High Court hands down seven-figure award in non-recent abuse case

FZO v Andrew Adams (1) & London Borough of Haringey (2) [2018] EWHC 3584 (QB)

The High Court recently handed down judgment in the above case. The claimant was awarded a total of £1,112,390 for complex PTSD as a direct result of abuse at the hands of the first defendant, for whom the second defendant was vicariously liable.

The judgment contains potentially controversial findings on limitation, vicarious liability, consent and medical issues. Keoghs is acting for the second defendant

Background

The claimant sought damages consequent upon sexual abuse committed by the first defendant, a teacher at Highgate Wood School, London, where the claimant was a pupil from 1980-1982 and then again in 1983/84. It was also alleged that the assaults continued, after the claimant had left the school, until 1988.

The claimant accepted that, although the abuse ended in 1988, he continued to have contact with the first defendant until as recently as 2011-12. Proceedings were brought in assault against the first defendant and in vicarious liability against the second defendant.

Both defendants raised limitation defences. The second defendant also argued defences of

(1) Vicarious liability in respect of any abuse that occurred during any period when the claimant was not a pupil at the school; 

(2) Consent

The Court was asked to adjudicate on limitation, consent, vicarious liability, causation and quantum.

Limitation - should discretion to disapply the limitation period afforded by s.33 Limitation Act 1980 be exercised in favour of the claimant?

Exercising discretion in the claimant’s favour, the Court found that whilst there were some inconsistencies in the evidence and that the claimant was found to have exaggerated matters to some degree. This was insufficient to render his evidence unreliable or incapable of belief. Further, the Court found that it was impossible to look at the behaviour of the claimant after he left school separately from the grooming and abuse that occurred whilst he was at school.

In this context, the Court found that the delay in bringing these proceedings was because the claimant had not recognised that what happened to him at the hands of the first defendant was abuse until he had a breakdown in 2011. Even when in his early 40s, the claimant had not seen the first defendant’s actions as abuse by reason of grooming and consequential emotional manipulation.

Whilst the Court found that potentially helpful documents were missing and acknowledged that the substantial delay could have an effect on memory, it concluded that the defendants had not been exposed to the real possibility of significant prejudice. In particular, the court had regard to the fact that historic offences of child sexual abuse are regularly tried in the criminal courts notwithstanding long delays.

The Court determined that the question is whether in each individual case a defendant will be exposed to the real possibility of significant prejudice and in this case, both the claimant and the first defendant were able to give detailed evidence about what had happened sufficient that the case could be safely tried.

Consent - Did the claimant give valid consent from after he left the school until 1988?

The second defendant contended that any sexual activity between the claimant and the first defendant after the claimant left the school was consensual, as once the claimant had left the school he had continued to seek out the first defendant. The Court concluded that the first defendant had groomed the claimant into believing that he was the only person who would be his friend, isolating the claimant from his peers and family and creating a dependency which lasted for many years. The claimant had thus submitted to the sexual activity rather than giving true consent.

Vicarious liability - was the second defendant vicariously liable for assaults (1) whilst the claimant attended a different school in 1982-83 and/or (2) after the claimant ceased to be a pupil at the school?

The second defendant contended that it could not be vicariously liable for any abuse either whilst the claimant was not a pupil both during 1982/83 and after the claimant had left the school in 1988. It was argued that any sexual activity was not sufficiently closely connected to the first defendant’s employment as a teacher. The claimant contended that the abuse occurred because of the grooming and manipulation by the first defendant in a manner closely connected to his pastoral responsibilities as a teacher. The court accepted the claimant’s submissions, holding that as the first defendant sought the claimant out following a previous unrelated sexual assault, misusing his position in a way which injured the claimant, the connection between the first defendant’s employment and his wrongdoing was not broken when the claimant left the school.

Causation - what are the causative effects of the claimant’s past and present ill-health?

The court preferred the psychiatric evidence of the claimant’s expert, Dr O’Neill, who had diagnosed Complex PTSD from the occurrence of the abuse. These findings were reached despite the fact that (1) this disorder was being linked to trauma several decades earlier, and (2) the diagnosis involved disregarding a number of the diagnostic criteria contained within what is still a draft definition of Complex PTSD as per the current version of ICD-11 (which is yet to be finalised and published).

Quantum – to what level of damages is the claimant entitled?

The court assessed damages (including aggravated damages) for pain, suffering and loss of amenity at £85,000. Although the past loss of earnings claim was considerably reduced and documentary evidence was very limited, the court still applied a mathematical approach to arrive at a net loss of £105,000.

In addition, the court awarded £423,000 for future loss, basing that award on earnings that the clamant had enjoyed for only a few months before a breakdown in 2011. He has never worked since that breakdown. The overall award was then bolstered by two significant subrogated claims.

Commentary

Numerous elements of this judgment are open to debate and challenge. For example:

• Many factors relevant to prejudice, including dispute as to the nature and extent of abuse, inconsistent evidence, potential damage to memory through misuse of alcohol and drugs, missing witnesses and documents, were not given any or any adequate weight in the context of deciding whether to exercise s33 discretion after a 37-year delay
• The lack of evidence was particularly acute in the context of assessing quantum, significantly impairing the ability of the court and the medical experts to conduct a proper examination and reach properly informed conclusions
• The claimant had actively sought out the first defendant after leaving school, reflecting what had been argued to be the consensual nature of the relationship
• It is difficult to understand how the claimant, an intelligent man, allegedly did not understand the nature of his relationship with the first defendant until 2011
• The vicarious liability finding suggests that a school remains liable for abuse of a former pupil long after the pupil’s departure, provided it can be shown that the dynamic between teacher and pupil was developed at the school
• The Complex PTSD diagnosis is difficult to understand or sustain taking into account the absence of certain symptoms and the delay of nearly 30 years before onset of those symptoms.

Whilst this is not a precedent-setting judgment due to its fact-specific nature, it contains a number of troubling aspects. The defendants are currently considering their options.