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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> CAX v PQR [2023] EWHC 3198 (KB) (13 December 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/3198.html Cite as: [2023] EWHC 3198 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Claimant |
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- and - |
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PQR |
Defendant |
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The Defendant appeared in person
Hearing dates: 25 and 26 January 2023
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Crown Copyright ©
Mrs Justice Ellenbogen DBE:
The facts giving rise to the claims
The evidence of fact adduced for the Claimant
The Claimant
The Claimant's mother
The Claimant's father
The Claimant's brother
The Claimant's husband
The expert evidence adduced on behalf of the Claimant
Dr Jane O'Neill
a. the content of her intrusive memories; flashbacks and nightmares, all relating to that abuse;
b. the triggers which precipitated such events, in particular the Defendant's use of the epithet 'Little Beauty' at her grandmother's funeral; and
c. the Claimant's pattern of avoidance of internal and external cues reminiscent of her abuse.
There had been other contributory aetiological factors, including a distant relationship with her mother; a poor relationship with her step-father; and a lack of contact with her biological father. It was not possible, scientifically, to identify the percentage contribution which, collectively, those factors had made, but it had been minor and would not have had the past or future impact on the Claimant's life which had been caused by the Defendant's abuse. Adopting a common sense approach, informed by her comprehensive, detailed assessment of the Claimant and her clinical experience, it was Dr O'Neill's opinion that the vast majority of the Claimant's psychological difficulties had been caused by the severe and persistent emotional, physical and sexual abuse carried out by the Defendant.
The Claimant's Schedule of Loss
a. general damages, for pain suffering and loss of amenity;
b. an award for injury to feelings/aggravated damages;
c. past loss of earnings, said to be reflected in a 13-year delay to her pursuit of her chosen career as a social worker, in the sum of £94,628, plus interest (giving credit for her earnings during that period);
d. past travel costs, related to her counselling sessions;
e. the increase in university tuition fees payable since the period over which she would otherwise have attended university;
f. future loss of earnings, for a period ending with the date on which she will complete her university course, in the total sum of £83,652.89;
g. the cost of CBT, as recommended by Dr O'Neill, in the sum of £11,653.93 and the projected associated cost of travel at £776.93; and
h. interest on past losses.
'It is clear, in my judgment, that the judge took the view that the conventional measure was inappropriate. He had ample material to take that view. First, there was uncertainty as to what the plaintiff would have earned over the course of her working life if she had not been injured. It is not necessary to mention all the difficulties which confronted the plaintiff. One was the possibility that she might have more children. Another was the fact that she clearly would have liked to have done part-time work rather than full-time work. It is true that it was necessary for her to assist with the payment of the mortgage, but, as the judge pointed out, that particular figure would become less of a burden through the years. The second aspect was the uncertainty as to the likely future pattern of her earnings, and here the uncertainties were very great. Bearing in mind that the burden rested throughout on the plaintiff, it is in my judgment clear that on the materials before him the judge was entitled to conclude that the multiplicand/multiplier measure was not the correct one to adopt in this case.
It seems to me that the judge carefully assessed the prospects and the risks for the plaintiff. He had well in mind that it was his duty to look at the matter globally and to ask himself what was the present value of risk of future financial loss. He had in mind that there was no perfect arithmetical way of calculating compensation in such a case. Inevitably one is driven to the broad brush approach. The law is concerned with practical affairs and, as Lord Reid said in British Transport Commission v. Gourley [1956] AC 185 at page 212, very often one is driven to making a very rough estimate of the damages.
Looking at the picture that emerged from the evidence and the judge's careful and balanced findings of primary and secondary fact, I am of the view that the judge's estimate of the risk of loss of future earnings, pension benefits and the plaintiff's vulnerability in the market, are fairly reflected in his award. In my judgment there is no ground for interfering with his decision. Moreover, I go further. In my judgment on the evidence before him a higher award would not have been justified.'
'20. It is common ground that the multiplicand/multiplier methodology and the Tables and guidance in the current edition of Ogden should normally be applied when making an award of damages for future loss of earnings, unless the judge really has no alternative25. However, in order to carry out the conventional exercise a judge has to deal with two aspects before a multiplicand figure can be calculated. First, he has to make findings on the likely pattern of the claimant's future earnings if she (or he) had not been injured; secondly, the judge has to make findings on the likely pattern of the claimant's future earnings given the fact that he/she has now been injured as a result of the defendant's negligence. As Steyn LJ pointed out in the Blamire case itself26, in respect of both those issues the burden is on the claimant.
21. This means that in this case it was for the appellant to satisfy the trial judge, on a balance of probabilities, first, what career path it is likely that she would have taken and so what she would have earned over the period for which a claim for future loss of earnings could be made, which period would, itself, be a matter of proof on a balance of probabilities. This exercise would involve establishing both the type of work the appellant would have undertaken had there been no accident and also the level of remuneration that she would have obtained from it. Secondly, the appellant would have to satisfy the trial judge on what work she was going to be able to undertake following the accident, whether that would be less remunerative than the work that she would have undertaken had there been no accident and, if so, by how much.
22. The judge's findings of fact, in particular those at [38] and [40], are clear. First, he was not satisfied, on a balance of probabilities, that the appellant had demonstrated that she would have been able to establish herself or would have been able to retain a position over a long period as a theatrical model maker. Secondly, he was not satisfied that the appellant had proved what she would do now, following the accident. More importantly, it is clear from [40] that the judge was not satisfied that the appellant had proved that she would actually suffer a loss of earnings as a result of the accident.
23. Mr Huckle had to attack those findings of fact and conclusions if he was to make any progress on Ground 5. He pointed to the appellant's first class degree, the high regard of her tutor, Mr Tindall, her placement with the respondents and Mr Yates' offer, during his evidence, to take the appellant on placement again and also to his evidence that the market for model makers was "buoyant". Mr Huckle drew our attention to the evidence of earnings levels in particular forms of employment and the appellant's evidence that she was not attracted to teaching but was motivated to carry on as a model maker.
24. Mr Huckle submitted that the Blamire approach was principally used where the claimant was in business and there was "wholesale uncertainty" as to the future earnings of the claimant; or where the claimant had failed to establish his former or subsequent earning capacity. He argued that neither situation applied here.
25. I cannot accept Mr Huckle's submissions. In my view the judge was entitled to reach the conclusion that there were too many imponderables to enable him to hold, on a balance of probabilities, what the likely career pattern and earning capacity of the appellant would have been but for the accident and what it was likely to be as a result of the accident or that she would be likely to suffer a loss of earnings in the future. The evidence before the judge entitled him to conclude that it was uncertain (a) whether the appellant would have succeeded in becoming a theatrical model maker; (b) whether she would have remained in that position throughout her working career.., (c) what the levels of remuneration in that occupation would have been; (d) as to whether the physical and psychiatric recovery of the appellant was such that she could do either the job of a theatrical model maker or other jobs as a model maker after the accident. The judge also held that it was likely that she would earn at least as much as a theatrical model maker in the future
26. In these circumstances it seems to me that the judge was "driven" to adopting the Blamire approach. As I read the judgment at [42] [43], the judge was not even actually convinced that the appellant had proved that she would suffer any loss of earnings in the future at all, but he was prepared nonetheless to award a sum to enable her "to retrain if she so chooses and to take the time to do so and to be compensated for that exercise". The respondents do not object to that approach, so I say no more about it.
25 See, eg. remarks of Ward and Keene LJJ in Bullock v Atlas Ward Structures Ltd [2008] EWCA Civ 194 at [17] and [21] respectively. Richards LJ agreed with both judgments.
26 At Q5'
Discussion and conclusions
General damages
'There is no doubt that awards in cases such as this should take account of the nature, severity and duration of the abuse itself and of its immediate effects, as well as of any long term psychiatric harm that it may have caused, even though the latter may be the primary motivating and much the more serious injury giving rise to the claim.'
a. the nature of the Defendant's assaults on the Claimant and the physical and psychological injuries thereby caused;
b. the frequency and prolonged duration (seven to eight years) of those assaults;
c. the Claimant's inability to avoid, or escape from, the Defendant's abuse;
d. her lost childhood;
e. the ongoing reminders of the abuse caused by the Defendant's continued contact with the Claimant;
f. the severe nature of the Claimant's psychological difficulties and her poor prognosis;
g. the disastrous impact which the abuse has had upon her education, career and relationships; and
h. the upheaval caused to the Claimant's family life.
Aggravated damages
a. the flagrant nature of the Defendant's abusive behaviour;
b. the Claimant's age at the time of the abuse;
c. the degrading and deplorable nature of the acts of abuse;
d. the gross breach of trust entailed, given that the Defendant is the Claimant's grandfather;
e. the Defendant's lack of remorse;
f. his manipulation and blaming of the Claimant, in order to silence her; and
g. his conduct in the course of these proceedings, which had required her to give evidence. That conduct is said to include the Defendant's refusal to have engaged with the Claimant's legal representatives; persistent assertion of a difficulty in obtaining legal representation (despite the Claimant's solicitors attempts to offer assistance in that connection), that he is confused and has not received any correspondence from the Claimant's solicitors, and that he was at a loss as to how to participate in earlier interim hearings; blatant disregard for the Claimant; and continued protestation of his innocence by declaring, at an earlier interim hearing, that he had 'only fiddled with her because she asked me to'. Furthermore, the Defendant had failed to answer a single piece of correspondence from the Claimant's representatives and, as an affront to the Claimant, when ordered to make an interim payment to enable her to commence treatment, he had sent two cheques to her representatives, both of which unable to be cashed as the first had been made out to the wrong person and the second had not been signed. None of those matters could be considered to derive from his advanced age, the fact of his imprisonment, or his status as a litigant in person, it is said.
a. In the former case, an award for general damages of £65,000 and aggravated damages of £15,000 was made. Informing the latter was the fact that the defendant had denied the allegations and the associated need for the claimant to undergo cross-examination in the criminal proceedings, on the basis that her allegations were untrue. Over a period of four years, at a time when the claimant had been between 10 and 14 years of age, her step-father had sexually abused her. He had adopted a regular, recurring pattern of watching her whilst she bathed; forcibly restraining and pinning her down; tying her hands behind her back; inappropriately kissing her; inappropriate touching of her breasts, bottom and genitals, both over and under her clothing; and digital penetration of her vagina. He would expose his naked body to her and force her to touch his genitals and masturbate him. On occasions, he had placed his penis against her face. Abuse in one such form or another had taken place several times a week and had increased in severity over time. It was said to have occurred over a critical period in the claimant's education and to have had an effect on the latter and on her relationships and employment similar to that seen in this case. Allowing for an uplift, per Simmons v Castle [2012] EWCA Civ 1039, and for inflation, the combined award would equate with approximately £112,000, as at today's date.
b. In GLB v TH, when between the ages of 10/11 and 16, the claimant had been sexually abused by her paternal grandfather. Her earliest memory was of having been forced to perform oral sex on him. The abuse had extended to: forcing her to look at pornography, undress and assume provocative poses whilst being photographed by the defendant, take inappropriate photographs of herself, with her abuser telling her that his friends would be interested in the photographs taken; touching her inappropriately, both over and under her clothing; getting into bed with her and touching her over and under her clothing, including on her breasts and vagina; forcibly kissing her; forcing her to masturbate in front of him, including by use of a gear stick in his van, and to use sex toys on herself; forcing her to masturbate him and masturbating her; rubbing his penis on her legs; forcing her to perform oral sex on him; and attempting to rape her. He would take any opportunity to see her naked and would walk into the bathroom when she was showering. He would tell her that she would get into trouble were anyone to know what was happening. The abuse would occur once every one to two months, over the relevant five-year period. It had an adverse effect on the claimant's ability to sustain intimate relationships and enjoy physical intimacy and on her enjoyment of being a mother, given her preoccupation with anxieties relating to her daughter. To some extent, it also had an impact upon her employment. She had been diagnosed with adjustment disorder, with some depressive, anxious and post-traumatic symptoms and low mood. With completion of CBT, the prognosis was guarded but optimistic; there ought to be a substantial improvement in her symptoms of PTSD, but she would retain some instability of mood and continue to experience difficulties in her relationships, as well as remaining overprotective towards her daughter. The judge was referred to the then JSB guidelines (which, at that time, did not include a separate category of psychiatric damage related to sexual abuse), noting that the bracket was said to be £39,000 odd to almost £83,000. He made an award of £67,500 for pain, suffering and loss of amenity and of £15,000 for aggravated damages. Informing the latter was the defendant's breach of trust; the emotional upheaval born of the conflict in the claimant's feelings; the defendant's persistent denial of guilt and then liability; his spiteful correspondence with the claimant's employer; and the need for her to endure the trial. Allowing for the Simmons v Castle uplift and inflation, the combined award would equate with approximately £133,000, as at today's date.
Past loss of earnings
Past travel costs
Increased university tuition fees
Future loss of earnings
Cost of future treatment and associated travel
Summary and conclusion
Pain suffering and loss of amenity: £80,000 Aggravated damages: £15,000 Past loss of earnings: £94,628.09 Past travel costs: £126.00 Additional university tuition fees: £3,750 Future loss of earnings: £83,652.89 Cost of future treatment: £11,653.93 Future travel costs: £982.80