£25,000 damages awarded in sexting claim

In ABC v West Heath 2000 Ltd & Anor [2015] EWHC 2687 (QB) the High Court awarded damages to the Claimant who, as a 16 year old schoolgirl, had been encouraged to send explicit photographs of herself to her teacher.  18 text messages were exchanged between the pupil and her teacher over the course of a year, with 20 photographs in total being sent to the teacher.

The teacher had pleaded guilty in 2010 to possessing indecent photographs of a child (the Claimant), some of which had been graded at "level five", the most serious level.  He received a three-year community sentence.

The Claimant (23 at the time of the claim) sought damages, inter alia, on the basis that the exchange of explicit images would inevitably cause her psychological harm - and had in fact done so.

The judge, Sir Robert Nelson, agreed with the Claimant that liability was established under the tort of  “intentionally causing physical or psychological harm”, as set out in the 19th century case of Wilkinson v Downton and recently considered by the Supreme Court in Rhodes v OPO [2015] UKSC 32.  He held that the consequences of a teacher encouraging a pupil to supply explicit images were so obvious that “the perpetrator cannot realistically say that the consequences were unintended”.  The Court found that consequential psychological harm had been suffered.

Comment

It is unclear to what extent this case establishes a precedent.

The defendant made a late attempt to introduce the defence of consent, which was not permitted but which would normally be an obstacle in a tortious claim.

"Sexting" was only one part of the claim.  The Court also found the teacher had sexually abused the claimant (awarding at total of £51,370 in damages - £25,000 which related to the "sexting"), although an allegation of rape was not found to be proved.

Of particular interest was the finding that the mental element of Wilkinson v Downton was established with, it seems, recklessness as to an obvious consequence (as opposed to direct intention) being sufficient.

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