England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE CONNELL)

		Royal Courts of Justice Strand London WC2 Tuesday, 4th September 2001

Tuesday, 4th September 2001

1. LADY JUSTICE HALE: These applications arise out of the third tranche of claims for damages arising out of abuse to children in children's homes in North Wales. The first two tranches were against local authorities. The first against Flintshire County Council, was tried by Scott Baker J in April 2000. The defendant appealed unsuccessfully against the award of damages in one of those cases: see Coxon v Flintshire County Council [2000] EWCA CIV 302, decided by this court on 13th February 2001. The second against Gwynedd County Council, was settled before trial. This, the third, is against the private homes operated by the Bryn Alyn Community (Holdings) Limited (now in liquidation) and their insurers.
2. The leading light in those homes for many years was John Allen, who was convicted in 1995 of six offences of indecent assault against other male residents in the home, and sentenced to six years' imprisonment. 14 claims were tried by Connell J between February and April. 11 were brought by young men and three by young women. Nine, including two of the young women, complained of sexual abuse and usually also of physical abuse. Five, including one of the young women, complained only of physical abuse. The judge found in favour of 13 out of the 14 claimants. One of the young women, Miss Kennedy, failed. This was not because her allegations of six indecent assaults committed upon her by John Allen not found proved - they were - but because they were committed in daytime when she had been called to his study. The judge held that there was no direct liability in negligence because this was not in itself suspicious. He also held that there was no vicarious liability because this was a deliberate assault. Although, following the House of Lords' decision in Lister & Others v Hesley Hall Limited [2001] 2 WLR 1311 there could be vicarious liability for such acts committed in the course of caring for children, there was still no discretion under section 33 of the Limitation Act 1980 to disapply the limitation period in relation to deliberate assaults, although there was in relation to negligence. That is why Miss Kennedy's claim failed. The same difficulty arose in relation to some of the abuse claimed by two other claimants, Miss Stappard and Mr Davis, where again the judge found that there was nothing suspicious to alert other staff. The judge himself gave permission to appeal in relation to those three claims on what has been called "the Lister v Hesley Hall point".
3. The claimants now make applications for further permission to appeal. Those three claimants also ask for permission to appeal on the basis that the judge was wrong to reject their claims of direct negligence, thus giving him discretion to disapply the limitation period in any event. To give something of the flavour of the argument, Miss Kennedy's allegations were against John Allen himself. The judge had found in relation to earlier allegations of abuse by four other claimants that the defendant knew or ought to have known that he presented a risk of sexual abuse to the children in his care. He should, therefore, by the time when Miss Kennedy was abused, never have been allowed to have access to children. Rather more generally, in relation to Miss Stappard it is suggested that her allegations against her personal care worker, Mr Bates, were found proved, but it was not found the defendants should have known. It is argued that the judge's findings about the generally lax regime, the defective system of caring for vulnerable young people by untrained and unsupervised staff, the accepting of vulnerable young people for whom they were not qualified to offer care, allowing them to go on trips unsupervised and the like, all should have led to the conclusion that there was direct negligence in relation to this; and a similar position is taken in relation to the third of these group, Mr Davis, who also made allegations against Patrick Bates which the judge found proved; but only some of those gave rise to liability in negligence.
4. As I have already indicated, I give permission to those three claimants to appeal on that alternative ground. There would be an element of unreality about the Court of Appeal considering the Lister point without also considering the alternative basis of negligence, and it is arguable to the requisite degree that the judge should have found direct liability in negligence in those cases.
5. Two of the claimants also apply for permission to appeal against the judge's findings of fact. One of these is again Miss Stappard who made allegations against three people: Mr Bates, which were found proved, but not to be negligence on the part of the defendant; Mr Moore, which was proved and a Mr Vevar which was not found proved. The complaint here is that the judge declined to accept her allegations of three acts of buggery by Mr Vevar upon her but made no finding upon her allegations of an improper and exploitative relationship between a member of staff and a highly vulnerable child despite finding Mr Vevar a most unimpressive witness.
6. The second is in relation to a Mr Moore where there were again allegations against three people of sexual abuse, and the judge accepted the allegations against John Allen but not against a Mr Taylor or a Mr Hamlett. The point taken is that just as John Allen is a convicted paedophile, so also is Mr Taylor, and the inconsistences in Mr Moore's accounts should be weighed against the lower threshold of disbelief in a case such as that. The case against Mr Hamlett was perhaps not so strong, being based additionally upon his knowledge of the abuse being perpetrated by John Allen.
7. Mr Owen, who appears for the claimants, although having made this application forcefully on paper does not pursue it with great force before me today. He recognises that these are findings of fact depending very much upon the view taken by the judge of the witnesses before him. These are not cases in which the Court of Appeal would wish to substitute its own view of the facts for those of the trial judge and in those circumstances an appeal does not have a real prospect of success. I do not grant permission to appeal against those factual findings.
8. More importantly, all but one of the claimants apply for permission to appeal against the assessment of damages. This is put in two ways. The first is that the judge was wrong to seek to apportion the effects of the abuse which had taken place for which the defendant was responsible and the effects of the other damage to personality or psychiatric health caused by other life events and indeed other abuse suffered by all but one of the claimants. Second, even if it was appropriate to make some attempt at apportionment in these cases, in doing so the learned judge paid too little attention to the guidance given by the Court of Appeal in Coxon, perhaps particularly to the observations of Buxton LJ at paragraphs 66 to 67. Additional points made about quantum are that these were all very low awards, bearing in mind that the defendant had purported to offer a service to some very vulnerable young people and had in fact done the opposite of what was needed, in many cases destroying the claimants' trust in authority and in the adults whom they thought had cared for them. Mr Owen further argues that the judge, if he was attempting an apportionment, did not explain the reasons for such apportionment in each case. He does not argue that the judge should have adopted a percentage approach, and rightly so, but nevertheless he argues that the claimants should be able to work out how it is that he had arrived at his conclusions. In some of the cases there was a clear difference of view between the doctors and in those cases the judge should have explained which view he preferred and why. He also has a separate point in relation to the claim for the costs of therapy. His argument is that this therapy was clearly, on the evidence, related to the effects of the claimants' experiences at Bryn Alyn, and it was for the defendants to show that it would have been necessary in any event because of other life experiences.
9. Mr Faulks, on behalf of the defendants, quite rightly points out that this court has adopted, in Coxon, the very careful direction given to himself by Scott Baker J in the Flintshire cases, and in particular his observation that it was "very much a matter of feel" how much of the current damage suffered by the claimant should be visited upon a particular defendant who has made at least a material contribution to that damage. He also points out all the well known advantages which the trial judge has in dealing with the assessment of quantum, which is never an easy exercise and in a case such as this is extraordinarily difficult.
10. I acknowledge the force of Mr Faulks' arguments. Nevertheless, it seems to me that there are compelling reasons for the Court of Appeal to consider the awards in this case. There are general issues relating to apportionment which are appropriate. There are particular issues relating to how apportionment should be carried out in a case where the abuse is the very thing which the victims were to be protected against, and were in many cases placed in these homes with a view to protecting them from it and assisting them to recover from the consequences of their earlier experiences. Of course, a failure to cure what is in many cases very difficult to cure is one thing, but adding quite extraordinarily in some of these cases to the burdens faced by these young people is another. So it seems to me right that the Court of Appeal should have the benefit of looking at a range of cases where there are a variety of factors impinging on the assessment of quantum and considering how the guidance given by the Court of Appeal already in Coxon should be applied to them.
11. Thus I propose to give permission to appeal on the grounds relating to the quantum of damage, with the exception of the ground relating to interest which seems to me something very well within the discretion of the judge on these particular cases.
12. The defendant also asks for permission to appeal in two of the cases. The application gains some attraction in that they are the Stappard and Davis cases which are already under appeal in relation to liability. In relation to Miss Stappard it is argued that the judge should not have concluded that there was direct negligence in relation to the conduct of Mr Muir. As a teacher he was in a somewhat different category from the care workers. In relation to Mr Davis, it is argued that the judge should not have made a finding of sexual abuse by Mr Bates at all because of Mr Davis' poor performance in the witness box and his earlier contradictions. It seems to me in both of these cases that there was evidence before the judge from which he could draw the conclusions that he drew, and this court is not going to interfere with those conclusions which were essentially conclusions of fact. I refuse the application by the respondents to appeal. They already have permission to appeal against the exercise of the judge's discretion under section 33 of the Limitation Act 1980.
(Application by claimants for permission to appeal granted in part; application by defendants for permission to appeal refused; costs to be costs in the appeal).