C v D [2006] EWHC 166 (QB)

Case No HQ 04X03327

[2006] EWHC 166 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 23/02/2006

Before

MR. JUSTICE FIELD

Between

CClaimant

- and –

SBA (2) Defendant

Mr. Justin Levinson (instructed by Clifton Ingram) for Claimant

Mr. Paul Stagg (instructed by Match Solicitors) for First Defendant

Mr. Andrew Warnock (instructed by Beachcroft Wansboroughs) for Second Defendant

Hearing Hearing dates: 16 th, 17 th, 18 th and 19 th January 2006

Judgment

Mr. Justice Field :

[1]The second defendants (“D2”) are the trustees of a trust of an abbey that is responsible for two day schools for boys, a junior school and a senior school, both of which are operated in accordance with the teaching and ethos of the Roman Catholic Church. The Abbot of the abbey is Chairman of the Trustees of both schools.

[2]In the period 1989 to 1993 the claimant (“C”) was a pupil at the junior day school. The headmaster of that school throughout this period was the first defendant (“D1”), who is a Catholic priest. The claimant was nine years old when he started at the school.

[3]In this action the C claims damages in tort from D1 alleging that he sexually abused him whilst he attended the junior school. He seeks general damages for mental distress and anguish and special damages for being disadvantaged in the labour market and being denied financial support by his parents once he had left school. He contends that the alleged abuse had a devastating effect on him, turning him into a troublesome and aggressive young man with no respect for his parents or anyone else in authority, with the result that he was rejected by his parents and was only able to settle into a degree course at university when he was aged 24, whereas had he not been abused he would have been a graduate entrant into the labour market four years’ earlier and would have received the generous support his parents have given his sister but which they have denied him. The claim against D 2 is that as the employer of the first defendant, they are vicariously liable for the tortious abuse he committed on the claimant.

[4]In summary, C makes three broad allegations of abuse against D1. First, he says that there were occasions when D1 touched his genitals whilst drying him with a towel after swimming lessons held at the local swimming baths (“the swimming baths incidents”). Second, he states that on one occasion D1 videoed him and other members of his class whilst they were taking a shower after a PE lesson (“the video incident”). Third, C says that on two occasions D1 took advantage of him when he was alone with D1 in the school infirmary having felt faint in assembly. On the first of these occasions (“the first infirmary incident”) D1 unfastened his tie and top shirt button pulled down his trousers and underpants and stared at this genitals. On the second occasion (“the second infirmary incident”) D1 fondled C’s penis.

[5]D1 adamantly denies both that he touched C’s genitals whilst drying him after swimming and that he took C’s trousers and underpants down in the infirmary and stared at and fondled C’s genitals. D1 admits, however, that he videoed C and his classmates in the shower but says he was acting entirely innocently; the sports block containing the showers had recently been opened and he wanted to include footage of boys using the showers in a video school diary that would be shown to prospective parents and at parents’ day.

The witnesses and documents relied on

[6]C gave evidence on his own behalf and called a psychiatrist, Dr. Robin Benians, who gave expert evidence as to C’s psychiatric history and present condition. C’s school reports, his file maintained by the school psychologist at his boarding school and his medical records were also put in evidence. The witnesses called by the defendants were D1 and a Professor Anthony Maden, Professor of Forensic Psychiatry at Imperial College, who gave evidence in response to Dr. Benian’s report. The defendants also tendered a statement under the Civil Evidence Act 1995 made by the priest who was the Abbot of the abbey when C was at the junior school. C and D1 both confirmed the truth of their respective witness statements on oath and were then rigorously cross-examined.

The evidence of C

[7]C testified that his family are Roman Catholics and that as a boy and teenager he was brought up to be a Catholic. He entered the junior school in 1989, a term behind the other boys in his class. He was then aged nine years old. He was not sure of the sequence of the occasions on which he was abused but he was in no doubt that he was abused in the manner to which he testified. The swimming baths incidents

[8]Once a week for one or two terms C and his classmates were taken by D1 to the local swimming baths for a swimming lesson given by a female instructor. After the lesson D1 supervised the boys in the changing room. He used to stand in front of boys as they changed after the lesson and would select one or more boys each time to be dried by him. This was unnecessary: the boys were old enough to dry and dress themselves. The boys used to rush to change at the end of the swimming lesson as quickly as possible because they felt uncomfortable being stared at by D1 and did not want to be selected to be dried by him. Sometimes D1 would say a boy had not dried himself properly and would make him undress and dry himself again or D1 would dry him. Other times D1 would sit on a bench and call a boy over to be dried. On the occasions D1 dried C he touched C’s genitals with his bare hand under the towel. C felt D1’s fingers but the touching was more with the back of his hand. It lasted a few seconds and was not accidental. The boys used to call C “Gay Day” and referred to the days he took them swimming as “gay days”. C felt very uncomfortable with D1’s behaviour in the changing room but obeyed him because he was a priest and the headmaster.

[9]C accepted in cross-examination that it was appropriate for D1 to be in the changing room supervising the boys and that other members of the public had access to the changing room, although few members of the public were ever there. C also said that he did not see D1 touch the genitals any of the other boys whilst drying them, but there was gossip that he did so. The video incident

[10]C said that on two occasions D1 insisted that he and his classmates have a shower after a PE lesson. PE lessons were taken by another teacher who never required C’s class to have a shower after PE and never came into the changing room. D1 stayed in the changing room and watched the boys undress and shower. On one of these occasions he had a video camera. He had earlier filmed the boys in the gym during the PE lesson. C asked D1 what he was doing with the camera. D1 replied that he was making a film about the school and was only going to film the top halves of the boys. He proceeded to use the camera to film the boys including C in the showers. He pointed the camera up and down the length of C’s body when C was in the shower. The filming seemed to go on for a long time but it could have been just for a minute. It was traumatic to be videoed in this way. C denied D1’s allegation that D1 subsequently showed C’s class the film shot in the showers.

[11]When C got home that day he told his mother that D1 had videoed him in the showers. C’s mother tried to reassure him. She told him not to worry and sought to suggest that what had occurred was not serious. C thought his mother was brushing him off. He believed that he was the “illogical” one and decided to keep quiet about the other abuse he suffered at the hands of D1. When he was fifteen, he had a row with his mother during which he accused her of not taking the video incident seriously. His mother then told him that she had in fact spoken to D1 about the incident and had seen the video of boys in the showers, but the video was very patchy and badly edited; it was obvious to her that sections had been edited out. The infirmary incidents

[12]C recalled two occasions when he had felt faint in assembly. Normally D1 conducted assembly but on these occasions there was a music assembly at which D1 was just a bystander. On both occasions C walked out and was followed by D1. He told D1 he felt faint and D1 took him to the infirmary where he told him to lie on the bed on his back. D1 shut the door. They were alone together in the room. D1 loosened C’s tie and undid the top button of his shirt. D1 then undid his shorts and pulled them and his underwear down to his knees exposing his genitals. D1 told C to relax and then stared at his genitals saying things like “it’s all right” and “don’t worry, it’s normal”. On the first occasion D1 also said something which C cannot now remember but which made C feel he would look stupid if he talked about the incident to anyone like his parents. On this occasion D1 stared at his genitals for some minutes until the end of assembly could be heard. He then pulled C’s shorts and underwear back up and they left the room.

[13]The second incident proceeded just like the first but this time D1, after staring at C’s genitals, fondled his penis, rubbing the foreskin backwards and forwards a few times very slowly. Whilst he did this he said things like “don’t worry”. When C got home after this second incident he barged past his mother and locked himself in the bathroom for three to four hours. His mother tried to coax him out and his father threatened to break the door down but he stayed put. Eventually he came out of his own accord, but when his parents questioned him he refused to say what had happened. He could see no point in telling them. He thought that if he told them they would not believe him or be interested.

C’s attempted suicide

[14]When he was about 10 years C was so upset about what D1 was doing to him that he tried to take his own life by tying one end of a piece of string around a balustrade on the landing and the other end round his neck and then jumping off the banister. The string snapped, C fell to the floor and was unhurt.

[15]About a month after his suicide attempt, C went to confession with a monk from the abbey. As he was making confession he began to cry and had difficulty speaking. He told the monk that he was not getting on with his parents and was having a difficult time at home (which was true). He also said that he had attempted to take his own life. Thereafter he saw this monk on a weekly basis when he was allowed to talk things through. During these conversations the monk asked C how D1 was treating him and did C need to tell him anything else? C, however, did not tell the monk that he had been abused by D1.

C’s life shortly before and then after the alleged abuse

[16]When he was 8 or 9 his father was made redundant and as a consequence became withdrawn and depressed; he would lie around at home and have little to do with his son. This caused C to lose respect for his father; and from this time he had a bad relationship with him. He was increasingly disobedient to his father who reacted angrily, sometimes striking C. By the time C was 15 his relationship with his father had broken down. Apart from telling his mother about the video incident, C did not tell either of his parents about the abuse he suffered at the hands of D1.

[17]When he was about 11 C began behaving badly in a general way (not just towards his father). He used to “disappear” in the early hours of the morning. He set off fireworks in the street to wake everyone up. His reports for English and Religious Education at the end of the Lent term 1992 noted for the first time that he had become argumentative. He reacted badly to his mother’s apparent indifference to the video incident. He ceased to trust either of his parents. In 1994 he was sent to boarding school because he was causing so much trouble at home. He did not want to go there; it was a Catholic school and he had been abused by a Catholic priest. He disliked his parents for sending him there. He was not sexually abused at this school but he was beaten by senior boys. His behaviour out of class deteriorated. He started taking drugs at 14 and was drinking heavily at 15. At night he surreptitiously went into the town to drink. At weekends he would go to London where he drank and got into fights. Several parents complained about him to the school. They did not want their sons mixing with him.

[18]When he was 15 or 16 there was an incident that further distanced him from his mother. He was travelling with her and his sister, E, in a car. His mother stated that E’s judo teacher had been revealed to be a paedophile. She said that if this teacher had ever touched E she would have found the strength to have hurt him. C was furious that his mother should have been prepared to take such vigorous action in support of his sister when her reaction to the video incident had been so muted.

[19]At first he did not discuss his problems with the school counsellor at the boarding school but in October 1997 he told the doctor (as evidenced by the doctor’s notes) that he had problems at home, was sleeping badly and could not get an erection with his girlfriend. Later he did go to see the counsellor. He was troubled about his sexuality. When he was 17 he had a girl friend with whom he had a sexual relationship but after intercourse he used to vomit; he hated being in the same bed as her. He felt his body was dirty. He did not like to be touched. He thought he was gay. However, he was unable to talk about any of this or, save in an oblique way, the abuse he had suffered. The counsellor tried to arrange family therapy for C and his parents but his parents declined to participate.

[20]When he was 15 his father physically threw him out of the house and he went to live with an uncle. When he was 17 his parents divorced. By now he was so hostile to his parents that he was intent on breaking up their marriage. Sometime between the ages of 15 and 17 he told his uncle in very general terms that he had been sexually abused.

[21]Despite his delinquent behaviour C was careful not to get caught and he made sound progress academically at the boarding school. He got on well with his housemaster who was sympathetic about his troubles at home. He hinted to this master that he had been sexually abused when at the junior school but did not mention anything specific. His school reports were good. He achieved “A”s and “B”s in his GCSEs and an “A” in Fine Art and a “B” in Media Studies at “A” level. He also studied Theology for “A” level but at the last minute did not sit the exams. He was impatient to get out of school and had lost interest in the subject. He believed in God but in his view most of the Bible had been made up. The Gospels had been written 100 years after the death of Christ. The Catholic religion was not true; it was all “rubbish”.

[22]When C left school at 18 he completed a one year art foundation course at Kingston University. At this time he was living on his uncle’s houseboat. He was drinking a bottle of whisky a day. He became grubby and unkempt. He received an unconditional offer to study at Camberwell Art School but apart from attending on the first day to please his grandmother he did not take up his place. He felt he needed some time out. He was in a very bad way. He had lost weight and was drinking heavily. He arranged to go to China to study martial arts for three years in a Buddhist monastery. He was told by his mother that he was not entitled to a student loan and his parents were not supporting him. He got the money to go to China through the fraudulent use of a credit card.

[23]Before leaving for China he went to see the monk with whom he had had the weekly conversations at the junior school. He told the monk about the serious problems he was having with his parents. The monk asked him about his relationship with D1. C wanted to tell him what D1 had done to him but could not bring himself to do so.

[24]C returned from China after only three months. The training had been too much for him and he had become ill. He went to France to paint and at Christmas 2000 joined his uncle in Italy. He stayed for nine months. Whilst there he had a breakdown. He left a noose hanging from a wooden banister for two weeks. He heard voices and had hallucinations. His uncle introduced him to an Italian psychologist but he did not trust him and did not take the medication he was prescribed.

[25]On his return to England C did some martial arts television work with his UK martial arts instructor and also worked in sales. He then took a trip to Taiwan and returned to begin a course at St. Martin’s College of Art, Byam Shaw. After three months, however, he left following an incident in a pub when he picked a fight with one of his lecturers.

[26]In 2001/2002 C told his UK martial arts instructor that he had been sexually abused but again did not go into detail. He was unable to settle down. He was ill, confused, paranoid and isolated. He was rude and aggressive. He did not want anyone to get close to him or attempt to understand him. He went to the Philippines for four months to train in martial arts.

[27]In 2003 C began an honours degree in Fine Art at a university in the south of England. He had to repeat his first year but is now in his second year and is leading a more settled life.

[28]In 2004 he visited the junior school and spoke to the Abbot. The Abbot had been a monk at the abbey when C was at the junior school. C wished to discuss the experiences he had suffered at the hands of D1. He told the Abbot that he had been sexually abused by D1 but did not go into much detail. The Abbot told C that he had known of rumours about D1 and of his reputation before D1 had ceased to be headmaster of the junior school. The Abbot said that D1 had been arrested and had only been moved from the headmastership when the Bursar’s position had fallen vacant. He became Bursar because he was the only monk with the administration skills for the job.

C’s report to the police

[29]C was angry to be told by the Abbot in 2004 that the school had been aware of D1’s behaviour but had done nothing about it. He therefore decided to report his complaints to the police and to bring a civil claim. He contacted the Metropolitan Police in February 2004 and signed a section 9 CJA statement on 1st March 2004. The interviewing officer was Detective Constable Hudson who had special experience in sex abuse cases.

[30]It is clear from the statement that the officer took from C that C’s account to him of the video and infirmary incidents was substantially the same as he gave in evidence before me. However, his account to the officer of what happened after swimming lessons differed in one very important respect from what he said in his evidence. Having told D C Hudson that D1 would select pupils telling them in a forceful manner that he would dry them and would sit down on the bench and dry the selected pupil with the pupil’s towel, C said (as recorded in his statement:

“The rest of us would just laugh, as if that pupil had been selected as he was the one in trouble that week. He never did this to me. I did witness this on every occasion; I went swimming 5-6 times. I can’t recall the names of the pupils that [D1] did this to.”

[31]In the witness box C insisted that his evidence about what D1 had done to him after swimming lessons was true. He said that when he was interviewed by D C Hudson he found it very difficult. For the first time he was facing probing and intimate questions into what D1 had done to him. He understood mentally that he should tell the officer everything that had happened but emotionally he had a different feeling. He felt dirty, isolated and ashamed. He did not trust the officer – he did not trust anyone in authority. As D C Hudson probed into what happened, he became confused and felt guilty about betraying someone. It was as if two sides of him were being ripped apart. One side was very logical and rational, telling him that the events did happen and he had been affected by them. The other side told him that it was nothing: he was making a mountain out of a mole hill and was about to ruin someone’s life. He wanted to get the interview over and tried to keep some of the details secret.

The bringing of the civil claim

[32]C first contacted his solicitor about a possible civil claim against D1 on 12th March 2004 and attended a meeting with his solicitor three days later. His claim form was issued on 18th October 2004 and particulars of claim were served on 4th February 2005. In November 2004 he was told by the police that no action was going to be taken against D1. It was put to C in cross-examination by Mr. Stagg for D1 that he was bringing the claim because he regarded D1 as an easy target and because he wanted to take revenge on his parents by attacking the Catholic Church, an institution for which they had great respect. C denied that he was actuated by these unworthy motives. He agreed that he wished to be compensated for the abuse he had suffered but this was not his sole motivation: he also wanted to make it known, particularly to his parents, that D1 had abused him.

D1’s evidence before being recalled

[33]D1 qualified as a dental surgeon and practised as a dentist for three years before joining the abbey. He was ordained as a priest in 1975 and having taken a Post Graduate Certificate in Education began to teach in the senior school in 1976. He became headmaster of the junior school in 1984. He was appointed Bursar of the abbey in March 1992 but continued as headmaster until he took up his new position on 1st January 1993. He ceased to be bursar in September 1999, since when he has served as Novice Master within the monastic community of the abbey.

[34]D1 said that his sexual orientation was fairly neutral. He was not attracted to males or females. He was not aware of any rumours about him in the school. He had excellent relations with the parents of most of the boys, including C’s.

The swimming baths incidents

[35]When C started at the junior school in January 1990 he entered the second year. Swimming lessons at the local swimming pool were held in the second year of the junior school in the Autumn and Winter terms. The boys had to change before and after the lesson quickly because time was limited. D1 supervised the boys in the changing rooms to make sure that they did not muck about. He denied that he stood in front of C and other boys as they changed after swimming. All he did whilst in the changing room was to ensure that the boys dried themselves, changed quickly and did not get into any trouble. When they started swimming lessons the boys were 8 or 9 years old. At the start of the academic year in the September it might have been necessary for him to show them how to towel themselves, but when C joined the school at the start of the second term it was not likely that the boys would need this sort of assistance. In cross-examination he said that he would occasionally look to see if the boys had dried themselves. If a boy had not done so, he might look him all over. He may have shown boys how to dry their backs by standing behind them and pulling the boy’s hands in the correct motion as the boy held the towel.

[36]D1 categorically denied touching C inappropriately whilst towelling him dry. If, which he considered extremely unlikely, he had ever shown C how to dry himself, he did so with the wholly proper purpose of ensuring that he dried himself properly before dressing. He was sure that he did not towel the boys dry.

The video incident

[37]D1 stated that the school purchased a video camera in 1985 or 1986 which he used to record a “video diary” of events such as sports days, concerts, plays and special assemblies. The recordings were played on parents’ days and could be borrowed or copied by parents. As part of the video diary he kept a record of the building of the new Sports Hall which was completed in 1991. The showers in the old gymnasium were in poor repair and never used by the junior school. Soon after the completion of the Sports Hall he videoed C’s class in a PE lesson and coming from that class into the changing room and taking their T shirts off. He then videoed some of the boys in the showers. To reassure them he told the boys that he was only filming their heads and shoulders, and this is all he did film. He did not recall C asking him to stop or what he was doing. As he recalled it, he said this to the boys without being prompted to do so by any comments or questions. Whilst filming he was facing the boys. He executed a narrow pan. He used the zoom lens to avoid filming the whole body. He accepted that the boys would not know that he was using the zoom. In his view, the showers were an important feature of the new building, and it was such a novelty having functioning showers on the premises that it did not seem unreasonable to record above-the-waist shots of the boys in the showers. His only intention was to show the Sports Hall’s facilities in use. In the context he did not think that his action was invasive. Since he had told the boys he was only filming their top parts what he did was not detrimental.

[38]In his Civil Evidence Act statement the Abbot states that he was unaware of any filming in the showers and had he heard about this from any pupil, parent or member of staff or otherwise it would have been stopped. He received no such complaint or information.

[39]D1 stated that at no time had the Abbot spoken to him about this incident. The Abbot did not watch the annual video diary and so would not have seen the footage of the boys in the showers.

[40]During 1991-2 whilst taking C’s class for Health Education lessons D1 had shown videos from two ITV series entitled “Your Living Body” and “Living & Growing”. One of these programmes emphasised the importance of keeping the skin clean and of showering after strenuous exercise. To D1’s surprise, it showed full length shots of boys using the showers.

[41]On the next available opportunity he showed C’s class the video sequence of them using the Sports Hall, finishing with the heads and shoulders only shots of them in the showers lasting a few seconds. In general the boys enjoyed seeing themselves on film. D1 had nothing to hide. There were no full length nude pictures of any of the boys. The video tape was incorporated in that year’s video school diary which would have been shown by way of background on parent’s day. The recording was transferred to a larger tape and the cassette used in the camera would have been recorded over. No copies were made of the larger tape which was kept in his office whilst he was headmaster.

[42]D1 believed the video to be in the school archive but it had not been found. He had no recollection of C’s mother talking to him about the video incident or of her asking to borrow the tape.

The infirmary incidents

[43]It could have happened that C felt faint at assembly and was escorted by D1 to the infirmary where he lay on the bed and D1 undid his tie and loosened his collar. However, there would have been no reason to pull down C’s trousers and underwear and D1 categorically denied ever having done so. He also denied ever having touched C’s genitals.

The “similar fact” evidence

[44]C relied on allegations of sexual abuse made by others against D1 as “similar fact” evidence. These allegations first came to C’s attention when he received replies from both defendants to requests for information dated 22nd August 2005 seeking particulars of all allegations made to or about D1 to the effect that he had indulged in any form of sexual behaviour with young boys whether by watching, touching or otherwise. D1 at first declined to answer C’s request but was ordered to do so by Master Leslie. His reply contained a declaration signed by his solicitor that he believed that the facts stated were true. D2’s reply contained a similar declaration, in this instance signed by the Abbot. In their replies the defendants provided details of allegations made by three former pupils of the junior school who were referred to at the trial as “X”, “Y” and “Z”. D2 also provided information concerning a fourth individual who had intimated to the school that he wanted to make a complaint against D1 but had not followed up this initial approach. I need hardly say that the approach made by this fourth individual is of no evidential value whatsoever, and Mr. Levinson for C did not submit to the contrary.

[45]In their replies the defendants stated that X (who was more or less a contemporary of C) had alleged in October 2001 that in the period 1987 to 1989 he had reported a rash to D1 who had required him to open his trousers in order to examine it. D1 pleaded in his reply that he had no recollection of this incident but believed that it was entirely possible that it would have occurred as alleged. At the relevant time there was no school nurse and by virtue of his training as a dentist he had some medical knowledge. He might therefore have asked to see the rash reported by the pupil to determine whether he should see a doctor. Any requirement by D1 that the pupil should remove his clothing was for that purpose alone and not for any sexual motive. X’s allegation was reported by the Abbot to the Diocesan Child Protection Officer who informed the police. After an investigation that did not involve interviewing D1, the police decided not to take any further action.

[46]The allegation concerning Y was made in June 1992. Under the heading “Details of what was alleged to have occurred”, D1 pleaded that “he was alleged to have sexually assaulted Y” and went on to give the following particulars. After an assembly on bullying in June 1992 Y told him that he had been bullied by his father. D1 told him that he (D1) might have to inform Social Services and he should approach D1 again if the alleged ill-treatment continued. Five days later, after some consultation with colleagues, D1 reported Y’s allegations to Social Services. Two days after this Y complained to D1 that he had been beaten again and that his backside was marked. D1 asked Y if he would like to show him the marks. Y dropped his trousers and underpants and D1 examined his buttocks, on which he found one small mark. Y immediately returned to class. D1 then informed Y’s father of the allegations and that afternoon Y’s mother attended the school for a meeting at which Y repeated his allegations to a social worker in the presence of his mother. Four days later a social worker informed D1 over the telephone “of the allegation” and that he would have to be interviewed at the police station. D1 was subsequently interviewed by the police under caution and was later told that no further action was to be taken. D1 pleaded that the allegations made against him by Y were completely untrue.

[47]D2’s reply about the allegation made by Y was essentially the same as that provided by D1 save that it stated that Y’s father alleged that D1 had acted inappropriately by looking at the bruising on his son’s body.

[48]The details of the allegation made by Z set out in D1’s reply were these. Z was the son of the school secretary, who was a widow with four children. D1 was visiting them one evening in the late 1970’s and Z’s mother mentioned to him that as Z was then about eleven years old she felt that she would have to tell him the “facts of life” soon and was unsure as to how to proceed. D1 offered to help and, later that evening, when Z was in his pyjamas and preparing for bed, D spoke to him about the “facts of life”. While D1 was telling Z about male sexual organs, he briefly pointed to and touched Z’s penis. Z made his allegation to the Diocesan Child Protection Officer in the summer of 2004 but indicated that he did not wish to have any police involvement. D1 admitted the allegation but denied any indecent intent in fleetingly touching Z’s penis. His motivation was solely to teach Z about the “facts of life”.

[49]At an early point in the trial before any evidence had been called I was asked to rule on the admissibility of the allegations made in respect of X, Y and Z. Mr. Levinson for C told me that he did not propose to call X, Y or Z but would rely instead on what was set out in the replies. It was argued on behalf of the defendants that the allegations should not be admitted because they were not potentially probative. I was referred to O’Brien v Chief Constable of South Wales Police

[2005] UKHL 26

;

[2005] AC 534

and on the strength of that authority, although with some hesitation, I ruled that the defendants’ replies were relevant and were accordingly admissible. The question of what weight should be given to this evidence was for a later stage in the proceedings after I had heard all the evidence.

[50]After I had given my ruling, D1 said in the witness box that on the first occasion Y spoke to him about being beaten by his father Y had indicated he had been hit towards the base of his spine. D1 had therefore felt the base of Y’s spine over his shirt and trousers. D1 also said that Y had alleged that he (D1), in the course of examining him, had touched his anus with a finger. Neither D1 nor D2 had made any mention of these matters in their pleaded replies. I asked if there had been any disclosure concerning the allegations detailed in the replies and was informed that there had been none. Mr. Warnock, who appeared for D2, told me that he understood that all relevant documents had been searched for and disclosed and that he would ensure that a further search was made overnight. I found it very surprising that no documents relating to the allegations had been disclosed and directed that there be another search for relevant documents overnight and the outcome reported to me at the start of the next day’s proceedings.

[51]The following day, by which time D1 had finished giving evidence, I was told that both defendants had found relevant documents. D1 had found a memorandum and chronology he had prepared in response to Y’s allegations. D2 had discovered a note made by the Abbot of the allegations made by X. This note records significant matters that were not mentioned in either of the replies served by the defendants. It starts by recording X’s statement that he had not initiated the meeting but had come at the invitation of another member of staff whom he had told at the end of his time at the (senior) school that he thought D1 was “dodgy”. It goes on to record that X alleged that when he was 8 or 9 years old D1 had been insistent that after swimming the boys dry themselves properly and would make them line up and would inspect and sometimes feel them to make sure. If someone lost their locker key D1 would joke that they might have lost it down their swimming trunks and would look to see if the key was there. Another boy had wanted X to say with him when he and D1 were to search for a lost key.

[52]X also told the Abbot what he had heard from someone else who had been at the school about an incident when D1 had taken a group of boys on holiday to Austria. A shower had not been working properly. D1 got it working but insisted on looking while a boy got in to shower to check if it worked. This happened every morning. One boy got other boys to accompany him when showering to ensure he was not alone. He did this by threatening to reveal that these other boys had acquired some “illegal” penknives.

[53]X also told the Abbot that one day he had had a rash and been sent to D1 who questioned him as to its extent. X told D1 that the rash was only on his arms and torso and denied that it was below his waist, but D1 peered down the front of his shorts to check.

[54]X told the Abbot that personally he was not burning for revenge; nothing major had been done to him but he felt that the boy who was watched showering in Austria and another boy who had wanted X to stay with him when he and D1 were to search for a lost key might have something graver to impart.

[55]D1 also produced a file maintained by the previous Abbot that contained documents relating to the investigation of Y’s allegations (“the investigation file”). He deposed in an affidavit to which I refer below that he had placed this file in a box he had been given when he became the Bursar of the Abbey in January 1993. This box contained the files of all boys involved in disputes over fees and upon being asked whether he wished to keep the box he had decided that it would be worth keeping.

[56]The following day of the trial D1 produced yet another document which he said he had found overnight in a filing cabinet. He had missed this document when he first searched the cabinet because it had been placed with booklets in another folder. The document was a letter sent by D1 to Social Services in February 1993 in which he set out what he said were inaccuracies in the Minutes of a Social Services meeting held in October 1992 at which Y’s case was discussed.

[57]It is clear from the investigation file that at the meeting attended by Y’s mother and a social worker at the school referred to in paragraph 47 above Y repeated the allegation made to D1 that he had been beaten by his father. However, the following day Y’s mother and father refused to accept Y’s allegation and alleged that the previous evening Y had told his sister that D1 had indecently assaulted Y by looking at his bottom. Later Y said that he had not been beaten by his father in the manner D1 had related and that when he went to see D1, D1 had got him to drop his trousers and had rubbed his buttocks and prodded him with his finger around the centre.

[58]D1’s concerns that Y had been beaten by his father and Y’s allegations against D1 were investigated by Social Services and the police. In the result the police decided to take no action and Social Services reported to Y’s parents that medical evidence did not establish any evidence of sexual abuse. In the opinion of Social Services D1 had acted in good faith by responding to the distress of a pupil in his care. However, he had acted unwisely in seeing Y alone and locking his study’s door, an action which Social Services were informed was to ensure Y’s privacy.

[59]If the note of X’s allegations and the investigation file had been before me at the start of the trial I would not have been hesitant about ruling that the allegations of X,Y and Z were admissible. In light of the deficiencies in the defendants’ replies and disclosure I required them (in the case of D2 by a responsible officer) to swear affidavits:(1) explaining why their replies had not set out the full allegations made by X and Y and why the further documents produced during the trial had not been disclosed earlier; and

(2) confirming that they had no further disclosable documents. D1 deposed that he had not seen the Abbot’s note of X’s allegations until it was produced during the trial. To the best of his recollection what was set out in his reply concerning X was all he had been told by the Abbot at the time. As to Y’s allegations, D1 accepted that he was fully aware of these but assumed that the expression “sexually assaulted” in his reply was sufficient since he had not been asked by his counsel who drafted the reply for more details. So far as the failure to disclose the documents produced during the trial was concerned, D1 stated that he had not been advised by his lawyers that documents relevant to the allegations set out in his reply had to be disclosed.

[60]Whilst I accept D1’s statement that he had not previously seen the Abbot’s note of X’s allegations I am not impressed with the approach he took to answering C’s request for information. Whilst I do not hold that he deliberately set about misleading the court, I find it remarkable he did not check his recollection of all the allegations with D2 before approving his reply and I am not impressed with his excuse for not having set out all that he knew of Y’s allegations. So far as his failure to disclose documents goes, I acquit him of any blame because he was not advised as he ought to have been that documents relating to the allegations pleaded in his reply had to be produced.

[61]The affidavit tendered by D2 was sworn by the Abbot who deposed that he provided the information concerning X’s allegations from memory; it did not occur to him to compare the reply with his notes of the meeting with X. It also did not occur to him that his note of X’s allegations had to be disclosed when he signed the Draft Disclosure List in June 2005 (which it is to be noted was before C’s request for information dated 22nd August 2005). This was because he had earlier provided details of X’s allegations to D2’s solicitors from memory and nothing had come of the investigation into those allegations. The Abbot confirmed that he had never shown his note of X’s allegations to D1. After the police had finished their investigation he had told D1 for the first time that there had been an allegation; he could not remember exactly what he told D1 about the allegation, but did not believe that he would have discussed it in any detail given that the matter was closed.

[62]I am quite satisfied that the Abbot had no intention to mislead the court. It is regrettable, however, that he did not take what I consider to have been an obvious step to check the reply that he signed as being true with his note of what X had alleged. It is also regrettable that D2’s solicitors appear not to have revisited the question of disclosure once D2 had been ordered to answer C’s request for information.

[63]D1 was recalled to deal with the allegations contained in the Abbot’s note of X’s allegations. He said that X had left the senior school aged 18 in July 1999. He agreed that after swimming the boys would line up in the changing room and he would look to see if they were dry before they got dressed. He did not recall feeling or checking the boys manually to make sure they were dry. As he checked them he used to tap them on the shoulder.

[64]He confirmed that the boys taken to swimming classes used to clip their locker keys to the top edge of their swimming trunks. He accepted that he could have joked that a missing key might have got lost down the boy’s trunks. He went on: “I don’t think I looked. There was no reason to look in the trunks for the missing key. I cannot conceive that I did look. The allegation that I did is untrue”.

[65]D1 said in evidence that he did not remember examining X with his trousers and underpants down when he complained of a rash. He accepted, however, that since there was no nurse, if a boy had been concerned about a rash he would have asked to be shown the affected part. If the boy had said “I don’t think it’s below” he would not have looked below; if the boy had said he thought the rash was on his abdomen, he might have checked below because he had had medical training when studying dentistry. He denied that he would have insisted on looking at X with his trousers and pants down if X had said that the rash was not below the waist.

[66]In respect of the allegation of what happened in the bathroom when he took boys on holiday to Austria, D1 said that he remembered that the shower was faulty. There was something wrong with the hot and cold water balance. He managed to get a reasonable balance between hot and cold and then stood in front of an 11 year old boy whilst he used the shower. He said that he stood in front of the boy in case the shower did not work properly. He did not stay whilst the other boys showered: he hoped that they would not adjust the hot/cold balance. He denied watching boys shower on the following days of the holiday. He knew nothing about a boy persuading other boys to accompany him whilst he took a shower by threatening to reveal “illegal” penknives and could offer no explanation for this allegation.

[67]D1 admitted the allegation made by Z. The allegation was made to the Diocesan Child Protection Officer in the summer of 2004. The incident had occurred about 30 years previously when D1 was in his first year as a teacher. He remembered it because it had been the first time he had been invited to teach a child the facts of life. He was formally naming the male parts and was just pointing when he touched Z’s penis. Z was in his pyjamas in his bedroom. Asked how Z’s penis came to be exposed to be touched he said that he probably suggested to Z that he expose it because he was naming the parts, but he could not recall. He accepted that it had been unnecessary to touch Z’s penis.

What weight should be given (if any) to the similar fact evidence?

[68]The first question is whether I find that the allegations of X, Y and Z are true in their entirety or only to the extent that they are admitted by D1.

[69]I say at once that I exclude the whole of the incident concerning Y since this pupil was complaining that he had been beaten on the bottom which was marked and there are strong grounds for suspecting that he was induced to make a false allegation by his father who wanted to get back at D1 for reporting Y’s allegation of parental mistreatment to Social Services.

[70]Z’s allegations are admitted. What then of the allegations of X? D1 admits that he inspected X below the waist with X’s trousers and underpants down to investigate a rash but denies that he did this in the face of a statement from X that the rash was not below his waist. D1 also admits that he stood in front of a boy in the shower in Austria maintaining that he did so to see if he had fixed the hot/cold control. He denied that he watched boys in the shower on every subsequent day of the week’s holiday. D1 further admits that he might have joked that missing locker keys were to be found in the boys’ swimming trunks but he denies that he used this as a pretext to look in the trunks.

[71]X was not called as a witness. As I have said, on the basis that the defendants’ replies to the request for information were a complete record of the allegations, it was decided by Mr. Levinson not to seek to call any of the complainants. When the further information emerged about X and Y at trial, Mr. Levinson re-considered his position but decided not to ask for an adjournment to explore the possibility of calling X and Y. The defendants made it clear that they would resist such an application and C, for whom the trial was an ordeal, wanted to get on with the hearing.

[72]I take particular account of the fact that X has not confirmed his allegations on oath in the witness box and has not been cross-examined. Mr. Stagg contended that I should accept D1’s sworn denials of X’s allegations. He also relied on s. 4(1) and

(2) (a) to (d) of the Civil Evidence Act 1995, which provide: 4 (1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which an inference can be reasonable drawn as to the reliability or otherwise or the evidence. (2) Regard may be had, in particular, to the following - (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence of existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters;

[73]As to the consideration set out in s.4(2)(a), the claimant was faced with considerable difficulties as to whether he should attempt to call X. In my judgement, the pre-trial decision not to call him was reasonable and understandable and I think that the decision not to ask for an adjournment was likewise a reasonable and understandable one. It is also far from clear that X would have been a willing witness.

[74]Turning to s.4(2)(b), I take into account that X’s statement was not made contemporaneously with the occurrence of the matters stated therein. Nonetheless, the allegations he makes are clear and unambiguous.

[75]S.4(2)(c) requires me to have regard to whether the statement is multiple hearsay. X’s allegations that:(i) D1 insisted on examining him with his trousers and pants down to look at a rash; and

(ii) D1 used to look down a boy’s swimming trunks if he had lost his locker key, are first hand hearsay. The allegation about what went on in front of the shower in Austria is multiple hearsay and for that reason should in my view be excluded save to the extent it was admitted by D1 in evidence.

[76]Finally, with respect to s.4(2)(d), there is nothing to suggest that X had a motive for making false allegations. There is no suggestion that he was seeking compensation, or had a grudge against D1, or had colluded with C. On the contrary, the Abbot’s note indicates A had not come forward of his own initiative and was not burning for revenge.

[77]The disputed conduct alleged against D1 by X – insisting on looking at X below the waist when X had said the rash was not in that area; looking down boys’ swimming trunks when they had lost their locker key -- is conduct which is consistent with D1 having a sexual interest in boys. In my judgement D1’s admitted touching of Z’s penis strongly suggests that D1 had that interest and is therefore supportive of X’s disputed allegations. The incident with Z happened a long time ago in D1’s first year of teaching and attitudes as to what is acceptable and what is not have moved on, but even so in my view D1 must have realised that the touching of Z’s penis was wholly unjustified.

[78]D1’s admission that he watched as a boy showered on the Austrian holiday also in my judgement suggests that D1 had a sexual interest in boys and accordingly this incident too is corroborative of the disputed allegations. D1 had fixed the shower to his own satisfaction: there was no need to stand in front of the boy as he showered, as any responsible person in D1’s person would have appreciated.

[79]D1’s contested evidence in response to C’s allegations cannot be regarded as supporting X’s disputed allegations because X’s allegations are only admissible as being potentially probative of C’s allegations (and, as such, as being mutually supportive). To hold otherwise would lead to circular, “bootstraps” reasoning. But the same cannot be said of any admission by D1 of the conduct alleged by C if it is relevant to X’s allegations, for admitted conduct is thereby proved without the need to rely on any other evidence. It follows in my view that D1’s admission that he videoed C and his classmates in the shower is capable of supporting X’s disputed allegations. It is clear from the Abbot’s statement that he regards the filming of C and his classmates in the showers as having been completely unacceptable. I agree. In my judgement, this is another incident that markedly points to D1 having a sexual interest in boys. It is therefore properly to be regarded as being probative of X’s allegations.

[80]Lord Nicholls said in Re H (minors) (Sexual Abuse: Standard of Proof)

[1996] AC 563

at 586 E-F: When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in a particular case, that the more serious the allegation the less likely it is that the event occurred, and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.

[81]X’s disputed first hand hearsay allegations are of a serious nature and I bear carefully in mind Lord Nicholls’s words. In the result, even though X was not called as a witness and notwithstanding that D1 is a priest and denied the disputed allegations on oath, I find on the balance of probabilities that X’s disputed allegations are true. The disputed matters were clearly alleged. D1 accepted that much of what X alleged had happened. The allegations are supported by the incident with Z, the admitted incident in Austria and the video incident for the reasons I have given. Further, as I have said, X had no discernible motive for making false allegations against D1.

[82]The incident involving Z, the incidents alleged by X which I have found proved and the video incident (“the similar fact incidents”) are probative of the acts alleged by C against D1 because those acts show a sexual interest in boys as do the similar fact incidents. The similar fact incidents therefore come into the evidential scales but I give them much less weight than I propose to give to my evaluation of C and D1 as witnesses a topic to which I now turn.

C and D1 as witnesses in the witness box -- who was telling the truth?

[83]I found C to be an entirely convincing, reliable and credible witness. It was difficult for him to talk about what he said D1 did to him, but his evidence was clear and unmistakeably had the “ring of truth”. Professor Maden thought that he had exaggerated his behaviour when he was seen by both the psychiatrists. I am of a different view. In my judgement, C did not seek to exaggerate or colour his evidence to any material extent. He was prepared to admit discreditable actions such as the credit card fraud that financed his trip to China to learn martial arts. He also made reasonable concessions when cross-examined. For example, he accepted that it was appropriate that D1 should be present in the swimming baths changing room and that D1 may only have filmed him in the showers for a few seconds and that D1 told the boys that he was only filming their top parts and was making a “documentary”.

[84]I have given careful consideration to the fact that C told DC Hudson that D1 never dried him after swimming, whereas his evidence to me was that not only did D1 dry him but he on these occasions D1 deliberately touched his genitals. I accept C’s evidence that he did not tell the officer the full extent of what happened for the reasons he gave. He lied to the officer, but I am quite satisfied that he was not lying to me.

[85]I regret to have to say that I found D1 to be an unconvincing witness. In contrast to C’s evidence, D1’s evidence did not have the ring of truth. It lacked spontaneity. It appeared to me to have been carefully rehearsed. For example, before he was asked how he could be sure that he was filming only the top parts of the boys in the showers, he was careful to say that he was using the zoom lens. I also regard it as significant that before he was recalled he said in respect of the swimming baths incident that occasionally he looked to see if the boys had dried themselves properly whereas when he was recalled to deal with X’s allegations he said that he lined the boys up to check to see if they were dry and tapped them on the shoulder at the end of the inspection. I was also wholly unimpressed by D1’s explanations for touching Z’s penis and for watching a boy shower in Austria. His justification for filming in the showers was also extremely unconvincing, as was his denial that he looked down the boys’ swimming trunks if they said they had lost their locker key.

[86]My assessment of C and D1 as witnesses together with my findings in respect of the similar fact incidents lead me to the conclusion that C is telling the truth and that D1 deliberately touched his genitals in the swimming baths changing room and took his trousers down and stared at and touched his genitals in the infirmary. In coming to this conclusion I have kept well in mind Lord Nicholls’s words quoted in paragraph 81 above. Are the videoing of C in the school showers and the actions of D1 in the first infirmary incident actionable wrongs?

[87]It is not disputed that if D1 deliberately touched C’s genitals he committed the tort of trespass to the person in the form of a battery. Mr. Levinson conceded at trial that the video incident was not actionable as a battery or assault and went on to develop a detailed submission as to why nonetheless this incident was actionable. He advanced no argument, however, as to why the first infirmary incident was actionable even though the defendants only admitted that the touching of C’s genitals would be a battery. After I had reserved judgement, I sought clarification from all counsel as to what their position was if the first infirmary incident was proved. Mr. Levinson replied that this incident was actionable for the same reasons as he had relied on in respect of the video incident. He did not contend that D’s removal of C’s trousers and underpants and his staring at C’s genitals involved a sufficient touching and/or threat of touching as to amount to a battery or an assault. He must accordingly be taken to have conceded that what D1 did during the first infirmary incident was neither a battery nor an assault.

[88]Mr. Levinson contended that the video incident was actionable because it involved a breach of duty by D1 and caused harm to C which amounted to psychiatric injury. Mr. Levinson’s alternative submission was that if the harm was something less than psychiatric injury, D1 is still liable on the authority of Wilkinson v Downtown

[1897] 2 QB 57

[89]There is no doubt that an action lies in negligence if a negligent breach of duty causes a recognisable psychiatric illness, see Clerk and Lindsell on Torts 19th ed. para 8-57 and the cases there cited. However, by paragraph 3 of the Reply, C expressly confirms that no claim in negligence is made against D1. Instead, C pleads in paragraph 2 of the Reply that the filming in the showers “constituted sexual abuse of the Claimant and amounted to a breach of the duties owed by the Defendants to the Claimant in respect of the Claimant’s care, safety and welfare.” In my opinion, D1 owed no enforceable legal duty quoad C other than the common law duty to take reasonable care and not to touch him or threaten him so as to commit battery or assault. No contract existed between C and D1 and no statutory duty has been identified by Mr. Levinson. It follows in my judgement that Mr. Levinson’s primary submission fails.

[90]I turn then to Mr. Levinson’s alternative submission. In Wilkinson v Downtown a practical joker falsely told a publican’s wife that her husband had met with an accident while returning from the races and had broken both his legs and wanted her to fetch him home at once from the pub where he lay injured. As a result of the “joke” the wife suffered severe nervous shock and serious consequential illness and sought damages from the defendant. In a celebrated judgement, Wright J. held that an action lay for an act wilfully done which was calculated to and did cause physical harm to the plaintiff. In deciding whether the false statement had been made wilfully, that is to say intending to cause physical harm, Wright J imputed to the defendant the necessary intention on the basis that the defendant’s act was plainly calculated to produce some effect of the kind which was produced.

[91]The principle in Wilkinson v Downtown was critically examined by the House of Lords in Wainwright v Home Office

[2003] UKHL 53

;

[2004] 2 AC 406

. In this case the claimants, mother and son, sued the Home Office after having been strip-searched for drugs in manner that was in breach of the Prison Rules. The claimants had complied with a requirement that they uncover all or virtually all of their bodies at the same time. The room in which the mother was searched was not private: it had an uncurtained window looking out across the street. During the search the mother was not touched but the son was: a prison officer lifted his foreskin. As a result of how each was searched, the son suffered from post-traumatic stress disorder, whilst the mother suffered emotional distress but no recognised psychiatric illness. At first instance the judge held that requiring the claimants to take off their clothes was a form of trespass even though it had involved no touching. In respect of the son, he reached this conclusion by holding that Wilkinson v Downtown had extended the conduct that could constitute trespass to the utterance of words that were “calculated” to cause physical harm, including psychiatric harm. In the case of the mother, who had not suffered psychiatric injury, he held that the law of tort should give a remedy because her right of privacy under

Article 8 ECHR

had been infringed.

[92]The Court of Appeal decided that the judge had been wrong to extend the law of trespass to the person as he had but did not set aside the son’s recovery since what had happened to him amounted to a battery.

[93]In the House of Lords the principal speech was delivered by Lord Hoffmann. The other members of the House agreed with the reasons he gave for dismissing the claimants’ appeals. Lord Hoffmann observed that after it had been held in Dulieu v White & Sons

[1901] 2 KB 669

that an action lay in negligence for nervous shock the need to rely on an intentional tort to recover for such injury fell by the wayside. He went on: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 v Wong v Parkside Health NHS Trust

[2001] EWCA Civ 1721

; The Times, 7 December 2001 and rejected. Hale LJ said that before the passing of the Protection from Harassment 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.

42. In Khorasandjian v Bush

[1993] QB 727

the Court of Appeal, faced with the absence of a tort of causing distress by harassment, tried to press into service the action for private nuisance. In Hunter v Canary Wharf Ltd

[1997] AC 655

, as I have already mentioned, the House of Lords regarded this as illegitimate and, in view of the passing of the 1997 Act, unnecessary. I did however observe, at p 707, that:

"The law of harassment has now been put on a statutory basis…and it is unnecessary to consider how the common law might have developed. But as at present advised, I see no reason why a tort of intention should be subject to the rule which excludes compensation for mere distress, inconvenience or discomfort in actions based on negligence…The policy considerations are quite different." 43. Mr Wilby said that the Court of Appeal in Wong's case should have adopted this remark and awarded Ms Wong damages for distress caused by intentional harassment before the 1997 Act came into force. Likewise, the prison officers in this case did acts calculated to cause distress to the Wainwrights and therefore should be liable on the basis of imputed intention as in Wilkinson v Downton [1897] 2 QB 57. 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 RS 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. 45. If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment, at [2002] QB 1334, 1350, paras 50-51, might have been inclined to accept such a principle. But the facts did not support a claim on this basis. The judge made no finding that the prison officers intended to cause distress or realized that they were acting without justification in asking the Wainwrights to strip. He said, at paragraph 83, that they had acted in good faith and, at paragraph 121, that: "

The deviations from the procedure laid down for strip-searches were, in my judgment, not intended to increase the humiliation necessarily involved but merely sloppiness." 46. Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter's case

[1997] AC 655

, to reserve my opinion on whether compensation should be recoverable. In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. The Protection from Harassment Act 1997 defines harassment in section 1(1) as a "course of conduct" amounting to harassment and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.

[94]It is clear from what Lord Hoffmann says in para 41 that even if an intention to cause harm can be established the principle in Wilkinson v Downtown (including imputed intention) is only available if the harm suffered is a recognised psychiatric injury: the principle does not allow recovery for emotional distress. It follows that if the video and first infirmary incidents are to be actionable on the basis of Wilkinson v Downtown it must be shown that they have caused psychiatric injury.

[95]As I have already indicated, I find that C’s relation of his history to the psychiatrists was substantially reliable and truthful. Dr. Benians, the psychiatrist called by the claimant, was of the opinion that C was suffering from Anti-social Personality Disorder (“ASPD”) and that the alleged sexual abuse was the main or at least a substantial cause of this condition. Professor Maden disagreed. In his opinion C only had some of the characteristics of ASPD. That condition is a lifelong condition and C’s improvement represented by his settling into his degree course at university and the marked reduction in his drinking was inconsistent with an ASPD diagnosis. C’s conscientiousness at school and lack of a criminal record were also characteristics which were inconsistent with the diagnosis.

[96]ASPD is an adult condition. Dr. Benians’ main experience has been in treating children. Professor Maden on the other hand treats adults and not infrequently has to decide whether someone suffers from ASPD. I prefer the opinion of Professor Maden and find that C is not suffering from ASPD. Nonetheless, I am satisfied that C has suffered and continues to suffer from mental abnormality as distinct from emotional distress. He has great difficulty in inter-personal relationships. He continues to have a deep mistrust of persons in authority although this is beginning to show signs of improvement. He is callous and uncaring to others and is isolated from his peer group. He has suffered from depression and in Italy suffered from psychotic episodes.

[97]Were each of the video and the first infirmary incidents a cause of psychiatric injury? Although C found the video incident distressing I do not think that the impact of this incident went beyond distress. Dr. Benians was of the view that videoing in the showers would be damaging if persisted in. In time C reacted strongly to his mother’s apparent indifference when he told her of the incident but I find that the substantial cause of that reaction was the further abuse he had suffered. Accordingly, I hold that the video incident caused only emotional distress and for that reason is not actionable on the basis of Wilkinson v Dowtown. It follows that this incident will be only actionable if the principle formulated by Lord Hoffmann in para 45 of his speech was intended to establish a new basis of liability for “mere distress” and the facts of the incident are within the principle.

[98]In my judgement, the first infirmary incident is in a different category. This incident occurred when C was especially vulnerable: he had been taken to the infirmary because he felt faint and was there alone with D1. The pulling down of his trousers and underpants and staring at his genitals was a gross invasion of his personal integrity. C’s psychiatric injury – his state of mental abnormality - is due to a number of causes but I have no doubt that what D1 did during this incident was one of those causes and that it was a more than trivial cause. Accordingly, I find that the first infirmary incident caused C to suffer psychiatric injury.

[99]D1 did not subjectively intend that C should suffer psychiatric injury when he did what he did during the first infirmary incident. Are the circumstances such that the necessary intention can be imputed to D1 so as to come within the Wilkinson v Downtown principle? It would appear that there are three bases of imputation. The first is that the acts of the defendant are calculated to cause psychiatric harm and are done with the knowledge that they are likely to cause such harm. The second is that psychiatric injury is sufficiently likely to result from the conduct complained for the defendant not to be heard to say that he did not “mean” it, see Hale LJ in Wong v Parkside Health NHS Trust [2003] 3All.E.R. 932 at 937. The third is that the defendant was reckless as to whether he caused psychiatric harm, see Lord Woolf CJ in the Court of Appeal in Wainwright v Home Office

[2001] EWCA Civ 2081

at paras 31-33.

[100]In the instant case C’s mental abnormality was not caused by the first infirmary incident alone. Far from it, the other abuse involving touching and other matters, such as the dysfunctionality of C’s family and C’s innate characteristics, were also causes of his mental condition. In my judgement, 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.

[101]It remains to consider whether D1 is liable for the video incident on the basis of the principle expressed in para 45 of Lord Hoffmann’s speech. In the next paragraph of his speech Lord Hoffmann says that even on the basis of a genuine intention to cause distress he would wish to reserve his opinion on whether compensation should be recoverable. In my opinion, reading paras 45 and 46 together, it is clear that Lord Hoffmann was not definitively promulgating a new basis of tortious liability for “mere distress”. On the contrary, he was reserving his position. It follows in my judgement that Wainwright v Home Office affords no basis for holding D1 liable to C for the video incident.

Causation and apportionment

[102]I propose to take the same approach to causation and apportionment as Scott Baker J. took in Various Claimants v Flintshire County Council (26 July 2000), a case which involved a number of civil claims arising out of abuse practised in children’s homes in North Wales. Citing Lord Reid in Bonnington Castings Ltd v Wardlaw

[1956] AC 613

at 621 and Lord Wilberforce in McGhee v National Coal Board

[1973] 1 WLR 1

at 6, Scott Baker J. held that a claimant had to show that the abuse he suffered had made a material contribution to his condition. He also held, following Mustill J. in Thompson v Smiths Ship Repairers Ltd

[1984] 1 QB 405

, that he should apportion the damage caused by abuse and that caused by other phenomena on a common sense basis.

[103]Both C in his witness statement and Dr. Benians in his report proceed on the basis that C’s mental state is principally caused by the abuse C suffered at D1’s hands. Thus on C’s account the collapse of his relationship with his parents was triggered by his mother’s indifference to the video incident, which led C to lack all trust in his parents and become deeply hostile to them. This, together with a lack of trust of anyone in authority, led to his heavy drinking, his unsettled and irregular life, his depression, and his great difficulty in personal relationships. In Dr. Benian’s view, C’s mental problems stemmed from a sense of triple betrayal by D1, an authority figure, and his mother and father.

[104]I have held that the video incident is not actionable. That incident therefore cannot be a legal cause of C’s damage. Moreover, Dr. Benians’ view proceeded on the false basis that C had told his mother not only of the video incident but also of all the other incidents of abuse and had been ignored on all counts. The actionable abuse practised on C by D1 was mild when compared with the more serious abuse with which the courts are only too familiar. There are also other matters that have contributed to C’s mental state. Thus C’s relationship with his father had begun seriously to deteriorate when he was about 8 years, before the abuse had begun and there is evidence that C has inherited a tendency to reject parental, or at least paternal, authority. In addition, I am satisfied that part of the explanation for C’s mental state is the brutal way he was treated by senior boys at boarding school. However, on the basis of all the evidence I have heard, including the psychiatric evidence, I find that the actionable abuse has made a material contribution to C’s mental condition.

General damages

[105]Mr. Levinson referred me to the section dealing with Psychiatric Injury in the Judicial Studies Board Guidelines for the assessment of General Damages in Personal Injury Cases. C has been through a period of painful mental abnormality but his prognosis is good, particularly if he has psychotherapy treatment. Bearing this in mind and also that the actionable abuse is only one of the causes of the injury, I award general damages in the sum of £20,000. Special damages Loss of earnings/Disadvantage in the labour market

Special damages

[106]C contends that but for the abuse he would have settled into a degree course after his foundation year from which he would have graduated in 2003. As a consequence of the abuse he will graduate four years later and will suffer a loss of earnings because his professional career will have been shortened by four years. Mr. Levinson submitted that the four lost years are the four last years of C’s professional life and on this basis argued that I should assume a net loss of £30,000 per annum.

[107]I agree that C should recover damages under this head but it is uncertain when he would have graduated but for the abuse and whether he would have taken some time out before beginning a professional career, which is not uncommon these days. In my view I must take account of:(i) net earnings only;

(ii) what C earned before 2004;

(iii) the contingencies of life;

(iv) accelerated receipt; and

(v) the possibility that there might be some significant benefit to C in entering professional life when he is older. Adopting a common sense approach to apportionment and doing the best I can, I award £ 15,000 under this head.

Cost of treatment

[108]I am satisfied that C requires private psychotherapy treatment and I have been assured that he wants to try it. Such treatment will involve an initial assessment and thereafter about 90 sessions. Not everyone feels that they want to proceed with psychotherapy after the assessment and people drop out even if they get started on the course. Mr. Levinson’s figures of £100 for the initial assessment and £80 for each session seem to me to be reasonable. In the result I award £3,000 under this head.

Loss of support

[109]It was C’s evidence that his parents have generously supported his sister whilst she has been and continues to be at university. He says that she has received sums towards to the cost of accommodation and general living expenses and has been given a car. He on the other hand has received nothing of this kind because of the breakdown in his relationship with his parents. If that breakdown had not happened C estimates that he would have received about £5000 a year for a period of four years.

[110]In my opinion, this too is a recoverable head of loss. However, there are many uncertainties here and I must take into account the fact that support of children is very much a discretionary matter for their parents. Bearing these things in mind as well as the need to apportion because the actionable abuse is but one of the causes of the psychiatric injury, I award £5000 for loss of support.

Conclusion

[111]D2 is unquestionably vicariously liable for the abuse D1 inflicted on C. C is accordingly entitled to judgement against both defendants in the total sum of £43,000. I shall receive submissions from counsel on what (if any) interest on these damages C should be awarded.

Postscript – the identity of the parties

[112]On 13th June 2005 it was ordered by Master Leslie by consent that subject to the order of the trial judge or further order the identity of the parties should not be disclosed and that in all documents served, filed or exchanged in the claim the claimant should be referred to as “C”, the first defendant as “D” and the second defendants as “SBA”. Master Leslie’s order was made under CPR 39.24. At the beginning of the trial I continued the order but when my draft judgement was sent to counsel I invited submissions on whether the parties should remain anonymous.

[113]C submitted that the allegations against D1 having been substantiated it was in the public interest that Master Leslie’s order should be varied to allow for the identity of both the defendants to be disclosed. In respect of his own position he requested that he remain anonymous because the details of the allegations he had made were very embarrassing. He also argued that the continuation of his anonymity would encourage others who had been sexually abused to come forward to seek redress. However, if the court thought that either all the parties should be named or none, his preference was that all should be named notwithstanding the embarrassment this would cause him.

[114]D1 submitted that Master Leslie’s order should be continued pending the determination of an application he intends to make for permission to appeal both the liability and the quantum findings made against him, and, if permission is granted, pending the determination of the appeal. He further argued that if he is to lose his anonymity, so should C.

[115]D2’s position was that subject to Master Leslie’s order remaining in place pending the final determination of D1’s proposed appeal, they did not seek to uphold the order.

[116]In my judgement now that C’s allegations have been fully tried out and found to be true the public interest requires that all the parties to these proceedings should be identified. The public should know not only that C was sexually abused by his headmaster but also the identity of his abuser and the school where it happened. And if the defendants are to lose their anonymity, I can see no reason why the claimant should not lose his too. Accordingly, I discharge Master Leslie’s order of the 13th June 2005. However, I grant a stay of my order for four weeks to allow the defendants or either of them to apply for relief from the Court of Appeal.