“hey, I think you said you are away this week but can we discuss me starting the counselling when you are back. I'm really not in a good place and it's been getting worse so need to start dealing with it. Spoken to mum and I'll work around my finances.”
“See you on the 10th take care.”
“10/04/18 First session – discussed ethical and professional safety and contract, process and goals. Nervous. Prone to nervousness and anxiety. Job interview tomorrow (assistant Manager at ER) Ex-boyfriend had visited and gone through phone and found and trawled through ‘Tinder’ Made her upset and angry because of nature of activity and also felt violated. He was angry because she was actively dating/connecting through online apps. All contributing to hyper anxiety. Still smoking cannabis but says she’s trying to cut down. Concerned about sleep & life balance. Low body image. Main goals around self-image sex and sexuality. Covers herself with tattoos and dark clothing to hide/distract. Discussed images to start a self-image diary.”
“at some point I began to notice a significant change in GKE's mood and demeanor just before her well-being, she became quiet and withdrawn. I was so concerned as this went on that I mentioned it to Brett who said he would address it.”
“Hi GKE. Just had a thought after last week's confusion over times to confirm we are meeting at the usual time of 8:30 am is that what you had in mind? B.”
“we will respect our clients privacy and dignity.”
“we will establish and maintain appropriate professional and personal boundaries in our relationships with clients by ensuring that: a. these boundaries are consistent with the aims of working together and beneficial to the client …”
“we will not have sexual relationships with or behave sexually towards our clients, supervisees or trainees.”
“we will not exploit or abuse our clients in any way: financially, emotionally, physically, sexually or spiritually.”
“we will maintain high standards of honesty and probity in all aspects of our work”
“we will ensure candour by promptly informing our clients of anything important that has gone wrong in our work together and:… c, offer an apology when this is appropriate.”
“9. I do not suggest there is any reason to think anything inappropriate occurred or was likely to occur in this case, but nonetheless I do not regard what happened as entirely satisfactory. If a witness is to give evidence remotely, where he or she will be and who (if anyone) will be with them, and why, should be discussed between the parties in advance. That is always so, in my view, but especially it is so if the arrangement may be such that there could be interaction with the witness during their evidence that will not be visible to the court. Any arrangement other than that the witness will be on their own during their evidence should be approved by the court, in advance if possible, and parties should not assume that an arrangement will be approved just because (if it is) it is agreed between them. Sensible arrangements discussed and agreed in advance are likely to meet with approval if the court does not identify any difficulty of possible substance that the parties may have overlooked. But it must be for the court, not the parties, to control how it receives the evidence of witnesses called before it. I acknowledge that the parties were not asked by the court in advance to specify the witness arrangements here. They should have been, and that they were not is my responsibility, but equally parties should not wait to be asked.”
“56. The right to bodily integrity is the first and most important of the interests protected by the law of tort, listed in Clerk & Lindsell on Torts, 18th ed (2000), para 1-25. "The fundamental principle, plain and incontestable, is that every person's body is inviolate": see Collins v Wilcock[1984] 1 WLR 1172 , 1177. Included within that right are two others. One is the right to physical autonomy: to make one's own choices about what will happen to one's own body. Another is the right not to be subjected to bodily injury or harm. These interests are regarded as so important that redress is given against both intentional and negligent interference with them.”
“At present I content myself with pointing out that in English law there must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. The liability for negligence, whether you style it such or treat it as in other systems as a species of "culpa," is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
“… I must tell you what in law we mean by “negligence.”
“In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the Defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men.’ Later, at p. 588, he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion.’ Again, in the passage which I have cited from Maynard’s case [1984] 1 W.L.R. 634 , 639, Lord Scarman refers to a ‘respectable’ body of professional opinion.The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis.In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”
“In Wilsher v Essex AHA[1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior Doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital Doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the Doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the Doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.”
“66. … Dr O’Brien was negligent in relation to the Claimant’s mental health. Given his knowledge of her, he owed her a duty of care not to subject her to the unreasonable and avoidable risk of harm, and that duty of care should have included and encompassed the risk that the Claimant would fail to follow through her commitment to the doctrine of Christianity which he and his wife were espousing, with the consequences of the potential breakdown of their relationship. Effectively, the Claimant was left without a safety net in circumstances where the doctors at the Surgery and, in particular, Dr Jorsh, were not aware of what was going on and therefore how the Claimant could be supported medically, and particularly psychiatrically. In my judgment it was negligent of Dr O’Brien to expose the Claimant to the meeting of12 January 2013 when, given the Claimant’s psychological and psychiatric make-up, together with all her physical problems, it was foreseeable that she might react adversely in the way that she did. By reason of his zealous promotion of the religious aspects, he became blind to the medical aspects and thereby caused or contributed to the deterioration in the Claimant’s mental health. Accordingly, in my judgment, the Second Defendant is liable to the Claimant for the psychiatric damage which she has sustained and its consequences.”
“The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”
“This is a much stronger case than Wilkinson v. Downton . In that case there was no intention to commit a wrongful act; the defendant merely intended to play a practical joke upon the plaintiff. In the present case there was an intention to terrify the plaintiff for the purpose of attaining an unlawful object in which both the defendants were jointly concerned.”
“12. For the tort to be committed, … there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour.”
“41. Commentators and counsel have nevertheless been unwilling to allow Wilkinson v Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the Court of Appeal in Wong v Parkside Health NHS Trust[2003] 3 All ER 932 and rejected. Hale LJ said that before the passing of the Protection fromHarassment Act 1997 there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v Downton with no leading role in the modern law.”
“44. I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v Downton Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney[1919] 2 KB 316 , that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Comrs case 13 App Cas 222 prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.”
“60 …I agree with the Court of Appeal, and with your Lordships, that if there had been no touching, as there was not in Mrs Wainwright's case, no tort would have been committed. The unjustified infliction of humiliation and distress does not, without more, suffice at common law to constitute a tort.”
“In my judgment, although it was foreseeable that psychiatric injury to C would result from D1’s conduct in the first infirmary incident, such injury was not sufficiently likely for the necessary intention to cause harm to be imputed on the first two bases of imputation. However, I am satisfied that D1, behaving as he did during this incident, was reckless as to whether he caused psychiatric injury to C and accordingly I hold that he is liable to C under the Wilkinson v Downtown principle for the psychiatric injury caused by his conduct on the first occasion in the infirmary.”
“87. … Our answer to the second question is not to include recklessness in the definition of the mental element. To hold that the necessary mental element is intention to cause physical harm or severe mental or emotional distress strikes a just balance…” “88. … We are inclined to the view, which is necessarily obiter, that the tort is sufficiently contained by the combination of (a) the conduct element requiring words or conduct directed at the Claimant for which there is no justification or excuse, (b) the mental element requiring an intention to cause at least severe mental or emotional distress, and (c) the consequence element requiring physical harm or recognised psychiatric illness.”
“89 I should note, however, that I am entirely satisfied that a claim under Wilkinson v Downton as explained in Rhodes is established. This tort of intentional infliction of harm in its reformulation has three elements: (a) the conduct element; (b) the mental element; and (c) the consequence element. (Rhodes at [73]) I am satisfied that each is established. Mr Whillock acted unjustifiably towards the Claimant by emotionally manipulating her and encouraging her to send indecent images of herself to him and engaging in sexual banter in the texts. His manipulation was successful in that she became infatuated with him and wanted to make him happy. She is still infatuated by him now. The mental element requires the Claimant to establish that Mr Whillock intended to cause severe mental or emotional distress to her. There are however, as was said in Rhodes at [112], actions whose “consequences or potential consequences are so obvious the perpetrator cannot realistically say that those consequences were unintended”
“Although the precise meaning and function of ‘aggravated damages’ is unclear, the best view, in accordance with Lord Devlin’s authoritative analysis in Rookes v Barnard, appears to be that they are damages awarded for a tort as compensation for the plaintiff’s mental distress, where the manner in which the defendant has committed the tort, or his motives in so doing, or his conduct subsequent to the tort, has upset or outraged the plaintiff. Such conduct or motive ‘aggravates’ the injury done to the plaintiff, and therefore warrants a greater or additional compensatory sum. Unfortunately, there is a continuing confusion in the case law, reflected in some of the substantive and procedural preconditions of an award of aggravated damages, about whether they in fact serve a different function, which is punitive in nature.”
“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. It may well be thought that this confuses the civil and criminal functions of the law; and indeed, so far as I know, the idea of exemplary damages is peculiar to English law. There is not any decision of this House approving an award of exemplary damages and your Lordships therefore have to consider whether it is open to the House to remove an anomaly from the law of England. It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant's damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved. Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed.”
“…torts for which damages are "at large" are classified under three heads. (1) Compensation for the harm caused to the plaintiff by the wrongful physical act of the defendant in respect of which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensation may itself involve putting a money value upon physical hurt, as in assault, upon curtailment of liberty, as in false imprisonment or malicious prosecution, upon injury to reputation, as in defamation, false imprisonment and malicious prosecution, upon inconvenience or disturbance of the even tenor of life, as in many torts, including intimidation. (2) Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or motive for which the defendant did it. This Lord Devlin calls “aggravated damages." (3) Punishment of the defendant for his anti-social behaviour to the plaintiff This Lord Devlin calls "exemplary damages." I should have preferred the alternative expression "punitive damages" to emphasise the fact that their object is not to compensate the plaintiff but to punish the defendant and to deter him, and perhaps others, from committing similar torts.”
“On pp. 1232-1233 where Lord Devlin says: "I doubt whether the facts disclosed in the summing-up show even a case for aggravated damages; a different impression may be obtained when the facts are fully displayed upon a new trial. At present there seems to be no evidence that the respondents were motivated by malevolence or spite against the appellant. They wronged him not primarily to hurt him but so as to achieve their own ends.”
“Aggravated Damages 56. These Claimants seek additional compensation in the form of an award of aggravated damages. It is important to be aware of the risk of double recovery. These Claimants must not be compensated twice over for the same injury. 57. In my award of general damages, I have included an element to cover the psychiatric harm suffered. That however, is to be distinguished from the injury to feelings, humiliation, loss of pride and dignity and feelings of anger or resentment caused by the actions of the Defendants. 58. Having regard to the approach taken by the Court of Appeal in Rowlands v Chief Constable of Merseyside Police[2007] 1 WLR 1065 and in particular the observations of Moore-Bick LJ at paragraph 26 of that decision. I consider it appropriate in this case to make an award of aggravated damages. I have also considered the observations of Smith LJ in Choudhary v Martins[2008] 1 WLR 617 , where at paragraph 18 she observed that it was positively helpful if the judge separated the award for psychiatric injury from that for injury to feelings. This, she said, was a helpful process as long as the judge takes care to avoid the risk of double recovery.”
“18. It is, we think, clear since that decision that the compensatory principle has prevailed; this is clear from the decision of this court in A.B v South West Water Service Ltd. [1993] Q.B. 533 and two relatively recent first instance decisions. In AB v South West Water exemplary and aggravated damages were claimed in an action for nuisance arising out of the contamination of water by the defendant utility; the judgment of Sir Thomas Bingham M.R. placed a clear emphasis on the compensatory principle: “A defendant accused of crime may ordinarily be ordered (if convicted) to pay a financial penalty. In such a case he will enjoy the constitutional safeguards afforded to defendants in criminal cases, which may include trial by jury, and the sum he is ordered to pay is received by the state, not (even in the case of a private prosecution) by the prosecutor. In a civil case, arising out of a civil wrong (whether or not it is also a crime), the defendant may be ordered to pay damages. In the ordinary way, damages bear no resemblance to a criminal penalty. The damages awarded to a plaintiff will be such as will compensate him for the loss he has suffered as a result of the wrong, so far as money can. The court looks to the extent of the plaintiff's loss, not to the quality of the defendant's conduct. Since the damages are awarded to compensate the plaintiff they are of course paid to him” 19. In considering the claim for aggravated damages at he continued: “The plaintiffs are of course entitled to be fully compensated for all they suffered as a direct result of the defendants' admitted breach of duty. The ordinary measure of compensatory damages will cover all they have suffered as a result of that breach, physically, psychologically and mentally. Full account will be taken of the distress and anxiety which such an event necessarily causes. To the extent that any of these effects was magnified or exacerbated by the defendants' conduct, the ordinary measure of damages will compensate. The question is whether, in addition to that full compensatory measure, the plaintiffs have pleaded a sustainable claim for additional compensation by way of aggravated damaged. This is claimed in paragraph 27 on the basis that the plaintiff's feelings of indignation were aroused by the defendants' high-handed way of dealing with the incident. I know of no precedent for awarding damages for indignation aroused by a defendant's conduct. Defamation cases in which a plaintiff's damages are increased by the defendant's conduct of the litigation (as by aggressive cross-examination of the plaintiff or persistence in a groundless plea of justification) are not in my view a true exception, since injury to the plaintiff's feelings and self-esteem is an important part of the damage for which compensation is awarded. In very many other tort actions (and, for that matter, actions in contract, boundary disputes, partnership actions and other disputes) the plaintiff is indignant at the conduct of the defendant (or his insurers). An award of damages does not follow: nor, in my judgment should it, since this is not damage directly caused by the defendant's tortious conduct and this is not damage which the law has ever recognised.” 20. … More important is the judgment of Woolf J. in W v Meah [1986] 1 All E.R. 935; the defendant had attacked two women, one of whom he had raped and the other he had seriously sexually assaulted. They brought actions against him claiming damages for personal injuries. The woman who was raped was subjected to what was described by the trial judge as extremely obscene and terrifying behaviour, was then tied up whilst still naked and stabbed in the chest with a knife. She was taken to hospital where she remained for five days. Though she managed to make a complete physical recovery, she suffered psychological problems. The Criminal Injuries Compensation Board awarded her£3,600 : “That was without the Board having any medical reports of the sort that I have had, or indeed having, as I understand, the opportunity to hear Miss D give evidence as I have had. The board does not take into account aggravated damages. However, so far as aggravated damages are concerned, the award must be moderate, and the primary purpose of the damages must still remain to compensate the person concerned for the injuries they have suffered, although of course the circumstances in which the injuries are suffered does affect the amount of injury they are entitled to be compensated for”
“If substantial awards are made to reflect the court's disapproval of the defendant's conduct, they would become punitive. It is important to keep in mind that aggravated damages are compensatory.”
“17. The submissions fell into two parts. First, it was said that the judge should not have made two separate awards; in assessing the psychiatric injury separately from injury to feelings, there was bound to be some overlap. In any event, in Richardson v Howie [2005] PIQR Q48, the Court of Appeal had recommended a single global award to compensate the claimant for all the harm she had suffered. 18. It is true that one division of this court did so recommend in the context of a case of modest damages for assault. In the Vento case[2003] ICR 318 , however, another division of this court approved the making of separate awards for psychiatric harm, injury to feelings and aggravated damages in the context of sex discrimination. I would venture to suggest that there should be no hard and fast rule about whether separate awards should be made. It will all depend on the facts of the individual case. If, for example, as is sometimes the case, the psychiatric harm is very modest and to all intents and purposes merges with the injury to feelings, it will plainly be more convenient to make one award covering both aspects. If, as here, where the psychiatric injury is not insubstantial, it is positively helpful to the parties (and to this court) if the judge separates the award for psychiatric injury from that for injury to feelings. This leads to a better understanding of the judge's thought processes. However, I do accept that there is a risk of double recovery by overlap if two awards are made and the judge must take care to avoid that.”