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Section 33 of the Limitation Act 1980; Credibility and Prejudice - Andrew Roy & Nina Ross,12 King's Bench Walk

26/08/20. Under s.33 Limitation Act 1980, the court may disapply the limitation period in a personal injury claim if it is equitable to do so having regard to the prejudice to the claimant if precluded from bringing his claim and the prejudice to the defendant in being required to meet an out of time claim. In FZO v Haringey London Borough Council [2020] EWCA Civ 180 the Court of Appeal provided important guidance as to the assessment of evidential prejudice when limitation is determined alongside the substantive issues at the final trial.

Background

The claimant sought damages for personal injuries arising out of sexual assaults committed upon him by the first defendant schoolteacher between 1980 and 1988. The second defendant was the local authority responsible for the school and the first defendant’s employer.

It was the claimant’s case that, shortly after he had arrived at the school, the claimant had been raped by another man. The claimant confided in the first defendant about the rape. The first defendant told him that the incident meant that he was gay and that, if it became known, he would be thrown out of his family home. By this means, the first defendant groomed and manipulated the claimant into sexual activity with him, which included anal rape almost from the start.

In 1982, when he was about 16 years old, the claimant left the school, albeit he returned again for a short period in 1983/1984. He alleged that the first defendant continued to abuse him until 1988 when he was 21 years old. He then had ongoing contact with the teacher until 2011 when, after years of experiencing anxiety and psychological problems, he suffered a breakdown. In 2014, the first defendant pleaded guilty to counts of indecent assault and buggery when the claimant was aged between 13 and 15 years. He also admitted to raping the claimant when he was under 16. The claimant began the instant proceedings in 2016, which was between 25 and 30 years after the expiry of the applicable limitation period for each assault.

The key issues were:

1. Should the claim be allowed to proceed 25-30 years out of time pursuant to s.33?

2. Did the claimant consent to sexual activity with the first defendant after he left the school?

3. Was the school vicariously liable for the first defendant’s conduct after the claimant left the school?

4. What if any injury did the sexual abuse cause the claimant?

5. Whether the claimant was precluded from bringing a claim for the consequences of his breakdown in 2011 by the doctrine of ex turpi causa since his breakdown was related to his use of illegal drugs...

 

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