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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53.  I have had the privilege of reading in draft the opinions of my noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood. I am in full agreement with their opinions. I would allow all these appeals and make the orders which Lord Hoffmann proposes.

BARONESS HALE OF RICHMOND

My Lords,

54.  Until the 1970s people were reluctant to believe that child sexual abuse took place at all. Now we know only too well that it does. But it remains hard to protect children from it. This is because the perpetrators are so often people in authority over the victims, sometimes people whom the victims love and trust. These perpetrators have many ways, some subtle and some not so subtle, of making their victims keep quiet about what they have suffered. The abuse itself is the reason why so many victims do not come forward until years after the event. This presents a challenge to a legal system which resists stale claims. Six years, let alone three, from reaching the age of majority is not long enough, especially since the age of majority was reduced from 21 to 18.

55.  Fortunately, by the time the problem was recognised, some flexibility had been introduced in personal injury cases, albeit to meet the rather different problem of the insidious and unremarked onset of industrial disease. Then along came Stubbings v Webb [1993] AC 498, holding that this flexibility did not apply to cases of deliberate assault. For the reasons given by my noble and learned friend, Lord Hoffmann, I agree that Stubbings was wrongly decided and have nothing to add on that point. I would dispose of all the cases which depend upon it in the ways proposed by Lord Hoffmann.

56.  More difficult is how that flexibility is to be applied in sex abuse cases. Time does not begin to run until the “date of knowledge": Limitation Act 1980, s 11(4)(b). This is the date when the claimant knew, or ought to have known, that his injury was significant, that it was attributable to the acts or omissions alleged to constitute a breach of duty, the identity of the defendant, and the identity of the alleged wrong-doer if not the defendant and why the defendant should be liable: s 14(1) and (3). For this purpose “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": s 14(2). This is not an easy provision to construe.

57.  The subsection does not say that “an injury is significant if the person whose date of knowledge is in question could reasonably have been expected to institute proceedings in respect of it...” It does not ask whether the claimant was in such a state of denial about what had happened to him that he could not reasonably be expected to bring proceedings or even to think about them. That was the test adopted by the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, at 1459. It recognises the reality of many sex abuse cases, but unfortunately it is not the wording of the subsection.

58.  Nor, on the other hand, does the subsection say that “an injury is significant if a reasonable person would consider it sufficiently serious...” How then are we to construe the reference to what this particular claimant would reasonably have thought? I have not found this such an easy question as your lordships have. We are used in other contexts to looking at this particular person, with all his personal characteristics and in the position in which he finds himself, and asking what a reasonable person would expect of him. This is the test which we apply when deciding whether a divorce petitioner could reasonably be expected to go on living with the respondent: see Livingstone-Stallard v Livingstone-Stallard [1974] Fam 47. Why, then, should we not look at this particular claimant, with all his personal characteristics and in the situation in which he finds himself, and ask whether a reasonable person would expect him to recognise that his injury was sufficiently serious to justify making a claim against someone who admitted it and was good for the money? This does not deprive the word “reasonably” of all meaning, because the test is still what the reasonable outsider would expect of the claimant rather than what the claimant would expect of himself. I have also asked myself whether it makes a difference that we are here talking about what the claimant knows rather than what the claimant does or does not do. But that is not a wholly convincing distinction, because the fact known is defined by reference to what the claimant should have done about it in the hypothetical circumstances.

59.  I do not, therefore, find it surprising that Geoffrey Lane LJ took the view that he did in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081, or that that view has survived until now. Nor, however, do I find it surprising that the Law Commission has recommended that “the test for significance should be objective: that is, only claims in respect of which a reasonable person would have thought it worthwhile issuing proceedings will qualify as ‘significant’” (Limitation of Actions (Law Com No 270), para 3.24). It is much simpler to ask what the claimant knew or ought to have known and then apply an objective test of significance to those facts. Complex epistemological problems are thus avoided. But that is not what the subsection says at present.

60.   Nor am I wholly convinced by the policy argument: it may well be more satisfactory to transfer the question into the exercise of discretion under section 33. Then the injustice to a claimant who may be deprived of his claim, perhaps as a result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event when important evidence may no longer be obtainable. I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffmann. The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial. A fair trial can be possible long after the event and sometimes the law has no choice. It is even possible to have a fair trial of criminal charges of historic sex abuse. Much will depend upon the circumstances of the particular case. But the policy argument applies just as much to the whole “date of knowledge” provision as it does to the definition of significance with which we are concerned. With a properly directed discretion one should not need the date of knowledge provision at all. Nor are the difficulties faced by a defendant, whose breach of a strict statutory duty may have resulted in some insidious industrial disease, necessarily less deserving of consideration than the difficulties faced by a defendant, whose deliberate and brutal actions towards a vulnerable person in his care may have resulted in immediate physical harm and much later serious psychiatric sequelae.

61.  In the result, despite my nagging doubts about the interpretation of section 14(2) adopted by your lordships, I do not think that any interpretation could plausibly result in a date of knowledge within the three years immediately preceding the issue of proceedings by Mr Young. In agreement with your lordships, I would send his case back for the judge to reconsider the exercise of his discretion in the light of the opinions of the House.

LORD CARSWELL

My Lords,

62.  I have had the advantage of reading in draft the opinions prepared by my noble and learned friends Lord Hoffmann and Lord Brown of Eaton-under-Heywood. I agree with both so entirely that I share Lord Brown’s reluctance to add to the quantum of the views expressed by the members of the Appellate Committee in these appeals. I propose accordingly to add only a few observations, which I venture to hope will be of assistance to judges who have the task of applying the law in this difficult area.

63.  On the issue of the construction of the phrase “negligence, nuisance or breach of duty” and the proposal to depart from the decision of the House in Stubbings v Webb [1993] AC 498, I agree entirely with the reasons expressed and conclusions reached by Lord Hoffmann. When Parliament passed the Law Reform (Limitation of Actions, etc) Act 1954, inserting a new proviso into section 2(1) of the Limitation Act 1939, it introduced that phrase, which had earlier appeared in section 3(1) of the Personal Injuries (Emergency Provisions) Act 1939. The decision of the Court of Appeal in Billings v Reed [1945] KB 11, decided under the latter Act, gave the phrase “breach of duty” a wide meaning, holding that it was comprehensive enough to cover the case of trespass to the person. If it were not for this decision - of which Parliament may be assumed to have taken account when it enacted the 1954 legislation - one might have supposed that “breach of duty” was intended to include breach of statutory duty and breach of duties such as that of an occupier to persons coming on to his premises. In the light of the previous construction of the phrase, however, one may conclude that Parliament intended that it be similarly construed in the 1954 Act, extending to trespass to the person. That conclusion is in my opinion reinforced by the subsequent case-law decided before the enactment of the Limitation Act 1980. The draftsman of that Act must be taken to have been aware of the decisions of the Court of Appeal in Letang v Cooper [1965] 1 QB 232, with its reliance on the Australian case of Kruber v Grzesiak [1963] VR 621, and of Cooke J in Long v Hepworth [1968] 1 WLR 1299. In the light of these I am satisfied that “breach of duty” must be construed broadly enough to include trespass to the person. For the reasons set out by Lord Hoffmann, I also consider that the House should be prepared to depart from its previous decision in Stubbings v Webb.

64.  This conclusion governs the disposition of the appeals in A v Hoare, C v Middlesbrough Council, H v Suffolk County Council and X and Y v Wandsworth London Borough Council. I would allow each of these appeals and make the order proposed in each by Lord Hoffmann.

65.  The appeal in Young v Catholic Care (Diocese of Leeds) and The Home Office poses different problems concerning the correct approach to section 14 of the Limitation Act 1980. Section 11(3) of the Act bars an action brought after the expiration of the period applicable under section 11(4) or (5). The subsection relevant to this appeal is subsection (4), the material part of which provides that the period applicable is three years from:

“(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person injured.”

The date of knowledge is defined by section 14. The relevant parts for the purposes of this appeal provide:

“(1)   In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts -

(a)  that the injury in question was significant…

(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.

(3)  For the purposes of this section a person’s knowledge includes 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;

but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

66.  I agree with Lord Hoffmann that this subject has been unnecessarily confused by importing the notion that the test of whether the claimant had the requisite knowledge for the purposes of section 14 is partly objective and partly subjective. In my opinion it should be clearly understood that section 14(1) is subjective, in that it refers to the knowledge actually possessed by the claimant, whereas section 14(2) is objective, the relevant test being, as Lord Hoffmann describes it at paras 39 and 42, an “entirely impersonal” standard. Section 14(3) then relates solely to constructive or imputed knowledge. It may fix the claimant with knowledge of facts which he might reasonably have been expected to acquire in the manner specified by the subsection. Once that knowledge is imputed to him, it becomes part of the corpus of his personal knowledge, the extent of which has to be assessed under subsection (1).

67.  An example may help to illustrate these propositions. If a claimant in the course of his employment inhaled fibres of asbestos, which unknown to him set up the physiological process resulting many years later in his developing mesothelioma, he had no knowledge at the time of inhalation that he had suffered an injury. In the course of time he may develop chest symptoms of increasing severity. He may not connect them with his previous exposure to asbestos, but the stage may be reached at which he ought reasonably to realise that something may be wrong and take medical and any other appropriate expert advice. At that stage, if he is advised of the nature and aetiology of his medical condition, he is to be deemed, by virtue of subsection (3), to have the requisite knowledge of those matters. It is at that point in time that subsection (2) has to be considered. If a reasonable person, that is to say, an informed third person who has the knowledge possessed by or attributed to the claimant, would consider the injury significant, as defined by subsection (2), then the limitation period starts to run from that time.

68.  It is in my opinion incorrect to import the circumstances, character or intelligence of the claimant into the determination of reasonableness under section 14(2). It is irrelevant whether the claimant is intelligent or unintelligent or whether his personal characteristics or his circumstances may influence his decision not to sue at that time. Some people are more robust than others and would shrug off the possibility of suing for the injury (a possibility more likely in the case of minor conditions than in the example I have given). Others may be temperamentally averse to making the effort to institute proceedings, or to appearing in court, or may be unable or unwilling to risk incurring the costs. Some may feel too ill to contemplate litigation. What is material in determining if the injury is significant within the meaning of subsection (2) is whether a reasonable person, possessed of the facts known or available to the claimant, would consider the injury sufficiently serious to justify instituting proceedings for damages, assuming that the defendant will not dispute liability and is able to satisfy a judgment. Under this construction of section 14 some claimants with merit on their side will undoubtedly fail, but those characteristics or circumstances to which I have referred can and should be taken into account in the exercise of the discretion under section 33 to disapply the limitation provisions, as I shall explain in more detail below.

69.  If these principles are understood, it becomes easier to apply them to the case of Kevin Raymond Young. The medical reports set out the ill-treatment he received, which was so severe that any reasonable person would have regarded it as significant within the meaning of section 14(2). He finally left Medomsley Detention Centre on 17 June 1977, the day before his 18th birthday. In para 55 of his judgment in the Court of Appeal [2007] QB 932 Dyson LJ, with whom Sir Peter Gibson agreed, stated, in my view quite correctly, that he “was obviously aware that he had been seriously assaulted.” He accepted that he had the requisite knowledge of his injuries for the purposes of section 14(1) and that they were serious enough to be significant for the purposes of section 14(2). There was no need to resort to section 14(3), for Mr Young had all the necessary subjective knowledge and there was no need to attribute any constructive knowledge to him. The quest should have stopped at that point. Dyson LJ went on, however, to approve of the judge’s finding that the claimant’s subsequent suppression of his memories of the assaults enabled him to hold that he did not know in the period 1977-80 that the injuries were significant within the meaning of section 14(2). In this approach the judge and the Court of Appeal applied the wrong test when considering section 14(1) and 14(2). The matters which they took into account were undoubtedly very material in deciding on the exercise of discretion under section 33, and that is the point at which they should have received consideration.

70.  If, as I think to be the case, section 14 should be construed in this manner, which is less favourable to a claimant, there requires to be a more liberal approach to the exercise of discretion than has always been the case. For the reasons which my noble and learned friends and I have set out, that less favourable construction of section 14 is correct in principle, but it must follow that the favourable factors which have hitherto been taken into account in reaching a conclusion under section 14 should form a part, and in appropriate cases a very significant part, of the judge’s determination in exercising his discretion under section 33.

71.  The judge in Mr Young’s case indicated that he would, but for his finding under section 14, have exercised his discretion against disapplying the limitation provisions and the Court of Appeal was not prepared to disturb that conclusion. It cannot stand, however, in the light of the decision of the House under section 14, which will require a judge to take into account under section 33 the factors on which he placed some weight in reaching his decision under section 14.

72.  There is a further reason why the discretion should be exercised afresh. Since the House has decided to depart from its decision in Stubbings v Webb, Mr Young will no longer have to force his case into the Procrustean bed of systemic negligence. He will be able to invoke sections 14 and 33 of the Limitation Act 1980 in respect of a claim for assault by the employees of the respondents, if, as appears to be correct, the respondents are held vicariously liable for them under the principles in Lister v Hesley Hall Ltd [2002] 1 AC 215. On this basis, as Lord Brown points out in para 12 of his opinion - with an important qualification in para 13 - the quality of the evidence may not be as adversely affected by the lapse of time and the extent of the factual disputes may be reduced, which would tend to lessen the prejudice to a defendant occasioned by that factor.

73.  I would therefore allow the appeal of Kevin Raymond Young and remit the matter to the judge to reconsider in accordance with the opinions of the House.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

74.  I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Hoffmann. So completely do I agree with it that I have hesitated long before finally deciding to add a few paragraphs of my own. Nothing that I say is intended to conflict in any way with my Lord’s judgment.

75.  As will be apparent from Lord Hoffmann’s judgment, there have been down the years three main phases with regard to the limitation period governing personal injury actions:

(i) Phase One: until 1954 the six-year limitation period which governed all tort actions applied equally to actions for personal injuries (save claims against public authorities).

(ii) Phase Two: from 1954 to 1975 (by the amendment to section 2 of the Limitation Act 1939 effected by section 2(1) of the Law Reform (Limitation of Actions, etc) Act 1954) personal injuries actions for damages were subject to an unextendable three-year time limit. The actions in question were defined as those “for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision)".

(iii) Phase Three: from 1975 to date (by amendments to section 2 of the Limitation Act 1939 effected by section 1 of the Limitation Act 1975, since consolidated and re-enacted as sections 11, 14 and 33 of the Limitation Act 1980) personal injury actions for damages (defined identically as in Phase Two) have remained subject to a three-year time limit but (a) the three-year period only starts to run from the claimant’s date of knowledge (rather than from the date of accrual of the cause of action), and (b) the three-year time limit is extendable at the court’s discretion.

(It is unnecessary to complicate this brief summary by reference to the Limitation Act 1963 which introduced an earlier but unsatisfactory date of knowledge provision.)

76.  It will at once be obvious from the above summary that during Phase Two a personal injury claim brought between three and six years after the accrual of the cause of action would be time-barred if it fell within the statutory definition, but not otherwise. The amendment, in other words, shortened the time limit. Claimants during Phase Two, therefore, preferred to fall outside the definition. During Phase Three, however, claimants mostly benefited from their claim falling within the definition: they could then (in appropriate circumstances) take advantage both of the date of knowledge provisions and of the exercise of the court’s general discretion to extend time. Only if they happened to issue proceedings between three years and six years after the accrual of their cause of action could they benefit from being outside the definition.

77.  Which personal injury actions, however, were encompassed within the statutory definition? The question first arose during Phase Two in connection with claims for trespass to the person. It was consistently held (initially in Letang v Cooper [1965] 1 QB 232, a case of accidental trespass to the person, then later in Long v Hepworth [1968] 1 WLR 1299, a case of intentional assault) that all such cases fell within the definition: all were actions for “breach of duty.” The claims, therefore, having been brought outside the unextendable three-year period, were all statute-barred.

78.  That then was the position when Phase Three was introduced by the 1975 Act, only now, of course, that line of authority was ordinarily to the advantage of those claiming damages for assault because the shortened three-year time limit was extendable.

79.  And this continued to be everyone’s understanding of the position until the House’s decision in Stubbings v Webb [1993] AC 498 (28 years after Letang v Cooper and 18 years after the introduction of Phase Three) when for the first time it was held that an action for damages for personal injuries for an intentional trespass to the person fell, after all, outside the statutory definition.

80.  As Lord Hoffmann has explained, when the statutory definition was first introduced with Phase Two in 1954 it clearly was arguable that Parliament could not have been intending to shorten the limitation period governing claims for damages for intentional assault (even though the period was being shortened for personal injury claims generally). When Phase three was introduced, however, this was intended to benefit (in the two respects already identified) those claiming damages for personal injuries and Parliament surely cannot have intended to exclude from such benefits (to the advantage of their assailants) those intentionally injured. Rather Parliament must have had in mind the Letang v Cooper line of authority (hitherto disadvantageous to such claimants) and intended them to benefit along with all the others claiming damages for personal injuries. In other words, whereas it is possible that Parliament, when first introducing the statutory definition in 1954, intended to exclude from it actions for intentional assault, it is inconceivable that it had this intention when introducing Phase Three in 1975.

81.  As to whether the House should now depart from its decision in Stubbings v Webb, I fully share Lord Hoffmann’s view that it should. Perhaps the two most obvious anomalies to which it has given rise are, first, that illustrated by S v W (Child Abuse: Damages) [1995] 1 FLR 862 where a claimant suing out of time was held able to pursue a claim against her mother for failing to protect her against sexual abuse by her father but not a claim against the father himself; and, second, the position following Lister v Hesley Hall Ltd [2002] 1 AC 215 whereby late claims can be brought against employers of those committing sexual abuse on proof of systemic negligence but not on the more obvious and direct ground of vicarious liability for the abuse itself (the very situation arising in the Young appeal before your Lordships).

 
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