JM v. Fife Council [2007] ScotCS CSOH

"If you do not send me this information I shall also go to the papers as I know a thing or to ~~(sic)~~ about one of your employees. This man is called Mr D Murphy and was at one time house father at ... home in Elie. If he is still there or looking after children I sujest ~~(sic)~~ you sack him as he is a homosexual. I know this because when I was 13 years old this man had sexual intercoures ~~(sic)~~ with me and at times made me strip in his private room and he made love and asalted ~~(sic)~~ me sexually. This a swear to be the truth I swear on the holy bible. I could not tell you this before as I was frighted ~~(sic)~~ to as I was under your care and you would not have belived ~~(sic)~~ me thinking it was a way to get at you. Like I said I wanted to but not now I just want justic ~~(sic)~~ and kids to be safe from being changed into homosexuals when they could be straight and this thing stays with you for the rest of your live. ~~(sic).~~ This did not make me a homosexual. But it could have quite esaly. ~~(sic).~~ Please keep this quite ~~(sic)~~ as I do not want enyone ~~(sic)~~ to get hurt more than need be."

[13] The pursuer received a reply to this letter from the Assistant Director of Social Work, Miss J L Walker, dated 11 December 1970. This letter stated inter alia

"I was most concerned to get your second letter this afternoon and to read the contents. I can well understand your anxiety as a child being in care and being frightened to discuss the matter you refer to but can reassure that had you done so the situation would have been investigated very thoroughly by either myself or Mr Savage, who was Childrens' Officer before me."

[14] In January 1971, the pursuer went to the police in London and reported what Murphy had done to him in the home. The police told him that he would have to return to Scotland to make a report there. He had nowhere to stay in Scotland and was scared to report this matter to the procurator fiscal. He spoke to Miss Walker on the telephone and told her that he had been to the police; she told him that Murphy was a lovely man, who was very caring and was a respected member of the community, and if the pursuer made these allegations, he would have to be able to prove them. If he could not do so, he should "shut up". The pursuer said that he was too scared to proceed with any complaint at that time.

[15] As the pursuer got older, he knew that something was wrong and that what Murphy had done to him was "messing up his mind" and the way that he related to people and was affecting his mental health. He told his general practitioner in about 1972 or 1973 what had happened to him, and as a result of this he was referred for counselling, but this did not work.

[16] The pursuer worked in a number of jobs in London, with Lloyds Insurance Market and then as a department supervisor with John Lewis Partnership. He then spent 15 years working at Westminster Hospital, where he became active in the trade union and in politics.

[17] It was while he was working at Westminster Hospital that he met the woman whom he was later to marry. The pursuer said that he found it very difficult to relate to her on an emotional basis or physically; it took him two or three years to allow her to touch him. This was the first emotional attachment that he had ever had; his wife to be was quite a tactile person but when she rubbed the pursuer's back or arm or stroked his face it felt as if he was being cut with razor blades, and was physically painful. He explained to her in outline that the difficulties which he experienced were attributable to what Murphy did to him when he was young, although he did not go into great detail. They married in September 1979, and there are two sons of the marriage, born in 1981 and 1985. The family moved to Liverpool in 1990 and separated shortly after this but remained on good terms. They divorced some years later, but they still share the same house and remain on good terms.

[18] In describing his relationship with his sons, the pursuer said that he tried to be a loving and caring father but he could never really play with them in a loving way. When one of the boys was aged 7 he suffered a cardiac arrest, and the pursuer wanted to put his arms around him but did not feel able to do so. The pursuer said that the first time that this boy had hugged him was before court on the first day of the proof, when he put his arms around the pursuer and wished him luck. Although the pursuer was able to pick the children up and swing them around when they were young, he was never able to cuddle them or show affection towards them by hugging them. He had similar difficulties in relationships with other people: he used to belong to an organisation in which everyone shook hands with everyone and put their arms around each other, but the pursuer stopped attending because he could not cope with this. He felt that he could never be really close to his children in the way that he would have liked to have been.

[19] The pursuer was asked about what disclosures he made to medical personnel about his abuse, and when such disclosures were made. He stated that before 1994 he was not sure whether he had ever disclosed that he had been abused to any doctor, although he may have said something in passing to one doctor when he was being treated for bowel problems. In 1994 and 1995 his son J was very ill, and the pursuer disclosed to the doctors treating him the general fact that the pursuer had been sexually abused when young, but he did not give them specific details. The doctors at the children's hospital suggested that the pursuer's son should attend boarding school, and the pursuer told them that he was not prepared to allow this because he had been sexually abused while in boarding accommodation. At Mossley House, Liverpool the pursuer received psychiatric treatment and disclosed the fact of his abuse to those providing treatment to him; however, he only attended two or three sessions and then ceased to attend appointments. He ~~However, he~~ has consistently received treatment for depression and must have explained to the doctors that the reason for his depression may have been the abuse which he sustained when young. He is still depressed and receives daily medication for this, which he has been advised he will require to take for the rest of his life.

[20] In cross-examination, the pursuer accepted that he had had a high public profile as a trade union leader when working with the National Health Service, and had been the subject of colourful press comment. He was a local councillor in Tower Hamlets for 5 years and had been a lay magistrate for the last 5 years or so. He is the director of a charitable organisation called "Victims No More" which works with the victims of abuse. He is also involved in the management of European Union funding in the Merseyside area.

[21] The only other witness was the pursuer's former wife, D W, who stated that she was married to the pursuer in 1979 and separated from him in 1990, although they did not divorce until the mid-1990s. She described him as still being her best friend; he was lovely, but impossible to live with and does not function well in families. She first met the pursuer in 1975 and did not like him then, describing him as "mouthy". However, she got used to him and thought that she could change him. She said that he was really strange about her touching him - whenever she touched him he would move back or flinch. She could not say how long it was before they kissed, and he would never initiate any sexual activity, which was always initiated by her. She said that he loved his children, and as a father he would have gone into battle for them, but he just wasn't normal. He hardly ever cuddled them, nor did they ever sit on his knee when they were young. She said that the pursuer did tell her in general terms what had happened to him before they were married. He had told her about Murphy taking him out in a dinghy and holding his head over the side and saying how easily he could kill him. She knew that the pursuer had been subjected to anal intercourse and other sexual abuse and that this had happened over a long time; however, she doubted whether he had told her everything. Over the years the pursuer had received counselling, antidepressant medical treatment, cognitive behaviour therapy and psychiatric appointments. He has suffered from depression for most of the time that she knew him. Although she is divorced from the pursuer, she still lives in the same house as him and works as a volunteer in the charitable organisation which he runs.

Submissions for Pursuer

[22] Senior counsel moved for decree in the sum of £175,000, together with interest (a) on £100,000 from 10 January 1964 until decree at the full judicial rate from time to time in force, (b) interest on £50,000 from 10 January 1964 until the date of decree at half the judicial rate from time to time in force, and (c) no interest on the balance as relating to the future. He invited me to put the case out By Order after this Opinion has been issued, before issuing a final interlocutor. There were two main areas of dispute:

(i) the proper award for solatium (the claim being restricted solely to solatium); and

(ii) how interest should be calculated.

[23] With regard to the evidence, senior counsel invited me to accept the pursuer's evidence in its entirety and to regard him as both credible and reliable. His version was not challenged and he was a careful and truthful witness. He had been subjected to serious abuse, both sexual and non-sexual at the hands of Murphy, who was employed by the defenders' predecessors and for whose acts the defenders bear liability. The start date for this abuse was about 16 May 1960, this being derived from charge 4 of the indictment which Murphy faced (No. 6/4 of process), when the pursuer was aged about 8. The abuse stopped on about 4 September 1967 when the pursuer left the home and went to live with the foster parents. The date of 10 January 1964 referred to above in the pursuer's motion for interest is the mid point between these start and finish dates. Between the ages of about 8 and 15 the pursuer had been subjected on an almost daily basis to both physical and psychological abuse by Murphy. The psychological abuse was calculated to humiliate and isolate the pursuer, and succeeded in doing so. The physical abuse was both sexual and violently non sexual causing significant pain and discomfort. The sexual abuse was of the most serious kind involving almost daily sodomy of the pursuer by Murphy and forced oral sex. The result of these various kinds of abuse was that the pursuer has suffered serious psychological and social sequelae which have caused him to have difficulties in relationships with his wife, children and others.

(i) Amount of Solatium

[24] Senior counsel told me that there was no Scottish decision on the quantum of solatium in a case such as this, and he suggested that the total value of £175,000 was not an overestimate. He suggested that the court should try to do justice between the parties but to reflect the public expectation as to what such an award might be in this situation. There were four sources of guidance on which he relied - (a) jury awards generally, (b) court awards in England and Wales, (c) the Judicial Studies Board Guidelines and (d) awards in the courts of the Republic of Ireland.

[25] In support of the proposition that judicial awards for solatium should reflect public opinion, senior counsel relied on Shaher v British Aerospace Flying College Ltd 2003 SC 540, and the cases referred to in Mr Hajducki's book on Civil Jury Trials (second edition) at page 261. However, he was unable to point to an analogous jury award.

[26] With regard to awards in the courts of England and Wales, I was referred to KR and Others v Bryn Alyn Community (Holdings) Ltd (in liquidation) [2003] EWCA Civ 85 (hereafter referred to as "Bryn Alyn"). Senior counsel told me that this was the only United Kingdom case dealing with a range of cases of abuse, but he described it as being of very limited assistance in the present case, and all the cases considered in that authority were readily distinguishable from the present case, as none of them were as serious as this case. He argued that the critical factors in assessing damages in a case of child abuse were the length of time of the abuse, the frequency of the abuse, the character of the abuse and the age of the individual when abused. The Court of Appeal in Bryn Alyn did not explain the basis for its awards and gave no detailed analysis to enable the reader to understand how the court arrived at the various awards. He also referred me to C v Flintshire County Council [2001] EWCA Civ 302 (although that case was much less serious involving only one incident of sexual abuse and a much shorter timescale) and to the case of L v Leicestershire County Council, an unreported decision of Potts J which is referred to at paragraphs 48 and 49 of C and is also referred to in Child Abuse Compensation Claims by Elizabeth-Anne Gumbel QC and others (at paragraph 4.5.9), in which a victim of child abuse was awarded £80,000. Senior counsel told me that this would now be worth £105,600, and that the award was discounted to some extent (precisely what is not clear) to make allowance for a pre-existing disability, and that the abuse was not as serious as in this case. Moreover, the abuse lasted for a period of about 3 years, unlike the present case where the abuse lasted for some 7 or 8 years.

[27] In referring me to the Judicial Studies Board Guidelines, senior counsel drew my attention to Chapter 3(A), under the heading Psychiatric Damage Generally. However, he pointed out that these were just guidelines, and it was doubtful whether the categorisation applied to this kind of case at all - see the observations of the Court of Appeal in C v Flintshire (supra) at paragraphs 54 and 68. He suggested that not much assistance could be derived from these guidelines.

[28] Turning to decisions of the courts of the Republic of Ireland, senior counsel referred me to MN v SM [2005] IESC 17, Noctor v Ireland and Others [2005] IEHC 50 and Connellan v St Joseph's Kilkenny and Others [2006] IEHC 119. In these cases awards were made in euros, which I was told equated to £235,000, £134,000 and £168,000 respectively.

[29] Looking to the circumstances of this case, and obtaining such assistance as is possible from these various authorities, senior counsel submitted that solatium in the present case was properly assessed at £175,000. Although he accepted that it was unusual to divide past solatium, he submitted that in this case it would be appropriate to do so, and that the total should be divided so that £100,000 applied to the period during which the pursuer was being abused, and the immediate sequelae of such abuse, £50,000 applied to the period from his leaving the home to the date of proof, and £25,000 applied to the future.

(ii) Interest

[30] I was referred to the Interest on Damages (Scotland) Act 1958 Section 1, and to the extension of the power of the courts to grant interest on damages effected by the Interest on Damages (Scotland) Act 1971 Section 1. I was also referred to McEwan and Paton on Damages at Chapter 3, Smith v Middleton 1972 SC 30 and the Scottish Law Commission's Report on Interest on Debt and Damages (published September 2006). Senior counsel invited me to apply interest in the way referred to above - see para. [22]. He asked what else the pursuer could have done to further his claim, and referred to the correspondence between the pursuer and the defenders' predecessors in December 1970. If the court accepted the pursuer's evidence as to what he did at that time and what he tried to do, and the difficulties which he has experienced since then, the court should not depart from the usual rule merely because of the elapse of time. The defenders have not sought to argue prescription or limitation and accepted responsibility at an early stage of this litigation. Interest should be awarded in the "normal fashion", and to do otherwise would be unfair to the pursuer.

Submissions for the Defenders

[31] Senior counsel for the defenders accepted that the pursuer is entitled to an award of damages, but disputed the pursuer's approach to both assessment of solatium and interest.

(i) Amount of Solatium

[32] Senior counsel accepted that the pursuer was abused by Murphy, and his description of that abuse was not challenged. There was however an issue as to the starting date of this abuse which, on the evidence, was later than the date of 16 May 1960 contended for on behalf of the pursuer. His date of birth was 18 September 1952, and he stated in evidence that the abuse began when he was aged between 8 1/2 and 9, and really only once the Gs had left the home. It appeared from the records that the last date for the Gs still being at the home was 19 October 1961, which would fit in with the pursuer's estimate of his age, he having had his ninth birthday in September 1961. Counsel submitted that the appropriate starting point should be 19 October 1961.

[33] In assessing the effect which Murphy's abuse has had on the pursuer's life, it was necessary to see how the pursuer had functioned notwithstanding this, and to give proper weight to the positive factors in his life. Senior counsel suggested that the pursuer had done extremely well considering the abuse which he suffered. He had held a number of jobs with a high profile position, he had become a lay magistrate and he was director of a charity. One could say that he was a remarkable success story and was to be admired for having achieved a successful life notwithstanding Murphy's abuse. Counsel accepted that the pursuer had difficulties in his relationship with his wife, but this was still remarkably strong and each described the other as their "best friend". The pursuer's relationship with his children was good, his wife describing him as a "lovely father", and his son cuddled him before coming to court for the proof. The early difficulties with his relationship with his wife to be were overcome and he achieved a good family life with his wife and children. Although the pursuer spoke of receiving medication and counselling for depression, no expert evidence was adduced of any psychiatric condition; there was no evidence of diagnosis or severity of such condition or the prognosis for the future. In this respect the onus of proof rested with the pursuer, to establish not only that he was suffering from a psychiatric condition, but that this was caused by Murphy's abuse. Without evidence of the nature of any psychiatric or psychological disorder, or as to the extent, prognosis and causation of such a possible disorder, the court should be slow to make an award approaching the sums suggested on behalf of the pursuer. Moreover, it is clear from the records at the time that the pursuer was a very troubled child before he was abused by Murphy.

[34] Senior counsel agreed that there were no Scottish cases which might assist in the assessment of an appropriate award for solatium. Under reference to Lord Walker's remarks in Allan v Scott 1972 SC 59 (at page 63) it is therefore appropriate to look to similar awards in England. In considering Bryn Alyn it should be remembered that the Court of Appeal had looked at all the awards referred to by senior counsel for the pursuer, including C v Flintshire County Council and L v Leicestershire County Council; they were aware of high awards, but did not award as much by way of damages as was awarded in L v Leicestershire. It is clear from their observations that the Court of Appeal also considered that it was appropriate to have some regard to the Judicial Studies Board Guidelines in a case such as this. The awards which the Court of Appeal made in that case for abuse at the time were very significantly less than the sum of £100,000 argued for on behalf of the pursuer in the present case. It was necessary to look at the abuse itself, and the level of psychiatric injury caused by it; a pattern can be decerned from the awards in Bryn Alyn to the effect that where there was serious abuse and severe psychiatric illness as a consequence, an award in the region of £50,000 was appropriate. Where not all of these factors were present, the award would be about £35,0000. The range of awards in respect of damages at the time of abuse varied between £9,000 and £20,000. I was referred to the case of Re B in Kemp & Kemp on the Quantum of Damages at paragraph C4-001 in which the Criminal Injuries Compensations Board made an award of £50,0000 in 1998 which I was told would be worth about £56,000 today. Senior counsel suggested that this award was very much in line with the approach taken in Bryn Alyn. (In passing, she agreed with senior counsel for the pursuer that it was not appropriate nowadays to have regard to CICA awards because they comply with a statutory formula which bears no relation to awards of damages in the courts). With regard to L v Leicestershire County Council, the plaintiff in that case suffered considerable psychiatric consequences, and counsel submitted that in any event that award was out of step with the general level of awards in such cases.

[35] In turning to the Judicial Studies Board Guidelines, senior counsel drew attention to the range of awards for brain damage and pointed out that very serious disability was required for the category of "moderately severe brain injury" in which a range of awards from £120,000 to £155,000 was appropriate. She submitted that the guidelines for psychiatric damage were relevant when considering a case of this nature and were useful as a cross-check. The range of awards for severe psychiatric damage generally (on page 11 of the guidelines) broadly mirrored the awards in Bryn Alyn; nowhere was an award to be found at the level contended for on behalf of the pursuer.

[36] Senior counsel accepted that it was appropriate to look at other jury awards where a pattern emerges, but there are no Scottish awards in respect of a similar case. Awards of juries with regard to other personal injury cases were not readily comparable and should be treated with considerable caution. The court should not rely on awards in the Courts of the Republic of Ireland; the Scottish courts have never considered themselves aligned to the Irish system, and awards of the Irish courts appear to be out of step with English cases and also with the Judicial Studies Board Guidelines. Moreover, each of the Irish cases referred to on behalf the pursuer involved a significant amount of evidence in relation to psychiatric injuries, which was absent in the present case.

[37] Senior counsel urged me to make an award in the range £35,000 to £50,000, in line with the awards in Bryn Alyn. I should be cautious about making an award at the higher end of this range in the absence of any expert evidence of a psychiatric disorder. In Bryn Alyn, awards at around £50,000 involved plaintiffs with significant psychiatric problems; when one looks at the positive factors in the pursuer's life, any award should be towards the lower end of this range, and such an award should be a global figure to cover abuse at the time and the long-term sequelae, including all past and future solatium.

(ii) Interest

[38] Interest should be awarded on half of the award of solatium, and from the date of citation only. It was not disputed that the application of interest is a matter for the discretion of the court, and this should be exercised in a discriminating and selective manner so as to do justice to both parties. The court has a wide discretion to discriminate between the period over which interest is to run, the amount on which it is applicable and the rate at which it is applicable, and it is properly within the discretion of the court to restrict the application of interest to the period from the date of citation. In terms of the Interest on Damages (Scotland) Act 1958 this was the limit of the court's power to award interest, until the discretion of the court was extended by reason of section 1 of the Interest on Damages (Scotland) Act 1971. The court has a discretion to disapply interest for a particular period where there are reasons special to the case why no interest should be given in respect thereof - for example because of inordinate delay. Senior counsel referred to Smith v Middleton (supra) and MacRae v Reed and Mallik Limited 1961 SC 68 (particularly the opinion of Lord Patrick at page 78). In Nacap Limited v Moffat Plant Limited 1986 SLT 326 the defenders sought modification of interest because of "inordinate delay", the action being concluded nine and half years after the incident which gave rise to the claim. The court, without using the same term, expressed the view that "with reasonable diligence the pursuers ought to have been able to pursue this action to a successful conclusion within five years of the date of the incident which gave rise to the loss", and restricted the period of interest accordingly. In Buchan v J Marr (Aberdeen) Limited 1987 SLT (notes) 51 the court expressed the view that there was "inexcusable delay" on the part of the pursuer, which would have justified a restriction on the period on which interest would have run by three years. In M & I Instrument Engineers Limited v Varsada 1991 SLT 106 the court ordered that interest should only run from the date of citation, to reflect "unreasonable delay". I was also referred to Boots the Chemist Limited v J A Estates 1992 SC 485, Bhatia v Tribax Limited 1994 SLT 1201, Bogan's Curator Bonis v Graham 1992 SCLR 920 and Purryag v Greater Glasgow Health Board 1996 SLT 794. The defenders' position was that the pursuer would be adequately compensated by an award of solatium at today's rate, and should get nothing on top of that by way of interest (which, depending on the amount of solatium awarded and the date selected from which interest should run, might add about £500,000 to the award). The reluctance of the English courts to award interest over long periods was clear from Wright v British Railways Board [1983] 2 AC 773. The date of citation in the present case was 13 March 2002, and counsel invited me to apply interest from that date.

[39] Turning to the particular circumstances of this case, counsel submitted that on the evidence the abuse of the pursuer lasted from when he was aged about 8 or 9 until 15 - i.e. 1961 to 1967. No claim was intimated until 15 December 1999, and the action was raised in March 2002. In 1970 the pursuer made contact with the defenders' predecessors and gave a statement to the police. The evidence did not support the contention that the pursuer was dissuaded from making a claim by Mrs Walker of the Social Work Department - notwithstanding what she said he remained determined to take matters forward. He gave a full statement to Chelsea Police in January 1971, but he did not intimate any claim for almost thirty years, and there was no explanation as to why this was the case. He was able to tell others, including his wife and medical advisors, about the abuse which he had suffered. He knew that he had been affected by the abuse, but he sought no legal advice nor was any claim intimated until 1999. This was particularly surprising given that the pursuer had been an active trade union official and so might be expected to know what was required to initiate a claim. No explanation was provided by the pursuer in evidence as to why he made no further progress in making a claim between 1971 and 1999. The defenders would be penalised because of the pursuer's inactivity if interest were to be applied over this period. There was no question of the defenders wrongfully withholding money properly due to the pursuer; they and their predecessors were ignorant that the pursuer was going to make a claim. The actions of Murphy towards the pursuer only came within the scope of his employment as a result of the decision of the House of Lords in Lister & others v Hesley Hall Limited [2001] UK HL 22, and it was only because of this decision that the defenders have any responsibility to pay damages to the pursuer. It could not therefore be said that the defenders have wrongfully withheld damages due to the pursuer before 2001. The application of interest to a period of some forty six years would amount to an unfair penalty against the defenders.

Submissions in reply for the pursuer

[40] Senior counsel submitted that the onus rested with the defenders to persuade the court to depart from its usual practice regarding awards of interest, and to establish reasons special to the case for the purpose of section 1A of the 1971 Act. The usual practice of the Scottish courts differed from the usual practice of the English courts (which was that interest normally runs from the lodging of the statement of claim). In the present case the usual practice in Scotland should be followed. The defenders were vicariously liable for the actings of their predecessors' employee; Murphy knew when he was abusing the pursuer that what he was doing was wrong. In Scotland the date of intimation of a claim is not relevant to the assessment of interest, nor is the question of whether the defenders ought reasonably to have anticipated the claim; the important date for this purpose is the date on which the wrong occurred.

[41] The pursuer stated in evidence that he found it very difficult to disclose that he had been abused by Murphy. His evidence about what Murphy told him on the night before he left the home clearly indicated that the pursuer felt intimidated. The pursuer was not cross-examined as to why, having gone to the police in early 1971, he did not raise proceedings against the defenders or their predecessors. He was never challenged on this, nor was it put to him in terms that he had delayed unreasonably in bringing this claim. The court should therefore hold that there was no unreasonable delay, and should award interest on the usual basis.

Discussion

(i) Solatium

[42] It is apparent from the above that there was little dispute between the parties as to the facts of this case, and indeed senior counsel for the defenders accepted in terms that the pursuer was abused by Murphy and accepted his description of that abuse. Such areas of dispute on the facts as there were (principally relating to the dates of the abuse and the long-terms consequences of the abuse) I deal with below.

[43] Both parties were agreed that there was no previous Scottish authority of assistance as to how solatium should properly be assessed in a case such as this. I have had regard to the various English authorities to which I was referred. To a lesser extent, I have had regard to the seventh edition of the Judicial Studies Board Guidelines for the assessment of general damages in personal injury cases - although for reasons which I shall develop below, I have used these as a cross-check only, and have not found them to be as helpful in this case as they might be in others. Although I was referred to certain decisions of the Irish courts, I did not find these to be of much assistance. Traditionally the Scottish courts have tended to look to awards of the English courts when it has been necessary to look beyond our own jurisdiction: equal reliance has not been placed on awards of the courts in the Republic of Ireland. As senior counsel for the pursuer accepted, the Irish awards were significantly more generous than those of the English courts, and the circumstances of the Irish cases and the approach of their courts each appeared to me to be different.

[44] There are several factors which may be relevant in the assessment of an award of solatium in circumstances such as this. The following is not intended to be an exhaustive list, nor is it listed in order of importance, but it appears to me that the following factors may affect the amount of an award of solatium:

(1) The nature and severity of the abuse, and its character - whether sexual, non-sexual but violent, or mental/emotional.

(2) The frequency of the abuse.

(3) The duration of the abuse.

(4) The age of the pursuer at the time of the abuse.

(5) The immediate effects of the abuse on the pursuer.

(6) Whether any apportionment is required to reflect abuse by others, or other causes of the pursuer's problems.

(7) The emotional and social consequences of the abuse for the pursuer.

(8) Any psychiatric illness or psychological condition suffered by the pursuer as a consequence of the abuse.

[45] In considering the evidence before me in this case against each of these factors in turn, it is difficult to imagine a worse case of child abuse than this. It is clear from the undisputed evidence of the pursuer, summarised above, that he was subjected to the most severe abuse, including repeated sodomy, repeated forced masturbation, and repeatedly being forced to perform oral sex on Murphy. He was subjected to sustained and violent non-sexual assaults, and to punishment and conduct which was degrading in the extreme and which was designed to humiliate him in front of other children and which was inevitably going to result in loss of self esteem and feelings of worthlessness. This abuse was perpetrated by Murphy when in loco parentis, in the grossest breach of trust imaginable, and when the pursuer had no one else from whom to seek support or protection. Potts J in the unreported case of L v Leicestershire County Council described the appalling sexual abuse in that case as falling "not far short of torture" and described one of the perpetrators in that case as evil. I have no hesitation in applying that term to Murphy, and indeed what he did to the pursuer does not appear to me to fall short of torture at all, as that word is generally understood. In this regard, the second factor, namely the frequency of the abuse, is also relevant. It is clear that this abuse occurred on a daily, or almost daily, basis.

[46] The duration of the abuse was one area in which parties were at odds, the pursuer arguing for a start date of 16 May 1960 based on the dates contained in the indictment (No. 6/4 of process), while the defenders submitted that the starting point should be 19 October 1961, which appeared to be the last date on which Mr and Mrs G were still running the home. Both parties appeared to be content with an end date of 4 September 1967. I am not satisfied that any of these dates accurately reflects the evidence. With regard to the start date, the pursuer was not one of the complainers in any charge to which Murphy pled guilty. Beyond showing that Murphy may have been employed at the home by 16 May 1960, the indictment does not appear to me to shed much light on the starting point of Murphy's abuse of the pursuer. The pursuer himself stated in evidence that the abuse began when he was between 81/2 and 9 years old; as at 16 May 1960 he was just over 71/2 years old. Nor am I satisfied that the start date was as late as the date on which the Gs left the home - I understood the pursuer to state that Murphy's abuse of him began shortly before the Gs left. I consider that the appropriate starting point is 18 June 1991, being the mid-point between the pursuer being "between 81/2 and 9 years of age". With regard to the end point, both counsel in their submissions appeared to accept that the pursuer left the home and went to stay with the foster parents in around September 1967, at or about the pursuer's 15^th birthday. Although this accords with the pursuer's own general evidence, it takes no account of the agreed documentary evidence. No. 6/9 of process is agreed to be Fife County Council social work records relating to the pursuer. Page 71 of those records is a child movement report that indicates that the pursuer was placed in a long-term foster home on 14 September 1966. Page 72 is a letter dated 19 September 1966 addressed to Mrs M and confirming that she had been appointed foster mother to the pursuer as from 14 September 1966. There are no records after this date which suggest that the pursuer remained at the home after 14 September 1966. No doubt was cast on the accuracy of these records, which seemed to me to be preferable to the relatively vague recollection of the pursuer on this point. In conclusion on this matter therefore, I consider that the abuse lasted from about 18 June 1961 to about 14 September 1966, a period of approximately 5 years 3 months. This period occurred during an important period in the pursuer's childhood, when he was between 81/2 and 9 years old until about his 14^th birthday.

[47] Turning to the immediate effects of the abuse on the pursuer, these were not disputed by the defenders. The pursuer spoke of the physical pain which he suffered as a result of the assaults on him by Murphy, and the consequent bleeding, bruising and marking which frequently necessitated his being kept off school. He also spoke to the feelings of loss of self-esteem and helplessness which Murphy's abuse induced in him. I do not consider that expert evidence was required to prove these immediate effects on the pursuer - they were obviously the natural and direct results of Murphy's abuse. I do not consider that it is necessary to lead expert evidence to the effect that persistent and prolonged daily torture of a child in this way would result in both physical pain and emotional distress.

[48] The question of apportionment of responsibility for the consequences of Murphy's abuse to the pursuer does not arise in this case. Although it is clear from the social work records that the pursuer was, to some extent, emotionally disturbed before he went to the home, there was no evidence before me about the cause or extent of such disturbance, nor was it suggested on behalf of the defenders that anyone else might have delictual liability to make reparation to the pursuer.

[49] Both the pursuer and his former wife gave evidence about the emotional and social consequences for the pursuer of Murphy's abuse of him. In very general terms, it was clear from their evidence that the pursuer initially found difficulty in having a physical "tactile" relationship with his wife to be, and that he was unusually reserved in the way that he behaved towards his two sons. The pursuer also had difficulty in coping with an organisation in which everyone shook hands and put their arms around each other. The pursuer attributed these difficulties to the abuse which he suffered at the hands of Murphy. No expert evidence was adduced in support of this belief, but with some hesitation I have decided that I can properly reach a view on emotional and social consequences (falling short of psychiatric illness or psychological condition) without the assistance of expert opinion. The pursuer's evidence in this regard was not challenged on behalf of the defenders, and no contradictory evidence was led. I consider that I am entitled to reach a view on this aspect of the case on the basis of my own knowledge and understanding of life. It seems to me that the difficulties described by the pursuer and his former wife are not surprising in the context of the abuse which the pursuer sustained, and I have no difficulty (in the absence of contradiction) in holding that the pursuer did suffer these difficulties and that they were attributable to Murphy's abuse. However, I accept the point made on behalf of the defenders that the evidence shows that, despite the abuse, the pursuer has had a remarkably positive and successful life. He has held a number of responsible and high profile positions and, although now divorced, he remains on good terms with his former wife and appeared to have a strong relationship with his children. I consider that senior counsel for the defender was correct in describing the pursuer as "a remarkable success" and to be admired for having achieved a successful life notwithstanding Murphy's abuse.

[50] The last of the factors listed above which I consider is the question of psychiatric illness or psychological condition. There was no expert evidence before me about any such illness or condition. The pursuer himself stated that he received psychiatric treatment at Mossley House, Liverpool and disclosed the fact of his abuse to those providing treatment to him, but he only attended two or three sessions. He also stated that he had consistently received treatment for depression, and must have explained to the doctors that the reason for his depression may have been Murphy's abuse. However, the pursuer is not an expert in these matters, and is not qualified to express a view as to whether he is suffering from any psychiatric illness or psychological condition, and if so, what the likely cause of such an illness or condition is likely to have been nor what any future prognosis may be if he underwent appropriate treatment therefor.

[51] Senior counsel for the pursuer argued on this point that everyone knows that there are likely to be psychiatric and/or psychological consequences as a result of abuse such as this. He told me that a psychiatric report had been obtained on behalf of the pursuer but this was not lodged. He argued that the pursuer had discharged the preliminary onus of proof by stating in evidence that he had received counselling and psychiatric treatment. There was no challenge, either on record or in the evidence, and if the defenders wished to argue that the pursuer's condition would improve with treatment, the onus was on them to prove this. He said that this was not a "psychiatric case", and the pursuer was the best person to inform the court about the effects of the abuse on him.

[52] I do not agree. The onus of proving the pursuer's loss, injury and damage rests with the pursuer himself. An important element of that loss, injury and damage may be psychiatric illness or psychological consequences. The court is not in a position to assess the cause, nature, extent or prognosis of such illness or condition on its own, without the assistance of expert evidence. The pursuer himself is neither a psychiatrist nor a psychologist, and is not in a position to assist the court in this regard. It is worthy of note that in each of the English cases to which reference was made, an important element of the evidence was expert evidence as to psychiatric illness or psychological condition. There is no evidence before me about this. Although there is an averment in the Closed Record that in the mid-1990s the pursuer required counselling from the Liverpool Psychotherapy and Consultation Service, Mossley House, Mossley Hill Hospital as a result of the abuse and that he was referred for further counselling in about 2003 to the Psychology Department, St Catherine's Hospital, Birkenhead, these averments are met with a general denial on behalf of the defenders. No. 6/2 of process comprised records of the Psychological Services Department of St Catherine's Hospital, Wirral relating to psychotherapy and counselling given to the pursuer in the period 2003-2005, and No. 6/8 of process comprises the records of Mossley Hill Hospital, Liverpool, relating to psychotherapy and counselling provided to the pursuer in about 1994 and 1995. These documents were referred to in a Joint Minute of Admissions (No. 36 of process) in which it was agreed that copies could be regarded as the equivalent of principals, that all documents are what they bear to be, and that these records related to the pursuer. However, these records were not referred to at all in evidence, nor were they referred to in submissions. Neither set of records contained the sort of expert psychiatric or psychological report which one would expect if a claim for psychiatric illness or psychological condition was being advanced. I did not find them to be of any assistance (except to confirm the pursuer's credibility, which was not in dispute in any event).

[53] How then does the present case compare to the various English authorities referred to, when assessed against the factors listed above? I do not consider that it would be proper to approach the matter as a formulaic exercise, as it were by awarding points for the number of factors present - rather, it is necessary to approach quantification of solatium by looking at all the circumstances of the case and reaching a global figure. However, it is clear from the above that at least with regard to the first five factors, this case must be at, or very close to, the top of any scale of awards of solatium. It is difficult to imagine a more serious case of abuse, having regard to its nature, character and severity, its frequency and duration, and the age of the pursuer and its immediate effects on him. At least with regard to these factors, this case is more serious than most of those in Bryn Alyn. Although none of those cases was identical, the most similar are the cases of D J and G O M, each of which fell towards the upper end of the awards made by the Court of Appeal in that case. Moreover, the absence of any need to apportion damages in this case, being the sixth of the factors listed above, distinguishes the present case from many of the English cases and suggests that an award should be greater than many of the English awards. I also agree with senior counsel for the pursuer that although the Court of Appeal in Bryn Alyn stated that it was appropriate to include in any award of general damages an award for the immediate effects of the abuse on the victim, it is not apparent from their decision how much they awarded in this regard; in any event, the level of any such award appears surprisingly low.

[54] Against these factors which may support an award at or near the top end of the range of such awards, there are two factors which seem to me to favour a rather lower award in this case. The first is the emotional and social consequences of the abuse for the pursuer. While I accept without hesitation his evidence in this regard and the difficulties which he has suffered, I consider that senior counsel for the defenders was correct in her submission that the pursuer had done extremely well in his life considering the abuse which he suffered, and that he was to be admired for having achieved a successful life notwithstanding Murphy's abuse. In saying this, I do not seek to minimise the difficulties which the pursuer has faced in his life, but merely observe that the emotional and social consequences of the abuse for the pursuer have not been as catastrophic as they appear to have been in some other cases. The second factor which might favour an award below the top end of any scale is the absence of any expert evidence pointing to the pursuer suffering from a psychiatric illness or psychological condition. Senior counsel for the pursuer submitted that this was not a "psychiatric case". That may be so, but it must be recognised that a significant part of the awards of general damages in each of the English cases appears to have been a claim for psychiatric or psychological consequences. That is clear from paragraph 1 of the judgment of the Court of Appeal in Bryn Alyn, which describes the claims as "primarily for long-term psychiatric or psychological injury". At paragraph 112, the court observed that:

"all the appellants' pleaded claims were primarily for damages for long-term psychiatric and/or psychological injury, sometimes characterised as post traumatic stress disorder, and particularised by reference to psychiatric and/or psychological reports",

and in the same paragraph, observed that long-term psychiatric harm caused by the abuse "may be the primary motivating and much the more serious injury giving rise to the claim". The absence of such a factor in the present claim must result in an award which would be lower than if there had been psychiatric and/or psychological injury.

[55] If there had been evidence of psychiatric and/or psychological injury, and if the pursuer had not coped so remarkably well with his life despite Murphy's abuse, I should have considered making an award of solatium in excess of £100,000 in this case. Despite the absence of these elements, I am persuaded that, in the absence of any need for apportionment in this case, the horrific nature, character and severity of the abuse taken together with its frequency and duration, the age of the pursuer at the time and the immediate effects on the pursuer, justify an award greater than those made by the Court of Appeal in Bryn Alyn. I consider that solatium is properly assessed at £75,000.

[56] I do not consider that it is appropriate to divide past solatium in the way contended for by senior counsel for the pursuer. In the absence of any evidence of psychiatric and/or psychological illness, I consider that the whole of the above award of solatium is properly referable to the past, and none to the future.

(ii) Interest

[57] Murphy's abuse of the pursuer ended in 1966. On his own evidence, the pursuer was aware that what Murphy was doing to him was wrong. In December 1970 the pursuer wrote to the defenders' predecessors in the terms quoted above, indicating that he was going "to the papers" and that he wanted justice, and in January 1971 he reported the matter to the police in London. They told him to report the matter to the police in Scotland, but he did not do so. Although he was able to tell his wife about the abuse, and he was able to tell medical advisers and counsellors about it, he intimated no claim against the defenders until December 1999, and the summons in the present action was not served until 13 March 2002. No satisfactory explanation was given by the pursuer for this delay. He did not seek to suggest that he was unaware that he might have a legal remedy. He did not consult solicitors, nor did he report the matter to the police in Scotland as he was advised to do.. The period between the end of Murphy's abuse and the raising of the present action was more than 35 years. The defenders have chosen not to argue limitation in this action, but they do urge me to exercise the discretion conferred by Section 1 of the Interest on Damages (Scotland) Act 1971 to limit the period during which interest on solatium would otherwise run.

[58] Both parties agreed that the discretionary power conferred on the court by the 1971 Act must be exercised in a selective and discriminating manner. Various examples were cited to me of cases in which the court had restricted interest to reflect delay on the part of a pursuer; in the circumstances of the present case, I do not consider that it is necessary for me to express a view as to whether delay must be "inordinate", "inexcusable" or "unreasonable" to justify a restriction on interest. No satisfactory explanation has been provided as to the elapse of more than 35 years. Although the pursuer stated in evidence that his telephone conversation with Miss Walker of the Social Work Department in early 1971 caused him to be too scared to proceed with any complaint at that time, I did not understand him to suggest that this conversation remained the cause of his delay in intimating any claim for the next 28 years or thereabouts. There is no suggestion in the evidence of any other steps taken by the defenders or their predecessors which might have caused the pursuer to refrain from intimating a claim. If interest were to run on the whole award of solatium, even at half the judicial rate from time to time in force, from the date when the abuse ended (or indeed earlier than that, if the pursuer's approach is to be preferred) this would add very significantly to the amount payable by the defenders to the pursuer. In the absence of satisfactory explanation for the delay, I do not consider that this would be fair to the defenders. In enacting the amendments to the 1958 Act which are comprised in the Interest on Damages (Scotland) Act 1971, I do not consider that Parliament had in mind interest on awards of solatium for personal injuries caused more than 40 years before the date of decree. No doubt it is for that reason that Parliament saw fit to confer the discretion on the courts which was in fact conferred.

[59] It does not appear to me that there has been undue delay in the progress of this litigation since it was initiated. Having regard to my decision that all of the award of solatium relates to the past, I consider that a selective and discriminating approach to the exercise of my discretion in this matter is to award interest at the full judicial rate on the whole award of damages from the date of citation until payment.

[60] As requested by parties, this case will be put out By Order in early course to enable parties to consider the terms of this Opinion, before a formal interlocutor is pronounced.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> JM v. Fife Council [2007] ScotCS CSOH_7 (18 January 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_7.html Cite as: [2007] ScotCS CSOH_7, [2007] CSOH 7

Scottish Court of Session Decisions