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

The Court of Appeal upheld a decision in a historic sex abuse case concerning issues of limitation, consent, vicarious liability and causation.

Full judgment, dated 18 February 2020

Summary:

R had been sexually abused by A’s teacher in the 1980s. A appealed findings that (i) the limitation period should be disapplied, (ii) the sexual activity was non-consensual, (iii) it was vicariously liable for sexual activity that continued even after R left the school and (iv) the abuse had caused R’s later mental breakdown and continuing disability. 

The Court of Appeal dismissed all five grounds of appeal, giving guidance as to the correct approach to s33 of the Limitation Act 1980, the legal definition of consent and the approach to the second limb of the two-stage test for vicarious liability.

Discussion:

The Appellant appealed against the determination of Cutts J that they and another Defendant, Mr Andrew Adams, pay over a million pounds to the Respondent. McCombe and Simon LJJ and Nicola Davies LJ heard the appeal.

McCombe LJ gave the judgment of the court. At paragraph 4 he summarised the background by quoting Cutts J. Essentially R had been repeatedly sexually assaulted and raped by Mr Adams whilst he was a pupil, and Mr Adams a teacher, at A’s school in the 1980s. Mr Adams had been convicted of criminal offences relating to the same on 13 March 2014. The instant proceedings were commenced on 9 June 2016. 

Mr Adams had admitted the activity itself and that it was a breach of duty, but made no admissions as to causation or loss and raised the limitation defence.

A had accepted vicarious liability for Mr Adams’ conduct between 1980 and 1982, but not thereafter, because R had by then left the school and because there were indications R was consenting to the activity. It made no admissions as to causation or loss and also raised the limitation defence.

At paragraph 5 the grounds of appeal are set out. They were:

Section 33 of the Limitation Act 1980

1. The learned judge misdirected herself as to the correct application of section 33 of the Limitation Act 1980.

2. The learned judge failed, contrary to evidence, to conclude that the Second Defendant was exposed to the real possibility of significant prejudice.

Consent

3. The learned judge was wrong in law and in fact to conclude that the Claimant did not consent to the sexual activity with the First Defendant between 1982 and 1988.

Vicarious Liability

4. The learned judge was wrong in law to hold that the Second Defendant was vicariously liable for any assault by the First Defendant after the Claimant first left Highgate Wood School in 1982.

Causation

5. The learned judge’s findings on diagnosis and causation were not supported by the evidence and were not adequately explained.

It was common ground that the claims were brought well outside the limitation periods, which expired, at the earliest, on 13 September 1987 (three years after R turned 18) and, at the latest, around 25 years before the claims were brought.

From paragraphs 7-33 the judge went into more detail concerning the background. R appeared to have been a reasonably happy child up until 1980, coming from a family that was comfortably but not well-off. One night shortly after moving to A’s school, R had gone with friends to the flat of a man named Monteil, who had raped him. R did not tell his parents but was off school for a week. On his return Mr Adams had encouraged R to confide in him and had, upon R disclosing the rape, told R that this meant he was gay and would be rejected by society if he told anyone. Mr Adams had said that he would not treat R that way and that R could rely on and trust him.

Shortly thereafter Mr Adams began to sexually assault and then rape R. The rapes repeatedly took place during school hours and on school premises. On one occasion the school deputy headmaster had seen R semi-naked at Mr Adams’ house but had not intervened.

R gave evidence that he felt unable to resist this sexual activity because of his fear of being disowned and shunned. He suffered anxiety, fear and guilt and became isolated. He began to be bullied. Mr Adams did nothing to help him. He was eventually attacked at school by a group of children, leading to him being sent to a private school between 1982-3, during which time Mr Adams still contrived to see him. Thereafter the sexual activity continued until R was 21, when he left to work in Australia. His leaving may have been partly motivated by wishing to avoid having to have a test for HIV as part of his employment.

Mr Adams gave different evidence, essentially to the effect that R had instigated the sexual activity, which was always consensual and did not take place on school premises.

There was evidence that R’s life after leaving the UK was transient, living in many different countries and having difficulty holding down jobs. He sought medical help in the mid-90s for depression, binge-eating and self-destructive behaviour, but did not disclose the abuse he had suffered.

Various of R’s employers and colleagues gave evidence which tended to suggest that R was capable and sociable and had fit in well with work environments, though one ex-boss said that R had repeatedly been absent from work, had missed deadlines and had failed to take opportunities offered to him.

Evidence was also given concerning R’s long-term relationship with his partner (anonymised as FZOR). R stated that though they had been together since he was 22 they had always had difficulty with sex, which he was repulsed by, to the extent he had never ejaculated with another person. He had never shared a bed or a room with FZOR. FZOR confirmed this picture, stating that R had a “dark side”, would have regular, frequent periods of depression and anxiety and didn’t like to be with his family or in a job for too long. R’s sister gave evidence that R never seemed happy and that she and her family had often wondered what it was that R wanted from life. 

There was a difference in evidence between R and Mr Adams. The former admitted some continued contact but said this was something that occurred only when he was in times of crisis or after abusing substances. He denied any ongoing consensual sexual relationship. He was shown explicit texts he had sent Mr Adams in 2009-11 and said that the only way to engage Mr Adams was through his sexual fantasies. Mr Adams suggested that there had been consensual sexual contact between them since 1989, though not since 2004.

At paragraphs 34-40 the judge recounts how R suffered a major mental breakdown while living in Paris in 2011. He received medical treatment including seven hospital admissions between 2011 and 2014. During this period R disclosed the abuse to FZOR. The view of his treating doctors was that he was struggling with profound difficulties caused by his childhood abuse and would benefit from trauma-focussed therapy.

Paragraphs 41-50 summarised the medical evidence. Essentially the judge restricted himself to the joint statement, extracting the following points:

  • the 30 or so intervening years since the events caused problems with memory, which might have been exacerbated by abuse of drugs and alcohol;
  • the interpretation of witness evidence was a matter for the court and the court’s conclusions thereon might affect diagnosis and causation;
  • R suffered from emotionally unstable personality disorder (“EUPD”);
  • R’s expert felt that R suffered from complex PTSD, but A’s expert felt that CPTSD was essentially another way of describing a personality disorder and was inappropriate in this case because R had never described the abuse as “traumatic”.

The judge quoted the following summary paragraphs at para 47:

33. We agree that FZO’s present state represents a major change from his pre-2011 state. Dr O’Neill would characterise his present state as PTSD. Professor Maden accepts that some experts would call his condition PTSD but points out that the diagnosis is often used loosely. Professor Maden stands by his formulation of a worsening of personality disorder exacerbated by drug and alcohol misuse, or possibly a depressive episode. Professor Maden gives weight to the documented slow evolution and emergence of post-traumatic symptoms after the 2011 breakdown. He notes that FZO says his attitude changed when he perceived that Adams was unsupportive after the 2011 breakdown. Professor Maden believes FZO’s response at the time was typical of borderline personality disorder but inconsistent with PTSD relating to events that occurred more than 30 years earlier.

34. We agree that for diagnostic purposes the distinction is of relatively minor importance as these diagnoses are different ways of conceptualising a breakdown. We agree however that the distinction is important when considering causation and treatment.

Crucially, the experts disagreed as to causation, in that although they agreed that the abuse was such as was likely to exacerbate a personality disorder:

44. Dr O’Neill believes the abuse by Adams was the main cause of FZO’s personality disorder/complex PTSD. Professor Maden believes the abuse by Adams made his personality disorder worse than it would otherwise have been but he does not believe it was the main cause of his mental health problems, particularly as FZO maintained a friendship with Adams for decades afterwards. Professor Maden believes it is impossible to be more specific in assessing the degree of the contribution to his problems because of the factual uncertainties.”

Finally, the judge quoted their views on limitation at paragraph 50:

70. We agree that for many years he did not complain because he did not regard the relationship as an abusive one. We agree that he has never been psychologically or psychiatrically disabled from initiating a claim.

71. We agree that whatever the reasons for the delay it has greatly complicated the work of the expert because of a deterioration in the cogency of the evidence as the result of the passage of time. We agree that FZO’s parents are both dead and there are uncertainties about his early years which would be relevant to establishing the causes of a personality disorder. We agree that there are important missing records relating to his childhood, his education, attendance at stage school, and details of his employment. We agree we have seen no records relating to his work in the USA. We agree that FZO says he saw a psychiatrist in 1993 and neither of us has been any records of that. …

72. We agree that it is more difficult to evaluate this claim in the absence of critical information that would usually be seen as important when establishing the causes of a personality disorder. We disagree however about the extent of those difficulties. Dr O’Neill regards them as relatively minor. Professor Maden believes they are major and that without reliable information concerning the family background and childhood experiences it is impossible to understand the origins of any personality disorder.”

At paragraphs 51-92 the court sets out Cutts J’s judgment. In relation to section 33 the judge had referenced A v Hoare [2008] UKHL 6AS v Poor Sisters of Nazereth [2008] UKHL 32, KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85B v Nugent Care Society [2009] EWCA Civ 827 and JL v Bowen [2017] EWCA Civ 82, all going to the balance to be found between avoiding determining the substantive case before addressing the limitation point while nevertheless keeping the balance of all of the evidence in view.

A had argued that the judge had impermissibly borne in mind adverse credibility findings against Mr Adams when considering disapplying the limitation period, when in fact only findings against R were material. At para 59 McCombe LJ pointed out that Cutts J had itemised all the actual and potential evidential prejudices that A submitted it had suffered from by virtue of the delay before she gave her decision on limitation. He also noted, at paras 62-63, that she had considered the evidential dispute between R and Mr Adams at paras 163-165 of her judgment and had then identified four principal areas where A’s criticism of R’s evidence had greater force. Ultimately, she had concluded that though there was some inconsistency and exaggeration in R’s evidence, it was not so unreliable that his claim must fail and were matters that she was capable of bearing in mind if the limitation period was disapplied. The judge then considered the other section 33 factors in turn. In particular, she came to the conclusion that the medical evidence was not so negatively impacted as to expose A to the real possibility of significant prejudice. She dealt with all the other issues and came to the view that the ability of the Defendants to defend the issues of causation and loss had not materially been affected and a fair trial was possible [76].

From para 78 onwards the judge’s other conclusions are dealt with. The issue of consent is rehearsed at paras 80-81 (with the judge finding that R submitted rather than consented to the sexual activity) and vicarious liability is dealt with at para 82, with the judge having cited Mohammed v Wm. Morrison Supermarkets PLC [2016] AC 677 and found that the continuing sexual assaults were indivisible from the conduct that occurred when Mr Adams was a teacher at A’s school and A was therefore liable for them.

Cutts J’s conclusions on diagnosis and causation are dealt with at paras 83-92, being that she preferred R’s expert’s evidence that R suffered from CPTSD, but did not necessarily reject A’s expert’s view on the causes of that problem. However, it was artificial to separate the rape by Mr Monteil from those by Mr Adams as A’s expert had done and the bullying at school was linked to the abuse but had little effect on R’s mental state. She concluded that because (i) she had found R’s account of the grooming and abuse to be true and (ii) A’s expert had acknowledged that his conclusions would change if that were so, she concluded that it was Mr Adams’ abuse of R that had caused his psychological disorders and his inability to work since 2011.

Paragraphs 93 onwards set out the court’s conclusions on the appeal.

In relation to ground 1, the court referred again to KR v Bryn Alyn and Bowen & another v JL to emphasise the principle that if there is only partial evidence before the court by virtue of the claimant’s delay, the fact that the partial evidence points in the claimant’s favour is not necessarily a reason to disapply limitation. That overlooks the possibility that the full evidence might have pointed to a different conclusion. Raggett v Society of Jesus Trust of 1929 [2010] EWCA Civ 1002 was also cited, in asserting that it is “not realistic to shut one’s eyes to findings and conclusions reached following a full trial. It is what is done with them in the context of the substance of the reasons for the limitation decision that matters.” The court placed reliance on paras 20-22 of Raggett, where the court had emphasised that the order in which the issues were dealt with in the judgment was not important – what was important was that the judge consider the limitation issue not in relation to findings of fact they have already made, but rather on an analysis of the cogency of the evidence before them and the prejudice to the Defendant.

At paras 98-100 the court found that the judge had specifically considered the relevant principles relied on by A in the appeal, considered the issue of prejudice and come to a conclusion. She had rightly found that there was nothing to suggest that there was missing evidence that court realistically affect the outcome of the relevant part of the case. At paragraphs 101-103 the court supported the judge’s approach in comparing R’s credibility with that of Mr Adams’ in order to consider the cogency of R’s evidence overall, calling A’s submission that it was wrong to consider Mr Adam’s credibility “wholly unrealistic”. 

Ground 1 was therefore rejected.

Ground 2 is dealt with at paras 109-123. The court recited A’s primary reliance on RE v GE [2015] EWCA Civ 287 at 77 where Lewison LJ said that the question of whether a fair trial could take place was not the only, nor in and of itself a sufficient, consideration when considering the disapplication of limitation. However, the court said that such statements must be placed in the context of the cases in which they were made, and in this case much of what R said was accepted by Mr Adams and that which was not accepted could only be determined by an assessment of the credibility of R and Mr Adams, both of whom were available to give evidence. At 114 the court noted that A was unable to advance specific examples of missing witnesses, and the court concluded that the judge was right to take into account that A “had done little or nothing to make up the evidential deficiencies about which they then vigorously complained.” [115] As to the medical evidence, the judge concluded that there were still a wealth of medical records available and the doctors had still been able to come to confident conclusions. 

Accordingly ground 2 was rejected.

Ground 3, concerning consent, is dealt with at paras 124-138. The court prefaced its consideration by restating that findings of primary fact based on witness evidence will not be interfered with unless they are plainly wrong (see Henderson v Foxworth [2014] UKSC 41).

The court then endorsed the judge’s definition of the law of consent to sexual activity [126], which was: “A person consents to sexual activity with another if they have the freedom and capacity to consent. Submission is not the same as consent.”

R’s argument was that the grooming and manipulation by Mr Adams impaired his freedom to consent. A acknowledged that consent could be nullified if there was an element of psychological coercion that overrode the person’s capacity to decide. The court accepted the judge’s findings that R’s freedom to consent had been impaired. It cited the criminal case of C v R [2012] EWCA Crim 2034 which was also a case involving long years of grooming and abuse, so that the victim only gave “conditioned consent”. The court found that “conditioned consent”, resulting from a grooming process, is not true consent in law. The court also found that this interpretation was consistent with the criminal authorities of s74 Sexual Offences Act 2003 and R v Olugboja [1982] 1 QB 406.

Ground 3 was also, therefore, rejected.

Ground 4 is dealt with at paras 140-155. The judge was said to have applied the two-stage test from Various Claimants v Catholic Child Welfare Society and others [2012] UKSC 56 at [21], per Lord Phillips of Worth Matravers, and Mohammed v Wm Morrison Supermarkets plc. The test is set out at para 142, being (i) a relationship capable of giving rise to vicarious liability (e.g. employment) and (ii) a sufficient connection between the act or omission of the tortfeasor and the relevant relationship. A relied upon Lister v Hesley Hall Ltd. [2001] UKHL 22 in support of the contention that the place and time at which events occurred will be relevant (A submitted that the abuse took place outside of school and therefore was outside of the scope of the relationship).

The court made the point from paragraph 149 onwards that the law of vicarious liability has been “on the move” since Lister and that, for example, time and place may well be regarded as less relevant today than previously. The court concluded at paras 153 and 154 that each act of abuse might be regarded as a separate tort, but the central question over the whole period was that posed by Lord Phillips in the Catholic Child Welfare Society case, namely whether the abuses were an abuse of the position of trust created up until 1984 and arising directly from the position Mr Adams occupied with A. 

The court concluded that given the judge’s findings on consent, namely that the abuse occurred and continued because of a pattern of grooming and manipulation commenced while R was a pupil at A’s school, her finding on vicarious liability must also be upheld. 

Accordingly ground 4 was rejected.

Ground 5 is dealt with between paragraphs 156 and 175. A challenged the diagnosis the judge arrived at on the basis that it had insufficient regard to the concept of “simple” PTSD, which required (they argued) something violent, whereas the sexual activity was non-forceful and sympathetic in character. McCombe LJ indicated that he had re-read the cross-examination of R’s expert on this issue more than once and that it was “extremely difficult for an appellate court to judge the impact of conflicting answers of this character simply by reading the words of the questioner and of the witness.” The evidence of the treating clinicians was also relevant to this issue and the court came to the conclusion that the judge was entitled to prefer R’s expert [168], particularly in light of the fact that each expert had acknowledged that their conclusions might change depending on the judge’s factual findings [170].

Ground 5 was therefore also rejected, and with it the entire appeal.

At para 176 Simon LJ, in agreeing with the leading judgment, stated that he “was left with some disquiet” about the judge’s factual findings, but “it is important to bear in mind that we did not hear the evidence, and that it is not for this court to attempt to substitute its own evaluation of evidence without any of the advantages of a trial judge.”

Nicola Davies LJ, from para 177 onwards, expressed her particular disquiet about the preference of the judge for R’s expert on the question of CPTSD. She placed emphasis on the fact that the judge negated to mention in her conclusions section that at no point during the seven admissions in Paris between 2011 and 2014 had R been diagnosed with PTSD, with the preference being for a diagnosis of personality disorder and ADHD. CPTSD had first been suggested by R’s expert in these proceedings. Moreover, at the time of trial, CPTSD had not been included in the WHO’s classification of diseases. Nicola Davies LJ concluded that the judge had given inadequate weight to the diagnoses of treating clinicians between 2011 and 2014 and had failed to use sufficient rigour to justify accepting a diagnosis of a condition which had yet to be formally included within the WHO’s classification.

However, she nevertheless found at paragraphs 185-186 that the error of law she believed to have been committed did not sufficiently undermine the determination that the appeal should be dismissed. A’s expert had accepted that his conclusions would fall away if the judge accepted, as she did, R’s account of the abuse, and the diagnosis did not make a material difference to the causation of the breakdown and continuing disability. Accordingly she agreed that ground 5 of the appeal should be dismissed. 

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