Recent developments in Respect of Limitation in Child Abuse Cases

Elizabeth-Anne Gumbel QC

And

Henry Witcomb

One Crown Office Row

Where the Limitation Problem Arises

1.           Limitation is frequently the most difficult issue in child abuse claims. In Ablett v Devon County Council[1],  when in examining the question of limitation in respect of the defendant’s application for permission to appeal Lord Justice Sedley made the following comments:

”Inevitably there is a problem of limitation in these proceedings. I say “inevitably” because it is in the nature of abuse of children by adults that it creates shame, fear and confusion, and these in turn produce silence. Silence is known to be one of the pernicious fruits of abuse. It means that allegations commonly surface, if they do, only many years after the abuse has ceased.

2.           If a claimant seeks to pursue a claim against an abuser who has been convicted in criminal proceedings the claimant can rely on the conviction to prove the abuse occurred pursuant to section 11 Civil Evidence Act 1968. If the criminal proceedings took place many years after the abuse there will have been potent evidence required to prove the abuse to the criminal standard. Either the abuser will have accepted the abuse or the claimant will have had to give evidence and to be cross-examined on behalf of the abuser in order to prove the offence. In such circumstances the criminal court will have considered the abuser can have a fair trial despite the lapse of time. In the civil proceedings however there will be a real difficulty in respect of limitation.

3.           If the abuser was employed by a public authority or insured private company the employee will be vicariously liable for such abuse that occurred in the course of the abuser’s employment or was closely connected to the employment.  See Lister v Hesley Hall Limited[2]; The Children’s Foundation v Bazley[3]; Jacobi v Boy’s and Girl’s Club of Vernon[4]; Majrowski v Guy’s and St Thomas’s NHS Trust[5]; X and Y v Wandsworth London Borough Council[6].

4.           Further if the employer was aware of the abuser’s propensity for abusing children then there will be a case for proving the employer was negligent in failing to protect the claimant from abuse. This may either because the abuser already had convictions before he was employed or it may be that a number of people reported abuse by the abuser or reported suspicious activities by the abuser.

5.           In a case where a claimant can prove the abuse occurred ,through a conviction or other  compelling evidence,  and can identify a negligent defendant who employed the abuser, the only real issue is limitation. There are two routes to proving the case and both have considerable limitation problems.

The Vicarious Liability Route and Limitation.

6.           Since the decision of the House of Lords in Stubbings v Webb[7]  the
time limit for bringing a claim arising out of deliberate abuse is 6 years pursuant to section 2 Limitation Act 1980 and is un-extendable.  Sections 11, 14 and 33 simply do not apply. In the case of Lister v Hesley Hall Limited,  when the House of Lords first found that an employer could be vicariously liable for deliberate sexual abuse,  the limitation position was not addressed.  

7.           In the case of Various Claimants v. Bryn Alyn Community Homes Limited and Another[8],  Connell J found that the claim for deliberate acts of abuse for which the Defendant was vicariously liable was subject to a non extendable six year limitation period. The Court of Appeal confirmed this position in a decision given on 12 February 2003 :  KR and Others v Bryn Alyn Community (Holdings) Limited and Royal and Sun Alliance PLC and stated:

”In our view the correct approach is as Lord Millett has expressed it. Whether or not section 11 is in play, it is to identify the wrongful act, deliberate or otherwise, in respect of which vicarious responsibility is claimed and to assess the closeness of its connection to the employment in question. If the act is sufficiently closely connected with the employment, there is vicarious responsibility. In such circumstances and bearing in mind Lord Griffiths reasoning in Stubbings v Webb (para 99 above) there is no justification or need, for the purpose of establishing vicarious responsibility, to elide the duty in respect of which the employee’s deliberate act is a breach of duty of care delegated or “entrusted” to him by the employer. The two are quite distinct. Where section 11 is under consideration, it follows that claims for personal injury in respect of deliberate conduct, whether considered in the context of vicarious responsibility or not, are not caught by its provisions.  Accordingly, in absence of some provable allegation of systemic negligence of the first defendant, we are of the view that its employee’s deliberate abuse does not fall within section 11 and is, therefore, governed by a non-extendable six year period of limitation rather than an extendable three year period.”

[emphasis added]

8.         Permission to appeal this decision was refused by the House of Lords. The decision was followed by the Court of Appeal in the case of C v Middlesborough Council[9].

9.         In The Cases of   A V  Iorworth Hoare;   H V  Suffolk County Council; and           X & Y 
V London Borough of Wandsworth the Court of Appeal has granted permission
to appeal.  In all of these three cases in which the claimants suffered psychiatric damage from sexual abuse their claims were found to be limitation barred because of the decision in  Stubbings v Webb.

10.       The Master of the Rolls delivered the judgment of the Court (the other members being Lord Justice Brooke and Lady Justice Arden). In the judgment the Court stated;

“The Court expressed itself willing to grant all the Claimants permission to appeal to the House of Lords, so that the House of Lords, which would not be constrained by binding case law, could consider how the issues raised by these appeals could be addressed without the intervention of Parliament. “

11.       The Court explained that they hoped:

“The House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot”

12.       The Judgment reviews the history of the cases before and after Stubbings v   
            Webb and the Law Commission recommendations. It pointed out that the Law
            Commission report was published in 2001 but Parliament has done nothing for 5
            years. In considering the effect of Stubbings v Webb the Court pointed to the
            case of  S v W  and commented:

”It might be thought that in any rational legal system the three year extendable limitation period should apply to the claim against the abusing father as well as to the claim against the negligent mother, and that a Claimant who does not possess the relevant knowledge before the expiry of the primary limitation period should be permitted in an appropriate case to advance a claim against both such parents and not merely against the less guilty one.”

13.       The Court considered the arguments that a teacher could be in breach of duty as
                        well as committing trespass to the person in some circumstances. In particular
                        when, in his capacity as teacher,  he groomed a boy for abuse and did not report
                        his abuse. In respect of these arguments the Court stated;

“On the face of it principle and justice seem to require that when a teacher, in flagrant breach of the duty he owes a pupil in his charge, grooms him and encourages him to perform indecent acts in front of him or watch pornographic videos with him and performs indecent assaults on him and follows a prolonged policy of favouring him and protecting him from justified complaints by other teachers, so that the child truants in the short term and suffers serious psychiatric harm in the long term, in addition to losing the normal benefit of education, the law should not provide a more relaxed limitation regime for the less serious breaches of duty and a more stringent regime for the more serious breaches.

Unrestrained by authority we would be inclined to follow what appears to be the approach of the majority in  Lister v Hesley Hall and hold that such a Claimant should recover damages for breach of duty in respect of the cumulative effect of all these activities, so that recovery is not confined to those improper activities that do not constitute intentional assaults.

[emphasis added]

14.       The Court  stated:

“ But in our judgment we are not free to take this course. In  KR v Bryn Alyn this court expressly preferred the approach of Lord Millett in the  Lister  case as to the non-viability of an alternative claim based on breach of duty……………We considered whether we were able to depart from that part of the judgment in  Bryn Alyn, but even if we were free to do so we think it would be very much better to leave it to the House of Lords to consider this area of the law as a whole, rather than for different divisions of the Court of Appeal to provide different answers in relation to what is, after all, only one part of a larger scene.”

15.          The result however is that the position in respect of Stubbings v Webb will now be considered by the House of Lords. The Court of Appeal gave their own view as to how the decision might be reviewed when they stated:

“Powerful arguments, based on the plain words of section 11(1) can be advanced along the lines discussed in paras 19,20 and 25 above to the effect that the Act should be interpreted like any other consolidation Act and/or that the phrase “breach of duty” should be construed as it was by Lord Justice Diplock  and Lord Denning MR in Letang v Cooper.

16.          Since the date when permission was granted by the Court of Appeal in the A v
Hoare case for permission to petition the House of Lords permission has also been granted by the House of Lords itself in the earlier case of C v Middlesbrough CC.

17.          All five appeals have bow been lodged with the House of Lords and it is hoped they will heard later this year.  It is  being argued in the  A v Hoare cases that the House of Lords should change the position to allow claims for vicarious liability for deliberate abuse to be brought within section 11,14 and 33 Limitation Act 1980. That is, in these cases it is being argued that Stubbings v Webb should be overruled.

               The Negligence Route and Limitation

18.          Where it can be proved that the employer of an abuser was negligent then pursuant to section 11 and 14 of the Limitation Act 1980 a Claimant is  
required to bring proceedings within 3 years of:

  ”the date on which he first had knowledge of the following facts-
(a) that the injury in question was significant; and

  (b) that the injury was attributable in whole or in part to the  act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the Defendant …….”

19.       The application of sections 11,14 and 33 Limitation Act 1980 in child abuse claims is at present governed by the decision of the Court of Appeal in Various Claimants v Bryn Alyn Community Holdings Ltd[10].   Permission to appeal to the House of Lords was refused in that case to both the Defendant[11] and to one Claimant.[12] 

20.          Two further recent decisions of the Court of Appeal have reviewed the decision in Bryn Alyn following the decision of the House of Lords in Adams v Bracknell Forest Borough Council[13].  Some doubts have now been expressed about the correctness of the decision of the Court of Appeal in Bryn Alyn but it has not been overruled. 

21.          In the case of Catholic Care and The Home Office v Kevin Raymond Young[14]  and in the case of  Jason McCoubrey v Ministry of Defence[15]  the point from Bryn Alyn that was reviewed by the Court of Appeal was the extent to which the test under section 14(2) Limitation Act 1980 is an objective test.  It was decided by the Court of Appeal in the Catholic Care and the Home Office that following the findings of the House of Lords in the Adams case that as the test under section 14(3) Limitation Act 1980 is a largely objective test, the test under section 14(2) must also be a largely objective test.  The House of Lords in the case of Adams  referred in passing to the Bryn Alyn case without expressing any doubts as to its correctness.  This was recognised by the Court of Appeal[16].   However the Court of Appeal in the Catholic Care and the Home Office case found that the reasoning in Adams affected the correctness of the reasoning of the Court of Appeal in Bryn Alyn as to whether the section 14(2) test was largely subjective or largely objective.  It could be argued that the decision in Catholic Care and the Home Office cannot overrule the decision in Bryn Alyn in any respect. However  the Court of Appeal have now twice stated that  the law has been modified so that an objective test is the correct approach.  

22.          The consequences of applying an objective test on the lines described in the Catholic Care and the Home Office case  need  to be considered  by the expert psychiatrists instructed so as to ensure that the psychiatrist applies the correct test.  The fact that the experts in the Young case had erroneously applied a subjective test was crucial to the Court of Appeal reasoning in overruling  the decision of the Judge in that case.

23.          In other respects the decision in Bryn Alyn remains the benchmark for assessing the limitation position in child abuse cases under section 11, 14 Limitation Act 1980.  Although Lord Justice Buxton in the Court of Appeal in the Catholic Care and the Home Office case expressed some doubts about the decision he accepted that it was binding.  He stated:

“We are bound, as the Judge was bound, to apply the Bryn Alyn test as amended by implication by the House in Adams: that is, when a reasonable man in the circumstances of the claimant would reasonably turn his mind too litigation.”.  

And

“Third because the House was not directly concerned with section 14(2) it did not address the analysis of section 14(2) that is to be found in Bryn Alyn and in particular did not pas on what has been identified as “the Bryn Alyn test” that is, when such an already damaged child would reasonably turn his mind to litigation as a solution to his problems ; see para 50 above.  The only amendment to teat formula that follows from Adams is to express it in terms of the reaction in respect of litigation of a hypothetical reasonable child in the position of the claimant.”[17]

24.       A point given considerable emphasis in the Catholic Care and the Home Office   
                        case was that applying an objective test to the date of knowledge of a claimant  
                        who suffered sexual abuse as a child requires the Court to take into account the  
                        affect that the type of injury inflicted by the defendant would have on a claimant. 
                        For example, Lord Justice Dyson stated[18];

“On the other hand if the injury affects the claimant’s ability to acquire knowledge or to seek expert advice, these are matters that can be taken into account.”

And

“The Adams approach to reasonableness indicates that if a person who has suffered a particular type of injury would reasonably be inhibited by the injury itself from instituting proceedings, then that is a factor that should be taken into account in deciding whether he or she would reasonably have considered it sufficiently serious to justify proceedings.  The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered the degree of injury suffered by the claimant in question and of which he has knowledge.”[19]

25.       This point was also subsequently emphasized by Mr Justice Holland in the case
                        of A.B.  and others v The Nugent Care Society (formerly Catholic Social Services  
                        Liverpool) [20] in which he said at paragraph 9:

“An important gloss on the terms of the statute was adumbrated by Lord Hoffmann in Adams and adopted in Young by Dyson LJ at paragraph 34.  The practical effect can be expressed: ‘In deciding whether it was reasonable for the Claimant to seek such medical or other appropriate expert advice, if the injury itself would reasonably inhibit him from seeking advice then that is a factor which must be taken into account’ “

26.       In the case of McCoubrey v Ministry of Defence, the Court of Appeal were not
                        dealing specifically with child abuse.  However the Judgment of Lord Justice  
                        Neuberger in that case (with which the other Judges:  Lord Justice Ward and
                        Lord Justice Tugendhat agreed) again cast doubt on the Bryn Alyn decision.  Mr
                        Justice Neuberger stated:

            “First as appears to be agreed between the parties (plainly rightly in my opinion), the decisions in the Adams and Young cases mean that the law as it had been previously understood and applied, at least in the Bryn Alyn case, purportedly following in particular the McCafferty case, has changed. The test under section 14(2) is substantially objective and is not the mixture of subjective and objective in the way in which eh analysis of Geoffrey Lane LJ. In the McCafferty case was interpreted as indicating in a number of cases culminating with the Bryn Alyn Case”.

27.      Therefore the decision in Bryn Alyn  must now be applied subject to the comments of the Court of Appeal in the Young  and McCaferty cases so that a more objective test is applied to the reasons why the claimant has not been able to commence proceedings before. 

28.       The decision in Bryn Alyn reviewed generally the application of sections 11, 14 and 33 of the Limitation Act 1980.  The position following that case was that in the area of child abuse it is necessary to examine the date on which the claimant was first able to appreciate the significance of what had happened to him/her as a child in the sense of when s/he appreciated the extent of the psychiatric damage that could be attributed to the events.  This remains the position but the investigation must now proceed on the basis not of personal characteristics of the claimant but rather how objectively a psychiatrist would expect a child in the claimant’s situation to react to the type of abuse the claimant suffered.

29.       The Court of Appeal in Bryn Alyn therefore accepted the argument that had been rejected by Mr Justice Connell that victims of abuse often do not have the requisite knowledge to start the limitation period running against them until they can begin to talk about the abuse and can take medical and legal advice.  The attainment of knowledge can take a considerable period of time.  The test involves considering persons in the damaged position of the claimant and the reaction such persons would have to litigating and to understanding their injury.

            Conclusion

20.       Limitation is always a problem in respect of claims relating to abuse that
 occurred many years ago. In most of these type of  cases the present position is 
 as follows;

(a)   If the claimant can establish negligence then sections 11,14 and 33 Limitation Act 1980 apply. A more objective test than was applied in Bryn  Alyn is now applied and some doubt has generally been cast on the decision in Bryn Alyn by the Court of Appeal.

(b)   If the claimant  is unlikely to be able to establish negligence but needs to rely on vicarious liability for deliberate assaults by an employee the case will need to be stayed pending the outcome of the  A v Hoare  cases in the House of Lords.

4 February 2007

1 Crown Office Row

London EC4Y 7HH