptomology, the judge recorded the common ground between Mrs Garland, the consultant clinical psychologist at the Tavistock Clinic who reported on the claimant's behalf, and Dr Abel, a research fellow in psychological medicine at the Institute of Psychiatry who reported on the defendants' behalf. They were agreed that she was currently suffering:
"... panic attacks, negative cognition, low self-esteem, episodes of low mood, tearfulness, irascibility and a reducing capacity for self harm. Also, there was difficulty in concentration and an inability to trust anyone other than her children and her therapist."
[25]It is probably helpful for a full understanding of the current symptoms to read from Dr Abel's report. At page 6 of that report, under the heading "Current Symptoms", she said:
"She says that her current symptoms include a horror of being locked in places, very poor self-esteem, regular nightmares every two to three months, an inability to trust anybody enough or to ask anybody for help. She says that her experience in care left her with a will and a means to destroy herself quietly for many years both physically and psychologically. She says this led her to take many drugs. Since 1988, she has been seeing a counsellor and has found this has helped her enormously. She continues to suffer from headaches and anxiety problems which mean that she is somewhat restricted in her ability to go out of the house unless she is driving a car. This has improved more recently and she has been able since August to take up a job as a freelance magazine producer. She does some of her work at home, but some in the office. This is the longest job she has had. She says that, since her relationship with her husband Tim has finally come to an end and she has been with her current boyfriend for the last two years and with her counsellor, things have improved. She denies symptoms associated with Post Traumatic Stress Disorder. Her main ongoing symptoms are very low self-esteem, intermittent depression and anxiety and occasional panic attacks."
[26]Mrs Garland diagnosed the claimant to be suffering from a borderline personality disorder with paranoid features. But the judge held that her evidence was "somewhat partisan". The judge's criticism of her approach was:
"I am bound to say I thought Mrs Garland's evidence was somewhat partisan. She was naturally horrified at the treatment Miss Coxon had received when in care but was inclined to concentrate on this rather than looking at the rather broader picture of what had been happening at other stages in Miss Coxon's life. She agreed in cross-examination that it was necessary to look at the history given by the claimant against all the corroborative material and that it was necessary to analyse the effect of all life's events. When she saw Miss Coxon she did not have all that material. Had she been less partisan she would in my judgment have been more ready to make adjustments to her original opinion."
[27]The judge felt that he gained more assistance from the evidence of Dr Abel. The judge found:
"Dr Abel found no current psychiatric disorder but she is vulnerable to psychiatric disorder in the future. She has made notable progress over the last five years or so. She has finished an art foundation course, has good work that is earning her an income and has the support of regular psychotherapy. She should continue to make good progress. She is, of course, vulnerable to the vagaries of life and no one can predict what the future holds. As Mrs Garland pointed out, her most vulnerable time is likely to be when the children leave home."
[28]If the children were to leave home as young as 17, she will be 41 when her son leaves and nearly 44 by the time her daughter leaves. She may, therefore, suffer even in her middle age.[29]Upon analysis, there were therefore two essential differences between the two experts: first, as to whether or not she currently suffered any psychiatric disorder and, secondly, as to the part played by all life's events in producing the damaged personality which she currently presents.[30]It was Dr Abel's view, carefully explored in her oral evidence (of which we have a transcript, all of which I have read) that three features determine adult personality: (i)Genetically constitutional factors; (ii)Family and early experiences; (iii)Life events.[31]In Dr Abel's view all three factors operated in this case. When, however, they were subjected to closer analysis the constitutional factor was the suggestion that her father and sister suffered from depressed episodes and that her father possibly suffered alcoholism. Cross-examined, Dr Abel had this to say:
"Q. ... you are not suggesting to my Lord that there is any significant constitutional factor in this case? A. Well, there's no provable one."
[32]Dealing with the family factors, she said:
"... the family factors that I would be most concerned about here would be the parental relationship."
[33]Her view, as expressed in re-examination, was that:
"She had an appalling template for relationships from her parents, and that's a very common background to those requiring psychotherapy in later life."
[34]Mrs Garland had in fact recorded her perceiving her mother to be "a monster at times". She had "a very idealised relationship" with her father:
"... yet her attempts to make contact with him or to have him involved with her met with his apparent disinterest ... and it is very difficult for her to come to terms with her relationship with her father in all its aspects."
[35]Cross-examined, Dr Abel spoke of "two pivotal aspects" when she took herself into voluntary care. She said:
"I think it's important that she took herself into voluntary care, I may not agree with you the same reasons. One of the reasons which it seems to me is clear was that she felt that there were two pivotal aspects, one, the pregnancy or possible pregnancy, and her mother's response to that, but secondly the sexual threat from her father which had driven her not long before that to the garden shed, and those two aspects of her only adult care relationships had left her in the state of intense lack of safety and so yes, therefore, she recognised that."
[36]I cannot but comment that, whilst Dr Abel may have felt it to be a pivotal aspect in the child's development, the judge's recorded finding on those matters of sex abuse was:
"I should say, however, that evidence of [sexual abuse] is somewhat thin."
[37]There was a further difference in the approach of the two experts. It was Mrs Garland's opinion that 80% of the causation of the difficulty in her adult life lay in her experiences in care. Dr Abel was at first of the view that her experiences in care were 20% to blame for her problems. She was pressed in cross-examination to revise that assessment and, probably to her credit, was willing to do so. She was asked:
"Q. You would wish to upwardly revise that now, would you not, having seen and heard Amanda Coxon, whatever my Lord's views may be on percentages? Do you agree? Well, yes or no? A. Possibly, and I know you hate that sort of response, but 20% for me is rather meaningless. I'm trying to suggest that my feeling is that when I considered everything that had happened to this girl up to the age of her entrance into care that her risk factors for all these things were already heavily weighted against her so that there was a significant impact of care, let's say -- I'm saying it's far less than 50%, whether you would say 20% or 30% or 10% is up to you in some ways ... Q. ... will you or will you not upwardly revise that 20% for those purposes, yes or no? A. I'll upwardly revise it to 30%, that gives you Q. That is the best you could do? A. That's the best I can do."
[38]This attempt to express causation in percentage terms appears to have been introduced by Mrs Garland. She may have retreated somewhat from that position when she gave evidence, but we have no transcript of it. I note, for example, these question and answers in Dr Abel's evidence-in-chief:
"Q. ... what is the risk of her having problems as an adult simply as a consequence of those factors alone? A. It's a very high risk, and I've indicated that in the percentages. Q. Yes. A. Although again, like Mrs Garland, I'm very unkeen on those percentages, they're sort of meaningless. Q. Unhappy with percentages but a very high risk? A. But I think the risk would be very high. MR JUSTICE SCOTT-BAKER:A very high risk of problems, quite apart from being in care. A. I think independent, yes, she would have been at very high risk. ... MR JUSTICE SCOTT-BAKER:The problem is, the increased risk may make no difference at all --- A. It may not. Q. --- or it may be the straw that breaks the camel's back. A. That's absolutely right. In cross-examination, Dr Abel also said: Q. ... you accept that a significant contributory cause of that further problem or further psychiatric disorder can fairly be attributed to the in-care experiences? A. Yes, I do. MR JUSTICE SCOTT-BAKER: As against Mrs Garland's 80%? A. Yes, I mean I see that we have differing views in that respect, but these percentages I think we would both agree are not hard and fast. MR JUSTICE SCOTT-BAKER: Absolutely. MR OWEN:It is your own subjective assessment of the overall picture but ultimately it is a matter for my Lord? A. Ultimately, it's my clinical opinion, yes, it's a matter for the court."
[39]There is another very important aspect of Dr Abel's evidence as to the effect upon the child of what should have been a place of safety for her but which turned out to be completely the opposite. When cross-examined about that Dr Abel said:
"A. ... in some ways she got a reiteration of the horror story that she'd had at home. Q. And the effect of that on her, having had her home experiences - we can use different words to your word and I think Mrs Garland's word is `compounded'. A. Yes. Q. Other doctors use the word `interactive'. A. Yes. Q. It would have a significant multiplying effect on what she had had before, do you agree with that? A. Yes, I think we described it yesterday, my Lordship put it as the straw that broke the camel's back. MR JUSTICE SCOTT-BAKER:Because in one sense the worse the horror story was at home and all the background circumstances, the more critical it was that she was not treated in the way she was when she was in care. A. I think that one of the common themes through these cases is that the children are in an incredibly vulnerable state and at this particular time of vulnerability they are acted upon in a monstrous way."
[40]Moreover, what was important was not only the fact of that monstrous abuse but the identity of the abuser. Dr Abel was asked about the compounding of the fact that the abuser was a person in whom the child had placed trust:
"Q. I think you made this point to my Lord yesterday. A. Oh, I see what you mean, in terms of assessing the severity of life events in sexual abuse cases. Q. Yes. A. If the abuser is somebody who you trust, so yes. Q. And that is another compounding effect. A. So your point is that had it been some lesser person, as it were; well, that may be the case, it rather depends on what the initial relationship with this gentleman was, so if it were somebody who she particularly placed her trust in then yes, and particularly looks to in that short period of time which she's been there as a figure she had latched onto, then yes, but I don't know that that was the case with this man so I can't comment."
[41]Unlike the witness, the judge was in a position to comment. His finding was, as I have already set it out, that Miss Coxon "felt let down" by the care assistant who sexually abused her "because she trusted him". He was "the nicest person she had met at Bersham Hall". No wonder the judge was able to find that her experiences in care, not least that sexual assault, had a devastating effect upon her which undermined her trust in people, especially those with whom she had any kind of close relationship.

The judge correctly recognised that, saying:

"The critically difficult matter in this case is to assess the effect of the abuse Miss Coxon suffered at Chevet Hey and Bersham Hall on her personality and subsequent life."
[43]His approach to that "central question", as he had elsewhere described it, has not been the subject of any criticism. It is not suggested that he misdirected himself or erred in principle. This is how he directed himself:
"Given, as I have found in most of these cases, that the claimants' problems have been caused by other factors as well as the abuse, how is the Defendants' measure of responsibility to be assessed in terms of money? Inevitably the exercise is a very imprecise one. It is unhelpful, and indeed in my view impossible, to express the Defendants' degree of responsibility in percentage terms. Many different factors go to make up a personality, and a personality disorder, for example, may manifest itself in different ways. The abuse may have had more impact on one particular problem or aspect of behaviour than on another."
[44]He found the approach in the judgment of Mustill J (as he then was) in Thompson v Smith Ship Repairers Ltd [1984] 1 QB 405, at 443, to be helpful, namely:
"What justice does demand, to my mind, is that the court should make the best estimate that it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel, I believe that this has to be regarded as a jury question, and I propose to approach it as such."
[45]In Holtby v Brighan & Carne (Hull) Ltd [2000] 3 All ER 421 , Stuart-Smith LJ followed Mustill J's approach and said:
"The question of quantification may be difficult and the court only has to do the best it can using its common-sense ... but in my view the court must do the best it can to achieve justice, not only to the claimant but the defendant, and among defendants."

Mr Justice Scott-Baker's own conclusion was expressed in these terms:

"While I am able to make findings on the issue of causation, there are echoes of the words of Mustill J in Thompson in that there is an impossibility of making a precise apportionment between what the Defendants' negligence has caused and what has been caused by other factors. Inevitably I have taken a broad view and done my best to reach a fair conclusion on the whole of the evidence. It is very much a matter of feel."
[47]When he came to consider comparable awards, he referred to the Judicial Studies Board guidelines, where, for psychiatric damage in severe cases, the range was expressed to be between £25,000 and £50,000 and, for moderately severe cases, between £9,000 and £25,000. He observed, however, and rightly observed, that the guidelines "are just that, no more than guidelines". He also felt that they were on the low side.[48]He was helped by the judgment of Potts J in the unreported case of Lesiakowski v Leicestershire County Council , where the claimant suffered appalling sexual abuse from multiple rapes and buggery, which fell not far short of torture, committed upon her particularly by the evil Mr Beck. The judge in that case rejected the suggestion that only 25% of her psychological disability could be attributed to her abusive experiences in that children's home. He considered that the majority of her present difficulties were due to her experiences at that place. As I read the judgment, that victim was in a much more parlous psychological state when she went into the children's home, and the indignity suffered by her was far greater than the indecent assault to which this claimant was subjected. She was awarded £80,000 (which was worth about £87,000 at the time Mr Justice Scott-Baker had to deal with Miss Coxon). It must be remembered that that figure had been discounted to some extent (precisely what is not clear) to make allowance for her pre-existing disability. Mr Justice Scott-Baker found that the level of that award was helpful as providing an "upper marker" for the kind of damage the claimants before him had suffered, albeit to a markedly lesser degree.[49]Having thus directed himself,

the judge expressed his conclusions as follows:

"The problem is to assess the impact of the abuse. Without putting the finding into percentage terms I prefer the assessment on this crucial question of Dr Abel to Mrs Garland. I think the ill treatment at Chevet Hey and, more particularly, at Bersham Hall has had a very significant effect on Miss Coxon's later life and employment prospects. But other matters also played their part. The writing was already on the wall when she went into care that there were likely to be ongoing problems. She was drinking, staying out late and leading what looked like becoming, and later did become, a promiscuous life. She requires compensation for the events that occurred in Chevet Hey and Bersham Hall (but not, of course, what happened at Silverbrook) not least the unlawful use of secure accommodation and the indecent assault by Hart. Additionally she requires compensation for the contribution it has made to her unhappy life after she left and went out into the world. I do not accept that the effect of the abuse had run its course by the time she left drama school. Its impact continued to be considerable right up until she had and took the opportunity of therapy following an approach by the Waterhouse Enquiry. She is a great deal better now, but still vulnerable to relapse if for example she faces some unexpected crisis in her life. The prognosis is optimistic but guarded. She has, as Mr Owen pointed out, suffered both trauma and sexual abuse. I assess the figure for pain, suffering and loss of amenities at £35,000."
[50]Mr Maskrey QC, on behalf of the appellant, has vigorously submitted that the judge must be wrong. He tests his judgment in two broad ways.[51]First, he submits that, even if one viewed the claimant's disabilities as they have affected her, and without regard to apportionment, this was not a case which fell into the category of severe psychiatric damage as defined by the Judicial Studies Board. At best, it is a case of moderately severe damage worth up to £25,000.[52]The Judicial Studies Board had identified the following factors to be taken into account in valuing a claim for psychiatric damages, namely: (i)The injured person's ability to cope with life and work. (ii)The effect on the injured person's relationships with family, friends and those with whom he or she comes into contact. (iii)The extent to which treatment would be successful. (iv)Future vulnerability. (v)Prognosis. (vi)Whether medical help had been sought.[53]In their view in severe cases the injured person would have marked problems with respect to factors (i) to (iv) and the prognosis would be very poor. In cases of moderately severe psychiatric damage there would be significant problems associated with factors (i) to (iv), but the prognosis would be much more optimistic than in a severe case.[54]For my part, I am far from satisfied that the Judicial Studies Board categorisation applies to this kind of case at all. Physical, emotional and sexual abuse of children in care by those who are supposed to provide that care seems to me to fall into a wholly different category from psychiatric damage that follows other personal injuries. The injury is of a different character. The essential element of the damage is the extent to which the injury compounds and multiplies the effect of the pre-existing condition. The Judicial Studies Board guidelines do not include among the factors to take into account the duration of the suffering. In the nature of this kind of abuse, the victims are frequently unable to address the abuse until many years later. This claimant is an example of that unhappy state of affairs. She suffered from the age of 14 until 1995, five years before the judgment, or, perhaps more accurately, until 1997 or 1998, when she first disclosed the harm she had suffered to the Waterhouse Tribunal and began to receive treatment for it. It is all very well to say that the prognosis today is optimistic but guarded, but today is 20 years after she began to suffer at the hands of the local authority. I am quite certain that there is no easily definable bracket into which to place this case such as would enable the court to say that an award which fell outside that bracket must of necessity be so plainly wrong as to be set aside.[55]The second way Mr Maskrey attacks the judgment is to say that, when the judge held that he preferred the assessment of Dr Abel to that of Mrs Garland, he must have been accepting her view that the degree of responsibility was 30% or, at worst, no more than 50%. So he argues that Miss Coxon's psychiatric state, before apportionment, must have justified an award in excess of £70,000. That is "out of kilter" with any other award, including the award by Potts J to Miss Lesiakowski.[56]In my view the judgment cannot be read in that way. Although the judge preferred "the assessment of Dr Abel on the crucial question", he expressly rejected the exercise which Mr Maskrey invited us to carry out, namely putting the finding in percentage terms. That is exactly what the judge was not doing. It was not the only time in that passage that he rejected the percentage approach. He had done so when he set out his general approach early on in his judgment at page 17, when he said that it was unhelpful and, indeed, in his view impossible to express the defendants' degree of responsibility in percentage terms. He did so again at page 54 of his judgment, when he said that he did not think that in this case there was sufficient precision to be able to make an assessment in terms of percentages. In my judgment Mr Owen QC was right when he submitted that, having refused to make a finding in percentage terms, the judge cannot have preferred Dr Abel's assessment of the percentage. The assessment on the crucial question which the judge preferred should, therefore, in my view be understood to refer to the more general assessment (a) of the diagnosis where the experts differed and (b), importantly, of the part played by her bitter experience of family relationships.[57]What the judge himself was assessing was, as he said, "the very significant effect" of the ill-treatment in the two homes, "not least the unlawful use of secure accommodation and the indecent assault". The judge found that its impact continued to be considerable right up until she had the opportunity of therapy. All of that played a very significant part in the virtual destruction of what many might consider to be the best years of life. This 14-year-old child had her childhood destroyed to a very significant extent by the events that happened while she was in care and her young adult life has been blighted in the most appalling way. To award her £35,000 for the significant part that abuse played in 20 years suffering, which still leaves her vulnerable to relapse in the years to come, seems to me to be a perfectly proper award. I am wholly satisfied that it is beyond criticism because the judge was, as is conceded, entitled to approach this case with a broad brush, as a jury question, and very much as a matter of feel. Viewed in that light, I conclude that it is impossible to say that he was wrong, still less that he was plainly wrong.[58]Mr Maskrey attacks the second award of £20,000 for past loss of earnings. At the time of the trial Miss Coxon was working freelance in magazine production, earning between £100 and £125 per week. As Dr Abel commented, this was her longest occupation in any work. It was not only the duration of the employment but the nature of the employment which was so different from the past. Her previous occupational history was of many odd jobs, none of which, it seems to me, exploited the potential of this intelligent young woman. The judge took due account of the fact that there were many reasons why she had not worked, including the fact that she had two children. He was, however, satisfied that the abuse had affected her earning capacity and that, had she not been abused, she would probably have had some work from time to time. Once again, he took a broad brush to the question and he was entitled to do so. £20,000 for loss of earnings over a 15-year period does not strike me as so excessive as to indicate that the judge erred. It was within the band of reasonable awards and I would not disturb it.[59]Finally, Mr Maskrey attacks the assessment of the cost of psychotherapy. I believe he recognised that this was the weakest part of his appeal. In my judgment it was, in fact, hopeless. That she needed psychotherapy for five years was agreed. There was no challenge to the current cost of £55 an hour being the charge of the lady who had given her so much help. The judge made a proper discount for accelerated benefit. I can see no basis whatever for criticism.[60]In my judgment this appeal should be dismissed

LORD JUSTICE BUXTON:I agree that this appeal should be dismissed for the reasons given by my Lord. I venture to add a few words of my own on the main issue in the appeal.

[62]At page 61 of his judgment

the judge said:

"The problem is to assess the impact of the abuse. Without putting the finding into percentage terms I prefer the assessment on this crucial question of Dr Abel to Mrs Garland."
[63]I do not think that by that the judge meant to say that he adopted Dr Abel's evidence complete, and certainly not to the extent urged by Mr Maskrey in his sustained submissions of having adopted Dr Abel's view that Miss Coxon's experiences while in the care of the defendants were responsible for well under 50% of her subsequent difficulties, with a contingent reduction in favour of the defendants of whatever might be the total damages to be awarded for the injuries that were suffered. In this passage, in my view, the judge said no more than that he preferred the general approach of Dr Abel to that of Mrs Garland, at least in the respect that Mrs Garland had wrongly focused her attention almost entirely on Miss Coxon's experiences in care and not on any of the surrounding circumstances. The judge could not have been dealing in percentages because he himself eschewed that approach, as effectively did Dr Abel herself.[64]The judge said at page 61 of his judgment that the experiences at Chevet Hey and Bersham Hall had a very significant effect on Miss Coxon's later life and employment prospects, and that the impact of the abuse she suffered continued to be considerable right up to the time she received therapy, following an approach by the Waterhouse Inquiry. He also said at page 43 of his judgment: "... Miss Coxon's experiences in care, not least the assault on her by Mr Hart, had a devastating effect upon her. In particular it undermined her trust in people especially those with whom she had any kind of close relationship",[65]I am entirely satisfied that in both of those passages he was speaking in the context of the evidence that he had received, as recounted by him at page 57 of his judgment, that, despite the risk factors threatening Miss Coxon when she went into care, given the right environment she could reasonably have expected to have a reasonably fulfilling life.[66]Between the ages of 16 and until she was well over 30 the last thing that could be said about Miss Coxon was that she had a reasonably fulfilling life. On the judge's findings, that opportunity, at a long and crucial stage of her life, was taken away from her by the misconduct of people for whom the defendants are responsible. Happily, the situation is now more promising, no doubt, as the judge found, due in substantial part to the recognition, 20 years after the event, of the justice of her complaints. But that does not affect the historical position that what, without undue dramatisation, might be called - and it has been so characterised by my Lord - the best years of her life have been substantially taken from her. The judge was plainly entitled to give very substantial weight to that loss.[67]He was also entitled to have well in mind, when attributing the loss between the various conflicting causes involved, that Miss Coxon was in the hands of the defendants precisely because of her initial vulnerability, in circumstances where they well knew of that vulnerability. He was entitled in that context also to have very well in mind Dr Abel's evidence, quoted by my Lord, that in these circumstances the effect of mistreatment by carers would, or at least very well might, have a multiplying or compounding effect on Miss Coxon's initial vulnerability. To emphasise that point is not to say (as Mr Maskrey submitted that it was) that the defendants are being required to pay damages for not having cured Miss Coxon's problems. Rather, it is to say that this is a case where the usual process of attributing responsibility between various causes to a large extent breaks down, because the initial cause of Miss Coxon's vulnerability is the context in which the defendants have to take particular care. If they did not take that care, in circumstances where it was known and foreseeable what could be the outcome of abuse by persons of trust and in positions of responsibility, then they cannot complain if less weight than otherwise might be the case is given to that original cause. Those considerations therefore entitle -indeed oblige - the judge not to weigh too nicely arguments based on the respective causal effect of the various facts in the history.[68]He was also well entitled to view the Judicial Studies Board guidelines on psychiatric damage, as a guide to the facts of this case, with some reserve. Like my Lord, I doubt whether those guidelines really have directly in mind a case such as the present, where there is an established history of psychiatric problems over a period as long as 15 years.[69]Further compensation is due for the events themselves: not only the assaults, verbal and physical, but also the imprisonment and the inappropriate regime. Concentration during the course of the appeal upon contingent psychiatric injury and its assessment may to some extent have caused the actual injuries to have been given a less prominent place. We do well to recall, therefore, what

the judge said at page 39 on that matter, referring to the Waterhouse Report:

"In paragraph 13.65 the report points out that use of the unit in the manner described was plainly contrary to law and that there were infringements of liberty that ought not to have been tolerated. I accept Miss Coxon's evidence about the secure unit and I regard its use in her case as a serious breach of duty on the part of the Defendants as well as, probably, false imprisonment."
[70]The judge received evidence on behalf of the local authority that the unit had not been used in that way: that evidence he rejected.[71]Putting all those factors together, it is, in my view, impossible to say that the judge was so far wrong in his assessment of the level of the general damages owed by the defendants for all these events that this court should interfere.[72]On the other aspects of the appeal, I entirely agree with what my Lord has said.

LORD JUSTICE HENRY:I agree with both judgments and do not wish to add anything to them. This appeal will be dismissed.

Order

appeal dismissed with costs on the standard basis, those costs to include the cost of the Dr Abel transcript. (Order does not form part of approved Judgment)

Cited in 2 later judgments