EB v Haughton

Section 11:

“11(1)This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

…

(3)An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4)

Except where subsection (5) below applies, the period applicable is three years from—

(a)

the date on which the cause of action accrued; or

(b)

the date of knowledge (if later) of the person injured.”

Section 28:

“(1)

Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability or died (whichever first occurred) notwithstanding that the period of limitation has expired.

…

(6)

If the action is one to which section 11 or 12(2) of this Act applies, subsection (1) above shall have effect as if for the words “six years” there were substituted the words “three years”.”

Section 33:

“33(1)If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which—

(a)

the provisions of section 11 or 12 of this Act 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, or shall not apply to any specified cause of action to which the action relates

…

(3)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to—

(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 or (as the case may be) by section 12;

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

Justin Levinson, counsel for the Claimant, contended that taking into account the factors listed in Section 33 of the Limitation Act 1980 and in particular the reasons for delay in issuing the proceedings and the effect of the delay on the Defendant’s ability to investigate and defend the claim, the considerations referred to in A v Hoare and AB and others v Nugent Care Society [2010] 1 WLR 516 discretion should be exercised to allow the action to proceed notwithstanding the expiry of the limitation period.

The reasons advanced on behalf of the Claimant to explain the delay in starting proceedings included that referred to by Professor Maden in paragraph 28 of his report: delay in complaining is typical of survivors of sexual abuse. Further, Mr Levinson pointed out that the Claimant was a minor for part of the period since the accrual of the cause of action. Further the claim was conclusively statute barred for a period until the decision of the House of Lords in A v Hoare.

Mr Levinson contended that the relevant prejudice to the Defendant to be considered is the effect on his ability to defend the claim. He submitted that a fair trial was possible. The allegations depend upon the recollections of the parties. The Defendant does not say he cannot recollect matters. There was no suggestion that the criminal trial which took place in September 2006 and which dealt with the same allegations was unfair because of the passage of time. The Defendant was made aware in 1994 that the Claimant had made an allegation of sexual impropriety by him.

As for the effect of a delay in determining causation of damage, Mr Levinson referred to Professor Maden’s report. The psychiatrist considered that delay in this case caused relatively minor problems in carrying out his task. Counsel submitted that the effect on the Claimant of the matters complained of are now easier to identify with the passage of time.

Mr Levinson contended that it would be equitable and in accordance with the guidance of the House of Lords in A v Hoare to extend time to permit the claim to proceed.

James Townsend for the Defendant contended that the Claimant has not advanced good reason for the delay in starting proceedings. Before the judgment of the House of Lords in A v Hoare the limitation period would have been treated as expiring on 14^th August 2006. By that date the Claimant had made a statement to police and was to give evidence at the criminal trial of the Defendant on the same allegations which she now pursues in civil proceedings. On her own version of events the Claimant complained about the Defendant’s behaviour to various people well before issuing her claim.

Mr Townsend contended that even allowing for the view that until Stubbings v Webb had been overturned the limitation period would have expired in August 2006, almost two years elapsed between the judgment of the House of Lords in A v Hoare and the issuing of these proceedings.

As for the effect of delay on the cogency of the evidence Mr Townsend, as did Mr Levinson, rightly pointed out that this case depends primarily on the recollection of the parties. In those circumstances recollection of peripheral facts may be important.

Mr Townsend said that requiring the Defendant to face stale allegations more than seven years after the expiry of the primary limitation period constituted prejudice. In all the circumstances discretion should not be exercised to extend time to enable the claim to proceed.

The exercise of discretion under Section 33 to hear claims in proceedings commenced after the expiry of the limitation period is not uncommon in sexual abuse claims. In Stubbings v Webb the House of Lords decided that Section 11 of the Limitation Act 1980 did not apply to a case of deliberate assault including acts of indecent assault. They held that the 6 year limitation period imposed by Section 2 of the Limitation Act applied to such claims. Section 33 does not provide a discretionary disapplication of the Section 2 limitation period as it does for Section 11. In A v Hoare the House of Lords departed from Stubbings v Webb. They held that Section 11, with the possibility pursuant to Section 33 of discretionary disapplication of the 3 year limitation period, applied to personal injury claims generally including those of deliberate assault.

The Court of Appeal in Nugent recently considered the correct approach to the exercise of discretion under Section 33 of the Limitation Act in such cases. At paragraph 18 Lord Clarke giving the judgment of the Court referred to valuable guidance on the exercise of discretion to extend the limitation period in sexual abuse cases given by Lord Brown in A v Hoare at paragraphs 84 to 87. Lord Brown made three comments suggesting the sort of considerations which ought clearly to be in mind in deciding whether to extend the limitation period in sexual abuse cases now that

“…consideration of the inhibiting effect of sexual abuse upon certain victim’s preparedness to bring proceedings in respect of it.”

is relevant to the Limitation Act 1980 Section 33. The second consideration referred to by Lord Brown is material to the application of Section 33 in this case. At paragraph 86 he held:

“Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations—see section 33(3)(b) ) is in many cases likely to be found quite simply impossible after a long delay.”

Lord Clarke in Nugent held at paragraph 21 of the ‘starting points’ set out by Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441; [2003] 3 WLR 107 at paragraph 74:

“…we think that there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery. He or she may well conclude that it is desirable that such oral evidence as is available should be heard because the strength of the claimant's evidence seems to us to be relevant to the way in which the discretion should be exercised. We entirely agree with the point made at vii) that, where a judge determines the section 33 application along with the substantive issues in the case he or she 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. To do otherwise would, as the court said, be to put the cart before the horse.”

Whilst in general a Claimant would only give their evidence once, the Court of Appeal in Raggett v Society of Jesus Trust of 1929 for the Governors of Preston Catholic College [2010] AER (D) 116 restated that at the stage of deciding whether to exercise discretion to disapply the limitation period under Section 33 a judge will base their decision not on a finding of whether or not abuse has occurred but on the cogency of the evidence of that abuse and the prejudice to the Defendant.

The Court of Appeal in Nugent held at paragraph 23:

“Clearly the strength of a claimant’s case is relevant…”

Lord Clarke observed at paragraph 25 of Nugent:

“In considering the exercise of his or her discretion under section 33 the judge must consider all the circumstances including of course any prejudice to the defendant. That involves considering what evidence might have been available to the defendant if a trial had taken place earlier or it had learned of the claim earlier.”

At paragraph 24 the Court referred to the judgments in Cain v Francis and McKay v Hanlani [2009] QB 754.

In Cain the Court of Appeal considered whether the loss of a limitation defence should be regarded as a prejudice to the Defendant to be taken into account in the exercise of discretion under Section 33.

In Cain the Chancellor held:

“81.

The consequence of the disapplication of s.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).

82.

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 s.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 has referred in detail, to have regard to the loss of a limitation defence.”

Smith LJ held at paragraph 73 of Cain:

“It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.”

Having considered the authorities, Smith LJ held it to be established that the relevant prejudice to a defendant if the limitation period were extended would be whether they have suffered any evidential or other forensic prejudice rather than the loss of a ‘windfall’ limitation defence which should be regarded as either no prejudice at all or only a slight degree of prejudice.

Whilst the observation of Smith LJ at paragraph 58 of Cain that:

“…although the discretion given by the statute is unfettered, it must be exercised consistently with the broad guidance given by the higher courts, otherwise, as I have said earlier, applications for a direction will be a lottery”

was made in the context of the correct approach to whether the ‘windfall’ loss of a limitation defence should be regarded as a relevant prejudice, it is of general application. Accordingly although all relevant factors in Section 33 are to be taken into account, in my judgment in exercising discretion in this case questions of the cogency of the evidence of abuse and any prejudice to the Defendant as well as the reason for the delay in presenting the claim are of particular importance.

It is material that the Defendant does not deny that he fondled the Claimant’s leg when she was in the front passenger seat of his car – he described this as being a squeeze – or that he put his arms either side of her and put his body against her back when she was standing at a gate looking at his horse and sheep. The real issue is whether in those admitted situations the Claimant has established that the Defendant behaved as she alleges.

It is only the third allegation, the massage of the Claimant when she had no clothes on and the digital penetration of her vagina that the Defendant says did not occur. In assessing the cogency of the evidence of this allegation I take into account the credible insistence of the Claimant that she had a clear recollection that the incident occurred. Evidence was also given by the LX that the Claimant told her of this incident when she was aged about 12. The Defendant agreed that he practised massage. Also some weight is to be given to the Defendant’s plea of guilty to a similar offence of indecent assault on another girl although the Defendant sought to change his plea as he contended he had been wrongly advised. Whilst this offence occurred nine years after the alleged assault on the Claimant it bears strikingly similar unusual features: fondling of the victim’s breasts under the guise of a massage using oil and digital penetration of the vagina while carrying out the massage.

The types of indecent assault alleged by the Claimant are unusual. She maintained that her recollection of them was clear. There was evidence that she had mentioned their occurrence to others. In January 1994 the Claimant complained to Social Services of inappropriate behaviour by the Defendant towards her with the result that he was barred from contacting her. When she was about 12 years old the Claimant told LC about all the allegations she makes against the Defendant including the most serious incident. When she was 15 or 16, her reaction to hearing the Defendant’s name indicated to JC that he had been involved in an unpleasant incident of a sexual nature with the Claimant.

The suggestions put to the Claimant that she could not recall peripheral incidents did not shake her evidence that she had a clear recollection of the alleged assaults. The explanation by the Defendant that he could not have massaged the Claimant because a knee injury would have made it too painful for him to kneel on the floor to massage her lacks credibility set against other evidence. Medical records refer to the Defendant in 1994 enjoying exercise.

If the Defendant’s perceived role in making the Claimant’s mother bankrupt had motivated the Claimant to make initial allegations against him it is improbable that she would have persisted in such allegations including giving false evidence on oath in the criminal trial. The other reasons advanced by the Defendant for suggesting that the Claimant fabricated evidence against him were not mentioned by him to the police. If the Defendant had good reason to think there were reasons why the Claimant was making false allegations against him no doubt he would have said so to the police. In my judgment it is inherently improbable that such serious allegations would have been concocted because the Defendant broke a promise to take the Claimant swimming. It is also improbable that the Claimant concocted allegations because she blamed him for being taken into care.

As to the other evidence in support of the claim, there is no reason to doubt the cogency of the evidence of the Claimant’s two friends.

There has been no challenge to the report of Professor Maden the psychiatrist. His report deals with the cause of psychological symptoms felt by the Claimant and with limitation points within his expertise. Whilst it is for me to assess the cogency of the evidence I note that Professor Maden considered the Claimant to be ‘a good historian’.

In my judgment for the reasons set out above the evidence in support of the Claimant’s allegations is cogent.

Applying Stubbings v Webb the limitation period for pursuing these claims was thought to expire on 15^th August 2006. By that date the Claimant had made a statement to police about the alleged indecent assaults on her and she was prepared to give evidence at the Defendant’s trial in September 2006.

I accept the evidence of the Claimant that it was only after the Defendant’s acquittal in September 2006 that she thought about pursuing civil proceedings. Her motivation was to have a determination that the Defendant had assaulted her. If he had been convicted she would have been satisfied and would not have pursued a civil claim. The delay until September 2006 is attributable to this action.

After the Defendant’s acquittal, the Claimant sought and obtained the advice of a solicitor in pursuing a claim against the Defendant for sexual assault. She was correctly advised that on the then state of authorities her claim was statute barred. She was informed that a case was to be heard in the House of Lords which may affect the position. On 30^th January 2008 A v Hoare was decided.

Although her solicitors wrote to the Defendant in February 2008 informing him of the allegation the Claimant made against him, proceedings were not issued until December 2009.

In my judgment the delay until early 2008 in issuing proceedings is explicable. The Claimant would have been satisfied by a conviction of the Defendant for the assaults against her. When he was acquitted she promptly took appropriate advice. In A v Hoare Lord Brown observed at paragraph 88:

“I would, however, suggest that it would be most unfortunate if people felt obliged (often at public expense) to bring proceedings for sexual abuse against indigent defendants simply with a view to their possible future enforcement.”

In this case in my judgment it was not unreasonable for the Claimant to wait before issuing proceedings until the outcome of the criminal trial. Further, whilst a precautionary claim could have been lodged, on the facts of this case it was not unreasonable to await the outcome of A v Hoare in the House of Lords.

However the delay between February 2008 and December 2009 is less explicable and excusable.

Professor Maden refers in general to the inhibitory effect sexual abuse may have on a victim making them reluctant to come forward to complain. He did not say that the Claimant suffered from this effect. Indeed the evidence would not support such a contention at least from December 2004 when the Claimant made a statement to the police about the allegations she seeks to pursue against the Defendant in these proceedings. No explanation has been offered for the period of delay after February 2008 other than that the Claimant had a baby on 30^th November 2008 and did not want the added stress of litigation. However there was time to start proceedings before the pregnancy or after the birth of the Claimant’s son. Mr Townsend rightly pointed out that the Claimant gave no explanation in her statement for the delay in issuing proceedings and that the pregnancy explanation for the delay was advanced for the first time at the hearing.

The Defendant was first made aware in January 1994 that the Claimant was alleging he had behaved inappropriately towards her. However the allegation made by her at the time is likely to have been of an unspecific nature: that she felt uncomfortable in his company. He must have known of this assertion as social services had told him he was not to contact her.

The Defendant was made fully aware of the specific allegations made by the Claimant against him when he was arrested and charged in early February 2005. The allegations in the civil proceedings are the same as those made in the criminal trial. The criminal trial was not stayed for abuse of process and, as Mr Levinson pointed out, the Defendant would not say that he did not have a fair trial of the criminal charges against him.

Over a year elapsed after his acquittal before the Defendant was notified by the Claimant’s solicitors of the possibility of civil proceedings being taken against him. However it is not suggested that any evidence was lost by reason of the delay.

The assessment of the Claimant’s recollection as against that of the Defendant will be central to the judgment as to whether the Claimant has established her claims. It is not suggested that any documents have been lost or that witnesses are unavailable due to the passage of time. The challenges by the Defendant to the Claimant’s evidence are likely to have been the same if made at a hearing of proceedings issued within the primary limitation period as they have been at the hearing before me. In my judgment the Defendant’s ability to defend the allegations against him have not been affected or not materially affected by the passage of time.

Further, it has not been suggested that evidence on causation of damage has been adversely affected by the passage of time.

Accordingly in my judgment the defendant would suffer little or no prejudice if discretion were exercised to extend the limitation period.

Whilst the authorities do not in my view go quite as far as to state that lack of prejudice to the Defendant trumps all other considerations, nonetheless this factor is given considerable weight. Smith LJ in Cain held that although a judge’s discretion in applying Section 33 is unfettered, the principles formulated by the higher courts should be applied. I have regard to the fact that considerable weight is attached by the Court of Appeal in Nugent and Cain to absence of prejudice. Although part of the delay in issuing proceedings, nearly two years from February 2008, was not in my judgment explicable, having regard to the lack of prejudice, the fact that at least from February 2005 when he was charged with the criminal offences which form the basis for the claims in the current civil proceedings, the Defendant was aware of the allegations made against him and having regard to the cogency of the evidence, I exercise discretion to disapply the Section 11 limitation period pursuant to Section 33 to enable this claim to proceed.

The outline of the allegations of assault and the complaints made by the Claimant have been set out above and I will not repeat them here. I now set out the detail of the evidence relating to each assault in order to determine whether the claims have been established. Facts and matters set out above in considering the limitation issue including the arguments advanced on behalf of the Defendant as to why the Claimant may have invented false allegations have been taken into account in assessing whether the Claimant has established that the sexual assault took place.

In assessing whether the Claimant has established her claim on liability I have considered each assault separately. I also have borne in mind that since the allegations are serious and unusual a high standard of proof is required if the assaults are to be found to have occurred. I have borne in mind Lord Nicholls’ words in Re H (minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586 E-F:

“When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in a particular case, that the more serious the allegations the less likely it is that the event occurred, and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.”

To an extent whether this allegation is established depends upon a difference of interpretation of the Defendant’s actions. The Claimant alleged that the Defendant stoked her leg when she was a front seat passenger in his car. This happened on some occasions when he drove her to and from riding stables. The Claimant said that to avoid repetition of the unwelcome stroking of her leg she asked whether she could sit in the back seat. The Defendant said no.

Duncan McGovern, an independent reviewing officer for social services, gave evidence that he had looked at the Claimant’s social services file. There was a note in it written by a colleague that the Claimant had said that she did not like the Defendant touching her legs when she was travelling with him in his car. That note was in the papers used in the hearing before me.

The Defendant said that he only drove the Claimant to and from the riding stables on two or three occasions. He may have given her leg ‘a squeeze’. This is something not unusual for him. He is quite tactile. He denied stroking her leg.

Mrs Haughton gave evidence and confirmed that the contents of her witness statement dated 15^th July 2010 were true. At paragraph 15 she wrote:

“My husband has always had a habit of putting his hand on the passenger’s knee in a car when he is driving. He will put his hand on your knee to emphasise a point when he is talking. It is just something he does without thinking about it and there is absolutely no sexual connotation. He would do it to both men and women. If [E] had asked him to stop touching her leg it would not have happened again. My husband comes from a continental family who use hugging, kissing and touching as a form of communication and comfort.”

In my judgment the touching of the Claimant’s leg is likely to have been something out of the ordinary to make an 11 year old girl feel it was inappropriate. Asking to sit in the back seat of the car is natural evading action for the Claimant to have taken. If the Claimant had wished to invent a false allegation it is likely that it would have been of a more serious nature. There would be no reason to invent this allegation. I find the allegation that the Defendant on two or three occasions stroked the Claimant’s leg inappropriately and not innocently when she was a passenger in his car to be established.

The Defendant did not deny that he stood behind the Claimant when she was at a gate to a field looking at his animals. He said that he stood with one arm either side of her and his body against hers to support her.

The Claimant gave evidence that when standing at the gate to the field he Defendant would touch her on her upper body and would squeeze her breasts, at first over her clothes and later underneath her top.

The Claimant said that she complained to Margaret Smith, her first foster carer about the Defendant’s behaviour by the gate. LX gave evidence that the Claimant told her that the Defendant had fondled the Claimant when she was standing on a gate. She also mentioned stroking of her legs and ‘intimate area’. In evidence the Claimant said that a similar allegation had been made about the Defendant by his granddaughter. The Defendant said that the police had investigated the allegation and no further action was taken. I do not take this unsubstantiated allegation into account.

On his own evidence the Defendant said he had pressed against the Claimant whilst she was standing on a gate to a field to steady her while she looked at his sheep or horse. It may be open to question whether it was necessary to hold an 11 year old when she was standing on a gate to ensure she did not fall. I am satisfied on the evidence given by them that the Claimant’s account is to be preferred to that of the Defendant and that the Defendant fondled the Claimant’s breasts on several occasions when she was standing on a gate to look at his horse and his sheep.

The Claimant gave evidence that the contents of her witness statement were true. At paragraph 18 of her statement of 14^th November 2006 she states:

“One night when I was at his house, R asked if I knew what a massage was and if I had ever had one. I replied “No”. R then said that he would give me a massage and I went along with it. R told me to take my clothes off and lie on the floor, so I did this, whilst he went out to the kitchen to get some oils for the massage. He then said that he did not have the proper oils at the time so would have to use something else. I felt very uncomfortable, embarrassed and strange and asked if I could have a towel to put over me. R said “Don’t worry, I’ve seen it all before” or something like that. He then started to put some oils in his hands and rub it onto my body. I was lying on my front at first, whilst he massaged my back and then he asked me to turn over onto my back, so he could massage the front part of my body. R massaged the front of my body, including my breasts. He then moved down towards my legs where he massaged my inner thighs. He then started rubbing my groin area with his hands. He then inserted his finger into my vagina and penetrated inside me. I found this whole experience dreadful and wanted it to end as soon as possible. I tried to take my mind off what he was doing to me, by focusing my attention on the cats in the room and looking away from him. After it had finished, I asked if I could get dressed and he said “Yes”.”

On another occasion the Defendant had massaged the Claimant’s leg. The Claimant had no complaint about this: it was not inappropriate or sexual in nature.

LX gave evidence that she and the Claimant became very friendly when they both attended the same secondary school and the Claimant was being fostered by Mr and Mrs Eldridge. The Claimant would often visit her home. Mrs LX gave evidence that on one occasion when she was about 12 years old the Claimant had said that the Defendant had asked her to remove her clothing and lie on a towel on the floor. He put oils on her body and touched her inappropriately. He then asked her to lie on her back so that he could continue the massage. He then touched her vaginal area.

When challenged by Mr Townsend as to whether she could really remember the Claimant telling her about the massage allegation, Mrs LX said ‘it is not something you really forget.’ She said that she did not have difficulty remembering the conversation.

JC and the Claimant had known each other for some time. At secondary school JC mentioned to the Claimant that a scar she had on her leg had been caused by a bite from the Defendant’s dog. On hearing this the Claimant burst into tears. Later LX (then LC) told her that the Defendant ‘had not been very nice’ to the Claimant. She said this in such a way that JC gained the impression that the Claimant had been referring to something sexual and unpleasant.

When JC heard that another girl complained in 2002 that she had been assaulted by the Defendant, she contacted the Claimant. She advised her to tell the police about what had happened to her. The Claimant did so.

The Defendant was prosecuted for the assault on the girl mentioned by JC. He pleaded guilty on a basis of plea in which he stated:

“I am charged with indecent assault. I have decided to plead guilty. I have taken this decision following a discussion with my counsel. He has advised me on the strengths and weaknesses in the evidence. I accept the following:

(1)

I intended to rub cream on [M]’s chest area. I did this. I accept that I rubbed the tips of my fingers over her chest, including the breast area.

(2)

I attempted to touch [M]’s genitals. I tried to do this from the top of the pyjamas. I did not succeed because [M] prevented me.

(3)

I accept that the above actions would be considered indecent by right minded people and I intended to commit such an assault.

I have had read and understand the contents of this note. I take this decision freely and have not been pressurised. I have been advised that custody is likely but would like a community penalty. I realise this is only a slim possibility and subject to probation and, more importantly, the judge, I say this because I don’t know why I behaved this way.”

On 24^th July 2003 the Defendant was sentenced to six months imprisonment suspended for two years for the indecent assault on 20^th May 2002 on an 11 year old girl.

The Defendant applied to change his plea as he felt he had been wrongly advised to plead guilty. His application was refused by the Crown Court judge. Mr Townsend urged me to have regard to the Defendant’s wish to change his plea and not to take into account his conviction for the offence of indecent assault.

The Defendant gave evidence that he was a qualified masseur. He carried out massages for ten years between 1992 and 2002. At her mother’s request he massaged the Claimant’s leg when she had pulled a muscle.

The Defendant said that he did not massage the Claimant at his house when she had no clothes on as she alleged. He could not have massaged her on the floor. Because of an injury to his knee and an operation he was unable to kneel for any length of time. Further, he could not remember a time when he was alone in his house with the Claimant.

Relevant medical records relating to the Defendant were in the papers before me. On 19^th December 1990 a consultant orthopaedic surgeon wrote to the Defendant’s general practitioner to say:

“This chap has made a good recovery from his arthroscopic meniscectomy and will return to sports soon. I have not arranged to see him again.”

An entry on his medical records on 13^th September 1992 states that the Defendant ‘enjoys heavy exercise’. On 16^th August 1999 Dr Bray the Defendant’s GP wrote to the orthopaedic surgeon:

“You performed an arthroscopic meniscectomy on this chap in November 1990. He tells me that since then his knee has been intermittently swollen and occasionally uncomfortable but, unfortunately, two weeks ago he twisted his knee while taking a group of children ice-skating and since then has had a marked diffusion (sic) with pain medial in his knee.

…I suspect his meniscus might need further treatment.”

The medical evidence does not support the Defendant’s contention that he would have been unable to kneel on the floor to carry out a massage on the Claimant as she alleges. The Defendant had made a good recovery from his knee operation in 1990 and was expected to return to sports soon. By August 1999 the Defendant appears to have been participating in sports as two weeks before the letter of 16^th August 1999 from his GP he had taken a group of children ice skating when he twisted his knee. The list of complaints about his knee recorded by his doctor did not include inability to kneel. The Claimant alleged that the Defendant assaulted her during a massage when she was lying on the Defendant’s floor. This was alleged to have occurred in 1993. The incident was alleged to have taken place after the operation on the Defendant’s knee in November 1990 from which he made a good recovery and before the twisting of the knee in 1999 which led him to return to his doctor complaining of pain in the knee. The letter from his GP to the orthopaedic surgeon in 1999 does not suggest that the Defendant had been unable to kneel because of pain in the knee.

It is possible that the Defendant was alone in his house with the Claimant. In evidence the Defendant’s wife said that usually she was in the house when the Claimant was there with the Defendant. However she commented that she could not be there all the time.

On the evidence of the Claimant, LX and JC I find that when she was about 12 years of age the Claimant told LC that she had been sexually assaulted by the Defendant under the guise of a massage. When she was about 15 or 16 the Claimant became upset when JC mentioned the Defendant’s name. The Claimant asked LC to tell JC why she had become upset. The fact that JC telephoned the Claimant to advise her to tell the police what the Defendant had done to her when JC learned in 2002 of a similar alleged assault on another young girl strongly suggests that the Claimant did tell LC about the alleged sexual assault under guise of a massage and that LC had told JC or suggested that the Claimant had suffered a similar assault.

Mr Levinson informed me that the jury at the trial of the Defendant was not permitted to hear evidence of the complaints about the Defendant’s conduct made by the Claimant to LX and JC.

The evidence of the conviction of the Defendant on 24^th July 2003 for a strikingly similar sexual assault on an 11 year old girl on 20^th May 2002 whilst massaging her was not admitted at the criminal trial. Whilst I note that the Defendant sought to change his plea to the sexual assault he was not permitted to do so. I must proceed on the basis of what did happen at the criminal trial not what might have happened. Section 11(2) of the Civil Evidence Act 1968 provides:

“11(2)In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom or by a court-martial there or elsewhere—

(a)

he shall be taken to have committed that offence unless the contrary is proved; and

(b)

without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.”

The basis of plea illustrates that the circumstances of the sexual assault by the Defendant on a young girl in 2002 were strikingly similar to that alleged by the Claimant to have been perpetrated on her by the Defendant in 1993. In these proceedings such evidence is admissible.

The Claimant gave her evidence in a relatively calm and measured way. She impressed as an intelligent young lady who had been considerably upset by the assaults which she alleged she had suffered at the hands of the Defendant. Her account of the assault under guise of a massage is of an unusual event. She was unshaken in the account she gave of the occurrence.

I reject the Defendant’s evidence that he could not have massaged the Claimant on the floor because it was too painful for him to kneel down. The medical evidence does not support this explanation. The Defendant did carry out massages and, contrary to his assertion, he could have been alone with the Claimant in his house. I give some weight to his conviction for an indecent assault on a girl in 2002. Although the alleged assault on the Claimant took place nine years earlier, the features of the two offences were very unusual and are strikingly similar. The fact that the Defendant pleaded guilty to an offence in which he fondled a young girl inappropriately under guise of a massage using oils and attempted to penetrate her vagina with his finger lends some weight to the Claimant’s account since it shows a propensity for unusual conduct of this nature. However I would have found the Claimant’s allegation proved even without taking the previous conviction into account.

Having regard to all the evidence I find the allegation that the Defendant touched the Claimant inappropriately under the guise of a massage and digitally penetrated her vagina proved.

The Claimant claims general damages for pain suffering and loss of amenities. She also claims aggravated damages on the basis that the Defendant’s denials let to the Claimant having to give evidence in two trials and that the sexual assaults were perpetrated by a trusted adult. Reliance was placed by Mr Levinson on Rowlands v Chief Constable of Merseyside Police [2007] 1 WLR 1065. Special damages in the sum of £3,640 are claimed for the cost of therapy sessions recommended by Professor Maden.

Mr Levinson pointed out that the expert evidence of Professor Maden was unchallenged. As for causation, Professor Maden set out the effects of the alleged abuse by the Defendant at paragraphs 48 to 61 of his report of 3^rd August 2008. Mr Levinson referred to Professor Maden’s opinion that the abuse by the Defendant was the main cause of the Claimant’s persisting mental health problems: anxiety and consequent psychosomatic complaints. Mr Levinson referred to paragraph 137 of the expert’s report to contend that the prognosis for the Claimant is not good.

Mr Levinson contended that there should be a high award in this case. He referred to the judgment of Field J in C v D and SBA [2006] EWHC 166 on 23^rd February 2006 in which general damages of £20,000 was awarded. He contended that the sexual abuse, in that case touching the Claimant’s genitals, videoing him when naked in the shower and on another occasion fondling his penis, was less serious than that in this case. Mr Levinson submitted that a higher award should be made in this case, £35,000 for general damages.

In addition Mr Levinson contended that the Claimant should be awarded aggravated damages. He referred to the judgment of Moore-Bick LJ in Rowlands in which he held at paragraph 26:

“…I am unable to accept that the mere fact that the basic award includes an element to compensate for psychiatric harm necessarily precludes an award of aggravated damages. It is now generally recognised that an award of aggravated damages is essentially compensatory in nature, notwithstanding the fact that it may have a punitive effect by increasing the overall amount the defendant is ordered to pay.”

In support of an award of aggravated damages Mr Levinson relied upon the fact that the Claimant had to give evidence at two trials. The Defendant had perpetrated a gross breach of trust: he was in loco parentis as a trusted adult. The assaults were serious. Reference was made to AT and others v Gavril Dulghieru and Tamara Dulghieru [2009] EWHC 225 in which aggravated damages of £35,000 were awarded to two of the Claimants. The Claimants had been the victims of an unlawful conspiracy to traffic them into the United Kingdom from Moldova for the purposes of sexual exploitation and prostitution. The First Defendant pleaded guilty at his criminal trial and the Second Defendant was found guilty. An element of the aggravated damages was that two of the Claimants had to give evidence at the criminal trial. The two who did not face the prospect of giving evidence at the criminal trial were awarded £30,500.

Mr Levinson submitted that in this case there should be an award of £5000 aggravated damages in addition to am award of £35,000 general damages.

Mr Townsend for the Defendant submitted that the opinion of Professor Maden that the main cause of the Claimant’s persisting mental health problems was the alleged sexual abuse by the Defendant did not lead to the conclusion that all the symptoms identified were caused by the abuse.

Mr Townsend drew attention to the JSB Guidelines on General Damages for Personal Injuries. He contended that the appropriate band for this case was band B on page 12 for moderate to severe psychiatric damage for which the bracket is £12,500 to £36,000.

Mr Townsend referred to Sargent v Sargent, a judgment of Judge Peter Gladstone in the Watford County Court on 12^th January 1998 set out in Kemp & Kemp in which £20,000 general damages were awarded in a case of sexual abuse, The Claimant was sexually abused by her grandfather over a period of eight years when she was between the ages of seven and fifteen. It was said that Sargent was a far worse case than the Claimant’s. Taking into account the facts of this case and all the circumstances Mr Townsend submitted that the award of general damages should be £20,000.

As for the claim for aggravated damages, Mr Townsend contended that the features relied upon by the Claimant would be taken into account in the award of general damages. These would reflect the pain and distress suffered by compensating for psychiatric injury. The sexual nature of the assaults would also be taken into account in the award of general damages. Mr Townsend submitted that this case should be distinguished from Dulghieru in which the learned Judge made it clear at paragraph 62 that the Claimants would not be adequately compensated for the injury to feelings, humiliation and insult they suffered if the award were restricted to general damages.

The Claimant had a troubled childhood. Professor Maden records that she and her sister were taken into foster care because their mother was drinking heavily and could not look after them. Her parents had separated. Professor Maden writes at paragraph 132 of his report:

“The parental separation was a major blow and would probably have caused transient emotional problems even if there had been no abuse.”

The Claimant was placed with foster carers when she was 11 years old. At first she was separated from her sister. The Claimant was reunited with her sister in a placement which the Claimant described to Professor Maden as ‘awful’.

Professor Maden’s diagnosis of the Claimant’s psychiatric condition was:

“127.

She suffered from an emotional disorder during childhood.

128.

From the age of 16 she has suffered from a generalised anxiety disorder (Category F41.1 in the ICD10 Classification of Mental and Behavioural Disorders). She has had various psychosomatic complaints which originate in her underlying anxiety.

130.

Before and during the trial she suffered from post traumatic stress disorder (Category F43.0 in ICD10). Some symptoms have persisted but she no longer meets all the diagnostic criteria for this condition.”

Professor Maden’s conclusions on causation are set out in paragraphs 131 to 136 of his report:

“131.

The causation of most mental health problems is multifactorial with genetic and environmental factors both playing a part. There was hereditary vulnerability given the mother’s mental health problems.

132.

The parental separation was a major blow and would probably have caused transient emotional problems even if there had been no abuse.

133.

The sexual abuse by Haughton was the main cause of her persisting mental health problems namely the anxiety and consequent psychosomatic complaints; sexual problems; and post traumatic stress disorder. Had it not been for the sexual abuse she would not have had these problems.

134.

The main impact of the abuse has been on her personal life. It left her feeling anxious and guilty. She has also been troubled by psychosomatic complaints throughout her adult life and they interfere with her ability to enjoy all aspects of her life.

135.

The abuse interfered with her ability to enjoy a sexual, intimate relationship but she has now got over that problem within a supportive relationship.

136.

Her symptoms interfered markedly with her ability to work at and around the time of the criminal trial. She is fit to work at the moment and performs well in her role as a mother. However psychosomatic complaints continue to have an intermittent effect on her performance.”

I gratefully adopt the approach to causation outlined by Field J C v D and SBA in which he followed that of Scott Baker J in Various Claimants v Flintshire County Council (26^th July 2000). Field J summarised Scott Baker J’s analysis as follows:

“102.

… Citing Lord Reid in Bonnington Castings Ltd v Wardlaw [1956] AC 613 at 621 and Lord Wilberforce in McGhee v National Coal Board [1973] 1 WLR 1 at 6, Scott Baker J held that a claimant had to show that the abuse he suffered had made a material contribution to his condition. He also held, following Mustill J in Thompson v Smiths Ship Repairers Ltd [1984] 1 QB 405, that he should apportion the damage caused by abuse and that caused by other phenomena on a common sense basis.”

On the basis of the evidence of Professor Maden adopting the approach to causation in C v D and SBA the principal cause of and trigger for the Claimant’s persisting mental health problems is the sexual abuse perpetrated by the Defendant. However unsurprisingly her difficult childhood appears to have played a not insignificant role in her mental health difficulties.

The first two types of sexual assault – the stroking of the leg in the motor car and the fondling of the breasts at the gate of a field – whilst unpleasant, distressing and reprehensible were at the lower end of the scale of sexual assault. Although they occurred on several occasions, the stroking of the Claimant’s leg in the Defendant’s car did not continue over a protracted period. The Claimant helped out at the stables for a short period and these incidents occurred when the Defendant drove her to and from the stables.

By far the most serious sexual assault was the fondling of the Claimant by the Defendant under guise of massaging her and the penetration of her vagina with his finger or fingers. However I bear in mind that this serious sexual assault was not repeated.

The assaults were carried out by an adult who played an important role in the Claimant and her sister’s lives. The Defendant saw them almost every day for a period in 1993 and tried to ensure that they had food when their mother failed to provide meals for them. The Claimant liked horses and other animals and the Defendant enabled her to help out at riding stables and took her to see his horses and sheep. The Defendant betrayed the trust the Claimant put in him by abusing her. The Claimant was only 11 years old, when the Defendant carried out the abuse.

Professor Maden gave a guarded prognosis of the Claimant’s future mental health. He wrote at paragraphs 137 to 139 of his report:

“137.

The prognosis is guarded because of the length of time for which the anxiety disorder has been present. The natural history of such disorders is that once they have been present for a number of years they are likely to continue indefinitely. She will remain an anxious woman troubled by psychosomatic complaints throughout her life.

138.

The natural history of mental health problems following childhood sexual abuse is that they get worse when the sufferer’s own children reach the age at which the abuse occurred when memories and associated symptoms come to the surface. She is likely to experience a worsening of her anxiety, psychosomatic complaints and post traumatic stress disorder as her son grows older.

139.

The sexual problems have improved to a considerable extent and she is happy in her current relationship.”

The JSB Guidelines on psychiatric damage list amongst the factors to be taken into account in valuing claims of this nature:

“(vii)(a) whether the injury results from sexual and/or physical abuse and/or breach of trust;

(b)

if so, the nature of the relationship between the victim and abuser, the nature of the abuse, its duration and the symptoms caused by it.”

Taking into account the JSB Guidelines, the apportionment of causation, the degree of injury suffered and the levels of award in the examples relied on by counsel I award £28,000 in general damages.

Proceedings were issued on 16^th December 2009. Interest on general damages at 2% per annum is awarded amounting to £653.

The sum of £3,640 is awarded being the cost of therapy sessions recommended by Professor Maden.

Moore-Bick LJ in Rowlands cited Lord Woolf MR in Thompson v Commissioner of Police of the Metropolis [1999] QB 498 in which giving the judgment of the Court he held at page 512E:

“…there can be a penal element in the award of aggravated damages. However they are primarily to be awarded to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated.”

Moore-Bick LJ cautioned at paragraph 26:

“…any injury for which compensation has been given as part of the award of basic damages should not be the subject of further compensation in the form of an award of aggravated damages.”

The Claimant gave the following account in her witness statement dated 14^th November 2006 of the effects on her of the abuse by the Defendant:

“59.

I still suffer from anxiety, and have been taking anti-depressants for the last 2 years. These have been prescribed by my general practitioner.

60.

I frequently have moments when I recall R and the abuse and have found it very hard to come to terms with particularly since seeing him at the trial.”

Whilst it was no doubt distressing for the Claimant to have to give evidence at the Defendant’s criminal trial and in these proceedings, he was acquitted of all counts against him. In those circumstances I do not consider it appropriate to regard contesting the allegations made by the Claimant as a factor justifying the award of aggravated damages.

The Defendant abused the trust placed in him by the Claimant. However not every finding of sexual abuse of a child by an adult will attract an award of aggravated damages. Whether such an award is to be made will depend upon the facts of each case. Without in any way seeking to minimise the despicable conduct of the Defendant towards the Claimant it is to be borne in mind that the most serious assault he perpetrated was not repeated.

Taking all these matters into account and the statement made by the Claimant of the effects of the abuse on her I do not consider that this is an appropriate case for an award of aggravated damages. Compensation for the mental distress caused by the Claimant’s actions in this case is reflected in the award of general damages.

Judgment for the Claimant in the sum of £32,293 in damages and interest.