Judgments - A (Appellant) v Hoare (Respondent), C (FC) (Appellant) v Middlesbrough Council (Respondents), X (FC) and another (FC) (Appellants) v London Borough of Wandsworth (Respondents) (Conjoined Appeals), H (FC) (Appellant v Suffolk County Council (Respondents),Young (FC) (Appellant) v Catholic Care (Diocese of Leeds) and others (Respondents)

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24.  The matter was considered by the Law Commission as part of a comprehensive review of the law of limitation of actions which was presented to Parliament in 2001: Limitation of Actions (2001) (Law Com No 270). The effect of Stubbings was described as anomalous, with particular reference to S v W (Child Abuse: Damages) [1995] 1 FLR 862: see parapara 1.5 of the Report. The Commission recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person: see the summary at para 1.14. There has not yet been any implementing legislation, possibly because the Commission’s recommendations were not confined to the Stubbings anomaly but proposed a completely new law of limitation of actions.

25.  Lord Reid’s observation [1972] AC 944, 966 that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of Stubbings. Claimants who have suffered sexual abuse but need to seek the discretion of the court under section 33 are driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which can be brought within the language of section 11. Thus, in addition to having to decide whether the claimant was sexually abused, the courts must decide whether this was the result of “systemic negligence” on the part of the abuser’s employer or the negligence of some other person for whom the employer is responsible. In the appeals before the House, the appellants put forward at least four alternative theories of liability on which they wish to rely if the rule in Stubbings is upheld. These are, in increasing degree of artificiality (1) breach of a direct duty of care owed by the employer to the claimant; (2) breach of a duty of care by other employees; (3) breach of a duty of care by the abuser himself and (4) breach of a duty by the abuser to notify the employer of his own wrongful acts. In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, para 100 Auld LJ said that the need to frame a claim in one or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.” I therefore think that it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper [1965] 1 QB 232.

26.  That is sufficient to dispose of all but one of these appeals. In A v Hoare the defendant was convicted in 1989 of an attempted rape of the claimant, involving a serious and traumatic sexual assault. He was sentenced to life imprisonment. In 2004, while still serving his sentence, he won £7m on the national lottery. The claimant started proceedings for damages on 22 December 2004 but Master Eyre, applying Stubbings, struck out the action as barred under section 2 of the 1980 Act. This decision was affirmed by the judge and the Court of Appeal [2006] 1 WLR 2320. I would allow the claimant’s appeal and remit the case to a judge of the Queen’s Bench Division to decide whether the discretion under section 33 should be exercised in the claimant’s favour.

27.  In C v Middlesborough Council the appellant claims to have been subject to sexual abuse at various times between 1982 and 1988 (when he was 10 to 16 years old) at a school managed by the council. He commenced proceedings on 8 May 2002. In May 2004 there was a trial on liability, causation, limitation and quantum. The judge found that the appellant had been subjected to sexual abuse, that the council was vicariously liable and that if the action had come within section 11 of the 1980 Act, he would have exercised his discretion to allow it to proceed and awarded £60,000 general damages, £10,000 in respect of past loss of earnings, £25,000 in respect of the appellant’s disability on the labour market and the cost of therapy. But, in accordance with Stubbings, he held that the action was barred by section 2. He dismissed allegations of negligence against the council. This ruling was upheld by the Court of Appeal. I would allow the appeal and make the orders which the judge would have made if he had been free to decide that the action camecame within section 11.

28.  In H v Suffolk County Council the appellant claimed that while resident during the period December 1989 to October 1990 in a school for difficult children managed by the council, he was sexually abused by a member of the staff. He commenced proceedings on 22 April 2002. The question of limitation was tried as a preliminary point and the judge, in accordance with Stubbings, held that the claim against the council on the ground of vicarious liability for the member of staff was barred by section 2. He also tried and dismissed a claim based on allegations of negligence against the council. Both of these rulings were affirmed by the Court of Appeal [2006] 1WLR 2320. I would allow the appeal against the ruling on limitation only and remit the case to the judge to decide whether to exercise his discretion under section 33 to allow it to proceed.

29.  In X and Y v Wandsworth London Borough Council the appellants both allege that at various times in 1984 and 1987 respectively they were separately sexually abused by the same teacher at a school managed by the council. They commenced proceedings on 13 November 2002 and 23 June 2003. At the trial it was agreed that the abuse had taken place, that the council was (subject to any limitation defence) vicariously liable and that if the claims came within section 11, they were not statute-barred. It was also agreed that, subject to liability, X and Y were entitled to damages in the sums of £57,500 and £70,000 respectively. The judge upheld a limitation defence under section 2 and dismissed allegations of negligence for which the council was said to be liable. The Court of Appeal [2006] 1WLR 2320 upheld that decision. I would allow the appeal and award the appellants the agreed sums of damages.

30.  That leaves the appeal in Young v Catholic Care (Diocese of Leeds) and the Home Office. The claimant alleges sexual abuse by employees at two separate institutions: first, between October 1974 and July 1976 at a residential Catholic school in Tadcaster and secondly, between April and June 1977 at Medomsley Detention Centre, County Durham, then operated by the Secretary of State for the Home Department. The claimant’s allegations were, in respect of the school, that he had been punched, hit with farm implements and forced to masturbate and have oral sex with a member of the staff. In respect of his residence at the detention centre in 1977, he alleges that a member of the staff, for sexual gratification, would tie a ligature round his neck and nearly strangle him, blindfold him and attempt to bugger him and require him to kneel for photographs in various positions. Proceedings were commenced on 11 April 2003. In both cases, in order to avoid the effect of Stubbings, the claimant alleged “systemic negligence” in the management of the school and detention centre respectively. The judge tried as a preliminary issue the question of whether these claims were barred by the three-year limitation period in section 11(4). He decided that they were not because in each case the “date of knowledge” within the meaning of section 11(4)(b) was within three years before the commencement of proceedings. He went on to say that if he had found that the date of knowledge was earlier than three years before the issue of the claim form, he would not have exercised his discretion under section 33 to allow the action to proceed. The Court of Appeal (sub nom Young v South Tyneside Metropolitan Borough Council [2007 QB 932) reversed the decision on the date of knowledge, holding that it was substantially more than three years before the commencement of proceedings. They refused to interfere with the (hypothetical) exercise of the discretion under section 33.

31.  This appeal raises the important point of the meaning of “significant” injury in section 14(2). Section 14(1) provides that the “date of knowledge” is the date upon which the claimant first had knowledge of various facts, including “that the injury…was significant". A “significant injury” is defined by section 14(2):

“For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.”

32.  Section 14(3) then provides that, for the purpose of deciding whether the claimant had knowledge of the various matters listed in section 14(1), including the fact that the injury was significant, one should take into account not only his actual knowledge but also what is usually called his imputed or constructive knowledge. That is defined as:

“knowledge which he might reasonably have been expected to acquire—

(a)  from facts observable or ascertainable by him; or

(b)  from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek…”

33.  The question which has arisen is whether the definition of significance in section 14(2) allows any (and if so, how much) account to be taken of personal characteristics of the claimant, either pre-existing or consequent upon the injury which he has suffered. This question was first considered in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081, soon after the 1975 Act had come into force. After reading the then equivalent of subsection 14(2), Geoffrey Lane LJ said:

“[T]he test is partly a subjective test, namely: ‘would this plaintiff have considered the injury sufficiently serious?’ and partly an objective test, namely: ‘would he have been reasonable if he did not regard it as sufficiently serious?’ It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff’s intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages?”

34.   I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally “subjective” in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was. Even then, his knowledge may have to be supplemented with imputed “objective” knowledge under section 14(3). But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonably” have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

35.  It follows that I cannot accept that one must consider whether someone “with [the] plaintiff’s intelligence” would have been reasonable if he did not regard the injury as sufficiently serious. That seems to me to destroy the effect of the word “reasonably". Judges should not have to grapple with the notion of the reasonable unintelligent person. Once you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture. Section 14(2) is, after all, simply a standard of the seriousness of the injury and nothing more. Standards are in their nature impersonal and do not vary with the person to whom they are applied.

36.  In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, 1459 the Court of Appeal ventured even further into subjectivity. That too was a case of claims by victims of sexual abuse. In giving the judgment of the Court, Auld LJ said that victims of such abuse may regard such conduct by persons in authority as normal. It might be unreal to expect people with such psychological injuries to commence proceedings. Therefore, he said, at para 42, at p 1459:

“However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis, to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problems?”

37.  This approach treats the statute as if it had said that time should run from the date on which it would have been reasonable to expect the claimant to institute proceedings. If it had said that, the question posed in Bryn Alyn would have been correct. But section 14 makes time runs from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps. Section 14(2) does no more than define one of those facts by reference to a standard of seriousness.

38.  The Court of Appeal said that there was some “tension” between the Bryn Alyn test and the recent decision of the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 AC 76. I suppose that this is true in the sense that the House in Adams said that one had to take words like “reasonable” and “reasonably” seriously and the Bryn Alyn test does not. But Adams was dealing with section 14(3), which is very different in its purpose from section 14(2). The test for imputing knowledge in section 14(3) is by reference to what the claimant ought reasonably to have done. It asks whether he ought reasonably to have acquired certain knowledge from observable or ascertainable facts or to have obtained expert advice. But section 14(2) is simply a standard of seriousness applied to what the claimant knew or must be treated as having known. It involves no inquiry into what the claimant ought to have done. A conclusion that the injury would reasonably have been considered sufficiently serious to justify the issue of proceedings implies no finding that the claimant ought reasonably to have issued proceedings. He may have had perfectly good reasons for not doing so. It is a standard to determine one thing and one thing only, namely whether the injury was sufficiently serious to count as significant.

39.  The difference between section 14(2) and 14(3) emerges very clearly if one considers the relevance in each case of the claimant’s injury. Because section 14(3) turns on what the claimant ought reasonably to have done, one must take into account the injury which the claimant has suffered. You do not assume that a person who has been blinded could reasonably have acquired knowledge by seeing things. In section 14(2), on the other hand, the test is external to the claimant and involves no inquiry into what he ought reasonably to have done. It is applied to what the claimant knew or was deemed to have known but the standard itself is impersonal. The effect of the claimant’s injuries upon what he could reasonably have been expected to do is therefore irrelevant.

40.  In the present case, Dyson LJ [2007] QB 932, para 55 (with whom Sir Peter Gibson and Buxton LJ agreed) said that when the claimant left the detention institution in 1977, he was “obviously aware that he had been seriously assaulted". He went on to say:

“Viewed objectively and without regard to the fact that the claimant suppressed his memories of the assaults, they were sufficiently serious for proceedings against an acquiescent and creditworthy defendant to be reasonably considered to be justified.”

41.  I agree. The description of the assaults and indignities which the claimant says he suffered seem to me to put the matter beyond doubt. I think that if the Court of Appeal had not been bound by Bryn Alyn, it would have decided that this was the end of the matter. The date of knowledge would have been 1977. Instead, the Court of Appeal fixed on a later date by reference to when the claimant himself could reasonably have been expected to commence proceedings. On the true construction of section 14(2), I do not think that a later date can be justified.

42.   Mr Brown QC, who appeared for the appellant, put forward an alternative argument that, even if the test which section 14(2) applied to the injury as known to the claimant was entirely impersonal, the claimant in this case could not be said to have had knowledge of his injury. This was because, according to the evidence of the claimant, supported by an expert witness, he had “blocked out his memory", or, in another metaphor which he used in evidence, put his memories “in a box with a tightly sealed lid in the attic". He was, he said, “in denial” about the psychological injuries which he had suffered.

43.  I do not doubt the value of these explanations of the claimant’s mental processes when it comes to an assessment of whether he could reasonably have been expected to commence proceedings. But they are difficult enough concepts to apply in that context and I do not think that section 14(2) was intended to convert them into even more difficult questions of epistemology. If one asked an expert psychologist whether the claimant “really” knew about his injuries, I expect he would say that it depends on what you mean by “know". And he might go on to say that if the question was whether he “knew” for the purposes of the Limitation Act, it would be better to ask a lawyer. In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge and there seems to me to have been much sense in Lord Griffiths’ observation in Stubbings v Webb [1993] AC 498, 506 that he had “the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury.”

44.  This does not mean that the law regards as irrelevant the question of whether the actual claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings. But it deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is “the reasons for…the delay on the part of the plaintiff".

45.  In my opinion that is the right place in which to consider it. Section 33 enables the judge to look at the matter broadly and not have to decide the highly artificial question of whether knowledge which the claimant has in some sense suppressed counts as knowledge for the purposes of the Act. Furthermore, dealing with the matter under section 14(2) means that the epistemological question determines whether the claimant is entitled to sue as of right, without regard at any injustice which this might cause to the defendant. In my view it is far too brittle an instrument for this purpose. There are passages in the judgement of Buxton LJ which suggest that, had he not been bound by Bryn Alyn, he would have shared this opinion.

46.  This approach would, I think, be in accordance with the recommendations of the Law Commission in the Report (Law Com No 270) to which I have referred: In its Consultation Paper No 151, Limitation of Actions (1998) para 12.44, the Commission had proposed that the test of significance should take into account “the plaintiff’s abilities". But they abandoned this position in their final report and recommended (at para 3.24) that the test of significance should be entirely objective: “only claims in respect of which a reasonable person would have thought it worthwhile issuing proceedings will qualify as ‘significant'".

47.  In paras 4.27-4.28 of their final report the Law Commission considered whether victims of sexual abuse should be subject to a special regime. It had been submitted that no limitation period should apply to sex abuse claims because victims commonly suffered from ‘dissociative amnesia', a recognised mental disorder which produced an inability to recall traumatic events or at any rate an unwillingness to be reminded of them. The Law Commission said that so far as dissociative amnesia was a “mental disability” within a fairly broad definition proposed by the Commission (see paras 3.123-3.124), it would (if their proposals were implemented) stop time running while the disability persisted. But they rejected (in para 3.125) any specific provision for the psychological incapacity suffered by victims of sexual abuse because they said that it would be very difficult to define.

48.  If the Commission thought that the “psychological incapacity suffered by victims of sexual abuse” (para 4.28) was too uncertain and indefinite a concept to be used for suspension of the limitation period on grounds of incapacity, I can see no advantage in relying upon the same uncertain concept to give an artificial meaning to the concept of knowledge in section 14. Until Parliament decides whether to give effect to the Commission’s recommendation of a more precise definition of incapacity, it is better to leave these considerations to the discretion under section 33.

49.  That brings me, finally, to the approach of the judge and the Court of Appeal to the exercise of the discretion. In Bryn Alyn [2006] QB 1441 the Court of Appeal said, at para 76, that the judge in that case had gone wrong in giving undue weight to his conclusion that “the claimants’ reasons for delay were a product of the alleged abuse…and that, accordingly, it would be unjust to deprive them of a remedy.” These matters, said the Court of Appeal, were more appropriately considered under section 14. I am of precisely the opposite opinion, and if your Lordships share my view, the approach to the discretion will have to change. In Horton v Sadler [2007] 1 AC 307 the House rejected a submission that section 33 should be confined to a “residual class of cases", as was anticipated by the 20th Report of the Law Reform Committee (Cmnd 5630) (1974) at para 56. It reaffirmed the decision of the Court of Appeal in Firman v Ellis [1978] QB 886, holding that the discretion is unfettered. The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.

50.  That, of course, is not the only matter to which he must have regard. As the Law Commission said in para 4.31 of their Report (No 270):

“We do have some concerns that claims may be brought many years after the events on which the claimant’s cause of action is based, at a time when it is difficult for a fair trial to be given to the claimant’s allegations. However, subject to the provision on disability, the victim is likely to have immediate knowledge of the relevant facts, so that the primary limitation period expires three years after majority. Although the court will have a discretion to disapply the primary limitation period, it must consider whether the defendant’s ability to defend the claim will be prejudiced due to the lapse of time since the events giving rise to the cause of action.”

51.  Apart from the reference to disability, these observations seem to me as valid in relation to the exercise of the discretion under the present law as under the system proposed by the Commission.

52.  In this case, the judge followed the Bryn Alyn guideline in saying that if the claimant had not succeeded on the date of knowledge, he would not have exercised the discretion in his favour. For the same reasons, this exercise of discretion was affirmed by the Court of Appeal. But I think that it was exercised on the wrong basis and that the case must be remitted to the judge to consider the matter again. When he does so, I would imagine that the claimant will rely upon the vicarious liability of the defendants for the acts of abuse rather than their systemic negligence. The issues of fact in the case will have become a good deal simpler and this is no doubt a matter to which the judge will have regard in considering whether a fair trial is still possible. I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Brown of Eaton-under-Heywood. I agree with all of it but I respectfully think that his observations on the exercise of the discretion are particularly valuable. I would therefore allow the appeal and remit the matter to the judge to reconsider in accordance with the opinions of the House.

LORD WALKER OF GESTINGTHORPE

My Lords,

 
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