BDA v Quirino

A claim has been brought by BDA, as she is now known in these proceedings, to recover damages for the consequences of systematic sexual abuse to which she was subjected by the Defendant, her then karate instructor, during her teenage years, that is from late 2001 until December 2005. The Claimant is now 28 years of age.

The matter has proceeded before this Court by way of assessment of damages, following the entry of interlocutory default judgment towards the end of last year, and after Master McCloud refused to set aside judgment in April of this year. Although the Defendant was at one point represented, he has participated in these proceedings as a litigant in person with the assistance of a McKenzie friend. However, he had served no evidence, and thus was not in a position to give any testimony (although this is unlikely to have been relevant to causation/quantum issues for the most part) but I permitted him to ask questions of the Claimant through me.

In this respect, and reflecting the procedure which was followed in the criminal proceedings in which the Defendant had been involved, special measures were allowed, and the Claimant gave her evidence from behind a screen, visible only to myself and her own counsel. Further, and in view of the sensitivity of the subject matter of this claim, and in respect of her privacy, I agreed that an order for anonymity should be continued.

The issues which fall to be determined in this case, therefore, relate to general damages, with the assessment of PSLA for psychiatric injury, the assessment of damages for mental distress and injury to feelings, whether any separate award should be made for aggravated damages in addition, and the quantification of the pecuniary loss claim in relation to lost earnings. However, fundamental to that determination is the proof that the sexual abuse which is established by the interlocutory judgment on liability has been the cause of the subsequent loss and damage.

The only oral evidence before the court was that of the Claimant herself. Witness statements had been provided by two friends and her mother but a decision had been made by her legal team not to call these witnesses and instead to rely upon them as hearsay statements. It was acknowledged that they do not advance the Claimant's case significantly further than her own testimony, which is considered in the context of the agreed medical evidence from the psychiatrist, Dr Rozewicz.

Without any evidence of his own to contradict the Claimant's account and the expert evidence, the Defendant has been unable to play anything other than a very limited role in the forensic process. With the help of his McKenzie friend, Mr Quirino conducted himself with respect and dignity accepting that it was his own behaviour over the identified years which entitled the Claimant to pursue this claim for damages. Whilst he maintained a challenge to the factual basis, he acknowledged that he could not go behind the judgment, and simply sought to question the Claimant on the extent to which other factors might have played a role in her resultant psychiatric presentation.

Having heard evidence within the fairly limited scope of this trial, I reserved my judgment to enable a consideration of the several authorities relied upon and to look in more detail at some of the documentary evidence.

BDA had a normal and uneventful upbringing with her sibling sisters, notwithstanding the divorce of her parents when she was only four. She continued to live with her mother who remarried, but maintained regular contact with her father.

When she was at junior school, BDA took karate lessons from the age of ten years, and it was on this occasion that she first met the Defendant, then a senior grade at the centre where she was training. However she had no close involvement with him. It was not until 14 years of age, when she returned to the sport, that the Defendant became her instructor and head trainer in conjunction with a number of other children from her school, Coombe Girls School in New Malden, Surrey. As she progressed in her training, in early 2002 BDA began to attend evening classes at the Malden Centre, and because of her enthusiasm, the Defendant began to take more interest in her, becoming involved in closer instruction.

This was the beginning of the grooming process throughout 2002 as he moved to private lessons, and then started personal text messaging which BDA considered at the time to be inappropriate and bizarre. When on his own with the Claimant, at a time when she was only 15, he made unprompted comments about her body and her figure, and often brought the conversation round to sex and kissing. These were classic grooming ingredients, because by the beginning of the following year he began to force the Claimant to kiss him in a way in which she could not refuse, progressing on to inappropriate touching of her breasts and genital area, initially over, and eventually under her clothing. This occurred when the Claimant was only 15.

The intimate touching occurred in circumstances where BDA felt unable to resist, and often in situations where she was on her own in his company, because he had picked her up, or she was involved with him in one-to-one training. The Claimant enjoyed her karate, but felt trapped by the Defendant’s behaviour. She did not report any of his inappropriate touching, nor did she feel that she was able to stop going to her karate lessons.

When she was 16, in 2004, the Defendant began to engineer situations whereby he could be on his own with her in outdoor locations, and the sexual contact graduated, after initial attempts to resist penetration when he pressed himself against her when both were unclothed, to full sexual intercourse. At all times, the Claimant made it plain that she was an unwilling partner, and no occasion did she ever initiate sexual contact.

BDA's sexual involvement with the Defendant continued throughout the end of 2004 and into the early middle part of 2005, because she had maintained her interest in karate, and she felt trapped and unable to extricate herself from the situation of physical and sexual intimacy which the Defendant had maintained. On approximately six occasions sexual intercourse occurred and the Claimant would have been 16-17 during this time.

Eventually, after confiding in a friend about what was happening, she summoned the courage to set out in a letter her objection to the way in which the Defendant was using her, which she regarded as abusive, insisting that it should stop. She handed this letter to the Defendant shortly before Christmas 2005, by which time she was now 18 years old.

It seemed to have an effect on the Defendant, because there were no further occasions of sexual contact, although BDA remained in his karate circle for a significant time thereafter.

The above summary is provided as a brief outline of the circumstances in which the sexual abuse occurred. It is unnecessary to go into further detail of the history, but it was not just the abuse itself, but also what happened in the following years which had a role to play in the development of deleterious consequences for the Claimant. However, mention should be made briefly of the progress of the Claimant's education in this period, at a time when she was not reporting the Defendant’s behaviour to anyone else.

She did exceptionally well in her GCSEs, obtaining for the most part A*s and As in the summer of 2003, with long term career aspirations towards medicine. However the Defendant's abusive behaviour had become established at this stage and in the following academic year by January, with her AS levels, the Claimant flunked in her first set of exams, and decided to leave the secondary school where she had been studying. She obtained a part-time job, but in September she started at Richmond College, a sixth form college, where she studied the International Baccalaureate (IB), an alternative to A level for university qualification. Whilst she had lost a year, over the following two years, she obtained sufficient marks within the IB to obtain a place at university commencing at St George's University London on a three-year biomedical science degree in October 2006 which she completed with first-class honours in 2009.

According to BDA, she was able to achieve such results through hard work, although concentration had been difficult. She had learned to blank out the events of her teenage years and her involvement with the Defendant, putting it to the back of her mind. She then enrolled in September 2009 on a four-year combined Masters with PhD in biomedical research at Imperial College where she had been awarded a scholarship. She completed her Masters with distinction without difficulty.

However, during her PhD year, and in the early part of 2011, BDA began to use the university counselling services. She had been having significant relationship difficulties at an intimate level, disliking any sort of physical or sexual touch. Her previous sexual relationships had been relatively limited and had been marred by poor experience and mistrust arising out of that fear of touch. One particular relationship, with her then friend and subsequent boyfriend was causing particular anxiety, and seems to have been the catalyst for the use of the counselling service. The counselling led to an acceptance on the part of the Claimant that the abuse by the Defendant should be reported to the police, and in April 2011 there began the long process of criminal investigation, followed by prosecution, in which the Claimant had to play a significant role, through interview, preparation of witness evidence by ABE interview, and willingness to attend trial.

The process led to significant depression and withdrawal, and an inability to complete the PhD course at the time. She was afforded indulgence by her supervisors to allow the prosecution to be finalised, but unfortunately, apparently because of a mistake on the indictment, the initial criminal proceedings floundered on an abuse argument, and the whole process had to be begun again.

During this period, BDA was afforded a further time away from her studies, attending the initial aborted trial, and eventually the final trial which took place in October 2012. However, partly because she had come into contact with the Defendant in the precincts of the court in June 2012, and partly because of the pressure which she now faced having to decide whether to continue with her allegations, the Claimant took an overdose, ingesting over 60 tablets with alcohol. This required treatment as an inpatient for several days.

As far as the criminal procedure was concerned, the Defendant was convicted of one out of four counts with which he was charged, relating to indecent assault committed when the Claimant was 16. Unfortunately, there were no convictions in relation to the post-16 matters. The sentencing remarks made it plain that the Claimant had been unwilling to disclose in her evidence the finer details under examination in court, which may not be particularly surprising in the circumstances, but this meant that insufficient proof was provided. The Defendant received a community sentence.

However, that was not the end of the matter, because the Defendant attempted to appeal his conviction and a further prolonged process was involved, which was not finalised until the dismissal of the appeal in November 2013. This enabled the Claimant to recommence her studies on the PhD course at the beginning of 2014, and it is anticipated that she will complete those studies by the end of the academic year 2016. However she believes that she has lost three years in higher education as a result of the reported abuse, and the consequences in which she was inextricably involved.

I now turn to consider the evidence of psychiatric injury, which is based for the most part on the evidence of Dr Rozewicz the psychiatrist who has provided two reports.

After taking a full history of the description of the sexual abuse as provided by the Claimant, the doctor traced the development of psychological and psychiatric symptoms, noting that clinical depression, in the sense that it was treated with antidepressant medication, was first acknowledged in 2011 after the abuse had been reported to the police. However, BDA had described feeling low and depressed, and unable to concentrate on her studies in previous years. This continued over a two-year period, including in the aftermath of the overdose, when she had been hospitalised. He did not observe any frank signs of depression at the time of his examination in July 2014. (The Claimant informed this court that she had recently been taking antidepressant medication again, as depression returned, probably in anticipation of this hearing).

The doctor did not find any other signs of mental health illness, although the Claimant was a little upset when talking about the abuse. He reviewed the psychiatric and counselling records, particularly those relating to the overdose and the disclosures when a student, as well as the GP records. Dr Rozewicz concluded that there were two elements to the Claimant's psychiatric/psychological injury. The first was a depressive illness at its height for a two-year period following disclosure and during the recovery from the overdose, and whilst currently (or least at the time of his examination in July 2014) not evident, it represented a mental state which was likely to recur in the years ahead. He assessed the probability of recurrence at 20% per year, even on the basis of focused cognitive therapy which he recommended. Of course the recent recurrence of depression as described by BDA to me confirms that prognosis.

The second element was represented by post-traumatic anxiety symptoms. While these do not fit within the psychiatric classification, nevertheless they were severe and tangible, in that she found it difficult to talk about the abuse, became tearful, but most notably was having problems in sexual and intimate relationships, which was having a profound effect on her personal life. There was a prospect of the symptoms improving with trauma focused cognitive behaviour therapy, assessed at 60%.

In terms of causation, Dr Rozewicz had little difficulty in attributing both elements to the abuse which the Claimant had suffered at the hands of the Defendant, noting in particular at the time it had risen the Claimant was at a particularly vulnerable stage in the development of sexual identity and the attitude to sexual relationships (in her mid teens). He believed that the Claimant's intelligence and resilience had led to the symptoms being milder than might have been expected in the circumstances of the extent of the abuse.

Dr Rozewicz provided an assessment of the behaviour therapy which he recommended, and these were included in the costings provided in the schedule of loss. I shall deal with this later.

Insofar as it is necessary to make any findings on the basis of this evidence relevant to the assessment of damages, I do so as follows on a balance of probabilities.

The Claimant’s A-level course was affected by the ongoing abuse which she was suffering at the time, and this led to a disruption in her studies, and a commitment to work, with poor exam results, and her decision to leave school. Accordingly, when she commenced at Richmond College, she had lost a year of her education, and was one year behind her contemporaries for the purposes of starting a career, or going to university.

The tangible depression which she suffered, and which was treated with antidepressant medication, was directly connected with a reasonable decision to report the abuse after counselling. I accept that whilst a recovery was achieved, there is an ongoing liability to recurrence of depression which will remain with the Claimant for the rest of her life.

The psychosexual problems for the Claimant (dislike of physical touching, and difficulties with sexual intimacy) are entirely related to the Defendant’s abuse.

It was a reasonable decision on the part of the Claimant, because of the significant effect which the criminal proceedings were having on her, both in terms of her mental state and ability to concentrate, that for the duration she should suspend her Ph.D. research. The consequence has been that instead of completing her course by the end of the academic year 2013, it will not be completed until the end of the academic year 2016. Thus she will be entering the labour market three years later than she might otherwise have expected. In total, she is four years behind her contemporaries.

The Claimant will pursue a career in the bio-chemical or pharmaceutical industry, which would have entitled her to an income of at least £28,000 per annum as a graduate.

I now turn to the various heads of damage claimed.

Mr Davison has referred the court, as its starting point, to the JC guidelines for the assessment of general damages, and in particular chapter 4A which sets out various categories for psychiatric damage generally. Listed in the preamble are the factors to be taken into account whichever category is determined as appropriate, because of the broad range given within those categories.

(A)

Psychiatric Damage Generally

The factors to be taken into account in valuing claims of this nature are as follows:

(i)

the injured person's ability to cope with life and work;

(ii)

the effect on the injured person's relationships with family, friends and those with whom he or she comes into contact;

(iii)

the extent to which treatment would be successful;

(iv)

future vulnerability;

(v)

prognosis;

(vi)

whether medical help has been sought; Claims relating to sexual and physical abuse usually include a significant aspect of psychiatric or psychological damage. The brackets discussed in this chapter provide a useful starting point in the assessment of general damages in such cases. It should not be forgotten, however, that this aspect of the injury is likely to form only part of the injury for which damages will be awarded. Many cases include physical or sexual abuse and injury. Others have an element of false imprisonment. The fact of an abuse of trust is relevant to the award of damages. A further feature, which distinguishes these cases from most involving psychiatric damage, is that there may have been a long period during which the effects of the abuse were undiagnosed, untreated, unrecognised or even denied. Aggravated damages may be appropriate.

It is not suggested that BDA’s tangible psychiatric injury (and in this respect I am referring to both the depressive illness and the psychosexual problems) fall into any other category than "moderately severe”. This provides a range as follows. (The second column deals with the 10% uplift which clearly does not apply in this case).

The question for me is which of the relevant factors should be taken into account, so as to place this case within a particular point within the category and to what extent should a suitable comparators be considered where there has been psychiatric injury following prolonged or a single episode of serious sexual abuse?

Mr Davison has referred to a number of cases as exemplars. One of these is the case of Lawson v Glaves Smith, provided as a Lawtel extract, because it was an otherwise unreported County Court decision. The claimant in that case had been imprisoned for three days by the defendant after attending a fabricated job interview, and subjected to extremely unpleasant and prolonged sexual attack by the defendant, as well as the administration of class A drugs. She had significant ongoing symptoms, which may have amounted formally to a diagnosis of PTSD, but thereafter she made a gradual and slow recovery. The award of quantum in that case was £78,500 (October 2006) which may well have included a significant element of aggravated damages. He also relies upon another short extract of a County Court decision from 2008, that of B v Quirk in the Manchester County Court. It is a case which has a number of similarities with the present situation, although the child was very much younger when the abuse took place (11 years), the assault was particularly serious, taking place over several days, and the diagnosis was one of PTSD. She had continuing problems of sexual aversion at the age of 24 years. The judge awarded £55,000 (now worth approximately £60,000 with inflation). Unfortunately, while the report indicates that aggravated damages were included, from the breakdown they were not given, nor is there a reference made to the applicable category.

These cases are referred to by counsel to support an argument that assessment should come within the upper end of the moderately severe category, although he maintains that an award should be made separately for aggravated damages.

It seems to me that when carrying out an exercise of assessing pain, suffering and loss of amenity, and using the JC guidelines as a reference point, where the tangible consequences in psychiatric terms of a prolonged sexual assault are being considered, aspects such as abuse of trust and the subjective conduct of the perpetrator do not sit comfortably with such a process, being factors relevant to aggravated damages, although in previous reported cases there appears to have been some degree of assimilation. I prefer to approach the assessment on the basis of identifiable features of psychiatric consequence, rather than those other elements, and to make a separate award, if appropriate, for aggravated damages.

I bear in mind that this Claimant was described as particularly resilient, perhaps unexpectedly so, and the clinical depression from which she suffered was over a relatively short period, despite leaving her vulnerable to further episodes of recurrence. In the circumstances, I am not persuaded that an award at the very upper end of the bracket is appropriate, particularly having regard to the fact that a claim has been made for therapies which are likely to have a significantly improving effect in the long run. In my judgment an appropriate figure for this aspect of the claim would be one of £30,000.

There is no doubt that the Claimant is entitled to an award of damages assessed on a non-pecuniary general basis, for what is known as "injury to feelings" which would otherwise not amount to a tangible psychiatric disorder. Mental distress which falls short of compensable injury otherwise is recognised in a number of situations, and is commonly awarded in the absence of such injury in sexual abuse cases. Quantification is not a straightforward exercise, because there is rarely an independent assessment, and courts are likely to take a wide variety of approaches when considering the subjective element reported by the victim of such abuse. To find suitable comparators, Mr Davison of counsel has referred to harassment and discrimination cases, where the courts are often called upon to make awards without such evidence, instead arriving at their own evaluation based upon subjective account and the nature of the abusive or harassing behaviour. In particular, he drew upon the case of Vento v Chief Constable of West Yorkshire police [2003] ICR 318 CA, in which the Court of Appeal was addressing the type of award which should be made to a female police constable who had been the subject of sexual harassment and bullying over a prolonged period. The award of the tribunal in the sum of £65,000 was considered to be significantly out of line, and substituted with a lower award, broken down into various categories for non-pecuniary loss. In relation to "injury to feelings" the court ordered £18,000, but helpfully provided three separate bands for seriousness, depending upon the length of the discriminatory harassment. The lowest of these (grossed up for inflation) was up to £6000. The middle band, was £6000-£18,000, and the upper band for the most serious cases was £18-£30,000.

It is submitted that this falls into the most serious band. It is also said that assistance can be derived from the assessments by Irwin J in A.B. v Nugent Care Society [2010]EWHC 1005 QB in dealing with historical sexual abuse in children's homes, where a range of general damages awards, without psychiatric injury or aggravated damage ranged from £10,000-£25,000.

I am conscious that in conducting this exercise the court may be appearing to "pluck figures out of the air" with no clear or rational basis for arriving at a final figure. However, relevant in this case are a number of features. First, whilst this abusive relationship was continuing, the Claimant had been unable to confide in anybody, and found herself trapped. She loved her karate and was committed to training, and yet knew that there was no alternative but to find herself in the Defendant's company. Equally, if she backed away, she risked having to reveal the reason, which in her middle and developing teenage years would have had devastating consequences. Furthermore, at a time when she should have been enjoying relationships, and developing in an entirely normal and natural way, she was instead in the thrall of a person who had taken advantage of her, and this would have had a particularly damaging effect. I also take into account (although this may have some relevance on the question of aggravation of damages) the fact that the criminal process would have been a particularly unpleasant ordeal, meaning that she was having to relive the whole experience having put it out of her mind. On the other hand, her intelligence and natural resilience would act as an insulating element from the more damaging mental effects. In the circumstances, it seems to me, that if the Vento categorisation is to be used for assessing injury to feelings (and in my judgment that is appropriate) then the upper end of the second band is applicable. In this regard, the correct award for damages in relation to mental distress/injury to feelings would be one of £16,000.

As indicated, there is an obvious overlap between aggravated damages, which reflect heightened "feelings" and damages for injury to feelings / mental distress and I can detect no hard and fast rule in any of the authorities which establishes a preferred approach. It seems to me that where there is identifiable "heightening" in a particular case, it is sensible and appropriate to make a separate award. It is also important to note that aggravated damages are not punitive, which is the function of an exemplary award, but intended to reflect an additional element or layer which has made the consequence worse and which otherwise would not be compensable in other categories. Nevertheless, the particular additional layer should be referable to the conduct in question.

Here it is suggested that in two respects aggravated damages might be justifiable. First, in respect of the heightened humiliation on having to make the disclosure after the years of abuse, and subsequently when it was kept quiet, because the Claimant was a quiet and private person, and second the manner in which the criminal proceedings were conducted, that is with the maintenance of a defence of consent, attacking the Claimant’s credibility in the course of the trial, and later the pursuit of an appeal.

I see no reason why these elements cannot sound as aggravating features and provide additional damages, particularly when they have not been taken into account as factors within the two previous heads of PSLA, and damages for mental distress. I did have regard to the criminal process, when considering the latter, although it is right that it was particularly protracted and far beyond anything which might have been anticipated in this case, because of a failure to pursue the correct charges. Whilst it is correct that this was not the Defendant’s “fault” (a point which he made to me in the course of his brief and sensible submissions) nevertheless it has still served to aggravate the Claimant’s position. Furthermore, it is appropriate to take into account the fact that the Claimant had endured so many years in silence, partly because of the predicament in which she found herself, as a result of the Defendant’s grooming and partly because of her own nature.

In arriving at a figure, I have kept in mind the totality of the heads of non-pecuniary damages which the Claimant will receive, noting that the previous reported cases have usually provided "rolled up" figures. Accordingly, for aggravated damages, which in my judgment are appropriately awarded in this case, I arrive at the figure of £9000.

The aggregate sum of general damages for PSLA, mental distress and aggravated damages is therefore one of £55,000. If I am wrong in the approach which I have taken in providing a separate award of damages on an aggravated basis, this is a total figure which I would have arrived at on the basis of the two other heads, allowing additional features which have been removed and put into this category.

The most significant claim, of course, is for loss of earnings, which has been pursued on behalf of BDA in a sum just under £92,000.I have already made a finding that the Claimant's career was disrupted by four years as a consequence of her psychiatric and psychological injury.

However, if the Claimant is to recover this sum, I must be satisfied, on a balance of probabilities, that it represents a true loss to her, based upon the monies which she would have earned had it not been for the Defendant’s wrongful conduct. Where an injured party is already in settled employment, of course, or where there is an inevitable qualification path at the time of the tort, the conventional multiplier/multiplicand approach is appropriate and it is a matter of simple calculation. On the other hand, where, as here, the wrongful conduct occurs at a very early stage in the Claimant's life, and before she has made any life choices, and in particular where the usual vicissitudes of growing up, obtaining independence, moving away from home, and considering opportunities including travel abroad are likely to be relevant, a predicted career path, and thus clear calculation of loss is difficult. The loss of earnings claim in fact straddles past loss and future loss and it is possible, with a degree of certainty, to know the course which the Claimant will now take in the light of the resumption of her postgraduate studies. It is far less certain what she would have done if education had not been interrupted.

For this reason, I favour a broad brush approach to the assessment of loss of earnings, as encouraged in Blamire v South Cumbria Health Authority because of the number of imponderables which do not enable a precise conclusion. The anticipated earnings based upon four years loss is a helpful starting point, but in my judgment such a figure would represent overcompensation after allowances are made for the uncertainties. It seems to me that an appropriate figure, essentially one of general damages for past/future loss of earnings, in all the circumstances would be £75,000.

The additional claim is for what used to be known as Smith v Manchester handicap on the labour market damages, and is represented by the potential risk of the Claimant losing her employment as a result of recurrent depression, or having periods of absence, or further finding it difficult to obtain fresh employment with the stigma of absence through mental health illness. These awards are made far more rarely these days, in the light of the helpful assistance provided in Ogden 6, where actuarial calculations with discount rates can be made for disabled Claimants. The problem for the Claimant is that she is not specifically disabled and will not be regarded as such, and therefore it is not unreasonable to adopt a more traditional approach.

However, I do not believe that the risk to the Claimant in this case is as substantial. I accept that it is significant, but if it arises, in my judgment it is unlikely to lead to long periods of unemployment. I regard the Claimant as a highly resilient and resourceful young woman, as demonstrated by the way in which she has been able to manage her life circumstances, and the abuse which she has suffered to achieve a goal of high academic qualification. Accordingly it would represent overcompensation to approach assessment for this kind of damage using a conventional calculation based upon say two to two and a half years salary. It seems to me that the risk is probably represented by the potential for slightly over one lost year of earnings, or thereabouts, and an appropriate award under this head would be £30,000.

It follows that the total sum which I award for past and future loss of earnings and handicap on the labour market is £105,000.

Whilst there has been no effective challenge of the other items of pecuniary loss pursued by the Claimant, both in terms of past and future claims, these must still be proved. However, it seems to me that there is sufficient evidence to establish on a balance of probabilities the incurrence of expense for the major item of past treatment in respect of medical therapies, and on the basis of the unchallenged evidence of the psychiatrist the future cost of such therapies. The other claims relating to travel and prescription charges are very modest indeed, considering the extent to which the Claimant is availing herself of treatment, and will be in the future.

In these circumstances, I award the sums as claimed by BDA in the schedule of loss as follows

I invite the parties to agree any corrections and the terms of any final order, or to make necessary suggestions prior to the handing down of this judgment.