RAR v GGC [2012] EWHC 2338 (QB)

Case No TLQ/11/1460[2012] EWHC 2338 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/08/2012
Before
THE HON. MRS JUSTICE NICOLA DAVIES DBE
Between
RARClaimantGGCDefendant
Mr Justin Levinson (instructed by Irwin Mitchell LLP) for Claimant for The Defendant was not represented and did not attendHearing Hearing dates: 23 July 2012
Judgment
[1]The claimant brings this action for damages and loss arising out of personal injuries suffered by her as a result of the actions of the defendant. The defendant was the step-father of the claimant. In summary, the allegations are that between 1972 and 1977 when the claimant was aged 7 to 12, the defendant physically and sexually assaulted her on many occasions. The assaults included: i) hitting the claimant in the face, splitting her lip; ii) punching the claimant’s head; iii) requiring the claimant to undress; iv) taking indecent photographs of the claimant; v) rubbing his penis against the claimant’s vagina; vi) fondling the claimant’s vagina; and vii) inserting his finger and other objects into the claimant’s vagina.[2]Proceedings were issued on 5 April 2011. The Particulars of Claim were served with the report of Dr Roychowdhury, Consultant Forensic Psychiatrist, dated 23 June 2010.[3]By his Defence, the defendant denies the assaults. He admits his plea of guilty in the Magistrates’ Court in 1978 to one offence of indecently assaulting the claimant but avers that he acted under duress and maintains his innocence. The limitation defence is raised. In the Reply, the claimant admits that the claim was issued beyond the primary limitation period and invites the court to give a direction pursuant to section 33 of the Limitation Act 1980 (“the 1980 Act”), namely that it would be just and equitable to allow the claim to proceed.[4]An anonymity order was made by Master Yoxall on 5 April 2011, that order continues. By an application notice dated 4 July 2012, the defendant applied for the trial of the action to be adjourned on the grounds that he is suffering extreme anxiety and depression. The defendant’s application was dismissed by Tugendhat J on 17 July 2012. At the hearing of this trial, the defendant did not appear, nor was he represented. Solicitors previously acting for him had made an application to come off the record which application was granted with effect from 9 May 2012.

Issues

[5]The principal issues are: i) Should the discretion conferred by section 33 of the 1980 Act be exercised in favour of the claimant? ii) What was the nature and extent of the alleged assaults perpetrated by the defendant upon the claimant? iii) What is the nature and extent of any resultant personal injury and loss? iv) What is the appropriate level of damages? General damages are claimed for pain, suffering and loss of amenity. A claim is also made for aggravated damages, past loss of earnings, future loss of earnings and treatment costs. Limitation Limitation Act 1980 Section 11 - Special time limits for actions in respect of personal injuries (1). This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consists of or includes damages in respect of personal injuries to the plaintiff or any other person … (2). None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies. (3). An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below. (4). Except where subsection (5) below applies, the period applicable is three years from – (a). the date on which the cause of action accrued; or (b). the date of knowledge (if later) of the person injured. ….. Section 33 – Discretionary exclusion of time limit for actions in respect of personal injuries or death. (1). If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a). the provisions of section 11 … or 12 of this Act prejudiced the plaintiff or any person whom he represents; and (b). any decision of the court under this subsection would prejudice the defendant or any person whom he represents; The court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates … (3). In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a). the length of, and the reasons for, the delay on the part of the plaintiff; (b). the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed within section 11 … or ... by section 12; (c). the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d). the duration of any disability of the plaintiff arising after the date of accrual of the cause of action; (e). the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time to giving rise to an action for damages; (f). the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice on the nature of any such advice he may have received.[6]In A v Hoare [2008] UKHL 6, the House of Lords considered the provisions of section 11 and section 33 of the 1980 Act. The result being that all claims for personal injuries, whether based in negligence or assault, are subject to the limitation periods provided for by section 11 of the 1980 Act which itself is subject to the discretion of the court provided by section 33 of the 1980 Act. Accordingly, the primary limitation period for this claimant will have expired on her 21st birthday, namely 30 April 1986.[7]In A v Hoare Lord Hoffmann stated:
“Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act.”[45] “The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”[49] At [86] Lord Browne stated: “Whether or not it will be possible for defendants to investigate these (allegations) sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however a complaint comes out of the blue with no apparent support for it (other perhaps than the alleged abuser has been accused or even convicted of similar abuse in the past), that would be another thing…..”
[8]In Cain v Francis [2009] QB 754 the Court of Appeal considered the provisions of section 33 of the 1980 Act. At [57] Smith LJ stated: “It appears to me that there is now a long line of authority to support the proposition that, in a case where the defendant has had early notice of the claim, the accrual of a limitation defence should be regarded as a windfall and the prospect of its loss, by the exercise of the section 33 discretion, should be regarded as either no prejudice at all (see Firman v Ellis [1978] QB 886) or only a slight degree of prejudice: see Donovan v Gwent Toys Ltd [1990] 1 WLR 472. It is true that, in Thompson v Brown [1981] 1 WLR 744, Lord Diplock said that the accrual of the defence might be regarded as a windfall only where the delay in issuing proceedings was short. However, with great respect, it does not seem to me that the length of the delay can be, of itself, a deciding factor. It is whether the defendant has suffered any evidential or other forensic prejudice which should make the difference.”[57] “It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issue of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused a procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones. 74. Although the delay referred to in section 33(3) is the delay after the expiry of the primary limitation period, it will always be relevant to consider when the defendant knew that a claim was to be made against him and also the opportunities he had to investigate the claim and collect evidence; … if, as here, a defendant has had early notification of a claim and every possibly opportunity to investigate and to collect evidence, some delay after the expiry of three years will have had no prejudicial effect.”[73,74][9]On 13 February 1978 at the Magistrates’ Court in Devizes, the defendant was convicted of indecently assaulting the claimant, a girl under the age of 13 years, namely aged 12 years. The defendant was sentenced to a probation order lasting two years with a special condition as to treatment. It appears that the defendant was prosecuted for a single count and he pleaded guilty. No further details as to the nature of the offence are available.[10]The claimant relies upon the following matters in support of her application for the exercise of the section 33 discretion in her favour: i) The defendant has been convicted of a sexual assault upon her; ii) The report of Dr Roychowdhury states:
“In the years following the ending of the abuse of the abused and up to 1986, there is good evidence that [the claimant] was suffering from the emotional effects of the abuse, leading to a presentation that would have made it very difficult for her to have progressed with the claim on the basis that her general presentation was chaotic and then subsequently depressed.”
In the period which followed, Dr Roychowdhury charts the progress, or lack of it, of the claimant. Between 1986 and 2007 the condition of the claimant fluctuated, there were periods of relative stability and periods of psychiatric disturbance which, on occasion, required hospital admission. Dr Roychowdhury comments: “… during the course of her psychiatric admissions all through the time up to 2007, the level of mood and stability, self-harming and chaotic behaviour would not have made it viable or practical for her to have been in the state of mind to make a civil claim … In addition, there is strong evidence that [the claimant] has continued to find discussing details of the trauma significantly distressing … This emotional distress on reminders of the trauma is a feature of PTSD and would be an inhibiting factor in [the claimant] being able to pursue a claim. This is because the claim would inevitably involve detailed analysis of the traumatic event itself, something that [the claimant] would anticipate finding distress and would thus tend to avoid.” iii) On behalf of the claimant it is said that it is understandable that civil claims arising out of allegations of sexual abuse perpetrated by someone in the position of the defendant against a child may take an uncertain period of time to be made. It would be inequitable for the defendant to benefit from a limitation defence which arose only by reason of the particular nature and circumstances of the wrongs perpetrated; iv) It was not until the decision of A v Hoare which reversed the decision of the House of Lords in Stubbings v Webb [1993] AC 498 that it was possible to bring a claim invoking the provisions of section 33 of the 1980 Act; v) The prejudice to the claimant in not allowing the claim to proceed would be significant as her claim would be totally extinguished. The prejudice to the defendant in losing his limitation defence is not the relevant prejudice to be considered, Cain v Francis above. The court must consider whether or not the defendant’s ability to investigate/defend the case has been materially affected. The claimant contends that it has not been materially affected for the following reasons: a) the delay has had no significant effect upon the defendant’s ability to defend the claim as the factual dispute is narrow and the defendant was afforded an opportunity to investigate his defence at the time of the criminal offence; b) considerable evidence remains available. The only witnesses to the sexual assaults are the claimant and the defendant. There is no suggestion that the defendant no longer recalls these events. vi) The claimant contends that it is fair and just in all the circumstances for the defendant to meet this claim on the merits. The claimant has understandable reasons for the delay which are attributable to the matters complained of. The evidence remains sufficiently cogent for there to be a fair trial.

Conclusions

[11]I am satisfied that it would be fair and just to invoke the discretion afforded to the court by section 33 of the 1980 Act and permit this trial to proceed. I do so for the following reasons: i) Having read the lengthy report of Dr Roychowdhury, it is clear that as a result of the abuse perpetrated upon her, the mental health of the claimant has been adversely affected. It has fluctuated over the years, at its worst, it has entailed compulsory hospitalisation. I find that the mental health of the claimant played a real part in the delay which has occurred in the bringing of the civil claim. I accept that the nature of the matters to be explored in this case are of themselves a deterrent for a person in the position of the claimant in bringing such a claim. ii) In 1977/1978 the defendant had cause to consider allegations of sexual assault upon the claimant by reason of the criminal proceedings. That he did so, and that his memory remains to this day, is evidenced by the detailed witness statement which the defendant has filed in these proceedings. iii) This case depends upon the evidence of two people, the claimant and the defendant. Although the claimant will find it distressing to give evidence, the detail contained in her witness statement demonstrates that she is able to remember and articulate her memories, however unpleasant. There is nothing in the witness statement of the defendant which demonstrates any difficulty on his part remembering the detail of relevant periods. The evidence of both parties remains sufficiently cogent to enable a fair trial to take place.

Liability

[12]The claimant provided a witness statement dated 11 October 2011, the defendant provided a witness statement dated 31 October 2011. The claimant also gave evidence to the court. Claimant’s evidence: Witness statement Physical abuse

Claimant’s evidence: Witness statement

[13]The claimant was aged 7 when her mother began a relationship with the defendant. Following their marriage, the claimant lived with them. Within a few weeks of the wedding, the defendant began physically and sexually abusing the claimant. The physical abuse came first. It included hitting and slapping her face, causing black eyes and bruising, punching to the back of her head, hitting the claimant on her body, bending the claimant over the sofa and beating her naked legs and buttocks with his hand or a leather slipper causing bruising. As a result of the claimant’s mother’s shift work, the claimant would often be left in the care of the defendant. She described him as a cruel man who would cook her dinner and then make her eat it standing up. On occasion he would smother her food with pepper or make the claimant eat a Spanish onion before her food. If the defendant thought the claimant was not eating her food properly, he would hit her with cutlery across the knuckles until they bled. The defendant also beat the claimant’s mother, he would beat each female in front of the other. On one occasion, fearful of repercussions by the defendant, the claimant drank watered down bleach which caused her to vomit.

Sexual abuse

[14]This commenced within two to three months of the wedding. When alone with the defendant, he would make the claimant strip, he would take photographs of her when she was naked and make her touch herself. The abuse escalated. The claimant recalled waking up in the night to find the defendant on top of her in bed, her nightdress had been pulled up and his hands were between her legs. On another occasion, she woke to find him straddling her, he pulled down his underwear, he put his penis against her vagina and started rubbing up against her. The claimant pretended to be asleep but tried to roll over and close her legs, the defendant was aware that the claimant was not asleep but he stopped and left. On another occasion, the defendant came into her bedroom and carried her into the bed between himself and the claimant’s mother. Under the covers he tried to put her hand on his penis, the claimant would remove it, eventually her mother sprang up, turned the light on and told the claimant to go back to her bedroom.[15]The sexual and physical assaults were initially spontaneous events, gradually they became more planned and calculated. The defendant would come into the bathroom with the claimant, he would watch her shower and would use a nail brush to scrub her between her legs. The sexual assaults would usually occur on the sitting room floor or sofa. The defendant would make the claimant undress, he would then touch her, contorting her body into different positions, he would lay her across his legs and rub her vagina. He would ask her “Why is this swollen? Do you like this? You like this don’t you”. The claimant said nothing, she did not understand and was frightened.[16]The assaults became more invasive. One night the defendant called the claimant into the sitting room, stripped her and sat her on the sofa with her legs apart. The defendant turned her upside down and began examining her vagina and anus, he then inserted his finger and other objects into her vagina. After this had occurred, the claimant saw an empty biro, pipe cleaners and some kind of tubing on the sofa next to the defendant. The incident went on for over an hour. The claimant said this was the worst incident.[17]Throughout the five years of abuse, the defendant threatened the claimant that if she did not comply, she would be sent to a children’s home. It was the claimant’s belief that as her mother was also scared of the defendant, she would have gone along with his demand. The claimant said she could not tell anyone. Eventually, she told a school friend and it was this friend who physically dragged the claimant to a teacher, the claimant broke down and told the teacher. The head teacher called the claimant’s mother to school. The claimant’s mother asked the claimant if the allegations were true, she said they were. The claimant was interviewed by police officers but did not tell them the full extent of the abuse, not least because her mother was in the room when she was being asked to recall these matters. Following disclosure, the claimant’s mother moved herself and the claimant to her grandparents’ house. They did not talk about what had happened to the claimant. The claimant did not learn of the police investigation and prosecution until years later.

The claimant’s oral evidence

[18]The claimant said that the abuse would occur between four to eight times a month. It made her feel awful about herself. It would not have occurred to her that she had the right to do anything about it. Of her own initiative the claimant contacted the police in 1993 to find out the outcome of the police investigation, she got nowhere. She was unaware of the possibility of a civil action. In 2008/2009 the claimant read about other cases. As a result, she went to a solicitor who told her she had no chance of success. At a later date she sought advice from her present solicitors who pursued the claim for her. It was also during this time that the claimant was receiving treatment from Mr Reading, a psychotherapist, which better enabled her to confront what had occurred in the past.[19]I asked the claimant if there was any truth in the allegations made by the defendant regarding abuse from a male member of her mother’s family. The claimant said that the male was four years older than herself, their relationship was that of brother and sister. There had been one incident involving sexual play but there was nothing in it which affected her. She denied the defendant’s allegations. I also asked her about passages in previous medical records where she may have exaggerated allegations of sexual abuse. The claimant readily admitted that she may have exaggerated what had taken place in order to obtain understanding from those listening to her. There had never been full sexual intercourse with the defendant, there had been penetration but not with the penis.[20]As to her present circumstances, the claimant said she was still not working and at present was receiving only medication but no active treatment. She said she had not received treatment in the form of psychotherapy or counselling for some 18 months and thought it might be of some help to her now.

The defendant’s evidence

[21]The defendant denies abusing the claimant. He records that as a result of childhood pressures, he had a breakdown when aged 16. He was able to continue his education and worked in the civil service in a responsible position for the entirety of his working career. The defendant met the claimant’s mother as a result of her work, he details their meeting, pre-marital relationship, their financial circumstances and the purchase of the marital home. The defendant provides detail as to the family of the claimant’s mother. It is clear from his statement that the defendant regards the claimant’s maternal grandmother as being a strong individual who, he believes, influenced the claimant against the defendant. The defendant alleges that an uncle of the claimant, who was close to her in age, sexually assaulted her. He states that the claimant told him of this and he found explicit drawings in the claimant’s room which she said had been done by this person. It was the view of the defendant and the claimant’s mother that something had been going on between this male and the claimant when she was aged 5 to 9. Specifically, it involved the male placing his penis to the claimant’s “private parts” and using the contact “to masturbate to climax on her.” The defendant states that both he and the claimant’s mother tackled family members on these matters but their complaints were not taken seriously.[22]In considerable detail, the defendant describes his work and professional qualifications during the years of his relationship and marriage with the claimant’s mother. Of the claimant he said that she was a child who would have to be watched over homework and to keep her bedroom tidy as it was often a mess. He said it got to the point where he was giving up as “It was obvious the influence she had from living with her grandmother and dysfunctional family for 8 years before me, and the obvious control and influence on her since, was beyond my means to do anything about. When with her maternal family it was obvious she spent a lot of time in what seemed secret plotting with her uncle (name of male) and others and in an atmosphere of no adult control.”[23]The defendant deals with what are described as the “27th November 1977 allegations”. He learnt of them from the claimant’s mother who told him that the school had telephoned her to say there was a problem. Later the claimant’s mother told the defendant that the claimant had accused him of “fondling” her. The following day, the claimant’s mother told the defendant she was moving out. Within a day or so two CID officers came to the home of the defendant, he was not cautioned and states that their questioning of him was “under severe duress.” He was denied a solicitor and the police officers continued to exert further pressure. The defendant told them of the sexual abuse which the claimant had suffered over a long period from her uncle but the police chose not to do anything about it nor did they want to know anything about the control and influence others had over the claimant and the many attempts of those individuals to break his marriage. The defendant states:
“My interrogation continued for many hours and eventually I was brow beaten into saying exactly what THEY wanted me to say as I could not take any more mental torture.”
[24]In February 1978, the defendant agreed to plead guilty to the alleged abuse to save the claimant from giving evidence. At the hearing, the defendant’s employers provided him with legal assistance. He said he was led to believe he was pleading guilty to a minor charge. In his statement, the defendant says:
“It would have meant she and I would have had to give evidence about the abuse in the past from (the uncle).”
[25]The defendant states that he was told that the claimant had complained of only one incident, of him touching her. That was an occasion when she was complaining of stomach pains and so he touched her stomach. The defendant denies fondling the claimant on any occasion and states that at all times he had her best interests at heart. Until the accusation, he believed he had a good relationship with her.[26]The defendant comments upon the report of Dr Roychowdhury. He also details an incident which is contained in the claimant’s witness statement. In 1984 he was attending a function in a nightclub. He was approached by a tall, slim female in her late teens who said to him “You do not know who I am do you?” to which he replied “No”. At that point, the female struck him hard on his face. She told him she was the claimant and hit him hard a second time and attempted a third time. The defendant states that the claimant went on about the fact that she had no money and demanded money from him saying that he owed her and that he should finance her. He described her behaviour as being very violent and extremely loud and abusive. He said that the claimant did not seem drunk.

The defendant’s conviction

[27]An extract from the Register of the Magistrates’ Court records that on 26 November 1977, the defendant pleaded guilty to the indecent assault of the claimant, a girl under the age of 13 years, namely 12 years. The claimant would have been 12 between April 1977 and April 1978. It follows that the conviction related to recent events. No further information is available as to this conviction, no assistance can be derived from the sentence passed by the court.[28]Section 11(2) Civil Evidence Act 1968 provides:
“In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom … (a) He shall be taken to have committed that offence unless the contrary is proved …”
In McCauley v Vine [1999] 1 WLR 1977 at [1981G] Sir Patrick Russell in considering section 11 stated:
“The closing words of that section “unless the contrary is proved” provides in my judgment, the clearest possible mandate to a defendant in a road traffic accident case to attack his earlier conviction provided he has some good force for so doing and can discharge the burden of proof to a civil standard that the section imposes upon him.”
[29]The defendant, in his Defence and in his witness statement, maintains his innocence and pleads duress. The defendant was provided with legal assistance in the Magistrates’ Court. His reason for pleading guilty relates to sparing the claimant the ordeal of giving evidence, this does not constitute duress. The defendant has provided no evidence of duress such as to provide a safe evidential basis for discharging the burden of proof upon him in respect of this conviction. Accordingly and pursuant to section 11(2) Civil Evidence Act 1968 by reason of the defendant’s conviction, he shall be taken to have committed the offence. Of that offence, the claimant submits that it demonstrates a propensity on the part of the defendant to behave in this manner which supports the claimant’s evidence.

Assessment of the evidence

[30]The claimant gave her evidence in a straightforward manner. She admitted exaggerating her account of abuse on two occasions to health care professionals. She volunteered that previous solicitors had told her she had no chance of success upon her claim. I found her account of attempting to obtain details of the police investigation particularly convincing. In the giving of her evidence to the court, I had no sense that the claimant was attempting to exaggerate what had occurred, nor to overstate her own mental health difficulties. In assessing the credibility of the claimant I bear in mind that she was not cross-examined upon her account save for some questions from the court.[31]On behalf of the claimant the following points are made: i) The defendant’s conviction demonstrates a sexual interest in the claimant upon which he acted; ii) The defendant has lied in maintaining that he did not commit the criminal offence; iii) The claimant is of good character, there is no issue as to her credibility; iv) The claimant made a contemporaneous complaint to a school friend; v) The claimant in 1984, 1988 and 2006 made reference to the abuse which she had suffered when speaking to health care professionals; vi) The lack of embellishment in the claimant’s evidence both written and oral; vii) Motive. On the defendant’s account, he had a good relationship with the claimant, it follows that she had no reason to make these allegations. Uncontested by the claimant and the defendant is that she approached the defendant years later in a nightclub and proceeded to assault him. The claimant’s explanation being that of a deep seated grievance against the defendant.[32]I regard the seven points set out in paragraph 31 as being well made. I reject the contention of the defendant that a male member of the claimant’s family was responsible for sexual abuse of the claimant. I accept the claimant’s evidence upon this issue. Further, her oral evidence and the evidence contained in the witness statement of the claimant, have a consistency which is reflected in the accounts contained in the medical records which span many years. Having heard the claimant and considered her witness statement, I accept her account of the abuse which she says she suffered as a result of the actions of the defendant. Accordingly, I am satisfied that the claimant has made out her case as to the physical and sexual abuse which she suffered over a period of five years for which the defendant alone was responsible. Damages Expert Evidence[33]The claimant relies upon the report of Dr Roychowdhury dated 23 June 2010 and a skin camouflage report of Rowena Wilson dated 10 October 2011. The report of Dr Roychowdhury is 102 pages in length. It details the family, personal, employment, and medical history of the claimant, her allegations of abuse and includes Dr Roychowdhury’s assessment of the claimant based upon a consultation on 23 June 2010. The report records that the claimant is currently under the care of her GP. Until October 2009 she was receiving treatment from Mr Reading, a registered psychotherapist. In October 2007 the claimant was discharged from the care of a psychiatrist into the care of a local community mental health team. The claimant is recorded as taking anti-psychotic medication to be used on an as required basis.

Past psychiatric history

[34]Following disclosure of her abuse, the police recommended that the claimant see a counsellor but her mother said it was unnecessary. When aged 15, the claimant asked to see a school psychologist because of problems with truancy, she saw the psychologist for a few sessions but there was no discussion of the abuse. In retrospect, the claimant says she felt very depressed as a teenager and had problems with mood swings. In 1984 when the claimant was 19, the incident in the night club occurred when she saw her step-father with another woman. The claimant reported getting drunk, confronting the defendant, slapping him in the face and telling him that he had ruined her life. Following this episode, the claimant saw a psychiatrist and was prescribed anti-depressant medication for about six months. The psychiatrist who saw the claimant in 1984 was told by the claimant of the sexual abuse, it was his assessment that the claimant was “very troubled mentally and emotionally … depressed with very low self esteem … and potentially suicidal”. It is clear that around this period, the claimant began to drink heavily.[35]Between the ages of 21 and 28 the claimant lived in Crete, her grandparents had taken up residence on the island. She returned to the UK. In March 1998, the claimant’s GP referred her to a Consultant Psychiatrist at the local mental health unit. On 23 March 1998, the psychiatrist saw the claimant on an urgent domiciliary visit and subsequently recorded that she had been to hospital on the previous day having cut her wrist, she had since taken an overdose of tablets. The claimant’s depressive symptoms over the past three years were described as having been “worse”, her alcohol consumption had increased, she was demonstrating erratic and irritable behaviour. The claimant’s dysphonic mood swings and self harming behaviour were regarded as being rooted in the abuse. The psychiatrist thought there was an ongoing risk of self harm and possibly suicide. The claimant subsequently accepted hospital admissions based upon her alcohol dependency, depressive illness and chronic sequelae of childhood abuse. Further self harm occurred.[36]Between September 1998 and May 2001 the claimant was out of contact with primary care and secondary psychiatric services. During this period she worked for Eurostar and achieved promotion. In December 2001, she presented at the A & E department of a hospital with a self inflicted lacerated forearm. Fifteen days later she presented with a suspected overdose. The claimant was seen in the outpatient psychiatric clinic, she presented with eight weeks of increasing depression, alcohol was a problem, two attempted overdoses are recorded. The claimant was admitted as a voluntary patient under the care of the psychiatrist between 28 December 2001 and 7 March 2002. The discharge summary noted her diagnosis as being recurrent depressive episode.[37]In April 2002, the claimant presented to the A & E department with an overdose of lithium, alcohol and chlorpromazine. Fourteen days later, she re-presented with lacerations to her legs and arms. The claimant remained under the care of the community mental health team and received weekly counselling sessions. In October 2002, the claimant took an overdose of lithium. Her psychiatrist identified two aspects to her mental health: borderline symptoms of chronic PTSD described as the main driving force behind the claimant’s suicidal ideation and clinical depression of fluctuating severity.[38]Care and review continued. Between December 2002 and April 2003, the claimant was admitted to hospital initially under section 2 and thereafter section 3 of the Mental Health Act 1983. The diagnosis on discharge being that of borderline personality disorder and moderately depressive episodes with alcohol misuse. The self harming had continued throughout the period of hospitalisation. A serious attempt at suicide took place. In May 2003 her treating psychiatrist wrote:
“(The claimant) suffers from a recurrent depressive illness which is best understood in the context of an associate complex Post Traumatic Stress Disorder relating to issues of childhood abuse which leaves her prone to depressive mood swings, chronic feelings of emptiness, thoughts of self harm and suicide and impulsive self harm behaviour. Within this she has also a tendency to excessive binge drinking, without the features of a dependent syndrome, which complicates the clinical picture and often precedes impulsive self harm behaviour.”
[39]In 2003 there were further admissions to hospital. By March 2004, Mr Reading was seeing the claimant on a weekly basis. It is clear from Dr Roychowdhury’s report and the evidence of the claimant that the psychotherapy which she received from Mr Reading was of real benefit to her. The care continued, resulting in improvement in her condition. In 2005 an episode of self harm is recorded, the drinking continued. In January 2006, the claimant took an overdose of paracetamol and zopiclone, she was admitted to hospital and when there self harmed. Hand written notes document that she left a suicide note which stated:
“Nobody 2 blame for this except (name of defendant)”
[40]Following discharge, the claimant received intensive input from the crisis assessment and treatment team. In February 2006 the claimant took an overdose of chlorpromazine tablets. She described feeling low in mood with erratic sleeping due to recurrent nightmares and flashbacks. Care by Mr Reading and the psychiatric team continued, no appreciable improvement was noted.[41]By October 2007, when the claimant was seen by her psychiatrist and psychotherapist for review, it was noted that she had made good progress over the previous six months with no episodes of self harm for about a year, occasional alcohol use only and generally coping better. In October 2008 the claimant took an overdose of chlorpromazine and made a number of superficial cuts to her forearms. In June 2009 Mr Reading saw the claimant, she wrote to him saying she did not want to meet for any further sessions. They had a final meeting in September 2009 when Mr Reading described the claimant as presenting very well, using alcohol regularly with no difficulty in moderating her consumption. She had registered to resume an Open University course, she was not experiencing any impulses to self harm nor to commit suicide. As Mr Reading was retiring, he decided to close her case. Since that time, the claimant has been under follow up care by primary care services and there has been no input from the local alcohol or secondary mental health services.[42]When seen by Dr Roychowdhury, the claimant did not present with evidence of current psychotic experiences, she described a number of ongoing mental health symptoms but no active suicidal intent. The doctor noted scarring on parts of her arms, chest and neck area. Dr Roychowdhury diagnosed symptoms of Post Traumatic Stress Disorder: nightmares; intrusive memories and thoughts; anger in relation to past abuse. Dr Roychowdhury also identified an emotionally unstable Personality Disorder of borderline type exhibited by mood swings, self harm, use of alcohol, inability to conduct relationships, suicidal threats. It was the opinion of the doctor that the claimant has suffered from a recurrent depressive disorder and exhibited symptoms of clinical depression. She has also displayed symptoms of an alcohol dependency syndrome.[43]The claimant’s childhood abuse was identified as a significant and major cause of the development of her borderline Personality Disorder and was central to the causation of her Post Traumatic Stress Disorder. It is Dr Roychowdhury’s opinion that the abuse and subsequent mental disorders have impacted upon the claimant’s ability to work and form relationships. As to prognosis, the claimant has a number of chronic mental health symptoms which distress her and impact on her functioning. Without further treatment, the symptoms are likely to continue in some form over the next months and years. The natural history of borderline Personality Disorder and PTSD is that symptoms will lessen over time. The natural history of recurrent depressive disorder is that the claimant will remain prone to further episodes of clinical depression in response to life stresses. It is likely that she will have further episodes of depression.

Scarring

[44]Photographs of the claimant demonstrate extensive scarring on the front of her thighs extending to her knees, the backs of her calves, her arms and abdomen. The report of Dr Roychowdhury refers to scarring of her neck and chest. The report of Ms Wilson details the use and cost of products which provide coverage and camouflage for such scarring. In her report Ms Wilson describes the scars as being mature which means that they are unlikely to fade. Scarring upon the claimant’s neck and chest is described as minor. General

Damages

[45]The authorities of AT, NT, ML, AK v Dulghieru [2009] EWHC 225 (QB), ABB and others v Milton Keynes Council [2011] EWHC 2745 (QB), EB v Haughton [2011] EWHC 279 (QB), Re: B (1998) CICB were before the court. The authorities were of assistance but a case such as the claimant’s is dependent upon its own facts. I assess damages on the basis of five years of physical and sexual abuse, occurring four to eight times a month. As a result of the abuse the claimant developed and has continued to suffer serious mental health problems. I accept the diagnoses of Dr Roychowdhury. The effect upon the claimant’s personal and professional life is well documented. It is not an overstatement to describe the abuse as having had a devastating effect upon the life of this woman. In addition to the psychological sequelae there is the history of self harm with resultant scarring. The claimant, unsurprisingly, is sensitive as to the appearance of the scars. In assessing general damages, I take account of the period of time over which the abuse took place, the resultant mental health problems, the effect of these upon the life of the claimant, her prognosis has improved but no one can be confident as to the future. The sum I award is £60,000. Further, there is the physical element of the scarring. The scarring is visible and mature. My figure for this aspect of general damage is £10,000. The total award for general damages is £70,000.

Aggravated damages

[46]A claim is made for aggravated damages. It is submitted that general damages would be insufficient to reflect the deliberate nature of the assaults, performed in a cruel manner calculated to compound the nature of the assault. For this young and vulnerable claimant there was no escape, the assaults took place in her home. The claimant was told that if she did not co-operate, she would be sent to a children’s home. The photographing of her was particularly humiliating and caused distress.[47]In addition to the authorities cited, the case of BJM v Eyre and others [2010] EWHC 2856 (QB) was relied upon by the claimant. On behalf of the claimant, it is contended that an award of £10,000 would be appropriate. Given the cruel and humiliating nature of these assaults, coupled with the threats to the claimant, an award of aggravated damages is appropriate and would not represent double recovery. The figure of £10,000 is realistic, I make an award in that sum.

Past loss of earnings

[48]It is the claimant’s case that as a result of the abuse, her school work began to suffer, eventually she played truant from school, the claimant underachieved academically. She did not pursue any further post graduate qualifications or employment between the ages of 16 to 21. Between 21 to 28, she lived and worked in Crete, no loss is claimed for this period. Upon the claimant’s return to the UK in 1993, she began working in a factory and attended a college access course in order to gain university entrance. However, due to her psychiatric injuries, the claimant was unable to complete the course. Between 1998 and 2003, the claimant worked for Eurostar. Since April 2003, she has applied for numerous positions but due to her psychiatric condition, has been unable to pursue opportunities. Some limited work in a shop took place but has ended. At present, the claimant is not working.[49]The claimant claims past loss of earning from March 1993 to the present, credit is given for all periods of her employment. It is the claimant’s case that but for the abuse she would have continued in education post A levels, undertaking a degree course. The sum of £190,703.39 is claimed. I regard the figures as reasonable and award the sum claimed. Future losses Loss of earnings

Future losses

[50]I commend the realistic approach taken on behalf of the claimant. What is contemplated is that with treatment the claimant could return to some form of part time work, consequently, a claim for future loss of earnings based on three years’ loss of earnings at her pre-injury net earnings of £20,731.30 per annum is made. I award the sum of £62, 193.90 for future loss of earnings. Future treatment Psychotherapy

Future treatment

[51]In his report, Dr Roychowdhury states that the claimant will benefit from psychological therapy sessions, the period being years rather than months. He states that she will need a significant number of sessions commencing with twelve to sixteen with further sessions thereafter depending on treatment targets. A claim for sixteen sessions together with travelling costs is made. I regard that as reasonable, the sum awarded under this head being £2,800.

Skin care

[52]The cost of skin camouflage initially seemed to me to be high. It is the claimant’s case that she is conscious of the scarring, in particular on her arms and this would become more acute with her wish to return to work. There is force in that argument. I award the sum of £23,942.80 for this head of damages.

Interest

[53]Mr Levinson has calculated interest on general and aggravated damages at the rate of 2% from the date of issue of the Claim Form, namely 5 April 2011. The period is 493 days and the interest is £2,161.10. He has applied the full special account rate to past losses but for half the period as the losses were spread throughout the period. The total is £108, 233.71.

Total award

[54]The award of damages and interest is: Pain, suffering and loss of amenity £70,000.00 Aggravated damages £10,000.00 Interest thereon £2,161.10 Past loss of earnings £190,703.39 Interest thereon £108,233.71 Future loss of earnings £62,193.90 Future treatment £26,742.80 The total award of damages is £359,640.09 together with interest of £110,394.81.[55]Judgment for the claimant is given in the sum of £470,034.90.

Cited in 3 later judgments