(1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox [2018] EWHC 2256 (QB)

In (1) LXA (2) BXL v (1) Cynthia Willcox (As personal representative of the estate of Edward Willcox, Deceased) (2) Cynthia Willcox[2018] EWHC 2256 (QB), issues of questioning by the court in the absence of a party, s.33 of the Limitation Act 1980 and the valuation of damages in a historical child sexual abuse case were considered.

In this case, a brother and sister brought a claim for personal injury and other losses against their adoptive parents. The Claimants had been sexually abused by their adoptive parents in the 1970s. They had both sustained long-term psychiatric injuries. The Claimants had been adopted in the early 1970s when aged approximately 5 or 6 years old. In 2015, their father (First Defendant) was found guilty of indecent assault, indecency with a male child and child cruelty whilst the Claimants were at their home. Their mother (Second Defendant) was found guilty of child cruelty against the Claimants. The First Defendant died in 2017 and the proceedings continued against his estate. The Second Defendant did not attend the hearing, indicating instead that her witness statement and defence should be considered in her absence.

As the Second Defendant was not represented at the hearing, CPR 3.1A(5) applied which states:
“(5) At any hearing where the court is taking evidence this may include–
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”

As such, the Court put questions to the witnesses. CPR 3.1(A)(5) applied even where the unrepresented party was not present. Equally, where an unrepresented party had indicated matters of concern it was proper for a judge to explore those matters with the witnesses.

The court disapplied the limitation period using its discretion under s.33 of the Limitation Act 1980. The court considered the factors listed in s.33(3) and in particular s.33(3)(e) which states:
“the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages”.

Here the Claimants had known from the outset that they had been abused but they had, understandably, been reluctant to report the abuse. The psychiatric evidence was that very few sexual abuse victims felt able to report parental abuse and that both Claimants had feared that the Defendants would kill them if they took action. Another relevant factor was whether the evidence was likely to be less cogent and reliable due to the delay. Equally, it was noted that assessing the loss was inevitably going to be more difficult given that the historical nature of the injuries. However, the Court considered that since the medical records were available and psychiatric injuries are often experienced over a long period of time, a fair trial was possible.

In relation to liability, the Defendants did not discharge the burden in s.11(2)(a) of the Civil Evidence Act 1968 which states:
“(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom…–
(a)he shall be taken to have committed that offence unless the contrary is proved.”
It was additionally held that, on the balance of probabilities, the First Defendant had raped the Second Claimant on one occasion.

The First Claimant sustained an adjustment disorder and dysthymia following the abuse. He required cognitive behavioural therapy which was estimated to cost £4,800. His psychiatric injury was valued at £35,000, falling within the moderately severe psychiatric damage bracket in the Judicial College guidelines. He was also awarded £40,000 for loss of earnings, pursuant to the approach in Blamire v South Cumbria HA [1993] P.I.Q.R. Q1. His total award, including therapy costs and travel, was £115,040.

The Second Claimant sustained an adjustment disorder and a recurrent depressive disorder. She also needed cognitive behaviour therapy at an estimated cost of £4,800. Since the sexual abuse had been particularly serious, a higher award of £80,000 was justified. She was awarded £76,000 for past loss of earnings. In terms of her future loss of earnings, she was only working at 80% capacity and therefore was awarded £17,564.27. Her total award was £186,011.08, which included an award for past and future prescription costs.

November 4, 2018 · Editorial Team · Comments Closed
Posted in: Cases