AXB v Hossam Metwally

In assessing damages for misuse of private information, the court should compensate the claimant’s primary psychological injury without double recovery for symptoms or diagnoses that form part of it. Aggravating features, including a gross breach of trust, may be reflected by a modest uplift to general damages rather than a separate award. Comparable awards must be evaluated in light of differences such as publication, the permanence of dissemination, severity of injury and prognosis. An award for future labour-market disadvantage requires a real or substantial risk of losing current employment and a real disadvantage in obtaining alternative work because of the injury.

The claimant had attended the defendant doctor’s clinic for treatment when aged 18–19. The defendant covertly recorded intimate footage of her during appointments, retained and edited it, and viewed it for sexual gratification. The claimant later learned of the recordings through the police. The defendant pleaded guilty to voyeurism offences and did not participate in the civil proceedings.

Judgment on liability had previously been entered for the claimant, with damages to be assessed. The present hearing concerned general damages, aggravated damages, future psychological treatment, travel expenses and future disadvantage on the labour market. The defendant did not attend, and the court considered whether it was appropriate to proceed in his absence.

1. Proceeding in the defendant’s absence. The court proceeded with the damages trial under CPR 39.3(1). The defendant had received proper notice, had not sought an adjournment, and had chosen not to engage with the proceedings. The court applied the cautious approach described in Sloutsker v Romanova and Reid v Price, recognising the different consequences of judgment after an absent trial and the defendant’s ability to seek relief under CPR 39.3(3)–(5).
2. Psychological injury and general damages. The claimant’s PTSD was treated as the primary injury. No separate award was made for agoraphobia or recurrent depression because that would risk double counting, although those conditions and the elements of complex PTSD were taken into account in valuing the PTSD. The injury was moderately severe, with a positive prognosis dependent on appropriate treatment.
3. Aggravation. The defendant’s gross breach of his position of trust as the claimant’s doctor, and its effect on her ability to trust others, were aggravating features. They were most appropriately reflected by a modest uplift to general damages rather than by a separate aggravated-damages award. General damages were assessed at £38,000.
4. Comparable authorities. FGX v Gaunt, ABC v West Heath 2000 & Willock and Reid v Price were considered. The absence of evidence of publication, the claimant’s more favourable prognosis and the absence of an enduring personality change justified an award below that in FGX. The award in Reid v Price was treated as a floor rather than a ceiling in the circumstances relied on.
5. Future losses. The court accepted £3,900 for 26 online EMDR sessions and £250 for travel for ten later sessions. Applying Moeliker v A Reyrolle & Co Ltd, the claimant faced a real risk of losing her employment and was presently disadvantaged in obtaining alternative work, but the disadvantage was likely to resolve within a few years. Six months’ net loss of earnings, £8,942.05, was awarded.
6. The total damages award was £51,092.05, with interest of £920.44.

This was a first-instance assessment of damages. The judgment records that judgment on liability had previously been entered for the claimant by Master Sullivan after the defendant failed to acknowledge service.