LXA & Anor v Willcox [2018] EWHC 2256 (QB)

[2018] EWHC 2256 (QB)Case No HQ16P04461
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 August 2018
Before
HIS HONOUR JUDGE ROBINSON sitting as a Judge of the High Court
Between
(1) LXAClaimants(2) BXLClaimant(1) Mrs Cynthia Willcox as Personal Representative of the Estate of Edward Willcox, Deceased;Defendants(2) Mrs Cynthia WillcoxDefendant
Justin Levinson (instructed by Bolt, Burdon, Kemp) for ClaimantsThere was no representation or appearance by or for DefendantsHearing Hearing dates: 11 & 12 June, 22 August 2018
JudgmentHis Honour Judge Robinson:Introduction
[1]The Claimants are brother and sister respectively. An order protecting their identities has been made in this case for reasons which will shortly become obvious. LXA was born on [a date in] 1964. He is now aged 54. BXL was born on [a date in] 1965. At the time of the hearing of this trial she was approaching her 53rd birthday.[2]On 24 April 1970 the Claimants, who had effectively been abandoned by their natural parents, were placed with Mr Edward Willcox and his wife Mrs Cynthia Willcox. The Claimants were adopted by them on 9 December 1971.[3]LXA left the Willcox home on 30 August 1978 when he was admitted into the care of the local authority. BXL left the home when she was around the age of 16, towards the end of 1981 or beginning of 1982.[4]In May 2015, Mr Edward Willcox and his wife Mrs Cynthia Willcox stood trial at Southampton Crown Court.[5]On 28 May 2015 a jury returned guilty verdicts against Mr Willcox for offences of indecent assault, indecency with a male child and child cruelty. His victims were the Claimants. He was sentenced to four years imprisonment.[6]On the same day, the same jury returned guilty verdicts against Mrs Cynthia Willcox for offences of child cruelty against the Claimants. She was sentenced to 12 months imprisonment.[7]According to the indictment, the offences against LXA were committed between 24 April 1970 and 21 August 1978, when LXA was aged between 6 and 14. The offences against BXL were committed mainly between 22 July 1974 and 22 July 1981, when BXL was aged between 9 and 16. Count 14 of the indictment, dealing with child cruelty specifies a start date of 24 April 1970.[8]By these proceedings the Claimants claim damages for personal injuries and other losses arising out of the sexual and physical abuse they suffered at the hands of their adoptive parents.

The Parties and this Trial

[9]Mr Willcox died on 10 July 2017, a few days after being released from prison. The claim continues against his estate. The Personal Representative of the estate is his widow, Mrs Willcox, who has been substituted as First Defendant. Henceforth I shall refer to Mr Willcox as EW and to Mrs Willcox as CW, and collectively as the Defendants.[10]The Defendants were initially represented by solicitors. By notice of change of legal representative dated 9 January 2018 CW gave notice that her solicitor had ceased to represent her and the estate of EW and she would act as a litigant in person.[11]She wrote to the Court on 7 May 2018. She said that she could not afford legal representation, which explains the notice of change of legal representative. She also said that she did not intend to attend the trial, but asked that her witness statement and arguments set out in the Counter-Schedules of loss be taken into account.[12]In the absence of CW, an interesting and important issue arises concerning the applicability of CPR 3.1A, which deals with the manner in which Judges accommodate the special needs of unrepresented litigants. It is necessary to start with CPR 39.3: “Failure to attend the trial 39.3 -(1) The court may proceed with a trial in the absence of a party but- (a) if no party attends the trial, it may strike out the whole of the proceedings; (b) if the claimant does not attend. It may strike out his claim and any defence to counterclaim; and (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).(2) …(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.(4) …(5) …” (a) if no party attends the trial, it may strike out the whole of the proceedings; (b) if the claimant does not attend. It may strike out his claim and any defence to counterclaim; and (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).[13]In this case there was no question of striking out the Defence since this would have taken matters no further. The Claimants’ cases on liability are overwhelming on account of the convictions mentioned above, and the claims for damages must still be proved. Thus, there must still be a hearing, albeit in the absence of CW. What, then of CPR 3.1A? So far as is relevant to the present circumstances, CPR 3.1A reads:
“Case management - unrepresented parties 3.1A – (1) This rule applies in any proceedings where at least one party is unrepresented. (2) [Case management] (3) [Case management] (4) The court must adopt such procedure at any hearing as it considers appropriate to the overriding objective. (5) At any hearing where the court is taking evidence this may include – (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and (b) putting or causing to be put, to the witness such questions as appear to the court to be proper.” (a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and (b) putting or causing to be put, to the witness such questions as appear to the court to be proper.”
[14]Whilst it seems to me likely that it was envisaged that the unrepresented party would be present for the purpose of paragraph (5), it does not seem to me that the rule is so limited. The obligation of a Judge is to further the overriding objective, which is to deal with cases “justly and at proportionate cost” – see CPR 1.1(1). This includes “so far as practicable – (a) ensuring that the parties are on an equal footing” – see CPR 1.1(2)(a). In my judgment, these provisions taken together result in CPR 3.1A (5) being engaged even when the unrepresented party is not present.[15]Of course, there must be sensible limits to what a Judge can or should do. The Judge must be astute to avoid descending into the forensic arena in such a manner or to such an extent that it might appear that he has abandoned his role as an impartial arbiter. On the other hand, in seeking to put to the Claimants and their witnesses the matters properly raised by the unrepresented absent Defendants, there is little point in doing so in such a manner that the exercise is of little or no forensic value.[16]For an excellent analysis of the difficulties which arise in seeking to achieve and maintain this delicate balance see the appeal judgment of Hayden J in the family case of PS v BP [2018] EWHC 1987 (Fam). The facts of that case are very different to those in the case before me, and the unrepresented party was in fact present. However, the trial Judge undertook the task of putting questions on behalf of the unrepresented party. The manner in which he did so gave rise to the appeal. It is of relevance that Section 31G(6) of the Matrimonial and Family Proceedings Act 1984 is drawn in materially identical terms to CPR 3.1A(5), and regardless of the nature of the case, there ought to be no difference in the manner in which a Judge discharges his obligation to unrepresented parties. Hayden J also made valuable observations intended to assist Judges and legal professionals. Whilst they are expressly directed to issues likely to arise in certain family cases, it seems to me that they are likely to be of real value in civil cases where sexual abuse is alleged.[17]In my judgment, even where the unrepresented party is not present, but where it is clear the unrepresented party has indicated matters which are of concern to that party, it is proper for a Judge to explore those matters with relevant witnesses for the represented party. In this case there are relevant matters which have been raised in the Counter-Schedules of loss, the witness statement of CW and also in the letter written by her to the Court.[18]In one sense, it may be thought that these observations do not go any further than the right of a Judge to seek clarification of matters adduced in evidence by a Claimant in a case where the Defendant has not attended, whether represented or not. The Claimant still has to prove his case to the satisfaction of the Judge. However, there will be cases, of which this is one, where there are matters raised by the unrepresented party which go beyond matters of clarification which it would be proper for the Judge to explore on behalf of the absent unrepresented party. This is what I have attempted to do in this case, in a manner intended to achieve and maintain the delicate balance to which I have already referred.

The Evidence

[19]I read the witness statements of the Claimants and heard oral evidence from them. I also read the statement and heard oral evidence from BXL’s husband. I read the medical reports of Dr Leon Rozewicz, consultant psychiatrist, together with the Part 35 questions and replies.[20]I have also considered the Schedules and Counter-Schedules of loss.[21]On behalf of the Defendants I have read the witness statement of CW together with the attached documents and the Counter-Schedules of loss, and her letter to the court referred to above.[22]I have also had regard to various documents within the bundles to which reference has been made.[23]In making findings of fact I have had regard to all of the evidence to which I have referred.

The Convictions

[24]The final trial indictment contained 15 counts. EW was named in all of them. CW was named in counts 12 to 15 inclusive.[25]Verdicts were returned against both EW and CW on 28 May 2015. There were some not guilty verdicts:(1) Count 1: rape of BXL by EW between 22 July 1974 and 22 July 1981;(2) Count 5: simulation of sexual intercourse on not less than five occasions by EW against BXL between 22 July 1974 and 22 July 1978;(3) Count 13: cruelty by wilful ill-treatment of LXA in a manner likely to cause him unnecessary suffering or injury to health between 24 April 1970 and 21 August 1978 by both EW and CW;(4) Count 15: cruelty as in count 13 against BXL by both EW and CW between 24 April 1970 and 22 July 1981.[26]The Guilty verdicts were:(1) Count 2: indecent assault by EW against BXL between 22 July 1974 and 22 July 1978 by touching her genitals on not less than 5 occasions;(2) Count 3: indecent assault by EW against BXL between 22 July 1974 and 22 July 1978 by penetrating her vagina on not less than 5 occasions;(3) Count 4: indecent assault by EW against BXL between 22 July 1974 and 22 July 1978 by causing her to touch his penis on not less than 5 occasions;(4) Count 5: indecent assault by EW against BXL between 22 July 1974 and 22 July 1978 by simulating sexual intercourse with her on not less than 5 occasions;(5) Count 6: indecent assault by EW against BXL between 22 July 1978 and 22 July 1981, by touching her genitals on not less than 5 occasions;(6) Count 7: indecent assault by EW against BXL between 22 July 1978 and 22 July 1981, by penetrating her vagina with his fingers on not less than 5 occasions;(7) Count 8: indecent assault by EW against BXL between 22 July 1978 and 22 July 1981, by causing her to touch his penis on not less than 5 occasions;(8) Count 9: indecent assault by EW against BXL between 22 July 1978 and 22 July 1981, by simulating sexual intercourse with her on not less than 5 occasions;(9) Count 10: indecent assault by EW against LXA between 24 April 1970 and 21 August 1978, by causing him to touch his penis on not less than 5 occasions;(10) Count 11: indecency with a child by EW against LXA between 24 April 1970 and 21 August 1978, by masturbating in his presence on not less than 5 occasions;(11) Count 12: cruelty to a person under 16 years by EW and CW against LXA between 24 April 1970 and 21 August 1978, by wilfully assaulting him in a manner likely to cause him unnecessary suffering or injury to health;(12) Count 14: cruelty to a person under 16 years by EW and CW against BXL between 24 April 1970 and 22 July 1981, by wilfully assaulting her in a manner likely to cause him unnecessary suffering or injury to health;[27]An application for permission to appeal against conviction on behalf of EW was refused.

Limitation

[28]The causes of action in respect of both Claimants were complete by 21 August 1978 in the case of XLA and by 22 July 1981 in the case of BXL. The limitation period expired on the 21st birthday of each Claimant; 22 February 1985 for LXA and 22 July 1986 for BXL. No question of a later date of knowledge arises in these cases. Proceedings were commenced on 22 December 2016, over 21 and 22 years respectively after the expiry of the primary limitation periods, but after guilty verdicts had been returned on 28 May 2015 in the criminal proceedings. The defence of limitation was pleaded in the defence. Thus, I must first determine whether to disapply section 11 of the Limitation Act 1980 pursuant to section 33 of that Act.[29]I remind myself of what Auld J said in KR v Bryn Alyn Community Holdings Ltd [2003] EWCA Civ 85 at [74]: “(vii) Where a judge determines the Section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay”.[30]It is an indisputable feature of this case that, from the moment that proceedings were commenced, it was known that the Defendants had been convicted of offences forming the subject matter of the majority of the tortious allegations made by the Claimants against the Defendants.[31]Section 33(1) of the Limitation Act 1980 provides:
“(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 … of this Act prejudice 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 … .” (a) the provisions of Section 11 … of this Act prejudice 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 … .”
[32]The discretion afforded by Section 33(1) is unfettered save that Section 33(3) provides that the court “shall have regard” to all the circumstances of the case and “in particular” to the six specific issues particularised under Section 33(3) which represent a non-exhaustive checklist of some of the prominent relevant circumstances. In addition, useful guidance has been given by the House of Lords in A v Hoare [2008] UKHL 6, [2008] AC 844 and by the Court of Appeal in the conjoined appeals of Cain v Francis; McKay v Hamlani [2008] EWCA Civ 1451.[33]In A v Hoare Lord Hoffman, at para 49, confirmed that the discretion of the court is unfettered subject to the matters set forth in subsection (3). Lord Brown at paras 84 to 86 of his opinion gave some guidance about the considerations relevant to the sexual abuse cases that the House of Lords was considering. Paramount was the concept of a fair trial which, as Lord Brown observed in para 86 “must surely include a fair opportunity for the defendant to investigate the allegations”. He went on to observe, in the same paragraph, that in many cases that would be likely to be found “quite simply impossible after a long delay”.[34]In Cain the Court of Appeal dealt with appeals in two cases whose facts were similar in important respects. Both cases involved a claim for damages for personal injuries sustained in road traffic accidents where in each case the Claimant had intimated a claim to the Defendants’ insurers very promptly and in each case liability had been admitted. In both cases, proceedings were issued after the expiration of the primary limitation period. In the case of Cain the delay was one day and in McKay the delay was just under a year. The Judge in Cain refused to exercise Section 33 discretion in favour of the claimant whilst the Judge in McKay did exercise discretion in favour of the Claimant.[35]It is clear that the facts of those cases are very different from the facts of the case before me. Although, in the light of the convictions, liability may appear to be straightforward, there are real issues concerning damage and causation. And, of course, the delay is very much greater than one year. Finally, the factual circumstances are far more complex than a straightforward road traffic accident.[36]Nevertheless, the review of the relevant authorities conducted by Smith LJ is extremely useful as are the conclusions drawn from paragraph 57 onwards. Like Smith LJ, I also find the observations of the Chancellor extremely helpful and I begin with his analysis which is in these terms:
“[78] In cases to which Section 11 Limitation Act 1980 applies any action may not be brought after the expiration of the periods prescribed by subsections (3) and (4). In any such case there will be no trial on the merits. The purpose of Section 33 is to enable the court to review the position in the light of the facts of individual cases. The object of the exercise is to consider the circumstances of individual cases in order to determine whether the action should proceed to trial. That this is the purpose is confirmed by the material words in subsection (1) which pose the indirect question whether “... it would be equitable to allow the action to proceed…”. “[79] The action can only proceed in cases to which Section 11 applies if the provisions of that Section are disapplied by a direction to that effect made by the court under Section 33. By subsection (1)(b) the court is required to have “regard to the degree to which – [such a decision] … would prejudice the defendant …”
. Thus the prejudice is to be ascertained on the assumption that the provisions of Section 11 have been disapplied by an order made under Section 33. The subsection does not direct the court to have regard to the prejudice the defendant would suffer from the very act of this application. “[80] The consequence of the disapplication of Section 11 will be that there may be a trial of the claimant’s claim on its merits notwithstanding the delay in commencing the proceedings. Has that delay caused prejudice to the defendant in its defence? If so, does it outweigh the prejudice to the claimant of being denied a trial at all? In addition the court will need to consider all the circumstances of the case and in particular to the other aspects of the case enumerated in subsection (3)” [emphasis added]. “[81] In that context it does not appear to me that the loss of a limitation defence is regarded as a head of prejudice to the defendant at all; it is merely the obverse of the disapplication of Section 11 which is assumed. It is this consideration which, in my view, accounts for and justifies the marked reluctance of the courts, as demonstrated by the judgments to which Smith LJ as referred in detail, to have regard to the loss of a limitation defence."[37]Throughout the judgment of Smith LJ, the consistent theme appears to me to be consideration of the effect of any delay rather than the length of the delay itself and in particular whether the effect is such that “the defendant has suffered any evidential or other forensic prejudice which should make the difference” – see para 57. Whilst length of delay is, of course, relevant it is not, of itself, a deciding factor.[38]Turning to the checklist contained within Section 33(3) it does not seem to me that paragraph (c) [the conduct of the Defendant] or (d) [disability on the part of the Claimant] applies in this case[39]I deal first with the factors mentioned in paragraphs (e) and (f) in Section 33(3).[40]Paragraph (e) is concerned with:
“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 of giving rise to an action for damages”
. In this respect, I am concerned with actual knowledge. I am satisfied that the Claimants were aware from the outset that wrongs had been committed against them. However, I can understand the marked reluctance of victims of sexual abuse to disclose such abuse. This is dealt with in part by Dr Rozewicz and is also relevant when considering paragraph (a) of Section 33(3) namely: “the length of, and the reasons for, the delay on the part of the plaintiff”.[41]The length of the delays is 21 and 22 years respectively. The reason, it seems to me, arises from an understandable reluctance to disclose matters of an intensely personal and intimate nature.[42]Dr Rozewicz deals with this issue in his reports. It should be noted that Dr Rozewicz spells the surnames of EW and CW as “Wilcox” and not “Willcox”. I have left his spelling uncorrected. In respect of LXA he says this at page 376:
“LXA saw the Wilcoxes as his parents. He was placed with them when he was six years old. He was told by Mr Wilcox not to tell anyone that he would be abused and he was worried that Mr Wilcox could kill him. The delay in making the complaint is therefore completely reasonable in the circumstances. Very few victims of sexual abuse have the confidence to complain about the abusers in particular when they are their parents. LXA saw the Wilcoxes as his parents over eight years. It is quite understandable that he did not complain about them. This is fully consistent with the behaviour of other victims of sexually sexual abuse. I therefore do not find this delay surprising.”
[43]In respect of BXL he says this at page 395:
“The delay in bringing the case is reasonable and completely understandable. BXL was abused by adoptive parents and understandably she was very afraid that if she disclosed the abuse they would harm her in some way. She told me that she was worried that they would actually kill her. It is quite common for victims of abuse not to complain to the police and particularly if the abuse was caused by their parents. The Wilcoxes were effectively BXL’s parents.”
[44]These seem to me to be good reasons to which I should give considerable weight.[45]I next turn to Section 33(3)(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 loss cogent than if the action had been brought within the time allowed by Section 11…’.[46]This is the issue at the heart of the balancing process. There are some general observations concerning claims such as these which are of general application.[47]Whilst it is for the Claimant to persuade the court to exercise in the Claimant’s favour the discretion to disapply the relevant time limit, there is nevertheless an evidential burden, which rests with a Defendant, of showing that the evidence adduced or likely to be adduced by the Defendant is or is likely to be less cogent because of the delay – see Burgin v Sheffield City Council [2005] EWCA Civ 482 at paragraph 23 per Clarke LJ.[48]On the issue of liability, the evidence is perfectly cogent, and was found to be so by a jury in the course of the criminal trial. CW has filed a detailed witness statement, which it seems to me I am entitled to take into account without falling into the trap identified by Auld J in KR v Bryn Alyn Community Holdings Ltd. Section 11 of the Civil Evidence Act 1968 provides that in relation to a proven conviction of a person “he shall be taken to have committed that offence unless the contrary is proved”. Short of bare denials there is no indication that EW or CW was in a position to advance any positive case beyond anything that was advanced at the criminal trial.[49]It is also relevant, in my judgment, to note that it would be somewhat surprising if a trial in the Crown Court before a Jury can be considered fair but the opposite conclusion is reached in the Civil Court.[50]I acknowledge that there are potential difficulties with assessing loss in relation to both Claimants.[51]Assessment of injury potentially dating back to the late 1970s is also not necessarily easy. But assessment of psychiatric injury often involves considering a long history. Psychiatrists are well used to this process. The relevant medical records are available. Financial loss is often more difficult to assess after the passage of a long period of time, but Judges are used to the concept of doing the best they can with the material available.[52]In all the circumstances I am satisfied that there are good reasons for the delays in these cases. I am satisfied that a fair trial of all the issues is possible. In relation to each of the Claimants I exercise my discretion to disapply the provisions of Section 11 of the Limitation Act 1980.

Liability

[53]I have had regard to the witness statement and documents provided by CW on behalf of herself and her late husband. Those materials do not come close to discharging the burden imposed by Section 11 of the Civil Evidence Act 1968.[54]Thus, I find that the facts relevant to the convictions of both Defendants in relation to both Claimants have been proved. The sentencing remarks of the trial Judge, HHJ Rowland, are instructive:
“Edward Wilcox and Cynthia Wilcox, by their verdicts the jury found that you carried out a campaign of physical abuse, both of you, against the victims here, your adopted children. Frequent and severe beatings, really on the most trivial of pretexts, and weapons were used, a cane, a belt with a buckle on it, and those were frequent episodes of assaults. Ill treatment of those young children, and that went on for between eight and eleven years, depending upon which child we are concerned with. When they should have been protected by you they were being beaten, assaulted by you on a frequent basis and in addition, you Edward Willcox, you were sexually abusing both of those children. Again, a long period of abuse starting when BXL was aged nine or ten, a six-year period, and a similar period of five or six years in relation to her brother. On at least five occasions you touched her genitals, you digitally penetrated her and caused her to touch your penis, all of that going on when she was under 13, and it persisted over her age of 13 until she was 16, the same activity on the same number of occasions but with simulated sex added as well, and in relation to LXA there were at least five occasions of touching his penis and masturbating in his presence. Both of those children were vulnerable of course by reason of their backgrounds, and it is an aggravating feature of this case that you, Edward Willcox, were inducing them to cooperate with the sexual abuse in return for better physical treatment, i.e. lesser beatings meted out by you … … I have to take into account the effect that all of this has had on your two victims. I have read the impact statements and I have seen the effect, from the way that they gave their evidence, that this has had upon them. Starting off at the beginning of their lives this has affected the rest of their lives and still does so today, each of you coming towards the end of your lives. It had such an effect on LXA that he tried to hang himself, albeit not a particularly determined effort to do so, but that gives an indication as to what was going on in his mind when he was living in your home.”
[55]The jury acquitted EW of the single count of rape of BXL.[56]BXL says she was raped. I believe BXL and find that EW did rape her once as she described it in her witness statement at pages 193 to 194. She says he forced his penis into her vagina to a depth of penetration of about an inch for “a number of seconds”. It is not for me to speculate why the jury acquitted EW on that count. The standard of proof is different. I have of course reminded myself that in civil cases, whilst the standard of proof is the balance of probabilities, nevertheless, the more serious the allegation, the more cogent must the evidence be. I find the allegation proven.

Damages – General Observations

[57]There is a medical report in respect of each Claimant prepared by Dr Leon Rozewicz, Consultant Psychiatrist. Each Claimant relies upon the contents of a Schedule of loss.[58]Clearly each Claimant is entitled to an award of general damages for pain, suffering and loss of amenity arising out of the sexual and other assaults. Awards in such cases are frequently augmented by an award of aggravated damages, as is recognised by the commentary in the Judicial College publication “Guidelines for the Assessment of General Damages in Personal Injury Cases” (14th Edition, 2017). In section 4 “psychiatric and psychological damage” it is said, when dealing with sexual and physical abuse that “[a]ggravated damages may be appropriate”. In my judgment, the award of damages for pain, suffering and loss of amenity should contain an element to reflect the aggravated features of the assaults, but it will not be by way of a separate award. This is the approach followed by HHJ McKenna sitting as Judge of the High Court in KCR v The Scout Association [2016] ECHC 587 QB where he said at paragraph [29] of his judgment that he had “very much in mind” the decision of the Court of Appeal in Richardson v Howie [2005] PIQR Q3 p48. That decision effectively discouraged the making of a separate award of aggravated damages, and preferred that a single award of damages for pain suffering and loss of amenity be made, enhanced to reflect any aggravating features.[59]That is what I propose to do in each of the cases before me.[60]Both Claimants proceed with the benefit of a conditional fee agreement dated 14 December 2015. It follows that damages for pain suffering and loss of amenity fall to be assessed by reference to the uplift of 10% following Simmons v Castle [2013] 1 WLR 1239.[61]In assessing appropriate awards of damages for pain suffering and loss of amenity, I have had regard to the various reported decisions helpfully provided by Mr Levinson. I agree with him that none are directly comparable in relation to either Claimant. I have also derived considerable assistance from the Judicial College Guidelines. This useful observation is made at paragraph 4(A)(vii): Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provide a useful starting point in the assessment of general damages in such cases. It should not be forgotten however that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate.[62]Before that commentary, this was said: The factors to be taken into account in valuing claims of this nature are as follows:(i) the injured person’s ability to cope with life and work;(ii) the effect on the injured person’s relationships with family, friends, and those with whom he or she comes into contact;(iii) the extent to which treatment wold be successful;(iv) future vulnerability;(v) prognosis;(vi) whether medical help has been sought.[63]Suggested categories or brackets are given. In my judgment the relevant Judicial College brackets are: Moderately Severe - In these cases there will be significant problems associated with factors (i) to (iv) above but the prognosis will be much more optimistic than in (a) above. While there are awards which support both extremes of the bracket, the majority are somewhere near the middle of the bracket. Cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparative employment would appear to come within this category. £16,720 to £48,080 Moderate – While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good. £4,900 to £15,550.[64]Those figures relate to the psychiatric injury alone. No account is taken of any element of aggravation, nor of damages to reflect the physical nature of the sexual and non-sexual abuse.[65]These observations are relevant to each Claimant. I turn next to deal with each Claimant individually.

LXA – General Damages for Pain Suffering and Loss of Amenity

[66]LXA was born on [a date in] 1964. The report of Dr Rozewicz is dated 14 January 2017.[67]Diagnoses of an adjustment disorder and dysthemia have been made. Dysthemia is defined as “a chronic depression of mood, lasting at least several years, which is not sufficiently prolonged to justify a diagnosis of recurrent depressive disorder”. Dr Rosewicz opines that the abuse is entirely responsible for the adjustment disorder, and is 75% responsible for the dysthemia, with 25% attributable to constitutional factors. A programme of 24 sessions of Cognitive Behavioural Therapy is recommended at a total cost of £4,800. This will, in the opinion of Dr Rozewicz, result in the resolution of symptoms of the adjustment disorder. However, the dysthemia is likely to persist for life.[68]The physical (as opposed to sexual) abuse persisted from age six to 14, a period of about eight years. HHJ Rowland referred to a period of about five or six years for the sexual abuse. Both forms of abuse resulted in LXA’s childhood being blighted with consequent psychiatric injury which has persisted.[69]I refer to the general observations I have made applicable to both Claimants. In terms of psychiatric injury alone, LXA is probably towards the lower end of the “moderately severe” bracket. But that is before consideration of the totality of the abuse and aggravation. Overall, I consider that an award of £35,000 is appropriate.

LXA – Damages for Past and Future Loss

[70]I start with loss of earnings. The proposition is that the abuse resulted in him failing to attain his full earning potential until age 35. The evidence in support of that proposition is contained in paragraph 63 of the report which can be summarized thus:(1) An educational psychologist in July 1976 said that his IQ was below “halfway on the achievement scale but probably brighter than this would suggest.” Dr Rozewicz had not seen the original report.(2) Dr Rozewicz gave four reasons for LXA failing to earn an average income upon leaving school: (a) He underachieved educationally and did not obtain appropriate qualifications; (b) He did not trust people and found it difficult to maintain employment in his early years; (c) He misused alcohol between the ages of 17 and 35, which made it difficult for him to maintain stable employment; (d) He used illicit drugs in his late teens and early twenties.(3) All of those factors were at least in part caused by the abuse such that “the abuse caused [his] income to be reduced between the ages of 17 and 35.”[71]The claim made on behalf of LXA is based upon the premise that he would have earned an average wage from the financial year 1979/1980, when he left school, until April 1999, when he was aged 35. Credit is given for the money he did earn during that period. No credit is given for benefits received. There is a nil CRU certificate in this case. Having regard to the apportionment made by Dr Rozewicz, 75% of what would otherwise be full loss is claimed. That figure is discounted by a further 30% to represent contingencies.[72]In his witness statement LXA sets out his employment history. He left school at the age of 16 with no qualifications. He says he worked in a timber mill for about a month and then was unemployed for 4 years. He candidly admits that he was “involved in burglaries and stealing cars”. He says he spent 3 months in a care home and had several convictions. In his early 20s he started earning £8 per day as a plasterer. He worked on and off as a labourer for “around 10-15 years until about 1985” when he says he “started being able to hold down permanent jobs”.[73]From “around 1996” he says he worked for an oil and gas company “and then ended up being a mooring operator for ESSO from around 1998/99 to 2008. I infer that this was stable employment. Since 2008, when LXA was aged about 44, he has worked on tugs from Southampton docks.[74]Full loss of earnings (before deduction of 25% and further reduction of 30%) is claimed for the period 1979/1980 to 1985/1986 inclusive, when LXA was aged between 15 and 22. On the footing that the periods run from April to March in the following year, that represents a claim for seven years when it is alleged that LXA earned nothing. The same is alleged for the years 1990/1991 and 1992/1993, when LXA was aged 26/27 and 28/29 respectively.[75]For the other periods down to March 1999 the claim is for a partial loss of earnings. LXA attained the age of 35 on 22 February 1999.[76]There are problems with the method of calculation of past loss of earnings adopted in the schedule of loss:(1) LXA says he left school at age 16. He attained the age of 16 on 22 February 1980. It is unlikely in the extreme that he left school before Easter 1980. Yet loss of earning for the full financial year April 1979 to March 1980 is claimed. At best the loss could only have been for a month or so, and even then, is it reasonable to suppose a school leaver would immediately walk into a job? There is simply no evidence on that point.(2) The average earnings figures have been taken from the data compiled by the Office for National Statistics (ONS) in the New Earnings Survey and latterly in the Annual Survey of Hours and Earnings (ASHE). The figures from 1985 appear in the Professional Negligence Bar Association (PNBA) publication “Facts and Figures 2017/18”. The first problem with taking the average (mean) figures is that it is the mean of all male adult employees, from school leaving age to retirement. It takes no account of the reality that earnings are likely to be disproportionately lower for young persons in their first years of employment than for persons aged between, say, around 25 to retirement age. The second problem is that the mean is affected by the presence of earnings of very high earners. Essentially for those reasons, which are given in the introductory notes to the average earnings statistics in the PNBA book prepared by Dr Victoria Wass of Cardiff Business School in November 2017, the “median provides a better indication of typical earnings than does the mean”. However, I have to work with what I am given.(3) It follows from (2) that no allowance has been made in the calculations for the reality that earnings for the period ending March 1986 (when LXA was aged 22) and perhaps beyond would in any event probably have been lower than average earnings recorded in the ASHE.(4) No allowance has been made for the periods when LXA was in custody and unable to work in any event.(5) In the period 1995/1996 LXA earned £11,404. This is likely to relate to his employment for the oil and gas company, which thus appears to have begun about a year earlier than his recollection in his witness statement. His earning dropped to £10,840 for the following year, then rose to £12,108 for the year 1997/1998. They fell back to £10,210 for the year 1998/1999. There is no explanation for this variation. The average earnings figures for those years are considerably higher than the amounts actually earned by LXA. In the year 1998/1999 the average earnings figure is £23,997. The curiosity is that I do not know what LXA earned in the year 1999/2000 or in any year subsequent year. I would be very surprised if his earnings suddenly leapt from £10,200 to in excess of £23,000, yet by age 35 it appears to be said that LXA was earning to his capacity. I have already mentioned that since 2008 he has worked on tugs.[77]I find myself having the gravest of doubts that analysis of the figures presented to me in the Schedule of loss is the appropriate way forward in this case. The opinion of Dr Rozewicz is based upon a premise that LXA “misused alcohol between the ages of 17 and 35, this made it difficult for him to maintain stable employment”. In fact, it appears that stable employment was achieved by 1995/1996. In April 1995 LXA had attained the age of 31.[78]This is not to deny that as a result of the abuse, LXA has suffered some diminution in his income from leaving school until probably the age of 31. On the preponderance of the evidence I accept that. The issue for me is how to quantify that loss.[79]The claim as pleaded, apportioned to 75% and further reduced by 30% for contingencies, is £75,513.56 before interest. I have no confidence in that calculation. It seems to me that the imponderables are such that I should adopt a Blamire approach – see Blamire v South Cumbria Area Health Authority [1993] PIQR Q1.[80]I do not ignore the calculations in the Schedule of loss. They do provide something of a sense check. However, a figure of £40,000 seems to me to do justice to the assertion that, as a result of the abuse by the Defendants, LXA did not do as well in the employment field as might otherwise have been expected from leaving school until his early 30s.[81]I deal next with interest. The appropriate rate for general damages is 2% from service of the proceedings to judgment. On the Blamire award, it is appropriate to follow the practice which would have been applicable had the award been assessed by reference to precise figures. The loss began in about April 1980, shortly after the Claimant probably left school and ended in about April 1995, when, on my finding, the Claimant entered stable employment. It is appropriate to award the full rate of interest from the mid-point of loss to date of judgment. The mid-point of loss is October 1987.

Future Loss

[82]The cost of future CBT is £4,800 with travel costs of £240 (£10 per visit). These claims are clearly established.[83]A claim is made for an award to reflect disadvantage on the open labour market. It is recognised within the Schedule of loss whilst LXA’s symptoms of adjustment disorder are likely to resolve, the symptoms of dysthemia are likely to continue for life. It is alleged that “this may result in periods off work or out of work. The Claimant may be obliged to disclose his mental health difficulties to future employers on job applications, making him potentially a less attractive candidate that he otherwise would have been”.[84]LXA has been in stable employment since April 1995, a period of 23 years. His mental health is due shortly to improve. The claim is entirely speculative and fails.[85]In summary, the awards in favour LXA are: General Damages for Pain, suffering and Loss of Amenity £ 35,000 Past Loss of Earnings £ 40,000 Future CBT £ 4,800 Future Travel £ 240 Total (before interest) £115,040

Damages - BXL

[86]BXL was born on [a date in] 1965. The report of Dr Rozewicz is dated 19 January 2017.[87]Dr Rozewicz has made diagnoses of an adjustment disorder and recurrent depressive disorder. The adjustment order is entirely caused by the abuse. The abuse is responsible for 75% of the depression.[88]Dr Rozewicz recommends a programme of Cognitive Behavioural Therapy comprising 24 sessions at a total cost of £4,800. Travel costs will be £240 (£10 per visit). This claim is plainly made out. Dr Rozewicz opines that following completion of the programme resolution of the adjustment disorder is likely. However, the recurrent depressive disorder is likely to continue.[89]BXL also suffers from migraines which have been exacerbated by the abuse. She takes medication for the migraines and depression. Contrary to the view of CW, I am satisfied that the migraines are likely to continue and that the need for at least some medication is likely to continue into the future.[90]The physical (as opposed to sexual) abuse persisted for a period of about 11 years from April 1970 to July 1981when BXL was aged between about five until she was 16. HHJ Rowland referred to a period of about six years beginning when BXL was aged about nine or 10 for the sexual abuse. Both forms of abuse resulted in BXL’s childhood being blighted with consequent psychiatric injury which has persisted.[91]I refer to the general observations I have made applicable to both Claimants. In terms of psychiatric injury alone, BXL is probably within the “moderately severe” bracket. But that is before consideration of the totality of the abuse and aggravation. The sexual abuse was particularly serious. It included multiple occasions of digital penetration and, on one occasion, and albeit fleetingly, penetration of her vagina by EW’s penis. Thus, EW raped his adoptive daughter.[92]The trauma of being penetrated by a parent can scarcely be imagined. The degree of aggravation is very high. An appropriate award is significantly above the upper end of the “moderately severe” bracket, but this is justified on account of the serious nature of the sexual abuse, the youthful age of BXL, and the duration and frequency of the penetrative violation of her young body. An appropriate award is £80,000.

BXL – Loss of Earnings Past and Future

[93]The evidence is contained in the Schedule of loss, the witness statement of BXL dated 16 January 2018 and the report of Dr Rozewicz dated 19 January 2017, almost exactly a year earlier.[94]The periods of employment given do not make sense. BXL was born on [a date in] 1965. In January 2017 she was aged 51 years 9 months. A year later she was aged 52 years 9 months.[95]She started work aged 16 in Richards Shop. The employment history given by her and also by Dr Rozewicz is the same, as one would expect. I summarize it:(1) Richards Shop from age 16 for 4 years;(2) The Next shop for 16 years;(3) Garden Centre, period not given;(4) Sainsburys, period not given but noted in the Schedule of loss to be between “1996 and 1999” for 3 hours per day.(5) Manager of a unit for autistic children in a secondary school for 18 years (Dr Rozewicz) or “almost 19 years” (BXL). Of course, this difference is explained by the fact that the medical report and witness statement were made one year apart.[96]The total period of working down to January 2018 based on the information above, but excluding the Sainsbury employment, is almost 39 years. If BXL began work at 16, that would make her chronological age about 55 as at January 2018. But that is not correct. Her age as at January 2018 was 52 years 9 months. Moreover, this analysis ignores two important matters. First, the time spend working at the Garden Centre. Second, and more importantly, BXL is said to have taken time off following the birth of her son. He was born on [a date in] 1992 – see page 300.[97]According to the Schedule of loss, the time taken off following the birth of her son was “between 1992 and 1993” and again “between 1994 and 1995”. In the period 1993 to 1994 the Schedule of loss states that BXL “only worked for a period of two weeks in Asda”. The only logical conclusion to draw from that latter fact is that BXL continued to look after her son. It seems to me that the same must be true for the period April 1996 to March 1999 when it is said that BXL was working at Sainsbury’s for three hours per day. That seems to me to be entirely consistent with part time working to fit in firstly with pre-school caring obligations and then part time work following introduction to school. However, loss of earnings is claimed for all of these periods. That cannot be right.[98]There is no explanation within the Schedule of loss concerning the provenance of the figures given for actual gross and net earnings. The figures for net earnings which the Claimant should have earned, but for the abuse, for the year 2017 to 2018 and for the period April to June 2018 are said to be “estimated”, as are the figures for actual earnings over the same periods.[99]Total loss of earnings claimed is £103,175.20. It is calculated by taking the total potential earnings of £425,660.33 and deducting the actual earnings of £229,136.19. That gives £196,524.14. Dr Rozewicz considers that 75% of the loss of BXL is referable to the abuse, thus the figure of £196,524.14 is reduced to £147,393.10. That is further reduced by 30% to take account of “any uncertainty regarding this loss and that she may have had periods off work in any event.” That results in the final figure of £103,175.20.[100]I have to reject that analysis because it does not take account of the years she would not have been earning following the birth of her son; as I understand matters, the 30% discount is to reflect other contingencies.[101]Potential net earnings for the period April 1992 to March 1998 (6 years) are said to be £51,729. Deducting that from the claimed figure of £425,660.33 gives £373,931.33. Deducting actual receipts (including those which are estimated) gives £144,795.14. Taking 75% gives £108,596.35. Reducing by a further 30% for contingencies results in a final figure of £76,017.45.[102]Whilst the performance of arithmetical calculations may appear to give that final figure the imprimatur of precision, it is of course no such thing. Yet one has to do the best one can with the information to hand. That usually means looking at figures which appear to bear some relation to reality and conducting some sort of arithmetical adjustment. Having done so, and arrived at £76,000, I stand back and ask, “does that look about right?”. In this case it does. I am satisfied that BXL did not attain her full earning potential as a result of the abuse. I do not feel constrained in this case to adopt a Blamire approach, although had I done so I may well have reached a figure close to or equal to £76,000. I have sufficient confidence in manner I have considered the raw data and my analysis of it to conclude that an award of £76,000 is appropriate to reflect past loss of earnings.[103]I turn next to future loss. The evidence is that she is working at 80% of capacity. Her last precise gross earnings were £15,322.92 for the year 2016 to 2017. Assume a pay rise of 1% results in a new gross of £15,476.73 for the year 2017 to 2018. A further 1% pay rise to take effect from April 2018 gives a new current gross of £15,631.49.[104]If £15,631.49 represents working at 80% capacity, then the figure for 100% capacity is £19,539.36. Net equivalent is £16,366.76.[105]BXL’s current net equivalent, based upon a gross salary of £15,631.49 is £14,010.41. The difference between net equivalent figures is £2,356.35.[106]I have used the tables at G1 (page 227) of the PNBA publication “Facts and Figures 2018/19” to calculate the net equivalents.[107]To the figure of £2,356.35 a correction factor of 75% must be applied to take account of the opinion of Dr Rosewicz that 75% of her loss is attributable to the abuse. Thus, the multiplicand is £1,767.26.[108]I appreciate, of course, that I have departed from the rough and ready method of assessing damages for past loss of earnings. In particular I have abandoned the use of average earnings. The reason for this is that it seems to me that BXL is working in a reasonable job which she appears to enjoy and I am not satisfied that, absent the abuse, she would be doing anything different. I am satisfied she is working only at 80% capacity, hence the calculation I have performed.[109]I agree with the proposed multiplier of 9.9387. Future loss of earnings is assessed at £1,767.26 x 9.9387 = £17,564.27.[110]There is a claim for damages to represent disadvantage on the open labour market in the future. It is based upon the opinion of Dr Rozewicz that BXL will continue to get episodes of recurrent depression, which may result in periods off work or out of work. It also claimed that she may have to disclose her mental health issues to future employers making her potentially a less attractive candidate.[111]I consider these matters to be too speculative to sound in an award of damages.

Prescriptions

[112]The claim for past loss is made out and I award £4,286.63 as pleaded in the Schedule of loss.[113]I also agree that the claim for future prescription costs is made out as pleaded. I award the sum claimed of £4,120.18.

Future Treatment

[114]Dr Rozewicz recommends 24 sessions of Cognitive Behavioural Therapy at a cost of £200 per session. This claim is clearly made out. I award £4,800.00, together with travel expenses of £240 (£10 per session).[115]In summary, the awards in favour LXA are: General Damages for Pain, suffering and Loss of Amenity £ 80,000 Past Loss of Earnings £ 75,000 Past Prescriptions £ 4,286.63 Future Loss of Earnings £ 17,564.27 Future Prescriptions £ 4,120.18 Future CBT £ 4,800 Future Travel £ 240 Total (before interest) £186,011.08

Judgment

[116]I heard this trial in London in June 2018. Judgment will be handed down in Sheffield on 23 August 2018. As stated in the Notice of Delivery of Judgment dated 2 August 2018 I do not require the attendance of any party when judgment is handed down. Upon it being handed down I will make an order which will give the parties an opportunity to make written representations as to the relevant Form of Order, including any representations on costs and any relevant interest calculations. Any such representations must be sent to the other party and to the Court. Thus, any material from the Claimants must be sent to Mrs Willcox and to the Court at the addresses shown in the Notice of Judgement Delivery. Anything from Mrs Willcox must be sent to the solicitors for the Claimants and to the Court at the address shown in the Notice of Judgment Delivery.[117]Time to apply for permission to appeal will not start to run until the Form of Order is finalized. The handed down judgment, and the order referred to, will be sent by first class post to the parties. *********************************************************************

Cited in 2 later judgments