BJM v Nathan Eyre & Ors [2010] EWHC 2856 (QB)

Case No 9LS90167[2010] EWHC 2856 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue LEEDS DISTRICT REGISTRYDate 12/11/2010
Before
THE HON. MRS JUSTICE SWIFT DBE
Between
BJMClaimantNathan EyreFirst DefendantRaymond Colin HawthorneSecond DefendantLeslie LoramThird DefendantDavid RileyFourth Defendant
Mr Richard Smith (instructed by Bolt Burdon Kemp Solicitors) for ClaimantThe Second Defendant appeared in Person for in personThe First, Third and Fourth Defendants were not present or representedHearing Hearing dates: 1 November 2010
JudgmentThe Hon. Mrs Justice Swift DBE :The claim
[1]The claimant (in respect of whom an anonymity order has been made) claims damages against the four defendants for personal injuries and financial loss arising from sexual and physical abuse of the claimant which took place between 2001 and 2003.[2]The claim against the four defendants was issued in April 2008. Subsequently, the claim was amended to include a fifth defendant, Leeds City Council, against whom the claimant alleged a breach of its common law duty to protect him. Meanwhile, no Acknowledgment of Service having been filed by the four original defendants, judgment was entered against them with damages to be assessed. Subsequent applications to set aside judgment made by at least two of the defendants were unsuccessful. The proceedings against the fifth defendant were defended. The claimant discontinued those proceedings in August 2010.

The hearing

[3]The assessment of damages was listed before me on 1 November 2010. The claimant was represented by Mr Richard Smith of counsel. The first, third and fourth defendants did not appear and were not represented. The second defendant appeared and conducted his case in person. The claimant and his mother gave oral evidence which was largely confined to their written statements. In addition the claimant relied on evidence from a forensic psychiatrist and an educational psychologist. The trial bundle included a large number of medical, education and Social Services records relating to the claimant. The second defendant called no evidence but addressed me at the conclusion of the case. His submissions were mainly directed at demonstrating that his part in the abuse had been significantly less than that played by the first defendant so that the claimant was already damaged by the time he came into the second defendant’s hands. The abuse[4]The claimant who was born on 11 April 1989 and is now 21 years old, was about 12 years old and living in Leeds when he met the first defendant, Nathan Eyre. The first defendant, who was then in his mid 30s, worked as a male prostitute and also hired out a number of boys to “clients” for the purposes of sexual activity. The claimant met the first defendant through a friend, one of a large number of local boys aged between 12 and 15 whom the first defendant would encourage to visit his flat regularly. The first defendant would take them air rifle shooting and let them drive his car. He would cook them meals and buy takeaway meals for them. He gave them alcohol, cigarettes, cannabis and amyl nitrite, also known as “poppers”.[5]The first defendant singled out the claimant for special favours and purported to act as a mentor to him. In fact, he was engaged in the process of “grooming” the claimant for the purpose of sexual abuse. Over time, the claimant began to visit the first defendant on a daily basis. His visits began to have a sexual element. The first defendant encouraged the claimant to wrestle with another boy whilst he took photographs. He directed the claimant and a young female visitor to adopt sexual positions (albeit while fully clothed) and photographed them. He showed the claimant pornographic videos and encouraged him to watch television programmes with a homosexual theme. He would ring up “gay” chat lines and encourage the claimant and other boys to carry on sexually explicit conversations with men using the chat lines. On occasion, the claimant would be present in the first defendant’s flat whilst the first defendant or one of the other boys was engaged in sexual activity with clients.[6]One night in the summer of 2001 or 2002 (probably 2002), the first defendant gave the claimant vodka to drink. When the claimant was drunk, he was encouraged to perform oral sex on one of the first defendant’s male friends. Afterwards, the claimant had no clear recollection of the incident but the first defendant told him what had happened. He threatened to tell the claimant’s friends and family about the incident if the claimant did not comply with his instructions to engage in sexual activity with other men under the first defendant’s direction.[7]There then began a campaign of sexual abuse of the claimant. The first defendant brought a series of adult men to his flat for the purpose of using the claimant for their sexual gratification. He received payment for the claimant’s services. He encouraged the claimant to play truant from school in order to meet clients and would write notes, purporting to be from the claimant’s parents, giving false explanations for his absences. The claimant was required to submit to a range of sexual activity, including oral and anal sex. Some clients were heedless of the pain they inflicted upon him, pain he sought to mask by taking drink and drugs provided by the first defendant. The first defendant himself also sexually abused the claimant by touching and staring at his genitals and by forcing the claimant and a male school friend to have sex while he watched. As a result of the first defendant’s threats, the claimant believed that he had no option but to do as the first defendant told him.[8]On 23 October 2003, when the claimant was aged 14½, the first defendant told him to play truant from school the following day so that he could take the claimant to visit some of his friends. He instructed the claimant to come to his flat in his school uniform and bring a change of clothes. In fact, the first defendant had agreed with the second defendant, Raymond Hawthorne, to “sell” the claimant to the second defendant for the purpose of providing sexual services to clients of the second defendant. The second defendant, who was then in his late 30s and lived in Manchester, had a number of teenagers living under his control whom he hired out as prostitutes. Text messages revealed that the second defendant was particularly keen to add the claimant to his collection of young prostitutes. It appears that boys of his age were much in demand and that clients would pay a higher price for their services than for an older boy.[9]On 24 October 2003, the first defendant drove the claimant to a rendezvous near Bradford where the second defendant was waiting. The claimant was instructed to get into the second defendant’s car and the second defendant handed over to the first defendant the sum of £500 in £20 notes as payment for the claimant’s services. The second defendant then drove the claimant to London. The first defendant had assured the claimant that he would be following in his car, but, during the journey, the claimant realised that he had been tricked and that the first defendant had in fact abandoned him.[10]Over the next seven days, the claimant was required by the second defendant to perform a variety of sexual services for clients of the second defendant in various parts of the country. He was repeatedly subjected to anal sex and required to give and receive oral sex, to masturbate and be masturbated and to dress in particular ways. One client required him to wear a dog collar and walk on all fours whilst being spanked. He was required to provide such services for four or five different men each day. The second defendant threatened the claimant as to what would happen if he tried to run away. Meanwhile, the first defendant telephoned the claimant, offering some excuse for his absence. The claimant complained to the first defendant that he was being abused and asked him to come and collect him. The first defendant refused and warned the claimant what would happen if he did not comply with the second defendant’s wishes. As a consequence of the threats made to him, the claimant felt that he had no option but to obey the second defendant’s orders and to subject himself to painful, degrading and repeated sexual abuse by the second defendant’s clients.[11]The third defendant, a man in his late 40s, abused the claimant on three occasions and subjected him to a serious and violent indecent assault as well as anal sex. The fourth defendant abused the claimant on one occasion when he indecently assaulted him.[12]Whilst these events were going on, the police, who had been alerted to the claimant’s absence from home, were searching for him. Intelligence received led them to the second defendant’s home where they found the claimant and removed him on 31 October 2003. When interviewed initially, the claimant lied about the circumstances in which he came to be living with the second defendant and suggested that he had initiated the acts of prostitution independently of the second defendant. Gradually, however, the full story emerged. Later, he explained that he had lied to the police in the first instance because the second defendant had threatened to “come looking” for him if he did not “stick up for his friends” and he was afraid of the consequences if he told the truth.

The criminal proceedings

[13]The four defendants and four other men were charged with a large number of criminal offences arising from these events.[14]The first defendant pleaded guilty to, inter alia:(i) a specimen offence of indecency with a child by inciting gross indecency between the claimant and another male;(ii) an offence of living, over a period of 18 months, on the earnings of the claimant’s prostitution; and(iii) an offence of conspiracy with the second defendant to live on the earnings of the claimant’s prostitution. He was sentenced to a total of eight years’ imprisonment, which was increased to eleven years’ imprisonment on a reference to the Court of Appeal by the Attorney-General.[15]The second defendant pleaded guilty to, inter alia:(i) conspiracy with the first defendant to live on the earnings of the claimant’s prostitution;(ii) abduction of the claimant on 24 October 2003;(iii) a specimen offence of inciting gross indecency between the claimant and another man; and(iv) an offence of living on the earnings of the claimant’s prostitution. He was sentenced to a total of seven years’ imprisonment which was increased to nine years’ imprisonment on a reference to the Court of Appeal by the Attorney-General.[16]The third defendant pleaded guilty to two offences of buggery on the claimant and one of indecently assaulting him. He was sentenced to three and a half years’ imprisonment.[17]The fourth defendant pleaded guilty to one offence of indecently assaulting the claimant. He was sentenced to two and a half years’ imprisonment. The claimant’s history Before

The abuse

[18]The claimant is one of three children. His elder brother has recently left the Army; his younger brother is about to enter the Army. There is no history of criminality within the family and the claimant himself has no criminal convictions although he has received at least one police caution. There is, however, a history of psychiatric disorder amongst his mother’s siblings and, in July 2006, his mother herself suffered a breakdown (apparently associated with the claimant’s abuse and his subsequent problems) and attempted suicide, as a result of which she spent a period of time in a psychiatric hospital.[19]The records show that, during his early childhood, the claimant suffered some problems. At the age of three, he was thought to have delayed speech development, possibly attributable to a hearing problem. He was treated for bed-wetting over a long period and the problem persisted well into his teens.[20]The claimant attended a number of different primary schools, including one in Australia where he stayed with an aunt for a few months in 1997. After a promising start at his first school, his inconsistent performance, lack of concentration and organisational skills began to cause concern. In May 1997, his educational records reveal that he had been the subject of a Statement of Special Educational Needs and, in September 2000, he was identified as having a “learning disability”.[21]Behavioural problems also manifested themselves. In November 2000, the claimant was reported to have attacked someone in the street, as a result of which the police were involved. He had protuberant ears which resulted in him being teased and bullied. He underwent an operation to pin back his ears which was unsuccessful and had to be repeated two years later.[22]By 2001, the relationship between his parents had become strained, which gave rise to arguments and tension at home. There were reports of occasional incidents of violence by his father towards his mother. In addition, the claimant had a poor relationship with his mother. At that time the claimant’s sexual experience was limited to an incident of oral sex involving a friend’s girlfriend. He had no experience of sexual activity with men or other boys.

During the period of the abuse

[23]In 2001, a series of problems were reported by the claimant’s school. The claimant was truanting, and, when present, behaved badly, stealing and being generally disruptive. His mother reported that he had threatened to kill himself. He went missing for several days and was found in a local wood. In August 2001, he was seen in a child psychology clinic. A report of this visit referred to him having “numerous problems”. During 2002, the claimant’s attendance at school and punctuality deteriorated further and he was repeatedly failing to do his homework. In November 2002, he reported to the medical room at school, having been drinking the previous night and claiming to have taken pain-killers belonging to his mother. In December 2002, the claimant took an overdose of paracetamol which gave rise to the first of many hospital admissions following reported suicide attempts.[24]By March 2003, the claimant’s mother had become concerned that the claimant was at risk from the first defendant. She found obscene material of a homosexual nature in the claimant’s bed. There was an occasion at school when the claimant was under the influence of alcohol and offered pornographic video tapes to fellow pupils, saying that he could obtain such tapes by giving sexual favours. The claimant’s mother reported these matters to the police and to the Social Services and attempted to stop the claimant from visiting the first defendant. However, as a result, her relationship with the claimant deteriorated to the extent that he would refuse to go home and instead stayed at the first defendant’s flat. Then, in October 2003, he was abducted by the second defendant.

After the abuse

[25]After the claimant had returned from the second defendant’s home in Manchester, he was placed by Social Services with foster parents. In November 2003, he took an overdose of illegal drugs, paracetamol and alcohol. Subsequently, he had an unsuccessful placement in a hostel before returning to live at home with his parents. In 2004, he was reported as suffering from insomnia and low mood with episodes of frustration and anger when he thought about the abuse. He attempted to cope with these episodes by self-harming in the form of cutting himself. He was drinking heavily and taking illegal drugs. His problems were exacerbated by tensions at home (his parents separated in the summer of 2004), together with anxiety about the impending criminal trial at which he expected to have to give evidence.[26]Thereafter, the claimant’s disturbed pattern of behaviour continued. In March 2005, he went missing from home for three days. In April 2005, when drunk on the eve of his 16th birthday, he attempted to hang himself from a tree but was cut down by a passer-by. He was admitted to a psychiatric hospital but absconded and had to be returned by the police. At that time, he was living with his mother but she was unable to cope with his behaviour. She was concerned that he was continuing to put himself at risk by reason of his sexual promiscuity. After negotiations involving Social Services, he went to live with his father but, by July 2005, he was living with two older homosexual men. In the ensuing months, there were further episodes of deliberate self harm, together with regular alcoholic binges. In November and December 2005, the claimant overdosed on heroin, apparently with the intention of killing himself. At that time, his mother discovered that he was advertising his sexual services on a homosexual website and she blocked his access to the internet.[27]In August 2006, shortly after his mother’s suicide attempt, the claimant was admitted to hospital under section 2 of the Mental Health Act 1983, having expressed the intention of killing himself with a knife. He absconded and attempted suicide. He was returned to hospital and discharged six weeks later with a diagnosis of possible personality disorder. He returned to live with his mother. At that time, she described him as “unable to function”.[28]By May 2007, the claimant was living alone in a rented flat with some social work support. There were further incidents of self-harming and overdoses. In 2008, he moved in with his father but the two of them quarrelled, culminating in an incident when they both got drunk and the police were called. As a result, the claimant received a police caution. In July 2008, he attempted suicide by taking a bottle of amyl nitrate. In September 2008, he was diagnosed as HIV positive which led to increased alcohol intake and suicidal tendencies. In February 2009, he took an overdose of anti-depressants.[29]In April 2009, the claimant moved into supported housing for persons with mental health problems. The records reveal continuing alcohol abuse, anxiety, insomnia, lack of appetite and motivation and persistent ruminations about his past abuse and current problems. In September 2009, after taking an overdose, he was admitted voluntarily to hospital. At that time, he was aware that the second defendant was about to be released from prison and was further depressed at his diagnosis of HIV. He was isolated and in a volatile sexual relationship. Towards the end of 2009, he bought a rope, intending to hang himself. However, he informed others of his intention and did not carry it through. As the hearing of this action approached, he was reported as suffering from increasing anxiety.

Current state

[30]The claimant continues to live in supported accommodation with additional social work support. He says that he has recently reduced his alcohol intake although, if he feels bad, he still resorts to drinking to excess. He smokes cannabis occasionally but is less interested in drugs than he was in the past. He reports continuing problems with sleeping. He kicks out and punches when he is asleep as a result of which he wakes up with bruising. He has frequent nightmares and flashbacks of the abuse. His memory of the abuse is triggered by various factors, such as the smell of a particular brand of “after shave” or any mention of his abusers. He sees no point in life, has suicidal thoughts and continues to self-harm. He has difficulty trusting people. He also has feelings of frustration and episodes of lowness of mood. During these episodes, he lacks energy and motivation and has little appetite. He has no interests apart from watching television. He often stays in bed all day since he lacks the physical energy to get up.[31]When Dr Rix, consultant forensic psychiatrist, saw the claimant in September 2010, he remarked that he appeared “more cheerful and relaxed” than when he had previously seen him in May 2007. However, the claimant’s mother told me that she could see no improvement in the claimant’s condition. She said that, since the abuse, the claimant had experienced deep anger and shame. He exhibits severe anxiety whenever one of his abusers is released from prison. He is nervous and shakes and stammers. He is unable to relate to his brothers. She believes that he resorts to alcohol and drugs to block out his memories of the abuse to which he has been subjected.

Education and employment

[32]After his return from Manchester in October 2003, the claimant did not return to formal schooling. Instead, he did a catering course at a further education college. He achieved no formal educational or vocational qualifications. After college, he had intermittent periods working in two restaurants and two leisure centres and in businesses run by his mother. He has not worked at all since about 2005. In 2008, he enrolled at college to study Maths, English and Science to GCSE level, but dropped out shortly afterwards when he was diagnosed as being HIV positive. He has undergone no form of education since.

Sexual relationships

[33]Since his abuse and abduction, the claimant has been sexually promiscuous, having relationships with both males and females, sometimes for money. He has had a series of relationships with male partners of a similar age to himself, including one from whom he contracted HIV. His current relationship has been in existence for about ten months.

The psychiatric evidence

[34]Dr Rix, an extremely experienced consultant forensic psychiatrist who was instructed on the claimant’s behalf, prepared an initial Report dated 18 June 2007, together with an up-dated Report dated 15 October 2010. As well as interviewing the claimant on two occasions, he reviewed a considerable amount of documentation, including the claimant’s education, medical and Social Services records.

Diagnosis

[35]Dr Rix said that the claimant would have suffered an acute stress reaction at the time of his abuse and abduction. He now exhibits a number of symptoms found in the condition known as post-traumatic stress disorder (PTSD). In particular, he has intrusive imagery of the abuse, he reported avoidance phenomena and had symptoms of persistently increased arousal, especially marked distress on exposure to reminders of the abuse. Dr Rix expressed the view that, in addition, the claimant has developed a personality disorder in the form of a borderline type of emotionally unstable personality disorder. Dr Rix observed that PTSD and borderline personality disorder are commonly complicated by alcohol and substance misuse, both of which are features in the claimant’s case.[36]In his first Report, Dr Rix expressed the view that the claimant also had some form of learning or educational disorder. He advised that the opinion of an educational psychologist should be sought. This was done and I shall deal with the psychological evidence later in this judgment.

Causation

[37]Dr Rix commented that the claimant’s life had not been “normal” prior to the abuse. He said that, at the very least, it seemed probable that the claimant had had a mixed disorder of conduct and emotions together with a learning disability in the form of dyslexia. It is not therefore possible to attribute all the claimant’s various difficulties to the abuse he suffered at the hands of the defendants.[38]However, Dr Rix considered that the symptoms of PTSD from which the claimant suffers are, on a balance of probabilities, wholly attributable to the abuse. So far as his personality disorder is concerned, Dr Rix said that, even without the abuse, the claimant’s problems in childhood may well have resulted in features of the disorder. However, he considered that the abuse had made a material contribution to the development of borderline personality traits. Dr Rix also observed that it would not have been surprising, even had the abuse not occurred, if the claimant had misused alcohol and drugs in adult life. In the circumstances, however, he regarded it as probable that the abuse had made a material contribution to his misuse of alcohol and drugs.

Prognosis

[39]Dr Rix acknowledged that it was difficult to give a firm prognosis in the claimant’s case. However, he considered it unlikely that his condition would worsen in the future. Nor did he consider that there was likely to be a significant improvement, even with treatment. He concluded that, at best, the claimant would adjust better in middle age. At worst, his condition would remain largely unchanged.

Future Treatment

[40]Dr Rix recommended a course of 15-25 sessions of weekly or fortnightly psychological therapy, at a cost of £120-£150 per session, in order to address the claimant’s PTSD and borderline personality disorder.

The psychological evidence

[41]Mr Alex Griffiths, chartered educational psychologist, carried out an assessment of the claimant on 2 September 2010, when he conducted psychometric tests and interviewed him. Mr Griffiths also had access to the documentation in the case, including the claimant’s education and Social Services records.

Results of assessment

[42]Having interviewed and assessed the claimant, Mr Griffiths concluded that his abilities lie within the average range, but that he is highly dyslexic. As a result of his dyslexia, he has problems with his working memory and with processing visual symbols. He observed that the claimant would benefit from support to assist him in developing his literacy skills.[43]Mr Griffiths expressed the view that, if the claimant had not experienced family problems, had attended school on a regular basis and had not had such frequent changes of school in his early years, it was highly likely that he would be in a much better educational position. He noted that staff at the claimant’s secondary school had done their best to regulate his attendance, behaviour and learning and that, despite the difficulties within the family, his parents had been generally supportive of his education. However, the effect of the sexual abuse meant that the claimant had had many absences from school and his teachers and parents had been unable to put in place any stable remedial action which would have addressed his dyslexia. As a result, his self-image, self-esteem and self-confidence were severely damaged and he lacked the essential learning skills and opportunities which would otherwise have been available to him.[44]The effect of all this, Mr Griffiths concluded, is that the claimant’s lack of educational qualifications severely impairs his employment opportunities. He suggested that it would take a number of years of hard work to provide the claimant with the basic qualifications necessary to enable him to undertake anything other than the most unskilled type of work. It would be impossible for him to undertake even unskilled work at present.[45]In response to specific questions put to him by the claimant’s solicitors, Mr Griffiths expressed the view that, if the claimant had received appropriate support from his school and parents (as he appeared to have done) and the sexual abuse had not occurred, it was extremely likely that he would have gained sufficient formal qualifications to enable him to move on to further education. He was highly unlikely to have progressed to “A” levels, but may well have obtained a qualification such as a BTEC National Diploma. Mr Griffiths considered that a career as a chef would have been an entirely reasonable expectation. The claimant would probably have left school at the age of 16 and attended college in order to obtain the necessary vocational qualifications. He could then have begun work as a trainee chef, progressing in his career.[46]As to the claimant’s current position, Mr Griffiths considered that the claimant should be capable of working as a chef/cook in the long term. However, he would first need to gain some qualifications and to raise his self-confidence and self-esteem to the extent that he was able to cope adequately with workplace relationships. Mr Griffiths suggested that, over the next five or six years, the claimant should undergo therapy in the form of counselling and/or mentoring, in addition to the psychological therapy recommended by Dr Rix. At the same time, he should attempt to collect the necessary vocational skills and qualifications to enable him to work as a chef/cook. However, Mr Griffiths warned that, even if the claimant succeeds in doing this, he is likely to be able to work only at a junior level in the first instance; it is, he said, likely to be some years before the claimant could even consider meeting the demands of a busy kitchen.

Causation

[47]The issue arises as to the extent to which - having regard to the difficulties manifested by the claimant during his early childhood - his problems associated with borderline personality disorder and alcohol and drug misuse would have occurred even in the absence of the sexual abuse.[48]Mr Smith submitted that I should not attempt to make any precise apportionment of blame for the claimant’s psychiatric damage as between his pre-existing problems and the effects of the abuse. In support of that submission, he referred to the observations of Scott Baker J (as he then was) in Various Claimants v Flintshire County Council 26 July 2000 (unreported): “I accept that it would be the wrong approach to discount any claimant’s damage simply because there was a chance that he or she would have suffered from similar problems in later life even if not abused in the Defendants’ children’s homes. In each case I have paused to consider the question whether it has been proved to the ordinary civil standard that matters other than the abuse have caused or contributed to the claimant’s problems in later life. That is an exercise that I have of course conducted on the whole of the evidence. … I must emphasise that in these cases one is not dealing with certainties as to the cause or causes of the claimants’ problems in later life. It is no more certain that the abuse is a cause than it is that absent the abuse there would nevertheless have been problems of a similar nature. The Court has to do its best in each individual case, after weighing up all the evidence. Given, as I have found in most of these cases, that the claimants’ problems have been caused by other factors as well as the abuse, how is the defendants’ measure of responsibility to be assessed in terms of money? Inevitably the exercise is a very imprecise one. It is unhelpful, and indeed in my view impossible, to express the defendants’ degree of responsibility in percentage terms. … Inevitably I have taken a broad view and done my best to reach a fair conclusion on the whole of the evidence. It is very much a matter of feel”.[49]In C v Flintshire County Council [2001] EWCA Civ 302, an appeal by the defendant against the quantum of damages awarded by Scott Baker J to one of the claimants, the Court of Appeal approved his approach. Giving the leading judgment , Ward LJ said at paragraph 57: “…the judge was, as is conceded, entitled to approach this case with a broad brush, as a jury question, and very much as a matter of feel”.[50]C was one of a number of children in care who had been abused by staff in children’s homes run by the defendant. At the time she went into care, she had already been subjected to various types of abuse and was exhibiting behavioural problems which the defendant alleged would have given rise to continuing psychological damage. At paragraph 67, Buxton LJ addressed this issue. He observed: “[The judge] was also entitled to have well in mind, when attributing the loss between the various conflicting causes involved, that [the claimant] was in the hands of the defendants precisely because of her initial vulnerability, in circumstances where they well knew of that vulnerability … the effect of mistreatment by carers would, or at the very least might, have a multiplying or compounding effect on [the claimant’s] initial vulnerability … this is a case where the usual process of attributing responsibility between various causes to a large extent breaks down, because the initial cause of [the claimant’s] vulnerability is the context in which the defendants have to take particular care. If they did not take that care, in circumstances where it was known and foreseeable what could be the outcome of abuse by persons of trust and in positions of responsibility, then they cannot complain if less weight than otherwise might be the case is given to that original cause. Those considerations therefore entitle – indeed oblige – the judge not to weigh too nicely arguments based on the respective causal effect of the various facts in the history”.[51]Mr Smith submitted that, despite the different circumstances in the present case, the words of Buxton LJ were nevertheless applicable. The claimant was targeted by the first defendant precisely because of his vulnerability and unhappiness at home. The first defendant exploited the situation by encouraging the claimant in behaviour that would not be tolerated at his home, thereby further alienating the claimant from his parents and ensuring his effective isolation. Thus, Mr Smith submitted, I should not attach too much weight to the claimant’s pre-existing problems. Mr Smith contended that, in any event, there was nothing in the evidence to support a finding that the claimant would have suffered from a personality disorder had it not been for the sexual abuse.

Discussion and conclusions on causation

[52]I accept Dr Rix’s unchallenged evidence that the claimant’s PTSD is entirely attributable to the sexual abuse which he suffered. I accept also that the abuse made a material contribution to the development of his personality disorder. However, as I understand Dr Rix’s evidence, the claimant may well have exhibited some features of the disorder (falling short of the “full blown” condition) even had the abuse not occurred. Dr Rix does not specify precisely what features he is referring to. However, it seems to me probable that, at the least, his various problems would have caused him to experience a lack of self-confidence, together with problems with forming and maintaining satisfactory relationships. I am satisfied also that, by reason of the psychiatric history on his mother’s side, he would have been prone to depression, with suicidal ideation on occasion, although to nothing like the extent that has been evident since the abuse. In addition, I find that he would probably have resorted to misusing alcohol (and possibly illegal drugs) on occasion, albeit less frequently and in lesser quantities than has in fact been the case. It is not suggested that his HIV positive status can be attributed directly to the abuse. It must be assumed therefore that he would have suffered inevitable anxiety and distress as a result of the diagnosis and its implications for the future.[53]I have no doubt that one reason why the first defendant targeted the claimant for abuse was the claimant’s obvious vulnerability as a result of the various problems which beset him during early childhood. That made the claimant an ideal subject for “grooming”. I take account of that fact. It does not, however, alter the fact that, even without the subsequent abuse, it is probable that the claimant would have had difficulties, as I have previously described.[54]I also find on a balance of probabilities that, had it not been for his constant truancy from school encouraged by the first defendant and the distress and upheaval caused by the sexual abuse and his abduction, the claimant would, with appropriate support, have been able to address his dyslexia and to gain the necessary educational and/or vocational qualifications to enable him to train as a chef/cook. I find that, at the completion of his education, he would have been able to work in that or some other similar capacity.[55]It is on the basis of those findings that I approach the task of assessing damages. Assessment of damages Damages for pain, suffering and loss of amenity

Assessment of damages

[56]As a starting point, Mr Smith referred to the 2010 JSB Guidelines for the award of damages in cases of psychiatric damage. He suggested that, having regard to the claimant’s various difficulties, the appropriate level of damages in his case would lie within the “severe” category, i.e. £36,000- £76,000. That category is defined as applicable to claimants who have marked problems with coping with life and work and with maintaining personal and social relationships, where the prognosis for the future, even with treatment, is very poor. Mr Smith suggested that the prognosis in the claimant’s case could be described as “poor” since, at best, he will have learned to adjust by middle age. At worst, there will be no improvement at all.[57]The JSB Guidelines provide only limited assistance in cases of sexual abuse. In assessing damages for pain, suffering and loss of amenity in such cases, it is also necessary to take into account, not only the very significant psychiatric effects of the abuse on the claimant, but also the immediate effects of the abuse at the time it was perpetrated.

The nature and period of abuse

[58]The claimant was subjected by the first defendant to very serious sexual abuse over a period (assuming that the incident described at paragraph 6 of this judgment occurred in 2002) in excess of a year. During that time, the claimant was coerced by threats into allowing himself to be hired out for the sexual gratification of adult male clients of the first defendant. Prior to the start of that period of abuse, the claimant had undergone a careful “grooming” process during which he was deliberately exposed to various forms of activity of a sexual nature.[59]The period of very serious abuse culminated in the claimant being “sold” to the second defendant for the use of his clients. The claimant was handed into the second defendant’s control, abandoned by the first defendant and threatened by both men as to what would happen to him if he did not comply with the second defendant’s orders. He was then taken around the country by the second defendant and required to participate in degrading, humiliating and painful sexual activity. Over the week that he was held by the second defendant, he felt powerless to resist or escape. It must have been a terrifying ordeal.[60]The nature of the abuse in this case is different from the usual case of sexual abuse because the claimant was forced into prostitution. The only damages awards involving prostitution that Mr Smith had been able to find were those in the case of AT, NT, ML and AK v Dulghieru [2009] EWHC 225 (QB), a decision of Treacy J. The claimants in that case, all women in their 20s, were Moldovian nationals who were tricked by the defendants into leaving their homeland in the belief that they were to become dancers in London. There is no indication that they had suffered from any psychological problems before they fell into the defendants’ hands. When they arrived (illegally) in London, they were forced to become prostitutes. Their ordeal lasted for about two months, during which time they were forced to service between 30 and 50 clients a day. They received awards of between £82,000 and £125,000 for pain, suffering and loss of amenity.[61]Mr Smith does not contend that the award of general damages in this case should be as high as those in the Dulghieru case. However, he submits that the element of prostitution must have the effect of increasing that part of the award relating to the impact of the abuse itself.[62]Mr Smith also referred to the cases of three of the claimants in the Bryn Alyn litigation (reported at KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441. The case of the claimant, DJ, is the most relevant. His stay in the defendant’s care lasted almost six years, from the ages of nine to fifteen years. From the first, he was sexually abused by two male members of staff. The abuse progressed to anal intercourse. He was offered to friends of one of his abusers as a “sexual plaything” and was given presents and money as a reward. In addition, he was subjected to indiscriminate violence. As a result of the abuse, he suffered delayed chronic PTSD. The trial judge awarded £25,000 by way of damages for pain, suffering and loss of amenity. The Court of Appeal increased that award to £50,000 (the updated figure would be £62,604) to reflect the immediate effects on the claimant at the time of the abuse, and between that time and the onset of his PTSD.[63]Mr Smith argued that, although the duration of the abuse had been longer in DJ’s case than in the present case, the abuse had been less intense and had not involved as many perpetrators. In addition, DJ had been more damaged than the claimant in the present case before the abuse occurred and had already been subjected to sexual abuse, racial abuse and violence. Furthermore, the judge found that DJ’s “constructive manner and positive outlook for the future” meant that his PTSD could not be described as “severe”.[64]Mr Smith contended for an award of £75,000 for pain, suffering and loss of amenity.[65]The nature and extent of sexual abuse in this case was very severe and of comparatively long duration. It is clear that, during the period when the abuse was taking place, the claimant was suffering great distress. He ran away from home and made at least one apparent attempt at suicide. He began to misuse drugs and alcohol. Shortly after his return from the second defendant’s home in Manchester, he made a further suicide attempt. During the seven years since the abuse ended, his level of disability has remained such that he has effectively been unable to carry out ordinary everyday tasks of living. Even now, he requires support to function at all. Effectively he has “lost” his teenage years and youth. The prognosis for the future is not optimistic.[66]Taking into account all these factors, and adopting, as the authorities require, a broad brush approach, I asses the appropriate award of damages for pain, suffering and loss of amenity in the sum of £70,000. In reaching that figure, I take account of the damage that the claimant would have suffered even had the abuse not occurred. I also take account of the issue of aggravated damages which I shall now address.

Aggravated damages

[67]The claimant also seeks an award for aggravated damages to reflect the injury to his feelings, loss of pride and dignity and feelings of anger and resentment caused by the defendants’ treatment of him. Mr Smith submitted that I should award an additional figure of £25,000 under this head.[68]The actions of the defendants – in particular of the first and second defendants – in exploiting the vulnerability and isolation of the claimant by treating him as a chattel, to be bought, sold and used sexually for their own financial gain, had the effect of robbing the claimant of all self-esteem and dignity. Their threats terrified him to the extent that he complied with their orders and even attempted to persuade the police that he had taken to prostitution of his own volition. Moreover, over a substantial period of time, the four defendants denied any improper conduct towards the claimant, thus causing him to face the prospect of recounting the story of his humiliations in a criminal court. It is plain from the medical history that this had a profound effect upon him.[69]I am satisfied that the defendants’ conduct in this case fully warrants the making of an award for aggravated damages. I consider that, in the absence of such an award, the claimant would not be properly compensated. In assessing the amount of the award, I have regard to the principles set out by the Court of Appeal in Rowlands v Chief Constable of the Metropolitan Police [2007] 1WLR 1065. I bear in mind that aggravated damages are intended to be compensatory, not punitive, and that the total of the award for pain, suffering and loss of amenity and aggravated damages should not exceed what would be a fair award to reflect the totality of the claimant’s injuries. I have had firmly in mind the risk of double recovery.[70]Taking into account all the various factors in this case, I consider that an appropriate award of damages under this head would be £20,000.

Expenses incurred by the claimant’s parents

[71]A claim is advanced for financial contributions said to have been made by the claimant’s parents towards his foster placement in late 2003. There is also a claim for travelling expenses said to have been incurred in taking the claimant to and from hospital, visiting him in hospital and collecting him from police stations and Social Services departments when he ran away from home. The total sum claimed is £2,320.[72]No documentary evidence or detailed particulars have been produced in relation to either of these claims and the claim for travelling expenses is unsupported by any evidence at all. Given the lack of material to support the claims, I do not consider it appropriate to make any award under these heads.

Loss of earnings

[73]The claim for loss of earnings is based on the assumption that, having finished his education and vocational training, the claimant would have started work as a trainee chef/cook in April 2006, at the age of 17. It is assumed that, for the first four years of his working life, his earnings would have been on the lowest percentile of average annual earnings for a chef/cook, as reported in the Office for National Statistics Annual Survey of Hours and Earnings (ASHE), Table 14.7a. From April 2010, it is assumed that his earnings would have been on the 40th percentile of average annual earnings, i.e. still relatively low for the industry. Making appropriate adjustments for tax and national insurance, those assumptions produce a figure of £48,859 for past loss of earnings.[74]The proposed course of the claimant’s career but for the abuse, together with the rates of earnings contended for, are in my view entirely realistic. However, given the type of work involved and the claimant’s pre-existing problems, I consider that it is highly unlikely that, even had the abuse not occurred, he would have worked continuously for the last four and a half years. It is quite possible that he might have started work rather later than assumed, e.g. aged 18, rather than 17. He may have moved from job to job, having gaps between periods of employment, and he may have had periods when he was unable to work because of psychological problems or because he could not find suitable employment.[75]I find that, for one reason or another, the claimant would not have been working for about a third of the period in question. In order to reflect that fact, I have reduced the figure for past loss of earnings to the round figure of £30,000.[76]For the future, the claim is based on the assumption that the claimant will, for the next six years, remain unfit for any kind of employment. It is then assumed that he will be able to start work as a chef/cook. His loss of earnings over the next six years is claimed on the 40th percentile of the ASHE average earnings. The total claim under this head is £73,934.[77]I accept the assumptions underlying this claim, which accord with the evidence of Mr Griffiths. Once again, however, I discount the sum claimed to reflect my finding that the claimant would probably not have worked continuously throughout the period. For this period, by which time the claimant would have been older and more used to the working environment, I consider it appropriate to assume that he would have been out of work for about a quarter of the time. Deducting a quarter and rounding up the result gives a figure of £55,000.

Loss of earning capacity

[78]There is a further claim for loss of earning capacity to reflect the fact that, even if the claimant does get back to work in his late 20s, he is likely, as a consequence of the psychological difficulties caused by the abuse, to have periods out of work because of sickness or because of difficulty in holding down or obtaining work. It is contended that it is likely that the claimant will experience a total of three years out of work during the course of his working life in addition to that which he would have experienced in any event. Three years’ loss of earnings on the 40th percentile produces a net figure of £39,774. Giving discount for accelerated receipt, the sum claimed is £30,000.[79]The quantification of this claim is not easy, taking into account all the various uncertainties in this claimant’s case. As I have already indicated, I consider that his working life was likely to have been intermittently interrupted, even had it not been for the effects of the abuse. Nevertheless, one might have expected that, once he attained his 30s, the degree of disruption would have been less than in his early years. The award must take account of the additional interruptions likely to be caused by his continuing psychological problems attributable to the abuse, together with the risk that, contrary to Mr Griffiths’ relatively optimistic prognosis, he will be unable to get back to work at all or will be able to do so for only a short period. In all the circumstances, it does not seem to me that the sum contended for by the claimant is in any way excessive and I therefore make an award in the sum of £30,000 under this head.

Therapy

[80]I accept the need for psychological therapy identified by Dr Rix and am satisfied that, but for the abuse, this would not have been required. The claimant’s Schedule of Loss claims 20 sessions at £135 per session, i.e. the midpoint of Dr Rix’s range for both the number of sessions and the likely cost. That appears an entirely fair approach and I therefore value this claim at £2,700.[81]I also accept Mr Griffiths’ evidence that, if the claimant is to be able to cope with obtaining educational and vocational qualifications and getting into employment, he will need counselling/mentoring to assist him. Allowing, as he suggests, 25 sessions at £70 per session produces a figure of £1,750.

Expenditure on alcohol

[82]The final head of claim is for the claimant’s expenditure on alcohol over and above that which would have been incurred in any event if he had not been abused. Mr Smith invited me to approach the quantification of this head of damage on the basis that, had it not been for the abuse, the claimant would have consumed the recommended maximum weekly number of units of alcohol for an adult male (i.e. 21 per week) whereas, as a result of the effects of the abuse, he has in fact consumed an average of 60 units per week. Assuming that the cost of a unit of alcohol is £1 and the period of excess consumption started immediately after the end of the claimant’s period of abduction, the past loss under this head has been calculated at £14,640. No claim was made for future loss under this head.[83]In support of this somewhat unusual claim, Mr Smith relied on B v London Borough of Ealing & another [2008] EWHC 1262, a decision of His Honour Judge McKenna, sitting as a Deputy Judge of the High Court. Although initially somewhat sceptical of the claim for the cost of excess alcohol said to have been consumed by the claimant as a result of physical and sexual abuse perpetrated on her by the father, Judge McKenna was persuaded to make such an award having been referred to the case of EaglevChambers [2004] EWCA Civ 1033.[84]In Eagle, the claimant had suffered serious brain damage as a result of being knocked down by a car driven by the defendant. She had been a smoker in the past. After her accident, she began to smoke excessively and to waste some of the cigarettes (I assume by lighting, but not smoking, them or by smoking them only partially). At first instance, the judge had awarded a sum for cigarettes wasted in the past but not for the cost of the increased number of cigarettes actually smoked in the past or likely to be smoked in the future. The claimant appealed the judge’s decision on this point. In the Court of Appeal, Waller, LJ, giving the leading judgment said at paragraph 74:
“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. 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.”
[85]He went on at paragraph 75:
“[Counsel for the claimant/appellant] referred us to the evidence of Professor Wood …. as to the consequences of [the claimant’s] head injury. He spoke about her injury restricting her to procedural learning and memory and the consequences of repetitive practice. He then said… ‘Her life revolves around … repetitive smoking because that is the habit she has got into, pulling the cigarettes out of an available packet.’ ”
. Ward LJ went on to observe that Professor Wood’s evidence did not support the submission that it was the claimant’s brain injury which left the claimant no choice but to increase her smoking habit. He therefore declined to reverse the judge’s award.[86]It is clear that any excess consumption of alcohol which may be attributable to the abuse suffered by the claimant would not fulfil the test identified in Eagle. The claimant has not suffered a brain injury which robs him of all choice as to whether or not to smoke. Indeed, it appears that he has a significantly greater degree of choice than the claimant in Eagle. His evidence suggested that he has been able to cut down on his alcohol intake at times, although the psychological difficulties which he suffers make it difficult for him to do so. In the circumstances, I do not consider that the claimant is entitled to an award of damages under this head.

Interest

[87]Mr Smith has calculated interest on general and aggravated damages, at 2% per annum from the date of service of the proceedings, at £4,157.26. Interest on past loss of earnings, at half the special account rate from the commencement of the loss (11 April 2006) is £2,998.

Total award

[88]The award of damages and interest will therefore be as follows: Pain, suffering and loss of amenity £ 70,000.00 Aggravated damages £ 20,000.00 Interest thereon £ 4,157.26 Past losses £ 30,000.00 Interest thereon £ 2,998.00 Future losses £ 89,450.00 The total award of damages is £209,450, together with interest of £7,155.26. I give judgment for the claimant in that sum against the defendants jointly and severally. I also order that the defendants should be jointly and severally liable for the claimant’s costs of the action, to be the subject of detailed assessment if not agreed.

Cited in 2 later judgments