C v D

A defendant who deliberately invades a claimant’s bodily integrity may be liable in trespass to the person. Conduct falling short of battery or assault may also be actionable under the principle in Wilkinson v Downton, but only where it causes a recognised psychiatric injury and the defendant’s intention to cause harm can properly be established, including through recklessness.

The principle does not provide a settled basis for recovering damages for mere emotional distress. Similar-fact evidence may be admitted where it is potentially probative, but its weight must be assessed separately. Psychiatric damage may be attributed to actionable abuse where that abuse made a material contribution to the condition, with apportionment undertaken on a common-sense basis.

The claimant alleged that, while he was a pupil at a Roman Catholic junior school, the first defendant, its headmaster, sexually abused him by touching his genitals after swimming, filming him in the showers, and exposing and touching him in the infirmary. The second defendants, trustees of the school, were sued on the basis of vicarious liability.

The court considered similar-fact allegations concerning other pupils, the admissibility and weight of hearsay evidence, and whether the alleged conduct caused actionable psychiatric injury. The central issues were whether the non-contact incidents were actionable in tort, whether the claimant had suffered recognised psychiatric injury, and how any loss should be causally attributed and apportioned.

1. Liability for the abuse. The court accepted the claimant’s evidence and found that the first defendant deliberately touched his genitals after swimming and in the infirmary. The touching constituted battery. The second defendants were vicariously liable.
2. Similar-fact evidence. The allegations concerning X, Y and Z were admissible under the approach in O’Brien v Chief Constable of South Wales Police. The court excluded Y’s allegations and part of the Austrian shower allegation, but found other allegations proved or admitted. They were given less weight than the court’s assessment of the principal witnesses.
3. Video incident. The first defendant owed no enforceable duty to the claimant beyond the common-law duties relevant to reasonable care, battery and assault. No negligence claim was pleaded, and the filming was not itself a battery or assault. It caused emotional distress but not psychiatric injury. Wainwright v Home Office did not establish a definitive new tort permitting recovery for mere distress, so this incident was not actionable.
4. First infirmary incident. The deliberate removal of the claimant’s clothing and staring at his genitals was a gross invasion of personal integrity. It made more than a trivial contribution to the claimant’s psychiatric injury. Although psychiatric injury was foreseeable, it was not sufficiently likely for intention to be imputed on that basis. The first defendant was nevertheless reckless as to whether psychiatric injury would result. Liability therefore arose under the principle in Wilkinson v Downton.
5. Causation and damages. Following Various Claimants v Flintshire County Council, the actionable abuse had to make a material contribution to the claimant’s condition. Damage attributable to the abuse and to other causes was apportioned on a common-sense basis. Judgment was entered against both defendants for £43,000, subject to submissions on interest.
6. The anonymity order was discharged, with a four-week stay to permit an application to the Court of Appeal.

First-instance proceedings in the High Court. The court entered judgment against both defendants for £43,000 and stayed the order for four weeks to permit an application for relief from the Court of Appeal.