KCR v The Scout Association

In this action the claimant whose identity has been anonymised in these proceedings and who is referred to as “KCR”, seeks damages for personal injury, loss and damage consequent upon sexual abuse perpetrated upon him by David Hopkins (“Hopkins”) a Cub Scout Group Leader, whilst he was a member of the 3^rd Hawkinge Scout Group. The abuse took place in the 1980s.

Hopkins was a serial paedophile who abused a large number of children including the claimant and who in 2003 was charged and convicted of a large number of sexual offences against boys including the claimant. He was sentenced to ten years in prison following an allegation of male rape having been made against him to Kent Police by a former member of the same scout group as the one to which the claimant had belonged. During the course of their investigation Kent Police discovered photographs and diaries retained by Hopkins which detailed some of the abuse. The claimant made a statement to Kent Police in December 2002 in support of the prosecution of Hopkins.

The defendant, The Scout Association, is not itself alleged to have been negligent. Rather the claimant alleges, and the defendant has admitted, vicarious liability for Hopkins’ criminal acts and readily concedes that the abuse was serious. A limitation defence has not been raised. Judgment was entered on 10 April 2015 for damages to be assessed and it is that assessment with which this Court is concerned.

The claimant was born on 27 August 1973 and is therefore now forty-two years old. He joined the 3^rd Hawkinge Cub Scout Group shortly before his eighth birthday. The abuse began almost immediately with Hopkins having first groomed and then committed acts of sexual abuse which occurred regularly until the claimant left the Cub Scout Group at age eleven and continued thereafter albeit more infrequently until the claimant was aged fifteen years and ten months.

The first assaults occurred whilst the claimant was still seven years old with Hopkins rubbing the claimant’s leg over his clothing whilst both were in Hopkins’ car, with the claimant’s first clear memory of an overtly sexual assault occurring when Hopkins fondled the claimant’s genitals under his clothing on his eighth birthday.

Thereafter the abuse increased in severity and occurred on numerous occasions and the claimant asserts included the following acts of abuse:

(a)

Grooming and manipulating the claimant;

(b)

Requiring the claimant to view pornography;

(c)

Fondling the claimant’s leg;

(d)

Kissing the claimant;

(e)

Fondling the claimant’s genitals under his clothing;

(f)

Requiring the claimant to undress;

(g)

Requiring the claimant to wear sexually inappropriate clothing;

(h)

Requiring the claimant to assume sexually explicit poses;

(i)

Photographing and video recording the claimant during the abuse;

(j)

Masturbating the claimant;

(k)

Performing oral sex upon the claimant;

(l)

Digitally penetrating the claimant’s anus;

(m)

Penetrating the claimant’s anus with his tongue;

(n)

Engaging in frottage with the claimant (thrusting his penis between the claimant’s buttocks;

(o)

Ejaculating on the claimant’s anus;

(p)

Requiring the claimant to masturbate Hopkins;

(q)

Requiring the claimant to perform oral sex upon Hopkins;

(r)

Ejaculating in the claimant’s mouth;

(s)

Abusing other children in the claimant’s presence;

(t)

Requiring the claimant to engage in sexual activity with other children.

The defendant admits that serious sexual assaults took place which is not surprising given that Hopkins documented his abuse of the claimant and other boys but, on the basis of what Hopkins himself documented, takes issue with the frequency alleged by the claimant (who estimated that there were several hundred such occasions) and with the precise nature and extent of the abuse. In particular the defendant takes issue with whether acts of digital penetration and analingus took place in the light of the fact that there was no reference to such activities in the claimant’s statement to Kent Police given in December 2002 nor in the diaries kept by Hopkins. I will return to this issue later in the judgment when I consider the claimant’s evidence.

An unusual feature of this case is that after a period of time the claimant, together with another boy (identified by the initials “CMC”), in effect blackmailed Hopkins after they realised that they could get something out of it. They obtained increasing rewards of money and material possessions in return for carrying on with submitting to the abuse. This was seen by the claimant as compensation. In his police statement, the claimant described this change in the dynamics of the relationship in these terms:

“After the abuse … would take us downtown to buy toys, sweets, chocolate; if we said we wanted something we got it. That’s when we realised that we had a power over him. We’d got so used to what he was doing to us, we just shut ourselves off to get what we wanted. I would see … THREE to FOUR times a week for four/five years. …and Me were his favourites and we planned to bleed him dry, we were kids who wanted all those things we couldn’t afford, so we were going to get them, but we were not going to be abused any more. We were never going to be able to say no that didn’t happen, we couldn’t change anything, so we used it to our advantage. … knew that, he knew that the only way to keep us quiet was to get us those things. …would take a few of us on days out to … Zoo and … Park. I may have been 11 years old then when we went, Me, … and … . Nothing would have happened when we were out on the trip, but probably when we got back and before going home. The abuse got less and less as we headed to secondary school, and were too old for … I don’t know when it stopped, it didn’t feel right; didn’t add up and I realised this shouldn’t be happening. That is when I broke free….”

Even after the abuse ended, the claimant would contact Hopkins from time to time to obtain money. He was even able to tell Hopkins about problems he was experiencing in his domestic life. Hopkins provided him with two motorbikes, the deposit towards a flat and acted as a guarantor as well as giving money and other items to the claimant, all after the abuse had ceased.

The claimant was born in Ashford. His parents separated when he was four or five years old with his father having been abusive to his mother who therefore decided to leave the claimant’s father and, with the claimant and his sister, moved to Folkestone, initially being housed in emergency housing and then in a Council provided house. After his parents separated, the claimant did not see his father for a long time until he was an adult but over the years heard that his father had become a petty criminal and drug dealer.

The claimant attended Hawkinge County Primary School until July 1984 when he was ten years old. He then went to Wyndgate Secondary School leaving when he was sixteen with a number of GCSE passes. After leaving secondary school he enrolled on a carpentry course at South Kent College but left within a short period because he said he could not concentrate.

At the age of fifteen or thereabouts he started smoking cannabis socially. His drug taking escalated and he began using ecstasy, cocaine and LSD as well as cannabis. His mother made him leave home when he was sixteen because of his drug taking and the discovery by her of a motorbike which had been given to him by Hopkins.

The claimant had three short-lived jobs on leaving school. He left these jobs because he did not like them and did not attend regularly. Instead he started to sell drugs initially to friends and friends of friends. He then made his living by selling drugs in Folkestone, both cannabis and cocaine, until 2005 when he was thirty-two years old.

He was a heavy user of drugs until 2011 when he was thirty-eight, since then he has become less aggressive.

The claimant obtained a job as an ambulance cleaner in January 2008 but in April 2009 he was dismissed after wrongly being accused of breaking a security door. He successfully pursued an unfair dismissal claim.

He was then employed by an engineering company as a driver but was dismissed in 2011 following a conviction for assault on his then partner as a result of which he was sentenced to a term of eight months imprisonment, of which he served four months, being released in January 2012. Since then he has found it difficult to obtain work.

The claimant has in fact had a number of convictions which have included stealing from cars, stealing cheques, various road traffic offences as well as offences of violence and offences relating to drugs. On 10^th November 2006 the claimant was convicted of criminal damage. He was referred to the mental health services when being sentenced. The claimant was assessed and offered support. There is no evidence that he sought such support in the records. On 12^th October 2007 the claimant was convicted of a firearms offence. Again he was referred for treatment by his probation officer. Again he failed to attend.

The claimant has had a number of relationships each of which has ended because of his domestic violence both verbal and physical. He was with D for five years from the age of eighteen but this ended because of his violence. His next relationship was with Ms M. This started in 1998 with Hopkins acting as a guarantor of a flat in Folkestone, but that relationship ended in 2002 after they had two children and again there was domestic violence at the end of the relationship.

After the relationship with Ms M had come to an end the claimant visited his GP complaining that he was suicidal and depressed. He was referred for counselling and attended a single session but did not attend his second session or take up the offer of any further appointment. He was therefore discharged. He did not mention any sexual abuse.

Following his interview by the police in 2002 in connection with the investigation of Hopkins’ abuse of children the claimant was again seen by his GP and referred to community psychiatric services. He was seen by a Community Psychiatric Nurse on 19 February 2003 who recorded that the claimant reported that he had been sexually assaulted by his Cub Scout Group leader from the age of eight to thirteen and had recently given a statement to the police following the arrest of the Cub Scout Group leader. He reported that up until two years before, he and another victim had been blackmailing Hopkins for material and financial gain and that he considered that the blackmail was payment for the effects of the abuse that he had always felt. He reported that he felt emotionless, only feeling anger and hatred and admitted that he had always been aggressive in relationships believing that that was directly related to witnessing his father’s physical abuse towards his mother and as a result of the sexual abuse from which he had suffered.

The claimant was referred to Dr Majid who recommended psychotherapy but after four appointments the claimant ceased attending and his case was closed. Dr Majid wrote to the claimant’s GP on 24 March 2003 reporting in detail on his meeting with the claimant in which he recorded that the claimant denied regular intrusive flashbacks of his abuse but that he had told Dr Majid that when he spoke to people about his abuse, i.e. police interviews and psychiatry assessments, that for the next few days he would experience such flashbacks. In his opinion and recommendation section Dr Majid concluded that the claimant was then suffering from a moderate to severe depressive episode and was likely to suffer from an underlying personality disorder. No diagnosis of post traumatic stress disorder was made.

In 2004 the claimant had started a relationship with Ms E. In 2008 the claimant took an overdose of paracetamol after he had argued with Ms E. He was referred for counselling but did not attend and was discharged. In 2011 he was again referred for psychiatric treatment by his GP, from whom he had apparently been advised by his solicitor to seek a referral, after he had assaulted Ms E. He was assessed on 11 August 2011 he threatened to take his own life if given a custodial sentence of more than six months. He was offered a follow up appointment on 16^th August 2011, the day after his court appearance which he did not take up. Furthermore, he did not seek any treatment then or subsequently. The relationship with Ms E has also come to an end.

In May 2015 the claimant was bailed by police following the discovery that he had been downloading indecent images of children.

The claimant’s case is that he suffered assault, battery, false imprisonment and the intentional infliction of harm at the hands of Hopkins for which he is entitled to damages. In addition he also seeks damages for psychological injury, in respect of which he relies on the expert evidence of Dr Nikki De Taranto, a Consultant Forensic Psychiatrist, who diagnosed the claimant as suffering from chronic post traumatic stress disorder entirely caused by the sexual abuse. She further diagnosed that the claimant was suffering from a personality disorder and that the abuse had made a contribution towards that disorder. He also seeks aggravated damages and, by way of special damages, the cost of psychological treatment recommended by Dr De Taranto and a Blamire award in respect of loss of earnings, past and future.

The defendant for its part accepts that the claimant is entitled to general damages in respect of the abuse he suffered at Hopkins’ hands but disputes the claims for loss of earnings, past and future, and therapy as well as the claim for aggravated damages. The defendant relies on expert evidence from Professor Maden, Emeritus Professor of Forensic Psychiatry at Imperial College London and a Consultant Forensic Psychiatrist since 1992 whose opinion is that the claimant suffers from a dissocial personality disorder and would have done so irrespective of the abuse and who does not believe that any psychological treatment is required. Furthermore the defendant submits that the claimant has always been capable of employment and it is his lifestyle choices, rather than any condition caused by the abuse, which have prevented him from working.

Moreover, even if the claimant were to establish, on the facts, that his subsequent lifestyle was caused by the abuse, the defendant submits that much of the loss is irrecoverable since, as a matter of public policy, a party cannot recover damages that arise from or are caused by his criminal conduct, an example of which is the maxim “ex turpi causa non oritur actio”. That criminal conduct it is said included his use of illegal drugs, his domestic violence towards his partners, his drug dealing and an arrest for downloading indecent images, all of which it is said had a significant effect on his employment prospects and indeed on his life to date.

It is common ground that the burden of proving that the abuse has had the various effects for which the claimant contends on his academic achievement, on his personality as well as on his ability to form and maintain relationships and on his employment potential lies on the claimant himself. This will necessarily involve a consideration of his past academic, employment and personal history as well as an assessment of the claimant’s reliability as a witness in order to establish whether there is a causal link between the abuse and the various effects contended for by the claimant.

In this case the abuse occurred in the 1980s and it has therefore been necessary to examine in detail the events of the claimant’s life to date over a significant period of time. There is little clear contemporaneous evidence and the Court has been largely reliant on the recollection of the claimant himself and the other lay witnesses which must inevitably have faded over time.

I have, during the course of the trial, been referred to a significant number of cases but of course each case has to be judged on its own individual facts not least because the exact nature of the abuse differs from case to case as does the effect of the abuse on individual people. The abuse has two components: the acts themselves and the consequences of the abuse in terms of psychiatric injury. Both are compensatable. Thus, any award should take into account the nature, severity and duration of the abuse itself and of its immediate effect and any long term psychiatric harm that might have been caused.

In a number of cases to which I have been referred, a claimant has been successful in securing an award of aggravated damages in addition to an award of general damages in respect of pain, suffering and loss of amenity. In these cases, however, the court was apparently not referred to the decision of the Court of Appeal in Richardson v Howie [2004] EWCA Civ 1127 where the judgment of the court was delivered by Thomas LJ, as he then was, and included the following:

“23.

It is and must be accepted that at least in cases of assault and similar torts, it is appropriate to compensate for injury to feelings including the indignity, mental suffering, humiliation or distress that might be caused by such an attack, as well as anger or indignation arising from the circumstances of the attack. It is also now clearly accepted that aggravated damages are in essence compensatory in cases of assault. Therefore we consider that a court should not characterise the award of damages for injury to feelings, including any indignity, mental suffering, distress, humiliation or anger and indignation that might be caused by such an attack, as aggravated damages; a court should bring that element of compensatory damages for injured feelings into account as part of the general damages awarded. It is, we consider, no longer appropriate to characterise the award for the damages for injury to feelings as aggravated damages, except possibly in a wholly exceptional case.

24.

Where there is an assault, the victim will be entitled to be compensated for any injury to his or her feelings, including the anger and indignation aroused. Those feelings may well also be affected by the malicious or spiteful nature of the attack or the motive of the assailant; if so, then the victim must be properly compensated for that, particularly where the injured feelings have been heightened by the motive or spiteful nature of the attack. In our view, damages which provide such compensation should be characterised and awarded therefore as ordinary general damages which they truly are. The misapprehension as to the nature of the damages to be awarded for injured feelings which plainly arose in the trial judge's mind and which led him to award a sum that was wholly extravagant as aggravated damages would not have arisen, if the award had been made as one of ordinary compensatory general damages and not as an award of aggravated damages. The facts of this case clearly did not in any way approach the wholly exceptional case where an award of aggravated damages might still be appropriate.”

I approach the assessment of general damages with that guidance very much in mind.

In Gray v Thames Trains Limited [2009] 1 AC 1339, a decision of the House of Lords, Lord Hoffmann articulated both a narrow and a wider basis for the policy that a party cannot recover damages arising from or caused by his own conduct. The wider basis of the rule is set out in paragraph 51 of his speech as follows:

“I must therefore examine a wider version of the rule, which was applied by Flaux J. This has the support of the reasoning of the Court of Appeal in Clunis's case [1998] QB 978 as well as other authorities. It differs from the narrower version in at least two respects: first, it cannot, as it seems to me, be justified on the grounds of inconsistency in the same way as the narrower rule. Instead, the wider rule has to be justified on the ground that it is offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of his own criminal conduct. Secondly, the wider rule may raise problems of causation which cannot arise in connection with the narrower rule. The sentence of the court is plainly a consequence of the criminality for which the claimant was responsible. But other forms of damage may give rise to questions about whether they can properly be said to have been caused by his criminal conduct.”

I turn now to a consideration of the factual evidence. The claimant relies on his own evidence and that of his mother, whose statement was read and that of two former partners, Ms M and Ms E.

I have already recorded that the defendant effectively puts the claimant to proof of the frequency of the abuse alleged as well as to aspects of its nature and extent. The claimant’s evidence to the Court was that the abuse occurred on hundreds of occasions (perhaps five- or six- hundred occasions) which is to be contrasted with Hopkins’ diary entries amounting to some one hundred and ninety documented instances of a particular type of abuse. In his witness statement evidence and his oral evidence to the court the claimant also made reference to a number of occasions when Hopkins digitally penetrated his anus and to occasions when he put his tongue into the claimant’s anus both of which allegations did not feature in his statement to Kent Police made in December 2002.

It was the claimant’s evidence that prior to the abuse he enjoyed going to school, was a good all-rounder and was well liked by the other children with whom he got on well. However, as the abuse started and progressed, he described himself becoming isolated from his friends because the only friends he had at the school were ones who were also attending the Cub Scout Group and he did not want to be around them because of the abuse. He would get into arguments with them.

Once he left primary school, he described becoming really isolated. He was the youngest in his year when he started at secondary school and found it harder as he did not know many people. He did, however, do well academically and achieved GCSEs in maths, English, science, design and communication, and design and realisation, with grades of Bs, Cs and one D.

After leaving secondary school he enrolled on a carpentry course at South Kent College but only attended for three months because he found it difficult to concentrate and stopped attending. He said he did not feel that he fitted in and did not want to mix with the other boys, and did not want to be in public places. He also struggled with the work because he did not realise how much theory was involved in carpentry.

He began to take drugs at 16 and would regularly take acid and cannabis. By the time he was 18 or 19 he had started to use cannabis on a regular basis, always on his own.

After being kicked out of his mother’s home he lived in a bedsit and described cannabis as helping him to cope with his life. By this time he had a criminal record as a result of cashing stolen cheques and therefore struggled to find work, although he did have a job as a salesman at an electrical warehouse; he did not attend regularly and was sacked after three months. After that he worked at a wholesaler supplying electrical goods to builders; again the job was not stimulating and again he did not attend work regularly and was sacked after a short period.

During this period his drug addiction became worse and as well as consuming drugs he began to sell drugs from his flat to make money, which generated sufficient funds to pay for his own habit. His next job was in January 2008 when he worked as an ambulance cleaner until April 2009 when he was dismissed, wrongfully, he says, and indeed he pursued a successful unfair dismissal claim, which he said resulted from his being wrongly accused of breaking a security door. He was also employed by an engineering company as a driver supplying goods across the country. He enjoyed this job but lost it as a result of being convicted of assaulting his then partner Ms E, and being sent to prison. Following his release from prison, he has been in receipt of job seekers’ allowance, and has found it difficult to obtain work.

So far as relationships are concerned, it was his evidence that the abuse that he suffered has affected his relationship with his mother leading to his being thrown out of her house when he was 15, when she discovered a motorbike which had been given to him by Hopkins; she wanted to know where it came from and he would not tell her.

When he was about 18 or 19 his father returned on to the scene and he began to see him regularly. They would smoke cannabis together. He was a petty criminal and drug dealer and they worked together.

It was the claimant’s evidence that the abuse has also affected his relationships with various girlfriends, all of which have ended because of his aggressive behaviour and as a result of trust issues. The claimant has a total of three children, a son, aged 15, and a daughter, aged 13, from his relationship with Ms M and a daughter with Ms E. He describes the children as the best thing that has happened to him and is very concerned for their welfare. He does not trust people and as a result he does not have many friends, having lost touch with the other boys in the Cub Scout Group that he had left. He says that he has found it difficult to interact with men particularly, and is happier spending time with his family.

As far as psychological affects are concerned, the claimant’s evidence was that, from an early age, he learned to shut the abuse out and as he grew older drugs helped him to achieve this. He says that he pretended to be a thug so that no one would hurt him and he used drugs to block out the abuse which was always on his mind. He said that he had suffered anger issues from a young age and was often called “psycho”. His anger has led to him being imprisoned on a few occasions.

He said that he felt scared throughout the early years of his life that news of the abuse would come out and he would be blamed for what had happened. He felt guilty and did not feel he could tell anyone about it because of the shame. He felt dirty and ashamed, was concerned that he would die of AIDS and described how he would suffer from flashbacks of the abuse all the time, although they had become less frequent more recently. When walking his dog in the woods he would be reminded of what had happened there when he was a child with Hopkins, and he could still smell and taste Hopkins’s penis.

He also said that, as a result of the abuse, he could not bear to have his photograph taken and that this had been an issue since his childhood, and even to this day he worries about the photographs which Hopkins took of him. That is what led him to download indecent images of children from the internet. He was looking he says for pictures of himself.

He says that he has tried to kill himself a few times, the most recent being in 2008 when he took an overdose of paracetamol. He has also self-harmed at various stages in his life, mainly in his teenage years and early twenties. He has also found sleep to be a big problem which again caused him to take drugs.

The claimant’s mother’s witness statement suggested that as time went on after the claimant had joined the Cub Scout Group his behaviour started to change. He became moody and quiet and he started to turn into a loner and would not join in much especially family gatherings. He became short tempered and easily angered. In paragraph 12 of her witness statement, she recalled a time when the claimant had been to a Scout camp and when he returned he just burst into tears. Hopkins had dropped him off and he looked a bit nervy and jittery. Her recollection was this was when the claimant was about eleven or twelve years old but at the time she put it down to the claimant missing her as he had never been away from her before.

She described the claimant becoming a handful after he left the Cub Scout group; he became rebellious smoking pot and stealing money from her. He made his sister’s life unpleasant and they were always fighting and arguing. One day he came home with a motorbike when he was about fifteen or sixteen years old and shortly afterwards she threw him out as he had become increasingly difficult to handle. He tried to break into the house and she recalled him having broken a pane of glass in the front door. He just wanted money all the time. After that they lost touch for a while until the claimant was about seventeen years old and he rented a flat in Folkestone and she moved from Hawkinge to Folkestone and lived only a matter of a few hundred yards away from him.

She also suggested that the claimant’s relationships with others had been affected by his temper.

Ms M gave evidence to the effect that she met the claimant when she was about twenty years old as a result of buying cannabis from him. She described him as being reasonably sociable and fun to be with. At the beginning he wanted to be with her all the time. He was already living with someone else but within three or four months of meeting they moved in together. She described the claimant as being very emotional. Everything was always extreme; the claimant was really happy, really sad or really angry. They split up for a while after she discovered that he was having an affair but he wooed her back. They tried to have children, which was important to the claimant and that he was very excited when she fell pregnant with their first child, a boy, K, who was born in May 2000. They then had a second child, a girl, B, who was born in October 2001. The Claimant did not cope well with K but was better with B. She recalled that the claimant did not like to have his photograph taken. He was fine and then the claimant would “self destruct”. She noted that K started to copy some of the claimant’s behaviours which worried her. They split up and the claimant was violent towards her at that point but not prior to that point. He was however very controlling. She also confirmed that the claimant had a group of friends from school as well as people whom he met through his drug taking and dealing.

Ms E told the Court that she met the claimant in 2004. At that time he was selling cocaine and she had bought some from him for a friend. She too described him as very easygoing. He appeared to have a cheery personality. They had a few dates and then moved in together after a few months. She then saw a different side to the claimant. He was violent and destructive (to property rather than to her). They separated in 2006 for a period but then got back together. The relationship continued to be volatile and in December 2010 he threatened her with a knife and slashed her car tyres to prevent her from leaving. She called the police and he was arrested, charged and convicted in connection with that incident and sentenced to eight months in prison. When the claimant returned from prison things got better for a while. The claimant stopped taking cannabis at her insistence and she became pregnant and subsequently gave birth to a girl, R. She described the claimant having had two jobs in the time that she was with him but he did not like authority. She also recalled that the claimant had problems with her taking his photograph.

It is necessary to say something about the quality of the claimant’s evidence. He clearly has a strong belief that all his past misfortunes can be attributed to the sexual abuse to which he was subjected by Hopkins. In his witness statement he says the following:-

“Because of the abuse, I never had a chance to have a proper childhood or the chance to grow up normally. The only thing I had growing up was Hopkins and his abuse. I felt that I did not fit in anywhere, not with my family and I had no friends.

I did not even get the chance to dream about what I wanted out of life. I do not know what shape my life would have taken had it not been for the abuse. I feel like I have nothing and no future to look forward to. Hopkins has taken away my life and what he did to me at such an early age set the path for the rest of my life. My life has never been the same since the abuse.

I want to be able to draw a line under it all and get the medical help I need. I cannot live another 30 or 40 years like this. I have lost my childhood, teenage years and adult years all because of Hopkins. I know some of the decisions have been my own decisions but I should never have been put on this path. My moral compass was ruined from a very early age and thereafter I had limited choices.”

Whether or not the claimant is correct in this analysis, his evidence has to be viewed in the knowledge that he holds that view and his account of events has inevitably been coloured by that view. Moreover, it is plain from a consideration of the evidence in the round that his evidence is neither reliable nor cogent. Both psychiatrists agree that he is unreliable and this makes it harder to establish the effect of the abuse.

It is plain that he has been less than honest with the court. Counsel for the defendant drew attention to three particular examples, although there are others. The claimant gave evidence that he had not received money from Hopkins for a deposit and then later in his evidence asserted that he had, denying his previous contradictory statement. He then denied any acquisitive offending after he was seventeen years old although he had previously given evidence that he had stolen money. He also denied any contact with Hopkins after 1993/1994 which was plainly untrue and when confronted with Hopkins’ interview he accepted that he must have seen Hopkins several years later than he had previously admitted, in 2001. Unfortunately in the circumstances it is difficult to place any weight on the claimant’s evidence unless it is corroborated.

So far as the disputed areas of frequency and exact nature and extent of the abuse are concerned, the defendant urges me to conclude that Hopkins’ records are accurate and that there was no penetration, digital or otherwise, and no analingus, relying on the absence of any reference to such acts in the claimant’s statement to the police and as to what was said to the expert psychiatrists and on the basis that there is no reliable evidence about the abuse other than that described by Hopkins himself and for which he was prosecuted and convicted. Equally it is said that Hopkins’ record of the frequency of the abuse is accurate particularly as his diaries demonstrate a fall off in frequency which mirrors the claimant’s own evidence.

On these issues and notwithstanding the reservations which I have expressed as to the reliability and cogency of the claimant’s evidence I reject the submissions made on behalf of the defendant and am satisfied on the balance of probabilities as regards frequency, that the abuse occurred much more frequently than the one hundred and ninety documented occasions to be found in Hopkins’ diaries for a number of reasons. First Hopkins’ running total in his diaries relate to what he described as “bummings”. The claimant’s allegations of abuse are much wider than that particular act and whilst Hopkins clearly had a penchant for that form of abuse, his abuse was more varied and extensive. For example, the earlier examples of the claimant’s legs being touched prior to his eighth birthday and the fondling of his genitals on his eighth birthday would not have been recorded.

So far as the nature and extent of the abuse is concerned, I accept the claimant’s evidence that digital penetration and analingus did occur on a few occasions which finds some support in the police statement given by “DXD” who was also abused by Hopkins and who referred to such activities in his witness statement. Given that on occasions Hopkins abused DXD when the claimant was also present it can, as it seems to me, reasonably be inferred that Hopkins subjected the claimant to similar types of abuse. This does not seem to me to be an example of exaggeration on the claimant’s part.

The absence of any reference to these activities in the claimant’s witness statement does not, to my mind, undermine the claimant’s evidence and I accept the claimant’s explanation to the effect that when he was being questioned by the police, it all happened very rapidly and he did not have a chance to think about everything and the interview did not take longer than three or four hours. Moreover, at the time of the interview the police had in their possession photographs of Hopkins performing oral sex on the claimant and photographs of Hopkins “bumming” the claimant and diary entries relating to those activities and therefore it is perhaps not surprising that their line of questioning focused on those matters and therefore it is to those matters that the statement was addressed.

The Claimant’s school reports do not in my judgment display any abnormal behaviour or reveal any significant or unusual problems in the claimant. Rather they describe a child of average ability who was better in practical than academic subjects (save perhaps for mathematics) and who had friends at school and did not appear to be isolated. Nor do the reports suggest that he was unhappy. This is a picture which is consistent with other evidence for example from Ms M and Ms E.

In my judgment there is no evidence in the reports to support an assertion that the claimant’s education was impaired as a result of the abuse and I reject the claimant’s submission to the contrary.

During his last year of school or immediately thereafter the claimant began to use illegal drugs, initially cannabis and then ecstasy and cocaine. This drug use was social and over time led to the claimant becoming a dealer. His evidence was that it was necessary for one of his group of friends to start buying and he took that opportunity. This history is one of choice. He was not in my judgment self medicating but choosing to use drugs recreationally and socially. His decision to become a dealer was opportunistic.

Both Ms M and Ms E met the claimant through his dealing in drugs and they were buying from him. They both describe him as having friends and being at least initially socially charming and able. They did not describe him as isolated.

It is also plain that the claimant made considerable amounts of money from his drug dealing which was his principal source of income. Significantly the contemporaneous report of Dr Majid records that the claimant ceased to work at a garage, a job in which he had been given a measure of responsibility, to return to drug dealing because it was more lucrative. Moreover, in his evidence the claimant accepted that he made more money as a drug dealer than by working.

The claimant, Ms M and Ms E all accepted that as a drug dealer he would have to interact with others who were both criminal and violent and the claimant was plainly capable of operating successfully in that environment.

The claimant’s drug use continued until 2011. By this date he had stopped using cocaine but was still smoking significant amounts of cannabis on a daily basis. He stopped because Ms E made it a condition of any continued relationship with him that he did so and significantly he did so without medical help and even more significantly, when he did stop, both his and Ms E’s evidence was that his behaviour and mood improved and his aggression reduced. Had the claimant required cannabis as self medication and to avoid symptoms caused by the sexual abuse as he has himself asserted, his problems would then have tended to increase as he ceased to take the ‘medication’, not decreased. In my judgment that tends to suggest that the cannabis use was the underlying problem which accords with the view of Professor Maden, to which I will refer later in the judgment.

To my mind, properly analysed, the evidence establishes that the claimant’s drug use and offending were matters of personal choice and unconnected to the abuse.

The claimant has had three long term relationships each of which ended after he had been violent toward his partner. Ms M and Ms E both gave evidence that at the start of the relationship the claimant had been charming and fun but that over the course of the relationship he became controlling and that when they did not do as he required he became angry and aggressive. Ms E described how he slashed her tyres to stop her leaving. His violence had a specific purpose rather than being spontaneous or an uncontrolled outburst.

I accept the force in the defendant’s submission that the picture painted of the claimant by Ms M and Ms E contradicted the claimant’s own evidence that he was always alone and unable to spend time with people avoiding social situations and the like. They described a man who at times was the life and soul of the party who charmed them into entering a relationship with him and who appeared to have a group of friends with whom he spent time.

It is plain from the evidence of the claimant himself that he did not at any time feel the need to avoid Hopkins. On the contrary he contacted and met him on a number of occasions and was able to discuss problems in his domestic life with him.

In my judgment the claimant was plainly able to form relationships. He did so with both Ms M and Ms E and indeed, before that,

I have already set out the extent of the claimant’s employment history and the reasons advanced for his various employments coming to an end. To my mind the claimant chose to leave vocational training and his initial employments because he preferred to support himself through crime. He made the same choice when he left the garage, whilst the loss of the ambulance cleaning job was unconnected with the abuse. Equally the loss of his most recent job as a driver was unconnected with the abuse and resulted from his conviction and sentence to a term of imprisonment as a result of his violence towards Ms E.

It follows in my judgment that the claimant’s earning capacity has not been affected by the abuse. When he has wanted to, he has been capable of work. To the extent that the claimant has suffered a loss of earnings it arises as a result of his criminal lifestyle and convictions. To the extent that he is handicapped in the labour market that is a result of his criminal record.

Notwithstanding the history to date, the claimant’s evidence was that he was now ready to undergo therapy and indeed was keen to embark on the course of therapy recommended by Dr De Taranto. He contrasted the sort of assistance that would have been provided in the past by the National Health Service with the sort of in-depth therapy now being recommended. I have to say that I found that explanation wholly unconvincing. The claimant’s history demonstrates that he has only sought therapy at times of crisis and when there were other motivations and with the exception of 2003 those crises have been domestic and unconnected to the abuse. Moreover, the claimant’s contact with medical practitioners has often been opportunistic as he has used his history of abuse to obtain a specific outcome often relating to his offending behaviour. He has never persisted with therapy although it has been offered on numerous occasions:

I am reinforced in those conclusions by the fact that the expert psychiatrists agree that there is a considerable risk that the claimant would not engage consistently with psychological therapy and, I conclude a probability that he would not so engage and I accept the opinion of Professor Maden that such therapy would not, in any event, be of benefit to the claimant in the particular circumstances of this case. For all these reasons therefore, as it seems to me, no award should be made in respect of therapy.

There is a measure of agreement between the parties’ respective experts in that they agree that at times of stress, including the disclosure of the abuse, the claimant presented with symptoms of depression and anxiety, the first such presentation was when his partner left him in 2002, and that he has a personality disorder with both dissocial and emotionally unstable characteristics, though they disagree on the relative importance of those features.

Professor Maden believes that the appropriate diagnosis is dissocial personality disorder and that emotional instability has only been a problem at times of crisis and when his drug/alcohol abuse was out of control. Dr De Taranto believes that in addition the claimant has a diagnosis of chronic post traumatic stress disorder, citing symptoms described to her by the claimant including intrusive memories, increased distress at reminders of abuse and fear and avoidance of having his photograph taken.

So far as causation is concerned the experts agree that the claimant has a number of risk factors for emotional and mental health problems including a family history of criminality and an early history of exposure to dissocial behaviour and violence and that those features increased the risk of the Claimant developing a personality disorder. Professor Maden believes that the Claimant would have developed a fairly severe personality disorder even if he had not been abused and that it is possible, but not probable, that the abuse made his personality problems worse than they would otherwise have been. Dr De Taranto on the other hand, whilst accepting that these other factors made a significant contribution to the development of the personality disorder and that the claimant was likely to have had personality problems but for the above, believes that the more significant part of the causation, especially the angry and impulsive features, are to be found with the experience of abuse.

The experts also agreed that the claimant’s father’s attitude to substance misuse influenced the claimant becoming a drug user and drug dealer himself and it is likely on the balance of probabilities that the claimant would have misused and sold substances even if the abuse had not occurred. Dr De Taranto however is of the opinion that the abuse made a material contribution to the severity of the substance misuse problem (in the region of twenty-five per cent) whilst Professor Maden expressed the view that it was possible but not probable that the abuse made the substance misuse worse than it would otherwise have been. In support of that opinion he noted the social influence of his drug use and the fact that he made his living from selling drugs.

The experts agreed that the claimant’s difficulties with anger management caused significant problems with intimate relationships and Dr De Taranto believes that the experience of abuse made a contribution to that anger whilst Professor Maden believes that the claimant’s problems are essentially a milder version of those his father had and that they need no further explanation. He noted that the claimant used his drug dealing in an exploitive way to pick up women and therefore it was no surprise that subsequent relationships were sometimes problematic. Professor Maden believes that the claimant’s difficulties in relationships were not of the type typically to be found in adult survivors of childhood sexual abuse and arose mainly from his dissocial personality disorder, aggravated by excessive cannabis use.

The experts also disagreed as to the impact of the sexual abuse on the claimant’s employment’s prospects.

So far as treatment was concerned the experts also disagreed with Dr De Taranto expressing the view that the claimant, having now reached a more settled period in his life and having achieved abstinence from drugs, should be given the opportunity to benefit from psychological therapy. Professor Maden did not believe that any therapy was indicated as it was unlikely to help and it might indeed do more harm by directing the Claimant’s attention backwards at events in the past which he could no longer change, rather than concentrating on the present and the future. However, both experts agreed that there was a considerable risk that the claimant would not engage consistently with any psychological therapy.

Counsel for the defendant is critical of Dr De Taranto’s approach in this case asserting that her diagnosis of chronic post traumatic stress disorder and her attribution of part of the claimant’s personality disorder and misuse of drugs to the abuse is not based on an empirical approach to the evidence. She was, it was submitted, over reliant on the claimant’s account of his symptoms and had not appropriately questioned that account when it was contradicted by other independent evidence. This, it was submitted, created a bias in her methodological approach; a bias which it was suggested arose from her preference to act for claimants in historic sexual abuse litigation. Dr De Taranto, when questioned about this aspect, accepted that she preferred to act for claimants and did not accept instructions from defendants in such cases on the basis that she was “happier” acting for claimants but did not give any further explanation. She maintained however that her evidence remained impartial and unbiased, notwithstanding that preference.

To my mind, whilst her preference may be understandable it does leave her open to the allegation that her preference has clouded her objectivity. Moreover, there is some truth in the suggestion that she was too reliant on the claimant’s account. By way of example, counsel for the defendant pointed to two examples of this over reliance. The first was that the claimant told her that his last contact with Hopkins was when he was seventeen, which was plainly untrue, which was apparent from the interview with the community psychiatric nurse in 2003. Yet in her first report Dr De Taranto failed to comment on or consider this discrepancy although it is fair to say that in the joint statement she acknowledged both that the claimant was unreliable and that the blackmail of Hopkins was highly unusual and remarkable for the fact that they (the claimant and “CMC”) had acted together in a sustained and planned way for material gain over a number of years. This, it is submitted should have been apparent to Dr De Taranto when she provided her first report and, if she had been objective, she would have identified and considered this discrepancy. She should, it was submitted, have considered whether the claimant was deliberately misleading her to downplay the extent of any continuing relationship with Hopkins and whether this continued contact meant that reminders of abuse did not trouble him.

Secondly, reference was made to the statements made by the claimant to Dr De Taranto that he had suffered flashbacks of the abuse “over all the years since the abuse”, a statement which was plainly inconsistent with the history taken by Dr Majid as set out in his report, to which I have already referred, yet Dr De Taranto did not identify the discrepancy nor did she comment on it. The absence of flashbacks meant that Dr Majid did not diagnose post traumatic stress disorder. There is to my mind some force in both of these criticisms.

Post traumatic stress disorder is a psychiatric illness as opposed either to a personality disorder or emotional stress. It arises as a delayed and/or protracted response to a stressful event or situation of an exceptionally threatening or catastrophic nature which is likely to cause pervasive distress in almost anyone. Predisposing factors such as personality traits or a previous history of neurotic illness may lower the threshold for the development of the syndrome or aggravate its course but they are neither necessary nor sufficient to explain its occurrence. Typical symptoms include episodes of repeated reliving of the trauma in intrusive memories – so called flashbacks – or dreams, occurring against the persistent background of a sense of “numbness” and emotional blunting, detachment from other people, unresponsiveness to surroundings, anhedonia, and avoidance of activities and situations reminiscent of the trauma. Commonly there is a fear and avoidance of cues that remind the sufferer of the original trauma. Rarely, there may be dramatic, acute bursts of fear, panic or aggression, triggered by stimuli arousing a sudden recollection and/or re-enactment of the trauma or of the original reaction to it.

The only basis for a diagnosis of post traumatic stress disorder in the case of the claimant is his own reporting of symptoms. Whilst it is true to recall, as I have previously recorded, that the claimant told Dr De Taranto that he had suffered flashbacks of the abuse over all the years since the abuse, that is not the history given to Dr Majid. Frankly the claimant’s medical records do not support this evidence notwithstanding that there were numerous opportunities for the claimant to have raised it and to have sought treatment for such symptoms. Moreover, the contemporary evidence to my mind, tends to contradict a diagnosis of post traumatic stress disorder since, as I have found, the claimant was able to function at school, at work and socially, and did not seek any medical help until 2002 and then not as a result of the abuse. Even after the traumatic events of 2003 following the police investigation, the claimant continued to function without apparent problems meeting Ms E in 2004 and subsequent to 2003 the claimant has not sought psychiatric help and has only engaged with such services when it was to his benefit in connection with his offending. For much of the claimant’s life he has been a successful career criminal who has planned his acts rather than someone who offends because of impulse. Even in the domestic arena, his anger has served a particular purpose and his attitude to relationships is controlling, which to my mind is more consistent with a dissocial personality disorder. Significantly, the claimant’s behaviour improved when he stopped taking significant quantities of drugs. There have been no episodes of emotional instability since then, despite the ongoing civil litigation, and as it seems to me if these symptoms were caused by the drug use and have subsequently ceased then they cannot be attributed to an underlying personality disorder. The only explanation that would provide a causative link between the sexual abuse and the claimant’s drug use would be self-medication but the claimant’s history post cessation of drug taking does not support such an explanation. It is the claimant’s dissocial personality disorder, aggravated by the claimant’s heavy use of cannabis and other drugs which has led to the breakdown in his relationships and his loss of employment.

I am satisfied on the balance of probabilities, accepting as I do the thrust of the evidence of Professor Maden that the only psychiatric illness with which the claimant has suffered as a result of the abuse was the adjustment disorder, in the period when the police were investigating the abuse, that’s to say December 2002 until late 2003.

As is usual in such cases I was referred to the relevant judicial college guidelines for the award of damages in cases of psychiatric damage. On behalf of the claimant it was submitted that the appropriate level of damages would be within the severe category of psychiatric damage generally. The relevant provisions are as follows:

“(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 her or she comes into contact;

(iii)

The extent to which treatment will be a success;

(iv)

Future vulnerability;

(v)

Prognosis;

(vi)

Whether medical help has been sought;

(vii)

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 and 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.

(a)

Severe

In these cases the injured person will have marked problems with respect of factors (i) – (iv) above and the prognosis will be very poor. £41,675 to £88,000 with the ten per cent uplift £45,840 to £96,800.”

In arriving at my assessment of the appropriate level of damages for pain, suffering and loss of amenity, I make it clear that I have had in mind the guidance given by Thomas LJ (as he then was) in Richardson v. Howie to which I referred above.

I have been referred to a number of authorities by both parties with a view to their providing support for their respective submissions as to the appropriate level of general damages, £85,000 in the case of the claimant or £30-35,000 in the case of the defendant. Whilst I am grateful to the parties for drawing my attention to those various authorities, they have been of limited value because, as I have already indicated, such cases are so highly fact specific and not only the acts of abuse themselves but also the effects of the abuse vary from case to case and from individual to individual.

The guidelines plainly provide only limited assistance in cases of sexual abuse. It is necessary to take into account the immediate effects of the abuse as well as any psychiatric effects. I have considered a number of aggravating factors, which include the claimant’s very young age at the time the abuse began, its duration, lasting as it did, albeit in later years at lesser frequency than throughout his formative years, the frequency of the sexual abuse and its effects on the claimant at the time and that the claimant was required to engage in sexual acts with other children and to watch such acts being perpetrated on other children. I have taken into account the distress that the claimant will have suffered in the period when the police were investigating the abuse between December 2002 and late 2003, during which period Professor Maden diagnosed an adjustment disorder. I have also taken into account the fact that Hopkins photographed his activity with the claimant and the grave effect breach of trust involved in this case. Taking into account the totality of the evidence and the various findings which I have made, I consider that the appropriate award of damages is £48,000.

In the light of my findings, there will be no award for past or future loss of earnings, for handicap on the open labour market or for therapy and no separate award by way of aggravated damages.

It was submitted on behalf of the defendant that the claimant had in fact obtained compensation from Hopkins for which credit should be given, since in a claim against Hopkins himself the claimant would have had to give such credit and otherwise there would be double recovery. This is not a point which was pleaded and was raised for the first time on the first morning of the hearing. The submission was that the evidence demonstrated that the claimant had received two motorcycles valued at £2,500 - £3,000 and £1,200 - £1,500 and other financial benefits of about £500 per annum (this information having been elicited from the claimant in cross-examination and related to a period after the abuse had come to an end). In support of the submission, the defendant relied on the description of the items as compensation both in the claimant’s police witness statement and in evidence. I am not persuaded by these submissions. In the first place, I am not persuaded, however the transactions may have been described by the claimant ex post facto, that the various items and financial benefits were other than gifts, nor does it seem to me appropriate from a public policy point of view that the claimant’s damages for pain, suffering and loss of amenity should be reduced in the way contended for. This is not a case of double recovery in my judgment.

I am aware that the conclusions which I have reached in this judgment will be disappointing to the claimant and indeed that the contents of the judgment may cause some distress. This is particularly unfortunate and regrettable since there is no doubt that the claimant was the victim of serious sexual abuse involving a grave breach of trust and that he has suffered as a result. As such he is deserving of sympathy.

The claimant has come to believe that all the adverse effects that have occurred in his life are attributable to the abuse and whilst that belief may be sincerely held, having heard all the evidence including the expert psychiatric evidence, I have come to a different conclusion. In identifying my reasons for so doing I have had to make observations and findings about aspects of the claimant’s personality and behaviour that are critical. In so doing, I do not intend to suggest that the claimant himself is responsible; we all have different personalities and some are more difficult than others.

I would also like to take this opportunity to thank both advocates for all their assistance in dealing with what has been a challenging case.