B v London Borough of Ealing & Anor [2008] EWHC 1262 (QB)

Case No HQ07X02065[2008] EWHC 1262 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue Royal Courts of Justice
Strand
London WC2A 2LL
Wednesday, 2 nd April, 2008
Before
HIS HONOUR JUDGE McKENNA(Sitting as a Judge of the High Court)
Between
BClaimant-v-
Between
LONDON BOROUGH OF EALINGDefendantPBDefendant
Digital Transcript of Wordwave International, a Merrill Communications CompanyPO Box 1336, Kingston-Upon-Thames KT1 1QTTel No: 020 8974 7300 Fax No: 020 8974 7301Email Address: Tape@merrillcorp.com(Official Shorthand Writers to the Court)
Mr J Levinson (instructed by Malcolm Johnson & Co) appeared for Claimant.
J U D G M E N TDate 2008-04-02

JUDGE McKENNA:

[1]The trial of this action has been concerned with a number of issues going to the quantum of damages payable to the claimant, B, who was born in 1983 and who is the daughter of the second defendant, PB. The first defendant is the local authority in whose area the claimant grew up, and this claim arises out of personal injuries intentionally inflicted on the claimant by her father during the course of the claimant's childhood. The claim against the first defendant relates to alleged negligence by social workers employed by the first defendant in failing to protect the claimant from the activities of her father.[2]It is right to record that the proceedings as against the first defendant are in effect stayed pending the final determination today of the claimant's claim against the second defendant. It is also right to record that, although the proceedings have been served on the second defendant and he is aware of the existence of the claim, a letter of claim having been sent to him on 27th February 2007 which he acknowledged by a letter dated 9th March 2007 – page 469 in the bundle – the second defendant has taken no part in this action, although of course he has been, I am told, served with copies of the appropriate documentation, including, of course, notice of this assessment of damages hearing.[3]In the absence of any engagement by the second defendant in the litigation the claimant was able to obtain a judgment against her father and, therefore, this court has not had to deal with issues of liability but simply issues of quantum.[4]In terms of evidence, the court has heard evidence from the claimant herself and from two of her brothers, B1 and B2. In addition, the claimant relies on two reports from Dr Trevor Freedman, a consultant psychiatrist – pages 129 and 150. The main report which is dated 20th January 2007 was prepared following an interview with the claimant.[5]The main allegations made by the claimant against the father are to be found in the Amended Particulars of Claim at paragraph 5. They are a useful summary. In her witness statement Miss B sets out in detail the history, so far as it is relevant to these proceedings, of her childhood and, in particular, of the abuse inflicted upon her by her father. I do not propose to recite in detail in this judgment the evidence put forward by Miss B in her witness statement on this issue. It is to be found, in particular, at paragraphs 58 and following, but I record that I accept in its entirety the content of the witness statement so far as it relates to the allegations which Miss B makes against the father.[6]The allegations are summarised at paragraph 5 of the Amended Particulars of Claim as follows. The second defendant subjected the claimant to physical and emotional harm throughout her childhood. In particular, the second defendant(a) threatened to kill the claimant,(b) beat the claimant on practically a daily basis from the age of about 3 to about 17 with his hands, a cane, a wooden clothes brush, a length of cable or a leather belt. The second defendant mostly used to strike the claimant with the metal buckle of the belt so as to inflict the most pain; he repeatedly beat the same part of the claimant's body so as to inflict the most pain; he failed to treat the claimant's wounds after the beatings and prevented the claimant's mother from doing so; he assaulted the claimant's mother and siblings, B1, B2, B3 and S1; he required the claimant to dress in front of the second defendant until she was about 18; whilst tucking the claimant into bed the second defendant would caress the claimant all over unnecessarily, including her buttocks, until she was about 14; he threatened the claimant that if she told anyone about the abuse she would be taken into care and separated from her siblings; he called the claimant derogatory names and told her that she should become a prostitute.[7]It is also the claimant's case – paragraph 6 – that it was abusive and harmful for her to see and be aware of her mother and siblings being abused by the second defendant, and that furthermore this made her fearful for her own safety.[8]I have already recorded that I accept the claimant's evidence in its entirety as to the conduct of her father. I should also record that that evidence is supported by the evidence given by the two brothers who have given evidence, B1 and B2. It is also independently corroborated in extracts from the Social Services file, to which I was taken by counsel for the claimant yesterday, and to various entries in the claimant's medical records.[9]Reliance is placed by the claimant, as I have already recorded, on the report of Dr Freedman. In his opinion section, which begins at page 144 in the bundle, he too has recorded that Miss B presented as an extremely articulate and well presented young woman who gave a detailed account of her upbringing and experiences and was not overly anxious or distressed during the interview. He details the account which was given to him by Miss B and opines that Miss B developed significant psychological problems. In paragraph 64 he records that she gave a clear history of anxiety disorder relating to speaking out in public. This became a serious problem to the extent that she started to develop a school phobia and was avoidant of lessons due to this behaviour. She was referred for therapy and received counselling. There was a recognition at the time that her home situation was the cause of much of the anxiety. In paragraph 66 he continues:
"In my opinion the focus of her anxiety related to speaking in public at school. She was able to work in a local shop without difficulty. She does not describe specific anxieties at home. In my opinion, however, it would be reasonable to state that the level of tension of violence at home would have been a significant factor in the production of her anxiety."
He then goes on at paragraph 69 to record:
"The claimant now presents with mild to moderate symptoms of agoraphobia. She is fearful of being out in public by herself or travelling long distances. She has a supportive family who help with some of these tasks but she is able to overcome her anxieties if it is essential. 70. In my opinion her current symptoms of anxiety are related to a number of factors and it is obviously difficult to be certain as to the causation of her current problems. There appears to be a family history of anxiety related difficulties in both her father and siblings. In my opinion, however, her upbringing has probably been a major component in her lifelong symptoms of varying levels of anxiety. It is typical for symptoms of agoraphobia to diminish and increase at times throughout a person's life. Miss B has generally underperformed in terms of her education and employment abilities. I discussed with her the possibility of her returning to full-time education and I think it would be reasonable for her to consider training again in the future. It is difficult to be certain as to the cause of her performing less well than she might have done in this area, and also in terms of her personal relationships. The causation of these factors are complex and interrelated. In my opinion there is a moderate relationship between her abuse in childhood and under her subsequent adult difficulties."
He goes on to suggest that it would be reasonable for Miss B to be offered a course of skilled cognitive behaviour therapy. He gives a quotation of the likely cost of such treatment being in the region of £1,500 and suggests that that would help her greatly.[10]He also suggests that it would be helpful for her to have a brief intervention of five or six sessions of focused psychotherapy in relation to her abusive upbringing and suggests that the cost of such treatment might be in the region of £700.[11]There are also references in his report to periods of time when the claimant was drinking excessively, although he did not believe that she quite reached the threshold for alcohol dependence syndrome but was using it in a harmful way. He gave the following diagnosis:
"She would be helped by a brief intervention to help her control of excessive use of alcohol. This would involve education, identification of triggers for excessive consumption and alternative methods of dealing with stress."
Again he suggests that the likely cost of that treatment would be £500.[12]In his addendum report he addressed for a second time the effects of the claimant's childhood experiences and abuse on her ability to enter into the job market. In his earlier report, as I said, he identified a moderate relationship between the abuse and subsequent adult difficulties. In this addendum report he opined that whilst it is difficult to be precise as to the percentage effect upon her adult education and attainment of the abusive experiences, it would be reasonable to attribute 10% to 20% of her difficulties to her father's abusive behaviour. He was also asked to address the causes of the claimant's excessive use or abuse of alcohol and at paragraph 4 page 152 he recorded that his general view was that the cause of the claimant's alcohol dependency was complex and only to a small extent related to her childhood abusive experiences, and again he put forward a range of between 5% and 10%.[13]I accept the substance of the expert evidence of Dr Freedman, and it is against that evidential background that I approach quantification of the claimant's losses which are pursued under the following heads: pain, suffering and loss of amenity; past loss of earnings; future loss of earnings; therapy costs; and a claim in respect of the cost of alcohol. I note in passing that the claimant has abandoned a care claim which appeared in the schedule of loss, it not being supported by the evidence adduced at trial.[14]Turning first of all to pain, suffering and loss of amenity, a useful starting point is the decision of Eadie J in Jake Pierce v Doncaster Metropolitan Borough Council [2007] EWHC 2968 (QB). I was referred to various paragraphs in that judgment beginning with the introductory paragraphs 1 to 4. I was taken to Eadie J's findings on causation and the eventual outcome in terms of quantification of damage in that case. I do not propose to recite the paragraphs in detail, but I incorporate them into this judgment. In short, in that case Mr Pierce successfully claimed damages against a local authority on the basis that it negligently failed to protect him from child abuse at home. During his time living at home he was not properly fed, was beaten and bullied by his family and failed to attend school regularly, and the judge found that Mr Pierce did suffer indifference, neglect and periodic violence in the home environment at the hands of his parents and appears to have accepted a report that Mr Pierce was claiming to have suffered bruises and cuts to his head during childhood as a result of being beaten and hit with a poker several times. The judge decided that some damage could be shown to have flowed from the relevant breach and assessed the damages accordingly.[15]Whilst that decision is a useful starting point, as it was urged upon me by counsel for the claimant, in the present case this claimant, Miss B, is clearly entitled to a significantly higher award than that awarded by Eadie J in the Pierce case for two principal reasons: there is clear evidence of far more frequent assaults – pretty much on a daily basis in the case of Miss B – and on the evidence of Dr Freedman there is clear evidence that that campaign of assaults caused the claimant to suffer recognised psychiatric disorders which clearly require proper compensation.[16]I should also record that I was also helpfully referred to a passage in the judgment of Scott-Baker J (as he then was) in the case of Various Claimants v Flintshire County Council a decision which I think goes back to 2000, in particular on the subject of causation and the apportionment of damage – paragraphs 18, 19, 24, 26 to 27. I have found the approach set out there to be a helpful one.[17]To my mind, given the clear evidence of much more frequent abuse in the instant case coupled with the evidence of recognisable psychiatric disorders, but at the same time guarding against what is sometimes referred to as "double recovery" or "overlap" and allowing for Dr Freedman's view that there are a number of factors relevant to the claimant's psychological symptoms and that it is difficult to be certain as to causation, and recalling what he says at paragraph 7 that there appears to be a family history of anxiety-related difficulties in both father and siblings, taking all those matters into account I award a sum of £33,500 in respect of pain, suffering and loss of amenity.[18]I turn now to past loss of earnings. There is no doubt that the claimant's educational attainment has been adversely impacted by the treatment that she suffered at the hands of her father, and I think in the circumstances she is to be congratulated on the achievement of the eight GCSEs which she did manage in difficult circumstances. She started an A level course but was unable to complete it. She worked on and off for six months in 2001/2001 and then 2001/2002 but has, to all intents and purposes, not worked since that time. She has given birth to two children, C1 [in 2002] and C2 [in 2005], but they are not the only factors impacting adversely on her employment history, given the evidence which I have heard and accept as to the support available to her from her mother and brother, B3. I am satisfied, on the balance of probabilities, that such support would have enabled the claimant to obtain at least some level of employment.[19]I have already touched on the claimant's under achievement at school and I have recited extracts from Dr Freedman's report and have indicated the view which he has put forward as to causation, if I can use that shorthand.[20]During the course of his closing argument, counsel for the claimant took me to a number of entries in the claimant's school records, and indeed GP records, which corroborated the points to which I have referred in respect of the claimant's educational attainment. Clearly there are a number of imponderables at play in a case of this type which renders the conventional multiplier/multiplicand approach to the assessment of past losses inappropriate, and I am therefore urged to take a broad-brush approach to the calculation of past loss and indeed future loss with a view to awarding a lump sum such that it does justice in the particular circumstances of this case.[21]To all intents and purposes the claimant has been unemployed for some seven years prior to trial. During that time she has given birth to two children (as I have recorded). Clearly, in coming to a view as to the appropriate quantum of a lump sum award, I must take into account the fact that since May 2002 to date the claimant has been a single mother, albeit with access to substantial family support, and significantly I must pay regard to the evidence of Dr Freedman and in particular the opinion expressed in the addendum report as to the effect of childhood experiences on the claimant's ability to enter the job market. Doing the best I can, and adopting a mesne figure of 15%, given Dr Freedman's 10% to 20% range, in respect of past losses I award a lump sum figure of £11,000.[22]Turning to future loss, again quantification of this loss must be approached on a lump sum basis and again there are a large number of imponderables. With treatment, Dr Freedman's view is that the claimant's prognosis is good but there is a risk of relapse and, if so, a resulting loss of earnings at some point in the future and for some period. She will always be hampered by gaps in her cv and the level of education of attainment actually achieved unless she takes time out from the labour market to, as it were, make up for the lack of higher qualifications, and if that involves obtaining a degree then there is the additional cost of funding a university course to consider. Any attempt at quantification is, of necessity and to a large degree, speculative and fraught with difficulty, but, doing the best I can and giving due allowance to all of the factors to which I have referred and the evidence of Dr Freedman as to the impact of other factors, I award in respect of future loss a lump sum of £22,000.[23]I turn now to treatment costs. Dr Freedman has recommended various treatments in his reports. I accept those recommendations in their entirety. They amount, I think, to some £2,700 in cost terms, to which must be added travelling expenses. I have no information as to the location of any of the treatment facilities relative to the claimant's home address. Clearly there will be some travelling costs involved, and I award a modest figure of £100 in respect of the travelling costs over and above the treatment costs as estimated by Dr Freedman.[24]On this aspect of the case I was helpfully referred to an extract from the Court of Appeal decision in the Bryn Allen litigation as to the question of whether or not there should be some apportionment in respect of therapy costs, and for the reasons set out in paragraphs (inaudible) of that judgment I too take the same view that there should be no apportionment in this case, hence my award of the sum in full.[25]This brings me to the final element of the claimant's loss: compensation for excessive alcohol consumption. I have to say that when I first read the papers in this case this was one aspect of the claimant's claim which I approached with a significant degree of scepticism. That scepticism, however, has been assuaged somewhat by counsel having cited to me a decision again of the Court of Appeal in Eagle v Chambers [2004] EWCA Civ 1033, in particular paragraphs 73 and 74. This aspect of the case does not relate to alcohol but to cigarettes. At paragraph 18 of the judgment it is recorded:
"The claimant had been a smoker before she was injured. In her injured state she began to smoke excessively, and to waste some of the cigarettes that she was contemplating smoking. The judge awarded a sum for cigarettes wasted in the past, but not for the cost in any increased number of cigarettes…"
That decision was discussed in paragraphs 73 and 74. At paragraph 74 Waller LJ said:
"There is something deeply unattractive about the notion that a claimant should recover damages to cover her increase in cigarette consumption either for the past and a fortiori for the future."
The important section is as follows:
"Only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no real choice but to increase her consumption of cigarettes, could the extra consumption be a head of damage."
I adopt that approach and I am satisfied in this case that the medical evidence does indeed persuade me that the cause of the excessive alcohol consumption is (at least in part) the abuse which she suffered at the hands of her father.[26]I have already recorded that Dr Freedman considers that the causes of the alcohol dependency were complex and only a small extent related to childhood abusive experiences. He suggests a range of 5% to 10% and again I take a mesne figure of 7½%. Counsel have helpfully calculated the excess alcohol consumed to today's date at around £14,300, taking forward the figures as set out in the schedule of loss. I accept those figures. As I say, adopting the mesne figure of 7½% in terms of attribution, I award £1,072 in respect of this element of claim. In addition, of course, there will be interest.

Cited in 1 later judgment