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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 23
A154/22
OPINION OF LORD CLARK
In the cause
F
Pursuer
against
(FIRST) GORDON CHALMERS;
(SECOND) RC DIOCESE OF GALLOWAY;
(THIRD) NORTH AYRSHIRE COUNCIL;
(FOURTH) THE ENGLISH BENEDICTINE CONGREGATION TRUST; and
(FIFTH) PAUL MORRISON
Defenders
Pursuer: Milligan KC, McCaffery; A & WM Urquhart
Second Defender: Primrose KC, Rolfe; Keoghs Scotland LLP
28 February 2025
Introduction
[1]
In the late 1970s, the pursuer was a pupil at St Mark's primary school in Irvine. At
the school, when he was about 5-6 years old, he was subjected to physical abuse and very
serious sexual abuse by a priest. In the mid-to-late 1980s, he was a boarding school pupil at
Fort Augustus Abbey secondary school. When at that school, aged about 14-16, he again
sustained physical and sexual abuse. During the period of his childhood, and later, he
2
suffered other adverse life experiences. He has developed Complex Post Traumatic Stress
Disorder (CPTSD), originally diagnosed as severe PTSD in about 2012. In his employment
career he carried out various forms of work, but he eventually felt unable to continue to
work from about 2012.
[2]
In this action, the pursuer originally sought damages from five defenders. However,
the case now proceeds against only the second defender, the Roman Catholic Diocese of
Galloway. The priest who committed the abuse at St Mark's was within that diocese.
[3]
Following the death of the priest in 2021, his estate was declared bankrupt. The first
defender is an insolvency practitioner, who was the trustee of the estate of the priest. Decree
in absence was granted against the first defender. The case against the third defender,
North Ayrshire Council, whose predecessor was said to have been the responsible authority
for St Mark's, was abandoned. The fourth defender, the English Benedictine Congregation
Trust, is a charity which was responsible for the teaching staff and Benedictine brothers and
priests who worked and lived at Fort Augustus Abbey. The fifth defender was the executor
nominate of the member of staff who committed certain abuse of the pursuer at Fort
Augustus Abbey. Following discussions, the action against the fourth and fifth defenders
settled.
[4]
The case called for a proof before answer, with evidence led over eight days. The
second defender accepts that the physical and sexual abuse of the pursuer at St Mark's, for
which the priest was in due course convicted, took place. Prior to the case calling for proof,
the issue of whether the second defender was vicariously liable for the conduct of the priest
remained as a potential dispute. However, at the proof, the second defender no longer
insisted on that point and accepted that it is vicariously liable for the abuse at St Mark's. As
3
the case now proceeds only against one party, from now on the second defender is referred
to as the defender.
[5]
The key issue in dispute between the parties is the extent of loss, injury and damage
caused by the abuse at St Mark's, having regard to whole circumstances including the
physical and sexual abuse at Fort Augustus Abbey and the other adverse experiences
suffered by the pursuer.
[6]
At an early stage in this case, a judge granted a motion for the pursuer that his
personal details be anonymised. The order of the court prohibits the publication of the
name, address and date of birth of the pursuer, or any particulars or details calculated to
lead to the identification of the pursuer in connection with the present action. As a
consequence, in writing this Opinion, when giving factual information about the pursuer,
his background and his working career it is, where necessary, expressed in general and
restricted terms with limited reference to dates, years and places.
Undisputed facts
[7]
The parties were able to agree a number of facts in their joint minutes. It is also
possible to draw certain other undisputed points from their written and oral submissions
and from the evidence. What follows is a brief summary of the relevant factual matters
agreed or undisputed, in chronological order.
[8]
The pursuer was born in England. When he was aged three, his mother passed him
over to his maternal grandmother to live with her. The pursuer's mother returned for him
when he was aged four years, removing him to Scotland. When at St Mark's primary
school, aged about 5-6, he was physically and sexually assaulted by the priest several times
and, on various occasions, he was raped by the priest, involving anal penetration. The priest
4
was convicted of these offences, which took place over a period of about twenty months, as
well as sexual offences against other boys.
[9]
Parties agree that when at Fort Augustus Abbey the pursuer again suffered physical
and sexual abuse. The full details of what occurred are not agreed, given the differences that
arose in the evidence. The other adverse experiences include the pursuer being assaulted by
a girl, being rejected by his mother, abandoned by his father and assaulted by his stepfather,
and having a young friend who went missing. Also, in later years, the pursuer broke his
arm when he fell from a horse.
[10]
Turning to his education, after leaving school, he attended at a college, obtaining an
HNC in microbiology before attending a university to study zoology at degree level. He
then attended at another college, to study biology. The pursuer then went to another
university and undertook a degree in biology.
[11]
In relation to work, for a period over two years or so, the pursuer worked as a sales
assistant at a supermarket. He then trained as a nurse for three years or so and was
qualified. His advanced diploma as a Registered Adult Nurse was converted to degree
level. He worked as a staff nurse at hospitals in England. The pursuer was promoted to the
post of senior staff nurse. While working as a nurse, he suffered bullying. He attended a
tribunal as a result of the bullying. His employment was terminated by a compromise
agreement. Subsequently, the pursuer began working in prisons as a nurse, covering three
prisons. He then worked as an agency nurse for 18 months until the commencement of
employment with another firm, again in prisons. The pursuer undertook clinical drug
treatments at two prisons, reaching the stage of a band 7 nurse.
[12]
For a further eight years or so he worked again as a nurse at hospitals in England. At
a college, he completed courses in, and gained certificates for, the management of drug
5
misuse and the management of alcohol problems in primary care. He was admitted as a
member of the Federation of Drug and Alcohol Professionals.
[13]
In about 2008, the pursuer was referred to his local community mental health team.
In 2012, he was referred to, and received counselling, from a service in England. In 2013, he
was referred to a centre for psychiatry.
Joint statement of psychiatric experts
[14]
The central issue in dispute in this case is the extent to which other factors in the
pursuer's life, beyond the abuse by the priest at St Mark's, contributed to the pursuer's
psychological issues, which gave rise to loss and damage. This was assessed in some detail
by the experts, for the pursuer Dr O'Neill, and for the defender Professor Fahy and
Dr de Taranto. Before turning to the evidence, it is worth noting the points agreed in the
joint statement of these psychiatric experts and what they disagree about. This will assist in
focussing on the points in dispute and indicating each side's position on what was the
impact and consequences for the pursuer of the various forms of abuse and the other
adverse factors.
[15]
The psychiatric experts begin by saying that there is a high level of agreement
between them. Where they disagree, this is partly related to the differing accounts that they
obtained from the pursuer, his qualities as a clinical historian and the evolving or changing
nature of his account, including in relation to the abuse (especially in regard to the severity
of abuse at Fort Augustus Abbey).
6
Matters agreed
[16]
The pursuer's account of his childhood family experiences includes risk factors for
subsequent attachment and mental health problems, i.e. abandonment by his father, a poor
relationship with his mother and physical abuse by his stepfather. The type of abuse
described by the pursuer occurring in St Mark's and Fort Augustus Abbey would be
psychologically traumatic. Features of the abuse are more likely to cause significant
psychological harm and increase the likelihood of childhood and adult mental health
problems and poor outcomes in domains of educational achievement, occupational
functioning and relationships. These features include prolonged duration, penetrative
abuse, helplessness (he states that when he reported the abuse his account was rejected and
he was punished), association with violence (especially at Fort Augustus Abbey), and the
abuse occurring in more than one school setting.
[17]
The pursuer has also described other types of psychologically harmful childhood
experiences including poor attachment to his mother and at other schools bullying, physical
abuse and attempted sexual abuse.
[18]
His account of his psychiatric symptoms meets diagnostic criteria for CPTSD. The
cause of his CPTSD is multifactorial, but the most significant contributors are the two
periods of reported childhood sexual abuse. Even if one or other period of childhood sexual
abuse had not occurred, it is likely that the pursuer would have gone on to develop
significant psychiatric problems in adulthood including PTSD and personality-related
difficulties.
[19]
The pursuer's psychiatric condition deteriorated around 2012/13, and since then his
symptoms have been severe and resulted in impairment of occupational functioning and
relationships. The likely explanation for this deterioration is his high level of preoccupation
7
with the abuse and related matters, and the perpetuating effects of the criminal and
compensation cases. Personality-related factors such as narcissism, grandiosity and
emotional dysregulation appear to have contributed to this process and influenced the
clinical and medico-legal presentation of his difficulties. His condition, as presented to the
experts, is a severe psychiatric disorder that carries a poor prognosis.
[20]
An evidence-based treatment programme for CPTSD would involve prolonged
therapy with an experienced psychologist, supplemented by psychiatric support. However,
the experts are not optimistic that the pursuer would be able to sustain engagement in
intensive or prolonged therapy or that he would be able to cope with challenges to his
beliefs and interpretations. Therefore, they would recommend an initial trial of engagement,
if practicable, before committing resources to a long-term course of treatment.
[21]
The prognosis for the pursuer's future fitness to work is poor, at least for the first
few years post-litigation. It is very unlikely that he will become fit or able to resume
employment as a nurse. It is possible that he could cope with less demanding work, but in
view of his employment history it is likely that he would experience episodic difficulties
even if he were to return to some form of employment.
[22]
The experts' ability to provide definitive opinions on this case is compromised by the
lack of contemporaneous information dealing with the pursuer's school years and the
problems he had at work. Therefore, they must rely heavily on his account, which is
problematic as it is agreed that there is an issue in relation to his reliability as a clinical
historian. In their reports the experts have identified their concerns that include differing
accounts of the abuse suffered at Fort Augustus Abbey, incongruities between the clinical
records and the pursuer's account of the chronology of his symptoms, his anger, and his
8
efforts to control the clinical narrative within the medico-legal setting. This causes them
difficulties in the analysis of the chronology, severity and causation of his symptoms.
[23]
They considered the issue of apportionment of the pursuer's psychiatric symptoms
between events at St Mark's, Fort Augustus Abbey, other schools and in the family home.
Even with the best quality of information and a reliable clinical historian, apportionment of
the type of condition suffered by the pursuer is difficult owing to the limitations of
professional and scientific knowledge and his exposure to multiple potentially traumatic
events. The task becomes more challenging as he has given differing accounts of the abuse
(at Fort Augustus Abbey), the cause of his symptoms (according to the pre- and post-2012/13
clinical records) and of various potentially significant biographical details.
[24]
The cause of the pursuer's current psychiatric condition is multifactorial. The
reported experiences of sexual abuse at St Mark's and Fort Augustus Abbey are the most
significant contributors to his current condition, though other family and adverse childhood
experiences have also contributed.
Matters not agreed
[25]
Dr O'Neill highlighted that the account of abuse provided to her (and probably
initially Professor Fahy) was of severe persistent penetrative abuse by the priest while the
pursuer was attending St Mark's school from about 5-6 years of age. The account of abuse
the pursuer gave her in relation to Fort Augustus Abbey was of very severe physical and
emotional abuse. He outlined inappropriate sexual contact and attempted rape but no
penetrative abuse. Dr O'Neill also noted that the content of the pursuer's post traumatic
symptoms (intrusive memories, flashbacks and patterns of avoidance) all related to the
abuse by the priest rather than the abuse in Fort Augustus Abbey. As a consequence
9
Dr O'Neill felt the sexual abuse at St Mark's which was severe, persistent and at an early age
was the most significant causative factor in the development of his CPTSD.
[26]
Dr O'Neill would not feel it is appropriate to give percentage apportionments of
causation as there is no scientific basis for such statements, particularly in a case where there
is such a wide range of traumatic events throughout his childhood and adolescence.
[27]
Professor Fahy and Dr de Taranto rate the contributions of abuse at St Mark's and
Fort Augustus Abbey to be of roughly equal measure, noting that the abuse at St Mark's
included an account of penetrative sexual abuse and that this experience subsequently gave
rise to stressful criminal proceedings and the current litigation, whereas the abuse at Fort
Augustus Abbey reportedly included serious violence as well as penetrative sexual abuse
(which, although he did not describe this to Dr O'Neill, he has previously described as
repeated rapes) and occurred during puberty. Professor Fahy and Dr de Taranto further
agree that a reasonable apportionment of causation with regard to the pursuer's psychiatric
symptoms would be 35% to 40% to each of the abuse at St Mark's and the abuse at Fort
Augustus Abbey and the remainder to other causes.
[28]
Dr O'Neill would be of the opinion that the pursuer is academically bright. He
struggled to concentrate in school due to being on edge and the constant fear that the priest
would come and remove him from the class. He demonstrated his academic ability later in
life by completing an access course and a degree in nursing, coming first in his dissertation.
However, throughout his vocational career he struggled in his relationships with authority
due to low self-esteem and a distrust of authority figures as a consequence of the priest's
abuse. Dr O'Neill is of the opinion that in the absence of the priest's abuse the pursuer
would have been more successful academically and vocationally.
10
[29]
Dr de Taranto and Professor Fahy conclude that it is possible that, absent the
St Mark's abuse, on the balance of probabilities he would have continued working as a nurse
for a period, but his preoccupation with the alleged abuse at Fort Augustus Abbey would
have led to a deterioration in his condition in any case and he would not have been
psychiatrically fit to continue working after 1-2 years. It is likely that he would not be in any
different position by now with respect to employment prospects.
Other experts
[30]
A medical report for the pursuer was given by Dr Alasdair Rooney, a consultant
neuropsychiatrist, and used as his evidence. Dr Alison Harper, an expert psychologist, also
prepared a report and gave evidence for the pursuer. For each side, reports were received
and evidence was led from a vocational expert, dealing with the pursuer's employment and
prospects (Peter Davies for the pursuer and Keith Frost for the defender). These two experts
were unable to agree on the pursuer's likely vocational path had he not experienced the
abuse at St Mark's. The pursuer's written submissions referred to him being able to work as
a nurse and possibly at a higher level, in the medical/scientific field. The updated report by
Mr Davies is referred to in the written submissions for the past and future wage loss in that
scenario.
[31]
However, in the pursuer's final oral submissions on past and future wage loss, the
focus was on what the pursuer would have earned if working as a nurse. If I had to reach
my own conclusions on his likely mode of employment if the St Mark's abuse had not
happened, it would have been as a nurse, in part because of his educational experience and
the jobs he decided to take. There was insufficient evidence to support a different career. As
a result, nothing of great importance now turns on the evidence of the vocational
11
consultants. Expert witnesses on actuarial matters were also involved (Dr John Pollock for
the pursuer and Kate Angell for the second defender). Again, certain different views were
reached, particularly on the proper approach to be taken in calculating the interest to be
applied.
Evidence
[32]
The evidence was given by three factual witnesses (the pursuer, a friend of his and
an Archbishop), and by the experts mentioned above. As the matters have narrowed down,
it is not necessary to set out the evidence in detail and it will suffice to give a very brief
summary. The evidence of the expert psychiatric witnesses included the points noted
above, on which they agreed or disagreed. The headline points of factual and expert
evidence relied upon by each side are noted shortly when summarising the parties'
submissions. Matters of specific importance are then considered further when I come to
explain my decision and reasons.
Witnesses for the pursuer
The pursuer
[33]
The pursuer's evidence was given over two days. It is fair to say that, for perfectly
understandable reasons, the pursuer found the task of giving his evidence traumatic and
wearing. He is plainly a vulnerable individual and the court did what it could to intervene
and make sure he was coping with the task of giving his evidence in these difficult
circumstances. He used certain expressions that would normally only be tolerated by the
court when the witness is just stating what someone else said. However, that was not
12
interfered with given his serious vulnerability. At times he was somewhat agitated or
distraught, but overall he seemed not to be badly affected by having to give his evidence.
[34]
In evidence-in-chief, he explained his personal history and background, the events at
St Mark's and Fort Augustus Abbey and other matters that have affected him. Details were
given about his academic experience, including at school, college and university, and his
work experience. It became clear that a number of things said in police statements and to
others (such as the defender's expert witness Dr Baker) differed from his account given in
court. Indeed he accepted that to be the case on many occasions.
[35]
The broad thrust of cross-examination was that he was focussing on the priest
abusing him at St Mark's and more importantly the impact that had on the rest of his life,
giving less weight to the other causes (assault by an older child, family problems, aggressive
behaviour by his stepfather, arm injury, and the sexual and physical abuse at Fort Augustus
Abbey). When giving police statements, the Fort Augustus Abbey abuse was quite heavily
founded upon by him. He was seriously critical of a number of individuals with whom he
worked, or to whom he reported matters.
[36]
One example of the points on which his account had changed, and to which he was
taken in cross-examination, was a statement given to the police in 2016 in which he said he
had taken advice from his SOLO officer to concentrate on the Fort Augustus Abbey abuse.
He said to the police that as the abuse happened many, many times over several years at
Fort Augustus Abbey, he felt that in comparison the abuse at St Mark's was much lesser in
its severity and the impact upon his life. In answering why he had said this to the police, the
pursuer explained that this statement occurred when he was close to taking his own life and
was in severe distress.
[37]
He was taken to what he had said to Dr Baker, including that he had repeatedly been
13
raped at Fort Augustus Abbey. The pursuer's response was that when describing the events
at Fort Augustus Abbey, flashbacks about the abuse at St Mark's would happen and as a
consequence that would slip-in to the account given about Fort Augustus Abbey, which he
couldn't help, and so there was in fact no rape at Fort Augustus Abbey. His position was
that at times in the past when asked about Fort Augustus Abbey he would bring out the
St Mark's events. He denied trying to minimise what had occurred at Fort Augustus Abbey,
which he described as awful but nothing when compared to St Mark's, where he was raped
to his injury on multiple occasions.
[38]
The pursuer was taken to other inconsistent information and discrepancies and also
asked about the events other than the abuse which impacted upon his mental health. He
said that certain of the people to whom he had spoken had, on some specific points in the
statements or reports, wrongly understood what he had said to them.
Ms M
[39]
The next witness was a friend of the pursuer, who was a former police officer, now
retired. She spoke about him being sharp and witty, but quite withdrawn and at times
coming across quite shy. He is very guarded and wary, quite suspicious of people. He has
no real social life and is quite detached. She spoke of his trauma and distress, including at
the time of the trial of the priest. He had explained the abuse at St Mark's to her on several
occasion but didn't say much about Fort Augustus Abbey.
Archbishop Nolan
[40]
Evidence was led from Archbishop Nolan, who had been the Bishop of Galloway
and is now the Archbishop of Glasgow. He explained the duties of Catholic priests and the
14
roles they play at primary schools. He was taken to a letter he wrote to the pursuer shortly
after the conviction of the priest, seeking to assist the pursuer, and he referred to the now
revamped safeguarding guidelines used by the Catholic Church.
Mr Peter Davies
[41]
The defender's vocational expert, Peter Davies, spoke to the personal history of the
pursuer, including academic qualifications and the work done, and gave his opinion on the
probabilities of other career moves had it not been for the pattern of abuse and other factors.
He gave his calculations of past and future wage loss.
Dr Jane O'Neill
[42]
Dr O'Neill, Consultant Psychiatrist, found the pursuer a difficult historian but said
that he gave consistent evidence about the abuse that he had suffered at St Mark's. The
history he provided of the abuse that he experienced at Fort Augustus Abbey was that it was
emotional and physical but, importantly, that he was able to repel attempts at sexual abuse
due to him being "older and able to push people off". He did not give a history of repeated
rapes at Fort Augustus Abbey. The pursuer advised Dr O'Neill that all of his flashbacks
related to the abuse he had been subjected to by the priest at St Mark's. He recalled the
priest's smell, pompous voice and bushy eyebrows. Any sexual contact triggered flashbacks
to what had happened with the priest.
[43]
The pursuer made no mention to Dr O'Neill of flashbacks relating to Fort Augustus
Abbey. Dr O'Neill's report proceeded on the basis that the pursuer had not been subjected
to repeated rapes at that school. This was an important difference between her opinion and
those of the defender's psychiatric experts, Dr de Taranto and Professor Fahy.
15
[44]
The pursuer's age at the time of the abuse at St Mark's meant that he had no means
of escape. He tried telling people, including his mother, to no avail. The biggest factor in his
CPTSD, albeit there were other contributing factors, was the abuse at St Mark's. This was
due to his young age and the fact that the abuse involved repeated penetrative sex at the
hands of a person in a position of trust. Absent the abuse, he would have done better at
school. In addition to his diagnosis of CPTSD, he struggles to function and has feelings of
worthlessness and low self-esteem. He is a bright individual but in employment he comes
into conflict. He is also anti-authoritarian.
[45]
Dr O'Neill's view is that apportionment of the abuse suffered by the pursuer is
difficult because of the limit of knowledge and the differing accounts. However, it was
multifactorial. Dr O'Neill would not ascribe a percentage to the periods of abuse at
St Mark's and Fort Augustus Abbey.
[46]
The pursuer is intellectually bright but his inability to get on with people is what
holds him back. He is unlikely to return to work as a nurse but could perhaps manage some
voluntary work. His career trajectory was short-term working where he regularly came into
conflict with others. He is very damaged and will struggle due to issues in his life.
[47]
Dr O'Neill acknowledged that it is very common for victims of childhood sexual
abuse to delay reporting. The "c" part of CPTSD is the personality. This can be damaged in
many ways. He bigs himself up a lot in terms of his own achievements and brings in lots of
irrelevancies all as part of his condition. If he was raped at Fort Augustus Abbey, then this
would be factor but it may have been a one-off. He told Dr Baker about rape at that school
but he provided no detail of repeated rape. Dr O'Neill remained of the opinion that the
pursuer's symptoms are mainly related to St Mark's. The other issues were all taken into
account and factored into her opinion.
16
Dr Alison Harper
[48]
Dr Harper is a Chartered Clinical Psychologist. She gave three reports on
assessments of the pursuer which she had carried out. He told her that the abuse at
St Mark's was the most damaging to him as it involved penetrative sexual contact. Whilst
the abuse at Fort Augustus Abbey and other factors have cumulatively had an impact,
Dr Harper considered that the vast majority of psychological damage to the pursuer (75%)
has been caused by the sexual abuse at St Mark's. That abuse set the pursuer off in the
wrong direction. He had very little, if any, positive experience since that time. The abuse
which he suffered has damaged him to the core and the very foundations of his self. Those
having suffered childhood sexual abuse, and particularly penetrative abuse, are much more
likely to develop CPTSD.
[49]
Dr Harper expressed certain concerns about the article by Cutjar, Mullen et al, titled
Psychopathology in a large cohort of sexually abused children followed up to 43 years, in the journal
Child Abuse and Neglect No 34 (2010) 813 822, Psychopathology, which was relied upon
by the defender's experts as indicating that abuse of an older child can cause more harm
than abuse of a young child. She criticised the fact that those victims of sexual abuse who
had been examined were not separated out into male and female, and there was no
information provided as to what age they were when abused but only when they reported
the abuse. A large number of survivors only disclose abuse experiences in adulthood.
[50]
Whether sexual abuse occurred at Fort Augustus Abbey or not, the single most
important factor that he was raped repeatedly at a very young age at St Mark's with no
means of escape. People who are damaged can take a very long time before an actual
picture emerges and get extremely confused with remembering what has happened. They
can have many things to get over before they are able to give a clear picture of events. It
17
makes complete sense that his recollection may be more accurate now than ten years ago.
Dr Alasdair Rooney
[51]
Dr Rooney is a Consultant Neuropsychiatrist, whose evidence was agreed to be that
stated in his report. He was instructed to investigate whether the pursuer's cognitive issues
were caused by head injuries sustained during the physical abuse at Fort Augustus Abbey.
His conclusion was that the pursuer suffered from a Functional Cognitive Disorder. The
cause was "a combination of factors including anxiety, complex PTSD, migraines, and
fatigue".
Dr John Pollock
[52]
Dr Pollock is a Consultant Actuary. He regularly gives pension loss reports for court
actions. He adopted his report and explained the figures on loss of pension. He also
commented on the response from the defender's actuarial expert, Ms Angell, explaining
why he disagreed with her approach, particularly in relation to calculating the effects of
investment for the purpose of determining what interest should be applied on solatium.
Witnesses for the defender
Mr Keith Frost
[53]
Mr Frost, a vocational expert for the defender, gave evidence. He did not have the
benefit of an interview with the pursuer. Had he been given that opportunity, there were
further questions he would have asked of the pursuer. Mr Frost could not agree with the
career paths for the pursuer suggested by Mr Davies because Mr Frost had no information
about the pursuer's academic ability. He considered that the pursuer achieved an above
18
average level academically, even though he appeared only to be of average ability. For Mr
Frost, if the pursuer was able to work, the most likely earning model was that he would
simply continue in nursing.
Dr Melanie Baker
[54]
Dr Baker is a Consultant Forensic Psychiatrist. She examined the pursuer in January
2015 for the purposes of assessing his fitness to give evidence at the criminal trial. Dr Baker
noted that the pursuer's mother abandoned him to the care of his maternal grandmother for
a period. His father was unreliable. She noted that the pursuer was emotionally and
sexually abused at St Mark's, including being kissed and subjected to digital penetration.
She records that while at Fort Augustus Abbey he was emotionally, physically and sexually
abused by the monks. This included repeated rape and physical abuse, resulting in injuries.
She formed the opinion that the PTSD course was chronic and there was evidence of
enduring personality change. While he was at times distressed when recounting his history,
she felt he was a reliable historian. Dr Baker rejected the pursuer's evidence that she had
been very upset and crying during her interview of him.
[55]
When taken to other medical reports and police statements, she accepted that she
wasn't sure that the pursuer had told her about rapes at Fort Augustus Abbey. However,
she records accurately what she is told and felt that what she had noted about the pursuer's
comments was unlikely to be wrong.
Dr de Taranto
[56]
Dr de Taranto is a Consultant Psychiatrist. She mentioned difficulties of her
interview with the pursuer, who had been abusive and controlling towards her from the
19
start of the process. She took some time to calm down after the interview. Dr de Taranto
found the pursuer "very difficult to understand". She said that whilst the estimation of the
contribution of the various factors to the pursuer's overall condition was not scientifically
precise, the exercise she and Professor Fahy undertook was reasonable. She described the
significance of the fact that the pursuer felt trapped at Fort Augustus Abbey for a
considerable period. Indeed, he described to the police that he contemplated suicide at that
school. Dr de Taranto did not think it essential for the court to find that there had been
multiple rapes to explain the significance of the pursuer's experiences at Fort Augustus
Abbey in the overall picture of causation. She thought that the abuse at Fort Augustus
Abbey and the abuse at St Mark's have been of equal contribution to the pursuer's
condition, given his description of how the abuse at Fort Augustus Abbey had affected him
and his description of that abuse to the police. She thought that he would have stopped
working by 2013 or 2014 due to the effects of the Fort Augustus Abbey abuse alone.
[57]
Dr de Taranto explained why abuse as a teenager could be more harmful than abuse
perpetrated against a very young child, and indeed this was her experience in her clinical
practice. The Cutjar study (in the article mentioned above) simply confirmed the findings of
smaller studies. The pursuer has had difficulties with work due to his preoccupation with
asserting control over things. Being trapped and unable to get away is an exacerbating
factor in sexual abuse. It was put to her that a person in the pursuer's position, trying to
find pieces for two different jigsaws, might find a piece and put it in the wrong jigsaw. She
accepted that can happen but it was not likely here when the abuse occurred at different
times and the pursuer was less likely to get them mixed up. He demonstrated above
average intelligence by virtue of becoming a nurse and gaining entry to university. It is very
unlikely that he will work again.
20
Professor Fahy
[58]
Professor Fahy is a Forensic Psychiatrist. He noted that whilst the pursuer had
focused his symptoms on the earlier abuse, his narrative has changed over time (in that his
original focus was on Fort Augustus Abbey). Thus, Professor Fahy did not find the
pursuer's own subjective attribution of causal potency a persuasive point. Professor Fahy
said in evidence that the Cutjar study showed that children who were abused at an older age
either had no difference in their outcome as compared to those abused at a younger age, or a
worse outcome. This was supported by his clinical experience. Professor Fahy also reported
that there was no scientific evidence that being abused at a younger age produced a worse
outcome.
[59]
Professor Fahy gave evidence as to how, after 2013 and the injury by the horse, the
pursuer began to display symptoms of CPTSD, but that this seemed to also be in reaction to
the press reporting of the abuse at Fort Augustus Abbey. Professor Fahy noted that the
pursuer's initial deterioration seemed to be because of what had happened to him at Fort
Augustus Abbey and that this in itself would have been sufficient to cause long-term
impairment of functioning. Whilst the pursuer might have held onto his employment for a
little longer had it not been for St Mark's as well, he thought that things would have
progressed the way they did anyway.
[60]
In cross-examination, Professor Fahy rejected the suggestion that, if the 35%-40% of
the pursuer's difficulties which he attributed to St Mark's had been taken out of the
assessment, then it could he said that the pursuer would have maintained a "pretty normal"
career. Professor Fahy described the pursuer's problems as "multifactorial" childhood
abuse, neglect, assault, frequent problems at work, then complex health problems coupled
21
with financial and accommodation problems. Professor Fahy again mentioned how the
pursuer's account has changed.
Ms Angell
[61]
Ms Angell, a Consultant Actuary, gave evidence to the effect that if it were to be
assumed that the pursuer would have invested his solatium award in one year GILTS, then
the interest rate set out in JM v Fife Council 2009 SC 163 would be excessive. However, she
accepted that if any other investment was assumed (particularly investment in equities or
buying a house) then the same argument could not be maintained. She also accepted that
one year GILTS was one of the lowest returning investment of all the options available.
Submissions for the pursuer
[62]
While there are other factors that have contributed to the pursuer's mental health
problems, including a subsequent period of physical and sexual abuse at Fort Augustus
Abbey, the single biggest contributor to his CPTSD is the child sexual abuse suffered at
St Mark's. Penetrative sexual abuse is the most severe form of childhood abuse and
repeated abuse is more damaging than one-off abuse.
[63]
Despite his CPTSD, the pursuer was able to qualify as a nurse and work at various
hospitals over a period of years. As a result of his CPTSD he is no longer able to work as a
nurse and is unlikely ever to do so again. If the abuse at St Mark's hadn't happened, the
pursuer would have been able to work relatively normally as a nurse (or similar), albeit with
some periods out of work.
[64]
Victims of child sexual abuse have poorer vocational and academic attainment than
average. Those suffering with psychological issues or PTSD and CPTSD also generally have
22
poorer vocational attainment than average. Having suffered serious child sexual abuse, that
would have made the pursuer more vulnerable to subsequent stressors, including further
child sexual abuse.
[65]
As a consequence, the pursuer suffered lifelong psychological problems, particularly
prominent since about 2012. He has suffered CPTSD since at least that year because of child
sexual abuse. Those psychological problems would probably have impacted adversely on
his educational attainment. Notwithstanding those problems, the pursuer has above
average qualifications. He is of above average intelligence. The psychological problems
caused by his child sexual abuse have probably impacted adversely on his career, in
particular on his interpersonal relationships with work colleagues. These problems would
also have made him more vulnerable and less able to cope with the vicissitudes of working
life. Having to relive abusive events through police statements, court appearances and
medico-legal reports would itself be traumatising.
[66]
The pursuer has an abnormally poor working history and the psychological issues
have played a significant part. Notwithstanding those issues, he has been able to have
periods of employment, sometimes in stressful and demanding positions, but they have
prevented him from working at all since about 2012. He is unlikely ever to work again.
Even if he did return to work in a less demanding capacity, he would still suffer from
episodic difficulties in the future.
[67]
The weight of the evidence was that there was at most one incident of very brief anal
penetration at Fort Augustus Abbey. Even then, the pursuer was able to escape it, unlike the
repeated anal penetrations suffered at the hands of the priest at St Mark's. The pursuer
denied that even this incident at Fort Augustus Abbey occurred and said that he had
confused this with his experiences at the hands of the priest.
23
[68]
There were various problems with the expert evidence for the defender. A criticism
common to all of the defender's experts is that they were prone to attempt to usurp the
function of the court.
[69]
In relation to the pursuer's evidence, unsurprisingly, there were numerous internal
and external inconsistencies. He accepted that some of his previous statements were
unreliable because of his mental ill health. Although his evidence was clearly unreliable in a
number of respects, the core allegations made by him are not disputed. As regards
credibility, there was no reason for him to downplay the abuse suffered by him at Fort
Augustus Abbey when undergoing medico-legal examination, as at those points he was still
claiming against Fort Augustus Abbey. It is also significant that when giving evidence the
pursuer was able to speak to his experiences at Fort Augustus Abbey without evident
distress. That can be contrasted with his distress when giving evidence, albeit briefly, in
relation to his abuse at St Mark's. His friend who gave evidence, Ms M, spoke to his mental
condition and pre-occupation with the abuse by the priest at St Mark's.
[70]
The evidence of Dr O'Neill and Dr Harper, to the extent that it differs from that of
Dr de Taranto and Professor Fahy, should be preferred. Dr de Taranto accepted that she
would not normally give a percentage in other cases and if she did give a percentage it
would usually be a range. Although Dr de Taranto (and Professor Fahy) purported to rely
on the Cutjar study, this article was not referenced in either of their reports and did not form
part of the discussion at the joint meeting of experts. Further, it was not put to Dr O'Neill in
evidence. Dr Harper was able to comment on it and found certain difficulties with its
approach. In the present case, there was no doubt that the pursuer was aware at the time
that what was happening at St Mark's was wrong. Furthermore, the experts all agreed that
abuse from which it was impossible to escape would be more traumatising. That would
24
apply more to the abuse by the priest at St Mark's than events at Fort Augustus Abbey.
[71]
Dr Baker ultimately accepted that she wasn't sure that the pursuer had told her of
repeated rapes at Fort Augustus Abbey. She was not able to explain why the pursuer told
Dr McPherson, three days after seeing her, that he had suffered physical abuse at Fort
Augustus Abbey and made no such reference to repeated rapes. Her evidence on this point
is inconsistent with all of the other evidence in the case.
[72]
Professor Fahy only saw the pursuer once, and that was over four years ago. It was a
peculiarity of his report that whilst accepting the abuse had occurred, Professor Fahy still
felt the need to question the veracity of the pursuer's account of it. As he ultimately
accepted, most of his criticisms were related to the pursuer's delay in reporting, which is a
common feature of such cases and applied equally to his reports of abuse at Fort Augustus
Abbey.
[73]
As to the vocational experts, the evidence of Peter Davies should be preferred over
that of Mr Frost whose evidence was unhelpful, largely because he took it upon himself to
decide matters that are for the court. He relied almost entirely on the report from
Professor Fahy and only referred to the other medical evidence where it concurred with the
Fahy report. This is not the approach of an independent and impartial expert witness.
[74]
Dr Pollock gave unchallenged evidence that any other form of investment would
justify the interest rate adopted in JM v Fife Council. For example, average house prices since
1978 have increased. He also gave unchallenged evidence to the effect that had the pursuer
followed a career in the NHS, whether as a nurse or a scientist, his pension loss would have
been in the region of £500,000. Ms Angell spoke about investing in GILTS but there was no
evidence from a financial adviser as to whether her starting assumption was valid. It is not
clear why the court should only accept one form of investment as the appropriate starting
25
point in assessing interest. A pursuer who is awarded solatium has unfettered discretion as
to how to spend or invest it. The fact is that he has been deprived of that capital for all of his
adult life. He could have spent it on travel or some other lifetime experience that cannot be
valued in economic terms.
[75]
The appropriate approach in the present case is simply to assess the full loss and
then discount it for factors over and above the abuse by the priest. This necessarily involves
the wielding of a broad judicial axe: A v Glasgow City Council 2021 SLT 1577; FZO v Adams
Province of the Congregation of Christian Brothers [2022] SC EDIN 7.
[76]
On the basis of the case law on solatium, particularly JM v Fife Council, and the
Judicial College Guidelines (which must be treated with great caution as general damages
for abuse case are assessed differently in England) the award for solatium should be £150,000
with £90,000 to the past. Of the past solatium, £60,000 should be apportioned to the period of
abuse and £30,000 from the end of abuse, which is 31 August 1978. Interest should be
awarded in the normal way, in accordance with the guidance provided by the Inner House
in JM v Fife Council.
[77]
In relation to loss of earnings, on the basis of the updated report from Peter Davies,
the total is £921,025 to date. That sum needs to be discounted for the damage sustained
elsewhere. 25% would be an appropriate discount. In relation to the future, it is clear that
the pursuer is not going to work again. The multiplier is 10.03 to the age of 67 (full
multiplier at current discount rate of 0.5% is 13.88; the discount factor is 0.77). The
multiplicand is £41,044. This gives a total of £411,672. Again, a further discount is required
and it would be logical to apply the same rate of 25%. If the pursuer's working career had
all been in nursing, the total figure would have been approximately £1,000,000, again
26
discounted by 25%. On pension loss, according to the Dr Pollock the top level figure is
approximately £500,000. Using the same discount rate of 25% gives a total of £375,000.
[78]
There is no dispute that the pursuer requires extensive psychological treatment.
There was agreement that he would need at least 18 months of weekly sessions at about £200
per session, leading to £15,600.
Submissions for the defender
[79]
While it is acknowledged that the pursuer was subject to serious childhood sexual
abuse at St Mark's and he has developed CPTSD, numerous other adverse life experiences
have contributed to the development of the pursuer's CPTSD including, but not limited to, a
serious abduction and sexual assault perpetrated by an older girl whilst he was a child, the
serious and sustained physical, sexual and emotional abuse whilst he was a pupil at Fort
Augustus Abbey and several assaults by his stepfather and others.
[80]
The pursuer's credibility and reliability is at the heart of this case. He was wholly
incredible and unreliable. The evidence confirms he is grandiose and narcissistic. The court
cannot rely upon the pursuer's subjective assessment of the root cause of his ongoing
interpersonal issues, or the vocational impact he asserts was caused by his experiences at
St Mark's. As a witness he was hostile, evasive and untruthful. He had behaved in a similar
fashion towards Dr de Taranto, who described his aggression and hostility from the very
start of her interview. In addition, as well as being untruthful, it is clear that in general,
when recounting the various episodes of abuse and the life events which have affected his
psychiatric health, the pursuer gives the version of events which most suits his purposes at
the particular time.
27
[81]
He clearly sought to minimise the effects of other events in his life which had a
bearing on his prospects of recovering damages from this defender. The child sexual abuse
at St Mark's and the abuse perpetrated at Fort Augustus Abbey are the most significant
contributors to the pursuer's CPTSD and they are of equal causal significance, a reasonable
estimate of the causal potency of each being 35% 40%, respectively. The other life adverse
life events suffered by the pursuer can be said to have been of lesser causal significance and
in total their causal effect in contributing to the harm sustained can be assessed at around
20% 30%.
[82]
Even if he had not sustained the abuse at St Mark's school, the serious and sustained
sexual and other abuse at Fort Augustus Abbey would have rendered the pursuer unable to
work within around a year to two years of him first disclosing this abuse, that is by around
the end of 2014 at the latest. Due to the other life events suffered by the pursuer, his
inconsistencies both in evidence and to the experts in this case as to what he may have done
had he not suffered the abuse at St Mark's, and his varied reports over the successes in his
careers and the reasons for not continuing in the various jobs he has held, it is not possible
on the balance of probabilities to say what he would have done in terms of his work up until
2014, when the abuse at Fort Augustus Abbey would have rendered him unfit to work in
any event.
[83]
It is not a difficult exercise to separate out the causative effects of the three main
factors at play in the pursuer's poor mental health. The defender does not seek to minimise
the severity of the abuse at St Mark's. However, so too was the abuse at Fort Augustus
Abbey which was much longer than the period over which the abuse at St Mark's occurred,
and significantly it took place when the pursuer was a teenager. Reference is made to the
evidence of Professor Fahy, Dr de Taranto and to the article by Cutjar, Mullen et al.
28
[84]
The allocation of causative potency between each of the three elements contributing
to the pursuer's condition as carried out by the medical experts for the defender was both
sensible, in accordance with the common sense approach identified as appropriate to such
issues in the case law, and moderate.
[85]
The pursuer's contention that St Mark's contributed 75% to the causes of harm to the
pursuer is a material and serious underestimation of the causative potency of the pursuer's
other life events, including the abuse at Fort Augustus Abbey. The only basis for the
suggestion came from Dr Alison Harper, but, as she conceded in her evidence, she had not
taken account of what had happened at Fort Augustus Abbey given the pursuer failed to
mention abuse there. The agreed records contain ample evidence of prolonged sexual abuse
at Fort Augustus Abbey, with at least one penetrative rape. Also, the pursuer spoke of
multiple rapes there to Dr Baker, who examined him in January 2015 for the purposes of
assessing his fitness to give evidence at the criminal trial.
[86]
The defender's medical experts should be preferred. The pursuer would have been
in the same position in any event due to the abuse at Fort Augustus Abbey. The firm
evidence of Dr de Taranto and Professor Fahy was to this effect.
[87]
Whilst the pursuer's advisers seek to criticise Mr Frost, the defender suggests that it
was Mr Davies who ought to attract criticism. He was in danger of becoming an advocate
for the pursuer and strayed into taking a view of matters that was overly favourable to the
pursuer.
[88]
On solatium, the events at St Mark's do not fall into the severe category used in the
Judicial College Guidelines for the purpose of identifying an appropriate award, because
that has to have occurred over a "prolonged"' period in that "severe" category. Solatium in
this case can be quantified at £110,000, with 50% to the past.
29
[89]
As to past wage loss, the defender's primary position is that there ought not to be an
award, because on the pursuer's own evidence any lack of academic achievement that there
may have been, and thus any corresponding degree of professional underachievement, is
wholly the result of what occurred at Fort Augustus Abbey and not anything that happened
at St Mark's. This factor, taken with the multiple other life problems which the pursuer
sustained, means that there ought not to be any award for past wage loss.
[90]
Even if the court was minded to award past wage loss on a more generous basis, in
any event, past wage loss stops at the very latest two years after the pursuer first disclosed
the abuse at Fort Augustus Abbey. If the court is minded to make such an award, and
bearing in mind that it is agreed that the pursuer has actually earned £251,808 over his
lifetime, an award of £61,500 (1.5 x one year's net earnings as a nurse), would be fair.
[91]
On future wage loss, the defender's primary position is that there is none because,
even absent the abuse at St Mark's, the causative effect of Fort Augustus Abbey would have
become operative by around the end of 2014 in any event. If the court is not with the
defender on that then future wage loss cannot ever be calculated on the basis of anything
other than a modest lump sum. The multiple other events in the pursuer's life render it
impossible to say to any extent what may or may not have happened in the pursuer's
nursing career. In the whole circumstances, an award of £125,000 to the future,
incorporating an element of pension loss, would be more than generous on the evidence.
[92]
Whilst the pursuer claims the cost of treatment at £15,600 it is unclear whether the
pursuer will actually undergo such treatment given his reluctance to do so to date and his
decision not to undergo certain therapies which may have assisted him in the past. This
head of loss should be discounted appropriately to £10,000.
[93]
In relation to interest, the court ought to exercise its discretion in terms of the Interest
30
on Damages (Scotland) Act 1958 and award interest only for two limited periods. Should
interest be awarded for any period prior to the enactment of the 2017 Act, it should be at a
simple rate of 1.31% p.a. from the date the alleged abuse ceased.
Decision and reasons
[94]
Parties were agreed on the legal principles established in a series of English cases as
to causation, where the injury suffered can properly be regarded as attributable to more than
one cause. This approach should also be applied in Scots law and can be summarised as
follows. The onus of proof is on the pursuer and he will succeed if he can prove that the
delictual acts made a material contribution to his disability. However, if it is raised in
evidence that factors other than those for which the defender is liable contributed to the
injury, the defender is only liable for the relevant proportion which the delictual acts made.
This was applied in Holtby v Brigham & Cowan (Hull) Ltd 2000] ICR 1086 in which asbestosis
was regarded as a divisible disease, which is clear given that various exposures to asbestos
in different jobs will contribute to the severity of the eventual disease. Other illustrations of
taking this approach where the injury is divisible (that is, mutifactorial) include Hatton v
Sutherland [2002] ICLR 613 and BAE Systems (Operations) Limited v Konczac ICR 1.
[95]
The diagnosed form of psychiatric injury suffered by the pursuer is CPTSD, which as
the experts and parties agreed is multifactorial. It is therefore a divisible injury and it is for
the court to assess the levels of contribution to this injury by the three main causes: the abuse
at St Mark's; the abuse at Fort Augustus Abbey; and the various other adverse factors.
31
Assessment of the evidence
The pursuer
[96]
It is undoubtedly correct that there are significant problems with the evidence given
by the pursuer. On various occasions he did not accept that what he had said, for example
to the police, was in fact correct. He tried to give reasons for the discrepancies, such as
saying that on one occasion he was in a police interview room and "it came out all wrong".
He gave details to the police about being attacked, abducted and savagely assaulted by a girl
saying that she was absolutely brutal to him. However, in cross-examination he played this
down quite significantly. He mentioned it to Dr de Taranto but said it was not traumatic. It
was not mentioned to Dr Harper. He said in evidence that what he had earlier stated about
there being penetrative sexual assault (rape) at Fort Augustus Abbey had not in fact
happened. His position was that, having given specific details about events in Fort
Augustus Abbey to the police, he was actually giving an account of the abuse suffered at
St Mark's.
[97]
The experts for the pursuer said that recall of memory could be disrupted where
there had been abuse of the kind in this case. However, both Dr de Taranto and
Professor Fahy were of the view that there was no clinical explanation for this apparent
conflation of the two episodes of abuse. As was said by Professor Fahy, and largely
accepted by the other experts, when trying to gauge the attribution of harm to each of the
events the pursuer was subjected to, it does not help that he has given different accounts
over time. There were further discrepancies on other matters between what was said in
statements or discussions with experts and what he said in evidence. For example, how he
performed at school, how his quality of life was before 2012/2013, why he was not successful
in his working career and the extent to which he had been able to form relationships.
32
[98]
In assessing the pursuer's position that the vast majority of his current mental health
state, and the consequences therefrom, was caused by the abuse at St Mark's, there is, as a
result of the discrepancies he gave, real difficulty in drawing that conclusion from his
evidence alone. But a key issue is the comparison with the nature, extent and effects of the
abuse at Fort Augustus Abbey. While I accept that the pursuer has at times in the past given
an explanation that involved either multiple rapes or at least one rape occurring there, the
majority of the evidence supports the view that the abuse was less serious than the multiple
rapes and other sexual abuse suffered at St Mark's. As I have noted earlier, the priest at
St Mark's was convicted of anally raping the pursuer on various occasions. That jury
decision, reached beyond reasonable doubt, is convincing evidence. No similar evidence
was led of any conviction of those who abused the pursuer at Fort Augustus Abbey. At
least one of them was arrested and charged with certain offences on various pupils, but
there appears to have been no charge of rape of the pursuer. There may be reasons for that
but on the evidence it fits with the view that the abuse at St Mark's was at a greater level of
culpability and harm.
[99]
While perhaps not of particular significance in relation to assessing credibility and
reliability, it is clear that when this case started the pursuer was suing for both sets of abuse
at the different schools. The pursuer's averments in relation to Fort Augustus Abbey,
undoubtedly drawn at least in part from the account he gave to his solicitors, and also no
doubt approved by him, explain quite detailed abuse including an attempted rape. That is
his pleaded position, notwithstanding that at the time of bringing this action there is no
suggestion that he would have expected those responsible for Fort Augustus Abbey not to
be able to pay him the full amount of compensation for those events. In other words, had
there been a basis for alleging multiple actual rapes and obtaining substantial damages, one
33
would expect that to have been pled. I conclude that there was either an attempted rape or
possibly anal penetration at Fort Augustus Abbey, but not on a repeated basis.
Other factual evidence
[100]
The evidence of Ms M is of some relevance in reinforcing what others said about the
personality issues of the pursuer and provides some assistance in relation to how he
behaved in court and at the times of being interviewed, in particular when he was with
experts for the defender. Archbishop Nolan explained how priests should operate when
working in a school. While of broad assistance on certain contextual points, nothing in the
evidence of these witnesses has any material significance to the central issues in this case.
Medical experts
[101]
In assessing the quality and importance of the evidence of the expert medical
witnesses, one has to have regard to the numerous difficulties they faced, and indeed
commented upon, in reaching a true conclusion derived from the pursuer's evidence. Each
expert gave their evidence based on the information put before them, with the factual
content about the abuse taken largely if not entirely from the pursuer.
[102]
Dr de Taranto and Professor Fahy each gave their opinions, relying to some extent on
why abuse as a teenager could be more harmful than abuse perpetrated against a very
young child. However, on my assessment that the abuse at St Mark's was to some extent of
greater force in causing the injuries, I am not able to accept the view of the defender's
experts that the pursuer would have been in exactly the same position in any event due to
the events at Fort Augustus Abbey. Older victims could have more awareness of the
violation than younger ones, but it does seem very clear in this case (in light of the
34
conviction of the priest, based in part on evidence from the pursuer) that the pursuer was
aware at the time of the multiple rapes and other sexual abuse at St Mark's. Indeed, he was
very seriously traumatised by this abuse, which at that age it was impossible for him to
escape from.
[103]
Dr Baker did accept, for entirely understandable reasons, that there may be some
concerns about whether her record of the pursuer stating that there had been multiple rapes
at Fort Augustus Abbey was correct. However, her overall position was that she truthfully
recorded what was said. But when I assess the evidence in its entirety, it is clear that the
vast majority of what the pursuer said to others about Fort Augustus Abbey involved much
lesser forms of assault. Professor Fahy had some concerns with the veracity of the pursuer's
account of the abuse at St Mark's, but the charges in the indictment and the resulting
conviction make the position clear.
[104]
Dr O'Neill's conclusion that the sexual abuse at St Mark's which was severe,
persistent and at an early age was the more significant causative factor in the development
of his CPTSD, is in my opinion correct, but the abuse at Fort Augustus Abbey also played a
part, although in lesser form.
[105]
In relation to Dr O'Neill's opinion that in the absence of the priest's abuse the
pursuer would have been more successful academically and vocationally, there is some
force in that, given the serious nature of the abuse, but the extent to which there would have
been more success was plainly hampered by the other abuse and negative incidents.
[106]
Dr de Taranto and Professor Fahy's conclusion that the abuse at Fort Augustus
Abbey would have resulted in the pursuer not being psychiatrically fit to continue working
after one to two years perhaps has some support, but I am unable to conclude that such a
limited period would have been the actual result.
35
Vocational experts
[107]
As noted above, there were significant differences between the vocational experts,
but as the pursuer's case now proceeds on the basis of him continuing in nursing, the central
issue is the likely duration of that period of employment, had there not been the abuse at
St Mark's. I will return to that point below.
Actuarial experts
[108]
Dr Pollock is a highly experienced actuarial expert and the approach he takes can be
described as standard, proportionate and likely to give the correct results. Ms Angell raised
some interesting points, but in my view where there are differences the evidence of
Dr Pollock is of greater force.
Causation
Apportionment
[109]
One of the key issues in this case is whether the conventional approach to assessing
past and future wage loss should be applied. This would proceed upon the basis of
identifying the nature and income of the job which the pursuer would have undertaken, but
for the St Mark's abuse. For future wage loss, it is well-established that a
multiplier/multiplicand approach is commonly used, assessing the annual income from the
work (the multiplicand) and the period over which it would continue, suitably discounted
(the multiplier). These factors are set out in the Ogden Tables.
[110]
The main alternative approach is explained in Blamire v South Cumbria Health
Authority [1993] PIQR Q1. Where there are imponderables, or uncertainties, which make it
36
not possible to make the findings necessary to support the conventional approach, then the
broad-brush approach of awarding an overall lump sum is taken. In Blamire, the first aspect
was uncertainty as to what the plaintiff would have earned over the course of her working
life if she had not been injured. The second aspect was the uncertainty as to the likely future
pattern of her earnings. The Court of Appeal concluded that the uncertainties were very
great.
[111]
The Blamire approach has been adopted in a number of cases in England and in
Scotland. To be applied, there requires to be no real alternative to doing so, rather than
merely some degree of uncertainty about the loss. By way of a recent illustration, in CAX v
PQR [2024] PIQR Q3 the imponderables or uncertainties were not sufficient. Senior counsel
for the pursuer referred to FZO v Adams in which, despite the presence of certain
imponderables, the judge applied the multiplier/multiplicand approach.
[112]
The present case is very different from, for example, CAX and FZO, each of which
involved abuse by one defendant and where there were no serious issues about the
credibility and reliability of the plaintiffs. The imponderables in this case are substantial and
indeed compelling. For the reasons explained above when assessing the pursuer's evidence,
the court does not have reliable factual material as to the separate levels of contribution to
CPTSD by the abuse at St Mark's, the abuse at Fort Augustus Abbey, and the other adverse
events. The absence of any such reliable factual evidence undermined the experts' analysis,
given the different accounts they obtained from the pursuer and their reliance on those
accounts in reaching their opinions. In those circumstances, it becomes difficult to find
significant force in at least certain aspects of the opinion of any of the experts.
[113]
Moreover, it is also challenging to try to reach a proper and balanced view in relation
to the work the pursuer would have done prior to 2012, and whether that would have been
37
carried through without interruptions, and then the work for the period afterwards, had
there been no abuse at St Mark's. The difficulties in that arithmetical exercise are
compounded by the major disparities between the experts.
[114]
While CPTSD is not used in DSM-V (the American Diagnostic and Statistical Manual of
Mental Disorders, 5
th
ed.) it is referred to in ICD-11 (the World Health Organisation's
International Classification of Diseases and Related Health Problems, Eleventh Revision). It is a
disorder which may develop following exposure to an event, or series of events, of an
extremely threatening or horrific nature, from which escape is difficult or impossible. The
pursuer's condition of CPTSD is accepted by the experts on both sides in this case.
[115]
Intricate problems therefore arise in working out how long, in the past and future,
the pursuer would actually have remained in employment if the abuse at St Mark's had not
occurred, when the other impacting factors did occur. The experts agree that the cause of
his CPTSD is multifactorial, but the most significant contributors are the two periods of
abuse. It is also agreed by the experts that if one or other of these periods of childhood
abuse had not occurred, the pursuer would still have gone on to develop significant
psychiatric problems, including PTSD and personality-related difficulties. Realistically, it is
not possible for the court to accept the submission for the pursuer that but for the abuse at
St Mark's he would have proceeded in work for the whole period in the past and future,
subject to a discount to take account of the other contributing factors (which the pursuer
says should be 25%). Rather, the court is driven to apply the Blamire approach.
[116]
In weighing up the contributions made by abuse at the two schools, one substantial
point in dispute is whether the article by Cutjar, Mullen et al, entitled Psychopathology in a
large cohort of sexually abused children followed up to 43 years, can be taken as establishing that
the fact the abuse occurred during the pursuer's teenage years meant that it was just as
38
damaging as, or even more damaging than, the abuse perpetrated against him in his
younger years. Given the many victims whose conditions were analysed in that
investigation, and the detailed reasons stated by the authors, I am satisfied that this can be a
helpful piece of medical literature. However, it's relevance to this case very much depends
upon the full factual material before the court. It is, in my view, of importance to recognise
that the article notes the greater impact of severe sexual abuse involving actual penetration,
in this case done repeatedly at St Mark's. Also, it is addressing abuse of a large number of
individuals, many of whom did not have abuse from the two separate sources sustained by
the pursuer, firstly when very young at primary school and then starting some six years
later at secondary school. In addition, where it does occur in these separate phases, the
potential contribution of the primary school abuse to the overall impact of the secondary
school abuse may also be a factor to be analysed.
[117]
As I have noted, on a number of matters I am unable to draw obviously accurate or
truthful points from the evidence given by the pursuer. But when the evidence is assessed
in its entirety, it seems to me to quite clearly show, at the very least, lesser degrees of sexual
abuse (even if there was any penetration) at Fort Augustus Abbey. That said, the pursuer's
averments in relation to Fort Augustus Abbey do identify a number of damaging events and
extend over a longer period than the abuse at St Mark's. I therefore conclude that it did
make a reasonably substantial contribution to his psychological injuries, but less than that
caused at St Mark's.
[118]
The pursuer was subjected to other incidents that would have impacted upon his life
and his employment. One involved falling from a horse, in or around late 2012, which
caused an injury to his arm. This appears likely to have restricted his ability to work over
the next few years. There were also various other adverse factors, noted earlier. These other
39
miscellaneous episodes were not as serious as the events at St Mark's or Fort Augustus
Abbey, but they can objectively be viewed as causing fear and alarm and contributing to
psychological damage (as accepted by the experts). The pursuer himself reported certain
events as subjectively terrifying. While I am satisfied that these factors must also have
contributed to his psychological injury and loss, it was in my view clear from the evidence
that these have a much lower impact than the physical and sexual assaults at school, made
by those in a position of trust.
[119]
The view I reach is that, on the balance of probabilities, the abuse at St Mark's can
properly be taken as having contributed approximately 55% to the injury and resultant loss,
with approximately 30% for the abuse at Fort Augustus and approximately 15% for the
other factors. But I do not regard this calculation as being of much value when it comes to
assessing the amount of loss. That is because, as I explain below, ascertaining just how long
the pursuer could properly have worked is very difficult. Accordingly, simply proceeding
on the basis of the calculation of past and future wage loss made by Mr Davies, and then
deducting 45% from his figure, cannot be appropriate when the figure has been obtained by
Mr Davies on the basis of the pursuer working for some 44 years.
Damages
Solatium
[120]
As is made clear in JM v Fife Council (at para [25]), which was also a sexual abuse
case, there can be the following elements on solatium: (i) the pain, affront and humiliation
experienced by the pursuer at the time, and (ii) the emotional and social consequences he
experienced thereafter. It is of importance to note that the Inner House had earlier (at paras
[16]-[17]) endorsed the approach taken by the Lord Ordinary in taking into account the
40
nature, character and severity of the abuse, together with its frequency and duration, the age
of the pursuer at the time and the immediate effects on the pursuer. I have already
explained my decision on how the abuse at St Mark's contributed on these issues. There
was of course no psychiatric illness or psychological condition attributed to the abuse in the
JM case, but in the present case the pursuer has plainly suffered very serious psychological
harm, particularly CPTSD.
[121]
I have also considered the sums awarded in previous sexual abuse actions, but of
course the specific factual matters in each case are of particular significance. Taking all of
the factors in this case and the authorities into account, the award of solatium against this
defender is £135,000, with £80,000 to the past. From that past solatium, £55,000 is
apportioned to the pain, affront and humiliation in the period of abuse at St Mark's and
£25,000 to the emotional and social consequences experienced thereafter.
Consequential loss
[122]
The evidence of the vocational and actuarial experts for each side leads in different
directions and gives rise to seriously conflicting outcomes on the values to be awarded. This
again largely arises in the context of factual evidence about the impact of these events which
comes more or less entirely from the pursuer and has significant problems on reliability. I
should make it clear that I am not suggesting that the pursuer's evidence was not credible,
in the sense that it included deliberate untruths; rather, it is the unreliability of his evidence
that is important. Of course, the reasons for the difficulties with the pursuer's evidence may
of themselves have been caused, or at least contributed to, by the abuse and other matters he
suffered, but those causes merely explain a potential basis for the unreliability.
41
[123]
As noted earlier, it is simply not possible in this case to arrive at a clear arithmetical
outcome based on the multiplier/multiplicand approach. Considering the overall effect of
the various elements, I conclude that both the past and future work of the pursuer have
clearly been affected by the St Mark's abuse. My calculation of his overall loss must of
course have regard to the fact that his major psychiatric problem, CPTSD, cannot be
assigned only to the St Mark's abuse. On the other hand, I am unable to find that the other
factors, including the abuse at Fort Augustus Abbey, would have resulted in the same past
and future wage loss that he has experienced. But also, given the imponderables, I cannot
conclude that he would have gone on working from about 1994 without any difficulties and
then until he was aged 67 (in 2038) if the St Mark's abuse had not happened.
[124]
In short, the view I reach is that he would have had, to a limited extent, a more
productive and less interrupted career, likely to be in nursing, but with some quite serious
difficulties arising from the other factors. Moreover, after the diagnosis of CPTSD, the focus
at the time was on the Fort Augustus Abbey abuse and it has not been established that
CPTSD would not have happened if there had been no abuse at St Mark's. The pursuer is,
on the balance of probability, unlikely to have continued to work for a very substantial
period after 2012. His arm injury caused by the incident with the horse adds a little to the
problems. In the circumstances, the precise duration of his working life is not possible to
quantify.
[125]
As noted, the pursuer's submissions proceed on the basis that the pursuer would
have worked, at the very least as a nurse, from 1994 until the age of 67 in 2038, which means
for some 44 years. The defender argues that the pursuer would have had hardly any further
work after 2012. I reject each side's position. The amount of work he did perform after
leaving school, albeit also affected by his attendance at university and college, was
42
interrupted because of his psychiatric issues arising from the abuse and the adverse
experiences. If St Mark's is taken off the equation he would not have had so many
interruptions, but would undoubtedly still have had some caused by the other issues. It is
quite clear, including from parts of his own evidence and what he said to others, that the
abuse at Fort Augustus Abbey had a serious impact on him and would continue to do so
during his working career. After 2012, he would not, in my view, have been at all capable of
working for the remaining 26 years in full, if the abuse at St Mark's had not happened. He
may well have managed to do more work, perhaps for say ten years or so and probably with
gaps, but when and at what rate cannot be determined and so again it is not possible to
reach any accurate arithmetical figure.
[126]
I therefore conclude, taking the Blamire approach, that the pursuer should be
awarded, in total, for loss of earnings, past and future, the sum of £350,000. For the
avoidance of any doubt, this is not the overall loss of earnings caused by the various factors,
but only the degree of loss which I estimate was caused by the abuse at St Mark's. The
calculation of wage loss at £350,000 does not conflict strongly with the position I would have
reached had it been necessary to decide, on the limited information, how many years the
pursuer would have worked for after 2012 and what lesser interruption there would have
been to his work before 2012.
[127]
On pension loss, the pursuer submits, in reliance on Dr Pollock, that the top-level
figure is approximately £500,000. In considering that calculation, again I require to take into
account the imponderable factors and their impact on the pursuer's assessment of wage loss.
Having regard to the more limited period of work the pursuer would have engaged in both
prior to and after 2012, in my view the pension loss should come down to £130,000.
[128]
On the matter of psychological treatment, on balance the view I have reached is that
43
the appropriate costs would be £12,000.
[129]
This gives rise to a total award in damages of £627,000. However, further questions
arise as to what interest is to be added to the solatium element. In addition, payments have
already been made by the current defender and other defenders.
Interest
[130]
The parties differ as to the appropriate approach to be taken to calculating interest.
The pursuer submits that the court should follow the guidance of the Inner House in JM v
Fife Council, and to leave it to parties to see if the level of interest can be agreed, the defender
contends that the court ought to exercise its discretion in terms of the Interest on Damages
(Scotland) Act 1958 and award interest only for two distinct periods: (i) the period between
the abuse and the pursuer's 19th birthday; and (ii) the period from the coming into force of
the Limitation (Childhood Abuse) (Scotland) Act 2017 and the start of the proof. Should
interest be awarded for any period prior to the enactment of the 2017 Act, the position for
the defender is that it should be at a simple rate of 1.31% p.a. from the date the alleged
abuse ceased.
[131]
The 1958 Act requires the court to award interest on damages for solatium, but the
court has a wide discretion in terms of the rate of interest to be applied and the period over
which such interest accrues: Farstad Supply v Enviroco Ltd 2012 SLT 348, at para [20]; JM v Fife
Council, at para [26]. The first point made for the defender, that the court should award
interest only for the two distinct periods, is not in my view well-founded. In essence, it
argues that but for the 2017 Act, the claim could not have been made as a result of the three-
year limitation period. This argument, if accepted, would result in interest in solatium in
historical sexual abuse cases to be radically reduced, which would interfere with the wide
44
discretion of the court. There are also observations in JM v Fife Council (at paras [27] and
[38]) which show that an inordinate delay in prosecuting an action should not of itself result
in a pursuer being deprived of interest to which he was otherwise entitled. The approach to
interest taken in JM v Fife Council is, in my view, more pragmatic and rational. Put broadly,
the approach is that interest on the element of solatium comprising the pain, affront and
humiliation experienced by the pursuer at the time was one-half of the judicial rate at the
relevant times and the element for the emotional and social consequences he experienced
thereafter was one-quarter of the judicial rate.
[132]
In reaching that view, the Inner House noted that the effects of past inflation are
taken into account in making the award of the capital sum on solatium in terms of current
money's worth, and so interest should not also be allowed to the extent of that element of
the judicial rate which may be said to represent protection against inflation. The court
observed that no doubt some assessment could be attempted as to what proportion of the
judicial interest rates over the previous decades could be said to have been attributable to
the inflationary element, but that had not been done in that case.
[133]
In the present case, the defenders argue that their expert, Ms Angell, had made such
an assessment and that her approach should be applied. On that basis, the rate of interest
was said to be 1.31% rather than the judicial rate of interest of 8%, to be applied to 50% of the
award of solatium. It is important to note that Ms Angell's approach proceeded on the basis
of how much an investment of the amount awarded in solatium, if made at the time and
consistently in one year GILTS, would have increased.
[134]
Dr Pollock disagreed with Ms Angell's approach. He considered other options for
investment and concluded that these would justify the rates applied in JM v Fife Council. By
45
way of example, looking at average house prices, these had increased from £15,192 at the
time of the abuse at St Mark's to £265,012.
[135]
I am not persuaded that applying one specific and somewhat limited approach to
assessing interest rates is appropriate. Equally, it would go too far to assume an investment
of a highly volatile kind, but which resulted in very substantial gains. The more sensible
approach is to look at straightforward forms of investment or price increases, as Dr Pollock
did, and consider whether these would undermine the court figures used for interest. They
do not. I therefore reach the view that precisely the same approach as that taken in JM v Fife
Council should be applied here.
[136]
There are, however, certain further complications. The first is that, in relation to the
abuse at Fort Augustus Abbey, the pursuer has received payment of £50,000 from the former
fourth and fifth defenders. The settlement with the fourth and fifth defenders took place on
3 July 2023. In my opinion, based on all of the evidence before the court, the appropriate
sum for solatium due from the fourth and fifth defenders would have been at least the
amount paid, if not greater. This payment has no effect on the awards made against the
present defender, which are about solatium for the abuse at St Mark's and the consequential
losses arising from that abuse, rather than the other abuse. The second point is that the
pursuer has already received the sum of £153,749.67 in respect of the abuse perpetrated at
St Mark's. That figure comprises £78,749.67 paid from the priest's estate on 15 February
2023 and voluntary interim payments totalling £75,000 paid by the current defender. These
payments are relevant both to the interest and to the overall damages.
[137]
In the absence of information about the dates of payment, the court is not able to
reach a final conclusion on interest at this juncture. Parties can discuss the calculation of
interest and seek to agree on it. If agreement cannot be reached then the court will seek
46
written submissions from the parties and reach a final view on interest. My preliminary
views at this point can be summarised as follows. Applying the broad-brush approach and
using the figures I have arrived at for solatium and consequential loss, the payments already
made by the defender can be taken to comprise 27% for solatium and 63% for consequential
loss. Thus, when calculating interest, 27% of each sum can be deducted from the solatium
award at the time when the sum was paid and the whole amounts paid should be deducted
from the award at the date of decree. The pursuer would therefore be entitled to the
following: interest on the sum of £55,000 from 31 August 1978 until the date of payment of
the sum received from a defender, at the rate of four per cent per annum; thereafter, interest
on the sum of £55,000 minus 27% of that payment, at the rate of 4% per annum until the
payment from the next defender; thereafter, interest on the remaining amount at the rate of
4% per annum until decree; interest on the sum of £25,000 from 31 August 1978 until decree
at the rate of two per cent per annum, again with the sum reduced by 27% of each of the
above payments at the times made. Put very broadly, the interest rate runs from 31 August
1978, but with some reductions in the amount to which the rate is to be applied over the last
couple of years.
[138]
On consequential loss, the amount due is £492,000. Adding the solatium amount of
£135,000, and leaving aside at this stage the interest to be paid, the total sum is £627,000, but
subject to the reduction of £153,749.67, which was paid. The defender is therefore found
liable to pay £473,250.33 to the pursuer. Interest on that sum, and on the capitalised
amounts of the foregoing interest, will be due at the rate of eight per cent per annum from
the date of decree until payment.
47
Conclusion
[139]
This is a complex case in which there was serious and damaging sexual abuse of the
pursuer when he was very young at primary school. He then suffered further abuse at
secondary school, with sexual elements, and of a physical and emotional nature. That later
abuse lasted longer than the first and may well, based on the medical literature, have had a
profound effect on his life. But the devastating nature of the horrific sexual abuse at
St Mark's when he was a young child was the more prominent cause. That being so, he is
entitled to an appropriate award of damages for that abuse. The impact on the pursuer and
the harm from which he continues to suffer cannot adequately be addressed merely by an
award of damages but it is hoped that, this matter now having been dealt with, the pursuer
can move on with his life.
[140]
On past and future wage loss, a multiplier/multiplicand approach is out of the
question, because of the difficulties with the factual evidence and the various
imponderables. For that reason, an appropriate lump sum has been identified, in total
£627,000, with the payments already made to be deducted and with interest to be applied.
Disposal
[141]
The pursuer has succeeded in his claim, to the extent explained. If parties cannot
agree on the level of interest, then further written submissions should be lodged within
fourteen days from today and the court will then carry out the final calculation on interest.
In the meantime, all questions of expenses are reserved.
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