MXX v A Secondary School

JurisdictionEngland & Wales
JudgeCarmel Wall
Judgment Date19 August 2022
Neutral Citation[2022] EWHC 2207 (QB)
Docket NumberCase No: QB-2020-002489
CourtQueen's Bench Division
Between:
MXX
Claimant
and
A Secondary School
Defendant

[2022] EWHC 2207 (QB)

Before:

HER HONOUR JUDGE Carmel Wall

SITTING AS A JUDGE OF THE HIGH COURT

Case No: QB-2020-002489

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr J. Levinson (instructed by Bolt Burdon Kemp LLP) for the Claimant

Mr J. Owen (instructed by DWF Law LLP) for the Defendant

Hearing dates: 6 and 7 July 2022

APPROVED JUDGMENT

This judgment was handed down by the Judge remotely on 19 August 2022.

Carmel Wall

HHJ

Introduction

1

The Defendant is a co-educational secondary school. It provides education for children of senior school age from 11 to 16, in Years 7 to 11, up to and including taking their GCSEs.

2

On 5 December 2013, when aged 13, the Claimant joined the school as a Year 8 pupil.

3

Between 24 and 28 February 2014, one of the Defendant's former pupils (“PXM”) undertook a Work Experience Placement (“WEP”) at the Defendant's school. He was then 18 years old and attending college hoping to qualify as a Physical Education (“PE”) teacher. Attending a WEP was a compulsory part of his course.

4

Both parties agree that the WEP took place for one week only during the February dates indicated above. That is different from the parties' respective pleaded cases. The correct dates of the WEP were not identified until receipt of disclosure from the police. Both parties have agreed to proceed on the basis of the correct dates without requiring the statements of case to be amended. I have addressed the evidence on this basis.

5

It is the Claimant's case that the Defendant is vicariously liable for torts committed against her by PXM. The torts relied on are those of assault and battery and intentional infliction of injury. The Claimant relies on the convictions of PXM at Portsmouth Crown Court on 2 November 2015 to prove that serious sexual offences were perpetrated against her.

6

The Defendant admits that torts of assault and battery were committed by PXM against the Claimant, no earlier than 2 August 2014. The Defendant does not admit that the elements required to be proved for the tort of intentional infliction of injury are present, but if proved, the Defendant argues they too post-dated the WEP by some time.

7

The Defendant's main contention is that it is not vicariously liable for any of the torts that may be proved to be committed by PXM. The issue of vicarious liability has been the main area of contention in this trial.

8

Quantum has been agreed subject to liability in the sum of £27,500.

9

Two further matters are worthy of note by way of introduction.

10

The first concerns the Claimant. There is absolutely no doubt that she has been the victim of serious sexual abuse when a 13 year old girl. Whether or not, as a matter of law, the Defendant is vicariously liable for that abuse, it does not diminish the abhorrent nature of the crimes committed against her nor their impact.

11

The second concerns the Defendant. This claim is brought solely on the basis of vicarious liability. That is a test of strict liability. A Defendant may be vicariously liable for the acts of another without fault. There is no allegation of fault made or pursued against the Defendant.

Anonymity Order

12

I made an Order granting anonymity to the Claimant at the commencement of the trial.

13

She seeks damages for personal injuries consequent on proven sexual assaults. She has a statutory entitlement to anonymity pursuant to s1(1) of the Sexual Offences (Amendment) Act 1992.

14

I was persuaded by Mr Levinson that in order to protect the identity of the Claimant in the particular circumstances of this case, it was necessary also to anonymise the names of the Defendant and the tortfeasor. The Defendant potentially falls within the scope of s1(3A) of the Act which provides a list of matters relating to a person that may lead to the identification of that person and so may be prohibited from publication. I was persuaded by the submission that identifying the tortfeasor was likely to have the result that the Claimant would be identified as the person against whom the sexual crimes were committed, because of the peculiar context of this claim.

15

I was also satisfied that the Article 10 right to freedom of expression was outweighed by the Claimant's Article 8 right to privacy. The facts could be sufficiently reported without the need to identify the Claimant.

16

The application for anonymity in the broad terms suggested by Mr Levinson was not opposed. No members of the press were in court when the order was made, but I have provided within the Order for any interested person to apply on notice to vary the Anonymity Order.

17

The Claimant is not to be referred to by name but rather as “MXX”. The Defendant is to be referred to as “A Secondary School” and the tortfeasor as “PXM”.

The Key Issues to Decide

18

The key issues are these:

a. What was the nature of the interaction between the Claimant and PXM; when did it take place; and in what circumstances?

b. What are the torts proved to have been committed by PXM against the Claimant?

c. Is the Defendant vicariously liable for any/all of those proven torts?

Assessment of Evidence

19

The Claimant gave evidence from the witness box. She is now a mature woman with family responsibilities and professional aspirations. She was a composed, dignified and articulate witness. When the events with which this trial has been concerned occurred, she was a troubled adolescent.

20

The evidence she gives relates to events that occurred eight years ago. That is a long time for anyone to remember back with accuracy. But the effect of that passage of time is exacerbated by the fact that in 2014 she saw things as a child whereas now she looks back on them as an adult.

21

It is only to be expected, because of the passage of time, that there will be some vagueness in her recollection. Details are likely to become elusive.

22

Memories not only fade as time passes but can also become unreliable. There is a risk that a witness can become sure of something that is not in fact true or accurate.

23

A good example of this is the Claimant's adamant evidence that no one from the Defendant's staff spoke to her about social media contact with PXM in March 2014. Her evidence is that she is “100% sure” of that. But she must be wrong. A contemporaneous child protection record made on 5 March 2014 and timed at 13.42 records:

“AB and JK interviewed MXX at 13.35. MXX said that she was talking with friends about PXM who is an ex student at the school and whom (sic) was doing work experience in the PE department over the last few weeks.

MXX said that she has not got the phone number of PXM; however she is friends with him on Facebook.”

24

In a witness statement made to the police on 11 September 2019, AB, the then Assistant Head Teacher, referred to an interview he had with MXX in March 2014 and said, “she admitted being a ‘friend’ with PXM on Facebook”.

25

It has not been suggested that the contents of the child protection record have been fabricated and there is absolutely no evidential basis for such a suggestion. It is inherently implausible that the record was made for any reason other than to record what had actually happened. Mr Levinson did not challenge AB about it. Indeed it is part of the Claimant's case that this is a reliable record that shows that the Claimant and PXM were in Facebook contact from at least the date of the interview.

26

It is a common experience that an adult will analyse events from childhood through the lens of hindsight. There is a risk that when doing so, events will be given a significance that they did not in fact have at the time they occurred. That is a risk to which I have paid particular attention in this case, because of the reliance placed by the Claimant on limited interactions with PXM during the WEP in February 2014.

27

The starting point for finding the facts therefore must be the contemporaneous documentary evidence created long before this litigation was contemplated. That includes what was said to the police during their criminal investigation and what was exchanged by way of Facebook Messenger messages between the Claimant and PXM.

28

I bear in mind that the Facebook messages that have been recovered begin in July 2014 although this was plainly not the beginning of the messaging. I accept the Claimant's evidence that before July 2014 she deleted messages at the instigation of PXM. That was because he wanted to ensure that their relationship remained a secret. That is consistent with PXM manipulating her.

29

There is, though, in consequence, no objective reliable evidence of the contents of those earlier messages, nor their frequency.

30

The fact that the earlier messages are not in evidence simply means there is an explained absence of evidence. I draw no inference for or against the Claimant. I have looked to other evidence to assist me to make findings on the balance of probabilities, about how the messaging developed. By way of example, it is the Claimant's unchallenged evidence that the first time PXM sent her any indecent images of himself was on 4 July.

31

There are differences between the Claimant's evidence and the contemporaneous records. Apart from the reasons I have already addressed, there are other possible explanations for those inconsistencies which I have considered.

32

First, it is not uncommon for children who are victims of abuse to try to protect the abuser. Their desire to do so is a product of the manipulation that is part of the abuse. That may be a plausible explanation if the Claimant, aged 13 were to give an account that minimised the conduct of PXM.

33

Second, I accept the Claimant's evidence that as a child she felt embarrassed to admit to others that she had been infatuated with PXM. That again...

To continue reading

Request your trial
2 firm's commentaries
  • Abuse: Work experience student & vicarious liability.
    • United States
    • LexBlog United States
    • 27 August 2022
    ...A Secondary School [2022] EWHC 2207 (QB) (on BAILII). In 2014, one of the Defendant’s former pupils (“PXM”) undertook a Work Experience Placement (“WEP”) at the Defendant’s school. He was then 18 years old and attending college hoping to qualify as a Physical Education (“PE”) teacher. Atten......
  • Abuse: Work experience student & vicarious liability.
    • United States
    • LexBlog United States
    • 27 August 2022
    ...A Secondary School [2022] EWHC 2207 (QB) (on BAILII). In 2014, one of the Defendant’s former pupils (“PXM”) undertook a Work Experience Placement (“WEP”) at the Defendant’s school. He was then 18 years old and attending college hoping to qualify as a Physical Education (“PE”) teacher. Atten......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT