The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Quantum Judgment: AXB  

26 October 2023

Steyn J handed down a misuse of private information quantum judgment on 6 October 2023 in AXB v Hossam Metwally [2023] EWHC 2470.

The Defendant was a medical doctor who treated AXB in 2013/2014 for back pain at the Lincs Pain Clinic over ten sessions, when she was 18/19 years old. Without AXB’s knowledge or consent, the Defendant covertly recorded her whilst she undressed for and during the appointments. Still photographs had been taken from the video footage including one image edited to show her from the waist up with her breasts and upper body entirely exposed.

AXB was made aware by the Police in February 2020 that the Defendant had recorded, collated and retained intimate personal footage of her. The Defendant was convicted of voyeurism offences in respect of this matter, and sentenced to 6 months’ imprisonment (to run concurrently with a 14 year sentence for other offending). 

AXB’s claim for misuse of personal information arose from her reasonable expectation that the Defendant would uphold her privacy, but that the recording, collation and retention of the footage and images constituted a clear and obvious misuse of that information and amounted to a breach of trust. A default liability judgment was entered when the Defendant failed to acknowledge the claim.

Steyn J heard evidence from the Claimant and considered the expert report which concluded that the Claimant met the criteria for a diagnosis of PTSD, agoraphobia, and depression, and would benefit from psychiatric treatment.

The Claimant was awarded damages of £51,092.05 consisting of general damages of £38,000, £8,942.05 for disadvantage on the open labour market (reflecting 6 months’ net loss of earnings), £3,900 for 26 future psychological treatment sessions, and travel expenses to 10 sessions (£250).

In calculating the general damages, the Court treated the PTSD as the primary injury (assessed as moderate severe), and rather than allow separate amounts for the agoraphobia and depression, took account of them in setting the figure. The Judge declined to make a separate award of aggravated damages instead making a modest uplift to the general damages to reflect the gross breach of trust, and the impact on the Claimant’s ability to trust others.

The Court considered that this case was less serious then FGX v Gaunt [2023] EWHC 419 (£60,000 damages) as that case concerned publication of intimate images on a pornographic website and the PTSD was at the top end of the category due the profound effect.

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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