ABC v West Heath 2000 Ltd & Anor

Grooming and sexual abuse may cause actionable psychiatric injury even where the most serious alleged acts are not proved. For the tort of intentional infliction of harm, the claimant must establish the conduct, mental and consequence elements. Emotional manipulation, encouragement to send indecent images and sexual communications may satisfy the conduct element. A consequence which is sufficiently obvious may support the inference that it was intended. Disclosure of abuse, rather than the initial abuse itself, may trigger the psychiatric harm where that disclosure is an inherent risk of the abusive relationship. A vulnerable victim’s continuing attachment to the abuser is not necessarily inconsistent with abuse.

The claimant, a former pupil at a special educational needs school, claimed damages against the school for sexual abuse by its vice-principal and head of boarding, who was also a Part 20 defendant. The school accepted vicarious liability if abuse was proved and accepted that any sexual activity was abusive, leaving the extent of the abuse, causation and quantum for determination.

The claimant relied on physical assaults and, alternatively, the tort of intentional infliction of harm under Wilkinson v Downton as reformulated in Rhodes v OPO. The court had to determine which alleged sexual acts occurred, whether they caused actionable psychiatric injury, and the appropriate damages.

1. Findings of abuse. The court found that the third party had groomed the claimant, encouraged and requested indecent images, and engaged in sexual communications. It found sexual touching, fondling and digital penetration, but was not satisfied that oral sex or penetrative intercourse had occurred.
2. Causation. The claimant’s pre-existing family, neurological and mental-health difficulties were relevant, but the abuse and its disclosure caused an adjustment disorder, increased anxiety, self-harm, social difficulties and reduced confidence. The fact that the serious psychiatric problems were triggered by disclosure did not break causation. Disclosure was an inherent risk of the illicit relationship, and the grooming itself created confusion and dependency.
3. Intentional infliction of harm. The court stated that the tort, as reformulated in Rhodes v OPO, contains conduct, mental and consequence elements. All three were satisfied. The emotional manipulation, encouragement to send indecent images and sexual banter were unjustifiable conduct. The consequences of the relationship were sufficiently obvious that they could not realistically be treated as unintended. The claimant suffered an adjustment disorder after disclosure.
4. Damages. Damages were assessed globally at £35,000 for pain, suffering and loss of amenity, £10,000 for handicap on the labour market and £6,370 for psychological treatment. No loss of earnings, deputyship costs or aggravated damages were awarded. An unwise decision does not, without more, establish lack of capacity.
5. Disposition. Judgment was entered for the claimant in the sum of £51,370, subject to any agreed interest calculation. The defendant was entitled to 100 per cent contribution from the Part 20 defendant.