EXE v The Governors of the Royal Naval School
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 13 March 2020 |
| Neutral Citation | [2020] EWHC 596 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2017-001059 |
[2020] EWHC 596 (QB)
Mr Justice Griffiths
Case No: QB-2017-001059
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Counsell QC (instructed by AO Advocates) for the Claimant
Susan Rodway QC and Nicholas Fewtrell (instructed by Keoghs LLP) for the Defendants
Hearing dates: 24–27 February, 2 March 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Between 15 October 1990 and 10 July 1991, the Defendants' school (“the School”) employed a man as a kitchen porter (“Hughes”) who, unknown to them, had a criminal record. His offending included indecent assault on a female (1980), deception and (separately) assault occasioning actual bodily harm (1981), and 2 counts of unlawful sexual intercourse with a girl aged 15 (1984).
The Claimant (whose identity is protected by Court order, and whom I will refer to as “EXE”) went to the School as a 13-year old pupil in September 1989. It was a boarding school but she was a day girl. In 1991, Hughes had unlawful sexual intercourse with her when she was 14 years old, a couple of months short of her 15 th birthday. This was a crime, and she was the victim of that crime. The School did not know about this but they discovered other misconduct by Hughes in July 1991 as a result of which his employment came to an end. His crimes against EXE however continued, and the experts agree at least on this: EXE suffered clinically significant mental health symptoms as a result of what Hughes did to her.
EXE brings these proceedings against the School for damages. Hughes is not a party. No-one knows where he is or what has become of him. But it is important to recognise that this judgment is not about whether Hughes was a criminal, or whether EXE was his victim, or whether she has suffered what she should not have suffered because of him. Hughes was a criminal; EXE was his victim; EXE has suffered what she should not have suffered because of him. Those are undisputed, undeniable, and very important facts. Because they are not disputed, very little more will be said about them, because a judgment has to decide what is disputed. No-one should make the mistake, however, of thinking that what takes more words to say, in the rest of this judgment, is more important than what I have just said.
The issues in the case – what is disputed – are smaller than the big fact of Hughes' criminal responsibility for harm to a young girl. They are about whether the School – which did not know what was happening – has liability in this civil action for damages as a result of Hughes' acts, whether on the basis of vicarious liability or on the basis of negligence in the recruitment process.
There are 6 issues, which I will consider in the following order:-
i) Are EXE's claims against the School statute-barred by the Limitation Act 1980?
ii) Were Hughes' actions against EXE torts – that is, civilly actionable wrongs? There are issues about what precisely happened, to be decided on the balance of probabilities (absolute truth is not achievable) and they include to what extent, if at all, EXE gave consent to Hughes which was sufficient, not to absolve him of the crimes, which cannot be washed away, but to mean that there was no tort liability.
iii) If and insofar as Hughes himself did commit torts against EXE, to what extent if at all is the School vicariously liable – that is, bound to pay the price. This question arises because Hughes was a School employee, but it renders the School liable only to pay for Hughes' wrongs; it is not an independent liability of the School in that it does not involve wrongdoing by the School.
iv) Was the School independently liable, and at fault in the tort of negligence, for failing to carry out sufficient checks to detect that Hughes was a potential danger to its young female pupils including EXE?
v) What is the extent of the actionable harm suffered by EXE as a result of any torts that may be proved, whether committed by Hughes with the School vicariously liable on his behalf, or (and it might be both) committed by the School in failing in its own duties?
vi) What in money terms is the correct measure of the damage suffered by EXE?
The factual background
The School was an independent secondary school for girls. Its pupils were a mixture of day girls and boarders.
The Claimant was born in 1976. She was the oldest of three children, including a younger sister who gave evidence.
She attended her first school from the ages of 3 to 12. This meant that she joined the School one year later than the usual entry, which was at age 11. She went to the School in September 1989, when she was 12. She was a day girl, not a boarder. She lived with her parents and siblings. Her father was a lawyer.
One year later, on 15 October 1990, Hughes was given a job as a kitchen porter at the School. He remained an employee until 10 July 1991.
EXE's best friend was C. Roe, nicknamed “Croe”. At lunchtime, they would sit on a window sill and chat. They met Hughes as he passed them on the stairs, and they spoke with him regularly and became acquainted with him over a number of lunchtimes.
EXE says that on one occasion when she was alone, Hughes took her down the staircase from the window sill and exposed himself to her. The evidence on this is disputed. She also says that, apparently on the same day, he said that he liked her more than his girlfriend. She said she liked him too.
The next day, there was a fire at the School. The window sill area was blocked off. Hughes was taken to hospital. This meant that the meetings on the window sill no longer took place. The fire was on or about 17 May 1991. EXE did not see Hughes again until half term, which began after Friday 24 May 1991.
During half term, on 28 May 1991, EXE telephoned Hughes at the school and arranged to meet him off school premises, in the open air. They met for about half an hour. She had given him her home telephone number in circumstances I will examine in more detail, below. They kissed goodbye, which was their first kiss.
They arranged to meet again on 31 May 1991. They walked with EXE's dog, and found a makeshift shelter in a field, where they cuddled and kissed.
School resumed on 3 June 1991. On Thursday 6 June 1991, by prior arrangement made when they had met on 31 May, EXE stayed on at school after hours and went to Hughes' bedroom on the School premises. There they had sexual intercourse for the first time. EXE was then 14 years and 10 months old. She had no previous sexual experience. She repeated her visits every Thursday evening after that, up to and including 4 July 1991, making a total of 5 occasions, on each of which they had sexual intercourse (6 June, 13 June, 20 June, 27 June, 4 July). She told her parents she was home late because of Duke of Edinburgh Award meetings on Thursday after school.
On 10 June 1991, the School warned Hughes about over-familiarity with other girls (not EXE) and questioned him about drugs. On 6 July 1991, the police contacted the School about Hughes' arrest for drug offences. His room was searched and a substance suspected of being cannabis was seized by the police.
On the same day (6 July) EXE telephoned Hughes at the School and he suggested he could go to Spain when she would be there with her family on a summer holiday.
On 8 July 1991, the substance found in Hughes' room was confirmed to be cannabis and the police said they would charge him with the drugs offence. The Bursar called Hughes in, and Hughes offered his resignation, which was accepted. He was not required to work his notice, which expired on 10 July 1991.
On 10 July 1991, EXE went to Spain with her family. Following the suggestion previously made to him by EXE, Hughes made his own way to Spain and EXE saw him in the road as the family drove past him on 21 July. She contrived to meet him alone, and they had sexual intercourse on the beach without her parents knowing anything about it, according to evidence she gave to the police in 1991, although she did not recall it when giving evidence to me.
EXE and her parents returned to England after their holiday in Spain. She celebrated her 15 th birthday in England in August. On 5 August 1991, she got a letter from Hughes saying he was sleeping rough near where she lived. She went to him the same day and, for a total of 4 consecutive days until 8 August, they had sexual intercourse every day. He then went away but, on his return, they resumed their daily meetings and sexual intercourse for a few days between 18 and 21 August or thereabouts, before he had to go away again.
A few days later, on Saturday 24 August 1991, EXE left her home when her parents had gone to bed, leaving a note, and by prior arrangement Hughes met her outside shortly after midnight. They walked and hitchhiked to Tinsley near Rotherham in Yorkshire where Hughes had rented a run-down flat. According to her police statement a few days later, they arrived at about 9.15 pm on the night of Monday 26 August 1991. Meanwhile, her parents, discovering the note, called the police. I will pass over other details and return to them when considering the issue of consent. However, EXE tells me that, whereas the sexual intercourse had not been violent before (leaving aside the question of consent, which does not depend on violence), Hughes violently raped her while they were in the flat. This is disputed.
Hughes left the Tinsley flat on Monday or Tuesday 27 August 1991 to report to the police (he was on bail for offences unrelated to EXE) and he was...
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