BJM v Eyre, Hawthorne, Loram and Riley 2010

FACTS:- 

The Claimant, a 21 year old man claimed damages against the four Defendants in a claimed issue in April 2008. Leeds City Council had been added as a fifth Defendant but this action was discontinued later. Judgment was entered against the four Defendants with damages to be assessed. The First Defendant had been a male prostitute who hired out a number of boys to clients. The Claimant met the First Defendant through a friend and he was groomed for sexual abuse by a series of men who came to the First Defendant’s flat. The abuse continued from around 2001 onwards to 2003, when the Claimant was sold on to another abuser, the Second Defendant for £500. He was then taken to London and abused by a further series of men. He was threatened with various consequences if he tried to run away. The Third Defendant, a man in his late 40’s abused the Claimant on three occasions. The Fourth Defendant abused the Claimant on one occasion. Eventually the police removed the Claimant from the Second Defendant’s home. The four Defendants and four other men were charged with criminal offences. All four Defendants pleaded guilty to a variety of charges.

The Claimant’s mother had suffered psychiatric problems and he had learning difficulties as a young child. In 1997 he received a Statement of Special Educational Needs and in 2000 he was identified as having a learning disability. He had attacked someone in the street in November 2000 and was bullied at school. The relationship between his parents was difficult and there were reports of violence between them.

His sexualised behaviour manifested itself in March 2003 both at home and at school. He drank heavily and took illegal drugs, as well as attempting suicide. In August 2006 he was admitted to hospital under section 2 of the Mental Health Act 1983. By May 2007 he was living alone in a rented flat. In July 2008 he attempted suicide again and in September 2008 he was diagnosed as HIV positive. In April 2009 he was moved into supported housing and in September 2009 he was against admitted to hospital after taking an overdose. At present he continued to live in supported accommodation.

The Claimant did not return to formal schooling after October 2003. He did a catering course at a further education college, but achieved no formal educational or vocational qualifications. He had not worked since 2005. In 2008 he enrolled at a college to study Maths, English and Science to GCSE level but dropped out shortly afterwards.

The Claimant’s psychiatrist, Dr Rix said that the Claimant would have suffered an acute stress reaction at the time of his abuse and abduction. He now suffered from Post Traumatic Stress Disorder. However Dr Rix also commented that the Claimant’s life had not been normal prior to the abuse. At the very least, it seemed probable that he had had a mixed disorder of conduct and emotions together with a learning disability in the form of dyslexia. His PTSD was attributable to the abuse which had made a material contribution to the development of borderline personality traits as well as his misuse of alcohol and drugs. The Claimant might improve in middle age but at worst, his condition would remain largely unchanged.

An educational psychologist, Mr Griffiths also diagnosed the Claimant as dyslexic, and as a result he had problems with his working memory. The psychologist expressed the view that the lack of educational qualifications severely impaired his employment opportunities. His evidence was that if the Claimant had received appropriate support from his school and parents and the sexual abuse had not occurred, it was extremely likely that he would have gained sufficient formal qualifications to enable him to move on to further education.  He might have left school at 16 and worked as a chef.

As to the present position, the psychologist considered that the Claimant should be capable of working as a chef in the long term. However he would need further education and therapy over the next six years.

JUDGEMENT:- 

Mrs Justice Swift went over the history of the case and the evidence. She referred to the case of C v Flintshire County Council [2001] EWCA Civ 302. She accepted the evidence of the psychiatrist that the Claimant’s PTSD was entirely attributable to the sexual abuse that he suffered, although it was probable that the Claimant would have suffered a loss of confidence in any event, given his other problems. In addition he would probably have been prone to mental illness and misuse of alcohol and drugs. It was not suggested that his HIV diagnosis was attributable to the abuse.

However had it not been for his constant truancy from school encouraged by the First Defendant and the distress and upheaval caused by the sexual abuse and his abduction, he would have been able to address his dyslexia and to gain the necessary educational and/or vocational qualifications to enable him to train as a chef.

Pain, suffering and loss of amenity

In relation to assessment of damages for pain suffering and loss of amenity, Swift J would said that the JSB Guidelines only provided limited assistance in cases of sexual abuse. The abuse was severe and lasted over a year. Swift J referred to the similar case of AT, NT, ML and AK v Dulghieru [2009] EWHC 225 (QB) where women forced into prostitution received between £82,000 and £125,000 for pain, suffering and loss of amenity. She also referred to the case of KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 where one Claimant, DJ who was abused over a period of six years. He received £50,000 (now £62,604) from the Court of Appeal. Swift J would aware £75,000 in this case.

Aggravated damages 

The Claimant had been threatened, sold and used sexually and the Defendants had denied any wrongdoing. Swift J would have regard for the principles in Rowlands v Chief Constable of the Metropolitan Police [2007] 1 WLR 1065. She would award £20,000 under this head of damages.

Expenses incurred by the Claimant’s parents 

A claim had been made for financial contributions made by the Claimant’s parents towards his foster placement in 2003. There was no documentary evidence or detailed particulars and consequence, it was not appropriate to make any award under these heads.

Loss of earnings 

A claim had been made on the assumption that having finished his education and vocational training, the Claimant would have started work as a trainee chef in April 2006 at the age of 17. For the first four years of his working life, his earnings would have on the lowest percentile of average annual earnings for a chef as reported in the Office for National Statistics Annual Survey of Hours and Earnings. This produced a figure of £48,859 for past loss of earnings. Swift J said that whilst his aspirations were realistic, it was highly unlikely that he would have worked all of the last four years. Therefore the claim would be reduced to £30,000.

The claim for the next six years was based on the assumption that the Claimant would remain unfit for any type of employment. This was calculated at £73,934. After applying a discount, Swift J would award £55,000.

Loss of earnings capacity 

Swift J would make an award of £30,000 under this head of claim.

Therapy  

Swift J accepted the figure given by the psychiatrist and £2,700 would be awarded. In relation to the psychologist’s recommendation for treatment, the Claimant would be awarded £1750.

Expenditure on alcohol 

The final head of claim was for the Claimant’s expenditure on alcohol over and above that which would have been incurred in any event if he had not been abused. The recommended maximum for an adult was 21 units per week, whereas the Claimant had consumed 60 units per week. Assuming the cost at £1 per unit, and the period of excess consumption began after the end of the Claimant’s abduction, the claim was £14,640 for past loss. There was no future claim.

The Claimant had relied on two cases B v London Borough of Ealing and Another [2008] EWHC 1262 and Eagle v Chambers [2004] EWCA Civ 1033. Swift J said that any excess consumption of alcohol would not satisfy the test in Eagle and this part of the claim would not be allowed.

Interest  

This would be awarded on general and aggravated damages at 2% per annum from the date of service of the proceedings at £4,157.26 and interest on past loss of earnings, at half the special discount rate from the commencement of the loss was £2,998.

The total award was therefore £209,450. The Defendants would be jointly and severally liable for that sum together with his costs.