London Borough of Haringey v FZO [2020] EWCA Civ 180

The Court of Appeal has today (18 February) handed down judgment in the case London Borough of Haringey v FZO [2020] EWCA [TBC] (QB).

The claimant had sought damages consequent upon sexual abuse committed by 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 abusive teacher until as recently as 2011-12. Proceedings were brought in assault against the teacher and in vicarious liability against the local authority which employed the teacher. At the High Court trial in October 2018 the claimant had been awarded a total of £1,112,390 for injuries and losses which were held to be a direct result of abuse.

The original judgment contained several potentially controversial findings on limitation, vicarious liability, consent and medical issues. The council and its insurers, represented by Keoghs, appealed. Permission to appeal was granted on five grounds. The Court of Appeal (McCombe, Simon and Davies LJJ) heard the appeal on 17-19 December 2019. Despite certain misgivings that are clear from the judgment, the Court of Appeal has dismissed all grounds of appeal.

The grounds of appeal

Limitation

1. Misdirection as to the correct application of section 33 Limitation Act 1980
2. Failure to conclude on the evidence that the council was exposed to the real possibility of significant prejudice

Consent

3. Errors in law and fact in concluding that the claimant did not consent to sexual activity between 1982 and 1988

Vicarious liability

4. Error in law in finding that the council could be vicariously liable for any assaults after the claimant first left Highgate Wood school in 1982

Causation

5. Findings on diagnosis and causation were not supported by the evidence and were not adequately explained

The judgment of the Court of Appeal

Although the judgment extends to 75 pages, there is considerable repetition of the extensive findings of the trial judge. The analysis of the grounds of appeal begins only at paragraph 93. The conclusions of McCombe LJ, who wrote the main judgment, are as follows:

Grounds 1&2: Limitation

The judge had not erred. She had assessed the credibility of the claimant. In doing so she had no option but to consider the credibility of the abuser, as the main factual issue was as to who had groomed who in facilitating the opportunity for sexual activity. The claimant’s evidence did contain some inconsistencies but those were not sufficient to justify a refusal to disapply the limitation period.

Further, there was no missing evidence the presence of which could have affected the outcome of this part of the case. That conclusion also fed into a rejection of the argument that the judge should have found that the council had been exposed to real prejudice. McCombe LJ held that there was no factual evidence as to what might have been available that could have assisted the court, holding (for example) that even had the case been brought in time the council would be unlikely to have called the claimant’s parents, who were now deceased.

In addition, although the psychiatric experts disagreed as the extent to which the delay in bringing the claim had rendered more difficult their ability to do their duty to the court, they were still able to reach conclusions and debate those at court.

Ground 3: Consent

In principle consent is a defence to a claim for trespass to the person. The judge accepted this on the proviso that a person had the freedom and capacity to consent. Having heard both the claimant and the abuser give evidence, the judge was entitled to conclude that the abuser had groomed the claimant so as to engineer the claimant’s dependency on him.

The claimant’s freedom to consent had been impaired in that it had been overridden by psychological coercion. It was not for the Court of Appeal to second-guess these factual conclusions which had been reached following an assessment of detailed factual and expert evidence.

Ground 4: Vicarious liability

The trial judge had found the council to be vicariously liable for all abuse, even whilst the claimant was not a pupil, both during 1982/83 and after the claimant had left the school in 1988, holding that all abuse flowed from the initial grooming and manipulation by the abuser in a manner closely connected to his pastoral responsibilities as a teacher. The connection between the abuser’s employment and his wrongdoing had not been broken when the claimant left the school.

McCombe LJ accepted that each assault could potentially be a separate tort. However, he decided that he could not interfere with the finding that the close connection test remained satisfied throughout the period from 1982 onwards, not least due to fact that the judge had already found that sexual activity was submissive rather than consensual.

Ground 5: Causation

McCombe LJ concluded that the judge was entitled to prefer the psychiatric evidence of the claimant’s expert, Dr O’Neill, who had diagnosed Complex PTSD from the occurrence of the abuse. He did observe that both experts had agreed that the claimant suffered from an emotionally unstable personality disorder, the symptoms of which overlapped considerably with both PTSD and Complex PTSD. The judge was entitled to find that, as Professor Maden’s conclusions were in part based on factual assumptions that had not been found by the judge, she could then prefer Dr O’Neill’s opinion. She was also entitled to find that Complex PTSD was a possible diagnosis, rejecting the argument that violence was an essential element of any trauma-centric diagnosis.

Commentary

Even though this is a Court of Appeal judgment, its ramifications are limited due to the facts and evidence which are, in several respects, remarkable.

However, numerous elements of this judgment remain open to debate and there are a number of troubling aspects. It will be extremely important for practitioners faced with arguments based upon elements of this judgment to ensure that they can distinguish this decision from other claims.  For example:

• The other appeal judges, Simon and Davies LJJ, both voiced ‘disquiet’ in relation to some of the findings of fact;
• But for a few inconsistencies, the judge accepted the claimant’s evidence in its entirety. However, the judge did not carry out the essential initial task of identifying the issues and then assessing whether there was sufficient evidence to enable her to determine them. Both the judge and the Court of Appeal appear to have been focussed primarily on the question of whether the abuser was manipulating the claimant or vice-versa, without looking at the wider picture of whether a fair trial on all issues was still possible after a 37 year delay;
• It is still maintained that many factors relevant to limitation and 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 in a very late claim that was pitched at several million pounds;
• 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. Both experts agreed that the delay was a problem, thy differed only as to the degree of that problem;
• The claimant had actively sought out the first defendant after leaving school, and in fact for many years thereafter, reflecting what was argued to be the consensual nature of the relationship. Consent is invariably an extremely fact-sensitive and difficult issue in these cases, but the conclusion that in effect the possibility of consent even up to 2011 had been vitiated by events nearly 30 years earlier is a challenging one. It is still extremely difficult to understand how the claimant, an intelligent man, allegedly did not understand the nature of his relationship with the abuser 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. It will be interesting to see whether the Supreme Court’s pending judgment in WM Morrison Supermarkets plc v Various Claimants casts light upon the limits of vicarious liability so as to call into question the decision in this case.
• Davies LJ referred specifically to the medical evidence and found that the judge had erred in law because she had not given any or any adequate weight to the clinical assessments of the claimant from his breakdown in late 2011 up to 2014. In none of those assessments had the claimant been diagnosed with PTSD, Complex or otherwise. In fact, no treating clinician had diagnosed Complex PTSD until after Dr O’Neill had done so for the purposes of this claim. The fact that the advanced diagnosis was not even part of WHO international classification placed even greater importance on the 2011-14 assessments. Davies LJ decided that this error was not sufficiently material to result in dismissal of the appeal; whatever the diagnosis, the claimant had suffered a breakdown in 2011 as a result of the abuse and his disability and losses flowed from that.

These are simply a few examples of some of the remarkable features of this case. The judgment will inevitably receive market attention due to the level of the award (bolstered as it was by two very significant subrogated claims by the claimant’s former employer and Bupa).

However, the judgment should not be regarded as setting any sort of precedent either in terms of the judicial approach to what are complex issues or as to whether abuse claims should now have the potential to attract higher awards.