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Cite as: 2004 SCLR 629, [2004] ScotCS 9

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Livingstone v. Fife Council [2004] ScotCS 9 (13 January 2004)

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD PHILIP

in the cause

WILLIAM LIVINGSTONE

Pursuer;

against

FIFE COUNCIL

Defender:

________________

Pursuer: Hajducki; Anderson Strathern, W.S.

Defender: Maguire; Simpson & Marwick, W.S.

13 January 2004

[1] In this case the pursuer, who was born on 10 November 1952, seeks damages against the defenders, the statutory successors of Fife County Council ("the council"), for loss, damage and injury sustained by him as a result of sexual abuse which he suffered at the hands of David Murphy, an employee of the council, while he was a resident in St. Margaret's Children's Home, Elie, Fife. He avers that between 1960 and 1967, when Murphy was employed as a house father at the home, he subjected the pursuer, and other children, to persistent sexual abuse of a grave nature. He goes on to aver that after leaving the home he managed to blot out the memory of the abuse until about June 1999. During the intervening period he found work, got married and started a family. In about June 1999 the abuse perpetrated by Murphy came to the attention of the police, and they began an investigation which resulted in his prosecution on 60 charges relating to abuse of children at the home and elsewhere. Three of those charges related to the pursuer. On 2 March 2001 Murphy was sentenced to 15 years imprisonment. The pursuer avers that the defenders are vicariously liable for Murphy's wrongful conduct. That averment is met with an admission by the defenders that they are liable to make reparation in respect of loss, injury and damage sustained by him as a result of the acts of Murphy during the period of his, the pursuer's, residence at the home.

[2] The pursuer's averments of loss, are as follows:

"The pursuer was repeatedly assaulted, humiliated and hurt as hereinbefore condescended upon. After the pursuer left St. Margaret's, he managed to find work and to start his own family. He did not mention the fact of the abuse to anyone, including his wife. After the police investigation had begun in 1999, the pursuer initially denied that he had been abused. Thereafter, having been identified as a victim of the abuse by other men who had been boys at the said home, the pursuer had to face up to the fact of the abuse and the breach of trust involved in it in about June 1999. The subsequent investigation and prosecution of Mr Murphy and the surrounding publicity has had a profound effect on the pursuer and upon his family life. The pursuer has developed a severe adjustment disorder (F43.2 in the ICD-10 Classification of Mental and Behavioural Disorders), which has seriously impaired the quality of the pursuer's life. The pursuer's relationship with his wife, in particular, has been severely compromised. The pursuer's wife has lost all trust in him. His marriage is at risk. He no longer enjoys sexual relations with his wife. The pursuer's two children have lost all respect for him. The abuse is now always on the pursuer's mind and is taking over his life. As a result of fear of public recognition, the pursuer has moved house and does not go out, leaving him with a very restricted social life. He feels irritable, angry and helpless. He has sleeping difficulties and no self-esteem. He suffers from anxiety about the future and a feeling that life is collapsing around him. He feels low, and has felt from time to time that life was not worth living. The pursuer has been seeing a Counsellor through the Kingdom Abuse Survivors Project, 29. There is unlikely to be any early resolution of the pursuer's symptoms and they are likely to continue for the foreseeable future."

[3] In answer, the defenders aver that any psychiatric problems suffered by the pursuer were properly characterised as a mild depressive episode which would not prevent him from going back to work or from taking part in social activities, and had not led directly to his marital difficulties. The pursuer's depression, the aetiology of which was complex, predated the 1999 police investigation. It was triggered in 1997 principally by the onset of neck pain which had rendered him unfit for work. It was aggravated by police questioning, by the trial and conviction of Murphy and the associated publicity, and by his marital difficulties which, in turn, were caused by his own failure to reveal the abuse he had suffered to his wife. The defenders aver further that the pursuer might have been predisposed to depression as a result of other factors, namely, separation from his parents at an early age, the absence of his father, the discovery of his mother's alcoholism, and violence at the hands of his mother's partner after he left the home. They also aver that the development of psychiatric injury can be cumulative.

[4] The case came before me on the procedure roll when Miss Maguire, Q.C. for the defenders argued that the action raised a number of complex issues of fact and law which rendered it unsuitable for trial by jury. If the case were to be tried by jury there would be a real risk that justice would not be done. The view of psychiatrists instructed by both parties was that the pursuer had suffered from no psychiatric difficulties until 1999. He had admitted that, apart from his neck pain, he perceived his life to be happy and settled until then although he had kept in regular contact with Murphy until his arrest. Murphy had found him employment, attended his wedding, paid for his honeymoon, and visited him and his family.

[5] The pursuer's position was that it was the arrest and prosecution of Murphy and the surrounding publicity that had had a profound effect on him and his family life. The defenders' case was that the profound effect on the pursuer and his family life was not the result of Murphy's actions. Their position was that it was the police investigation which had caused his psychiatric problems because he had been forced to give evidence against his will. His psychiatric condition was also the result of his own actions in maintaining contact with Murphy over 30 years. Accordingly the causation of the pursuer's psychiatric condition was a major issue in the case.

[6] There was also a dispute as to the nature of the pursuer's psychiatric condition. He maintained that he had developed severe adjustment disorder in 1999. The defenders' position was that he had a predisposition to psychiatric illness because of other unrelated factors and that his psychiatric symptoms pre-dated 1999. Those symptoms had been exacerbated by the police investigation and aggravated by the difficulties in his marriage, for which they were not responsible and by Murphy's conviction and the surrounding publicity. The defenders were not liable for the actions of Murphy after he left their employment and so were not responsible for the pursuer's actions in concealing the abuse from his wife and family. Nor were they responsible for the damage to the marital relationship caused by the exposure to Murphy of the pursuer's son. In these circumstances the liability of the defenders would require to be apportioned. Issues of foreseeability and remoteness of damage were also involved. Reference was made to Hatton v Sutherland 2002 2 All ER 1 and to K R and Others v Bryn Alyn Community (Holdings) Ltd. 2003 3 WLR 107 and Morris v Fife Council 2003 SLT 926, an action brought by another victim of sexual abuse at St. Margaret's Home, Elie in which Lord Abernethy withheld the case from jury trial.

[7] In moving for issues on behalf of the pursuer Mr Hajducki Q.C. accepted that the case was not a straightforward one but submitted that there was nothing intrinsically difficult in it. The pursuer's claim was confined to solatium. A conflict of psychiatric evidence did not provide a reason for withholding the case from jury trial. Juries were capable of dealing with complex medical issues involving questions of causation and pre-existing conditions. Such issues were matters of fact which the law left to the decision of the jury. Gardner v Fleming 1969 SLT (Notes) 93, per Lord Avonside. The "overall philosophy" of Scottish practice was that the assessment of damages was first and foremost a matter for a jury. Girvan v Inverness Farmers Dairy 1998 SC(HL) 1, per Lord Hope of Craighead. The statement in paragraph 120 of the Bryn Alyn decision, to the effect that the assessment of compensation was not a matter for a jury, was not the law of Scotland..

[8] The defenders had averred that psychiatric injury could be cumulative and that the pursuer might be predisposed to the onset of depression as a result of matters unrelated to the activity of Murphy. For these points to be taken into account in determining whether trial by jury was appropriate, a positive averment that the pursuer's injury was in fact cumulative and specification of other sources of injury for which the defenders were not responsible were necessary. Similarly a positive averment that the pursuer was predisposed to depression was necessary. The point which gave rise to the refusal of issues in Morris v Fife Council, namely the alleged prejudice to the defenders arising from the pursuer's deletion of averments of psychological sequelae, did not arise in the present case.

[9] Mr Hajducki drew attention to the fact that the defenders' plea that the case was unsuitable for issues was based on the alleged doubtful relevancy of the pursuer's averments. The arguments advanced by the defenders were not however based upon doubtful relevancy but on the complexity of the factual matters in the case. Reference was also made to King v Negro, Lord Clarke 10 December 2002, unreported, Irvine v Balmoral Hotel Edinburgh Limited 1999 Rep L R 41, McKenna v Sharp 1998 SC 297 and a number of other Outer House judgments.

[10] The effect of sections 9 and 11 of the Court of Session Act 1988 is that the pursuer is entitled to have his claim for damages determined by a jury. Only if the defenders can show special cause may the court exercise its discretion to deny him that entitlement. The special cause must emerge from the questions at issue in the case and the questions at issue should emerge from the pleadings. The defenders argue that the conflict of psychiatric evidence will give rise to difficult questions of the nature and causation of the psychiatric condition for which the pursuer claims damages. Conflict of medical evidence, even if that evidence is complex, will not in itself make a case unsuitable for jury trial, Irvine v Balmoral Hotel Edinburgh Limited, Barbour v McGruer 1967 SLT (Notes) 41, Gardner v A B Fleming & Co. Ltd. 1969 SLT (Notes) 93. As Lord Gill said in Irvine

"But even if the medical evidence is to be technical and complex, that of itself will not make the case unsuitable for jury trial. There is nothing in the present case to suggest that it raises any medical question of such novelty or uncertainty that the jury are unlikely to understand it...

I have no reason to think that a jury will be unable to reach a common sense decision on the questions at issue in the light of the evidence. They will receive appropriate directions from the presiding judge."

The fact that the evidence in this case will involve psychiatric, rather than medical or surgical opinion does not, in my view, diminish the applicability of this approach. I cannot see why a jury should be less capable of understanding questions of psychiatric opinion, which are likely to be based primarily on interviews with the patient, than they would be of understanding medical questions which might, for example, require some understanding of physiology. In any event, psychiatric illness is no longer beyond the ken of ordinary people as it may once have been.

[11] The pursuer's claim consists solely of solatium, so that the jury will not be troubled by the complexity and uncertainty which sometimes accompanies claims for patrimonial loss. The claim for solatium can be divided into two elements, one relating to the actual assaults perpetrated against the pursuer by Murphy in the home, and the other to the mental pain and suffering and loss of the pleasures of life which he suffered after Murphy's activities became known to the police. The pursuer's case is that the root cause of all his problems was the abuse. The defenders argue that the second element does not form a valid claim against them because they are only liable for what Murphy did when he was in their employment. They say that the pursuer's mental pain and suffering was caused by other factors for which they are not responsible. They sought to make much of the complexity of the psychiatric evidence but I did not find their argument convincing. I do not see why it should be unduly difficult for a jury to determine on the basis of psychiatric evidence the true cause of the pursuer's mental pain and suffering. While the psychiatrists may have differing opinions, nothing was said on behalf of the defenders to suggest to me that those opinions were not capable of straightforward explanation. My impression is that the application of common sense is likely to be a factor in the assessment of the conflicting opinions in this case, affirming its suitability for trial by jury. Moreover, the jury will be directed by the judge. The necessary directions will, so far as I can see, be capable of clear and straightforward exposition.

[12] In the case of Morris, which involved a claim for damages by another of Murphy's victims, Lord Abernethy found special cause established for withholding the case from jury trial. He took the view that, despite the presumption that the jury would follow the judge's directions, the jury in that case would be influenced by reference in the defender's pleadings to a claim for psychiatric injury which had initially been part of the pursuer's claim, but had subsequently been dropped. I do not find that case of any assistance since it turns upon a point which does not arise here.

[13] The defenders advanced their argument on the strength of a plea-in-law based on the doubtful relevancy of the pursuer's averments. None of the arguments advanced by Miss Maguire related to the doubtful relevancy of the pursuer's pleadings and she was compelled to seek leave to amend to substitute a plea in law based on more general grounds. In the absence of objection by Mr Hajducki I allowed her to do so.

[14] I agree with counsel for the pursuer that the defenders' averments "the pursuer may have been predisposed to the onset of depression" and "the development of psychiatric injury can be cumulative" should not influence the decision on whether issues should be allowed. The defenders point to these averments as adding to the complexity of the case. I do not accept that they should be taken to have that effect. They are general statements which apply to a range of psychiatric cases. They are not said to apply specifically to the pursuer.

[15] For the reasons I have given I shall repel the defenders' first plea-in-law and allow issues.