(Published in APIL PI Focus May 2008 Volume 18 Issue 5)

Quantum: physical abuse during childhood, claim for pain, suffering and loss of amenity, past and future loss of earnings, excess consumption of alcohol

Judgment handed down by HHJ McKenna (sitting as a High Court Judge) on the 4th April 2008 in the Royal Courts of Justice

Justin Levinson of One Crown Office Row instructed by Malcolm Johnson & Co. for the Claimant

Case report submitted by Malcolm Johnson and Justin Levinson.

The Claimant was born in 1983 and is the daughter of the Second Defendant. The First Defendant was the local authority in whose area the Claimant grew up. On the 15th June 2007, the Claimant issued proceedings in the High Court against her father for physically and emotionally abusing her throughout her childhood. As the father resided in Eire (he is the owner of two properties there) proceedings were served outside the jurisdiction. She also issued proceedings against the First Defendant on the grounds that its social workers were negligent in failing to protect her from the Second Defendant.

Shortly after issue of proceedings, the Claimant obtained an order by consent for permission to extend service of the proceedings on the First Defendant up until 28 days after the determination of the case against the Second Defendant. Therefore the proceedings against the First Defendant were effectively stayed and no part was taken by them in relation to the final hearing to assess damages, although they were kept informed of the progress of the action.

On the 4th September 2007, judgment was entered against the Second Defendant for an amount to be assessed and various directions were given. The Second Defendant took no part in the proceedings, other than to telephone his daughter (the Claimant) in January of this year and threaten her.

The case proceeded to an assessment hearing before His Honour Judge McKenna, a circuit judge sitting as a High Court Judge on the 3rd April 2008. Judgment was given on the 4th April 2008.

The Second Defendant had subjected the Claimant to physical and emotional harm throughout her childhood. In particular he had threatened to kill her, had beaten her on a daily basis from the age of 3 to 17 and verbally humiliated her, saying that she would become a prostitute. Her account was supported statements from two of her elder brothers and some social services notes from the London Borough Ealing that alluded to concerns about the Second Defendant’s abusive behaviour towards his family. These notes had been produced before the Claimant was born. The Claimant’s medical evidence was by way of a report from Dr Trevor Friedman, a consultant psychiatrist, and an addendum.

The Claimant had developed significant psychological problems, anxiety, a specific phobia relating to speaking in public, agoraphobia and harmful use of alcohol.

Reliance was placed on the recent decision of Eady J in Pierce v Doncaster Metropolitan Borough Council [2007] EWHC 2968. In that case, the Claimant successfully claimed damages against a local authority on the basis that it negligently failed to protect him from physical and emotional abuse at home. He received £25,000 for pain, suffering and loss of amenity. The Claimant’s counsel put this to the court as a “good starting point” and it was submitted that that the Claimant’s case was more serious.

Reliance was placed upon the Judicial Studies Board Guidelines for the Assessment of General Damages which suggests that in cases of moderately severe psychiatric damage, awards will range between about £11,750 and £33,500. In addition counsel for the Claimant cited the case of Various Claimants v Flintshire County Council 26th July 2000 (unreported) where Scott Baker J had said that the first question for the court was whether the breach of duty in issue had made a material contribution to the particular Claimant’s condition. It was enough that the contribution was not so small that the law should not take account of it.  The court should make the best estimate that it could, in the light of the evidence.

The Claimant had attained 8 GCSEs. She then started an A level course at college, which she did not complete. Thereafter she worked sporadically, earning very little. Since 2003, she had been unemployed and in receipt of benefits. She had two children in 2002 and 2005 and received considerable support looking after them from her mother and brother. It was argued on her behalf that such support would ordinarily enable a mother to sustain at least some employment.

Dr Friedman considered that the Claimant’s education had been affected due to her anxiety symptoms and fearfulness of school. However there were a number of factors that had caused her to under perform, and Dr Friedman opined that the abuse by her father was responsible for approximately 10% to 20% of her educational difficulties.

Likewise Dr Friedman considered that the Claimant’s current symptoms were caused by a number of factors and it was difficult to be certain as to the causation of her current problems. However her upbringing was probably a major component in her lifelong symptoms of anxiety. Dr Friedman felt that it would be reasonable for the Claimant to return to full time education and to consider training in the future. In his opinion, there was a moderate relationship between her abuse in childhood and her subsequent adult difficulties. He would have expected her to have attained a university degree and subsequent employment. It would be reasonable to state that 10% to 20% of this loss of attainment was related to the abuse that she suffered at the hands of her father.

The Claimant’s Schedule set out net earnings for a computer technician and a psychologist over a number of years, which were taken from the Professional Negligence Bar Association – Average Earnings Statistics for Full Time Females on Adult rates. It was conceded by the Claimant’s counsel at trial that the birth of two children would constitute an interruption to the Claimant’s ability to earn. There would also be other factors operating, such as benefits and earnings actually received. However the idea was to give the court some figures, on which it could reach a conclusion.

Counsel submitted that the Claimant would always be at a disadvantage in the job market, since there would always be a gap on her curriculum vitae that she would have to explain to future employers.

Therefore it was submitted by the Claimant’s counsel that a lump sum approach should be taken to both past loss of earnings and future loss of earnings.

Dr Friedman recommended treatment at a cost of £2700. There was also a claim for the cost of travelling expenses whilst undergoing treatment.

A claim for gratuitous care given by the Claimant’s family was not supported by Dr Friedman.

Finally the Claimant made a claim for the cost of her excessive alcohol consumption. She had begun drinking at a relatively early age. Dr Friedman had diagnosed her as suffering from “mental and behavioural disorders due to use of alcohol.” However he considered that the cause of her alcoholism was complex and only to a small extent related to her childhood abusive experiences “perhaps in the range of 5% to 10%”. The Claimant’s counsel submitted that her alcohol consumption was at a cost to her, but that she had derived no real benefit. Accordingly such excess expenditure as was caused by the abuse was recoverable.

Counsel relied upon the case of Eagle v Chambers [2004 EWCA Civ 1033 where the injured Claimant began to smoke excessively and to waste some of the cigarette that she was contemplating smoking. The judge awarded a sum of the cost of cigarettes wasted in the past, but not for the cost of any increased number of cigarettes smoked, drawing the distinction (it would seem) between those from which she obtained a benefit and those she did not. He made no award for the future relying again, possibly, on the benefit obtained if she did smoke more than prior to the accident, but also on the fact that treatment might alleviate the problem.  Waller LJ in the Court of Appeal said that only if the medical evidence were to convince the court that the accident had caused such injury to the brain that the victim had no choice but to increase her consumption of cigarettes, could the extra consumption be a head of damage.

The Claimant’s Schedule had calculated the excess consumption on the difference between the amount actually consumed by the Claimant each day and the safe amount recommended by BUPA.  As at the date of the trial, this loss was quantified at £14,300 or £34.40 per week from the Claimant’s 16th birthday.

Judgment

Pain suffering and loss of amenity

Judge McKenna accepted the Claimant’s evidence and that of her brothers. He said that the court could take comfort from this corroboration as well as the evidence of the social services notes.  He also accepted the evidence of Dr Friedman and his apportionment of causation. The judge accepted that the abuse in this case was clearly more frequent that the abuse that occurred in the case of Pierce.  Taking into account the apportionment approach shown in Flintshire and allowing for other causative factors he awarded the sum of £33,500.

Past loss of earnings

The judge said that he would employ a broad brush approach. There was no doubt that the Claimant’s educational attainment had been adversely affected. That evidence had been corroborated by the educational and GP records produced to the court. She was to be congratulated on having attained 8 GSCEs. The Claimant’s counsel had invited the judge to take the period from the Claimant’s 18th birthday (2001) to date of trial (7 years) and set an average loss of earnings at £10,000. Using those figures, the judge applied a multiplier of 15% to that figure (the mid-point in Dr Friedman’s apportionment range), and awarded £11,000 for past loss of earnings.

Future loss of earnings/loss of advantage in the job market

The judge said that again he would apply a broad brush approach. There were a large number of imponderables. The Claimant would always be hampered by gaps in her curriculum vitae and she would have to take time out to make up for the lack of educational attainment. Assessing the claim was fraught with difficulty, but the judge awarded £22,000.

Therapy

£2,700 was awarded together with £100 for travel.

Excessive alcohol consumption

The judge said that when he first read the papers, there was a significant degree of scepticism on his part about this aspect of the claim. However he had considered the approach adopted in the case of Eagle v Chambers and he was persuaded by the medical evidence that the excessive alcohol consumption was caused in part by the abuse. He multiplied the figure of £14,300 by 7.5% (halfway between the 5% and 10% causative contribution suggested by Dr Friedman) and awarded £1,072.

Interest

Interest was awarded at 2% from the date of issue of proceedings to trial (9 ½ months) on the pain, suffering and loss of amenity figure (£33,500) – £530.

Summary

PSLA – £33,500
Past loss of earnings – £11,000
Future loss of earnings/loss of advantage in the job market – £22,000
Therapy and travel – £2,800
Excessive alcohol consumption – £1,072
Interest – £530

Total judgment – £70,902

The court also ordered a payment on account of costs in the sum of £40,000 against a pre trial costs estimate of £64,193.

The Claimant’s solicitors are now proceeding to enforce the judgment in Eire. At the time of writing the Second Defendant had not yet sold his properties, but was attempting to do so.

Malcolm Johnson of Malcolm Johnson & Co.

7th April 2008