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K R and Others v Bryn Alyn Community Homes Limited and The Royal & Sun Alliance Plc Court of Appeal

18 February 2003
The issues

Children – children’s homes – physical abuse – child abuse – vicarious liability – limitation.

The facts

At first instance the High Court Judge had found Bryn Alyn Community Homes liable in negligence in respect of 11 of 14 claims – finding in one claim that of MCK that the home was not negligent and in the cases of JS and CD finding only partially. He further found that all the claims were out of time and that they were not saved by the date of knowledge provisions in Sections 11 and 14 of the Limitation Act 1980. However, he exercised his discretion under Section 33 of the Act to disapply the period of limitation. The Claimants appealed against the level of damages. MCK appealed against the Judge’s dismissal and JS and CD against the Judge’s dismissal of part of their claims. Each of those 3 also challenged the Judge’s ruling that he had no power under Section 33 of the 1980 Act to extend the limitation period to conduct which was tortious and in respect of which the Defendant was vicariously liable following Lister -v- Hesley Hall, but which was not in itself negligent. The Defendants cross-appealed the decision to disapply the limitation period. All of the Claimants cross-appealed the Judge’s ruling against them under Section 14 (date of knowledge).

The decision

1. Limitation

There were peculiar difficulties in applying the provisions of the Limitation Act to claims in negligence against care homes in respect of employee’s abuse of children. There were difficulties in disentangling the immediate injury from long term psychiatric injury diagnosed much later. The Judge had found all the claims statute barred. He had found this by reference to the immediate impact on each Claimant on the physical act of abuse. The true question for the Judge was, to quote Crome-Johnson J in Ackbar -v- CF Green & Co, “what is the action all about?” A test that had been approved by the Court of Appeal in How -v- David Brown and Walkin -v- South Manchester Health Authority. This case was “all about” long-term post-traumatic psychiatric injury. The appropriate issue for the Court was not attributability, but significance. However artificial the question, Section 14 required the Court on a case-by-case basis to enquire whether an already damaged child would reasonably turn its mind to litigation as a solution to its problems. Whether a particular Claimant would reasonably have regarded a particular injury from such abuse when it occurred as significant, was a fact-sensitive question that needed to be considered on a case-by-case basis. The Judge had not taken this approach and accordingly the Court of Appeal have would re-open the issue in respect of each Claimant.

2. Section 33 – Discretion

The Judge had erred in the way in which he had exercised his discretion under Section 33. He had emphasised his finding that the Claimant’s reasons for the delay were a result of the alleged abuse and that therefore it would be unjust to deprive them of a remedy. If this was right, it would have been more appropriate to deal with it under Section 14 – date of knowledge – rather than Section 33. The Judge’s reasoning was also flawed in that it appeared to accept the validity of the claim in advance of determining the issue of limitation.

Moreover, the Judge did not properly distinguish cases of sexual and physical abuse – in the cases of physical abuse; the Claimant’s arguments had far less force.

Thirdly, he did not distinguish between claims where the delay was very long and where the delay was much less. Generally speaking:-

(i) As a rule of thumb, the longer the delay after the recurrence of the matters complained of, the more likely that the balance of prejudice would swing against disapplying;

(ii) That in cases of this type where issues of liability, causation and quantum were very difficult whether there was delay or not, delay would be highly sensitive to the prejudice caused to the defence, notwithstanding good reasons on the part of the Claimant for the length of the delay;

(iii) That if the date of knowledge test in Section 14 was properly applied so as to give a Claimant an extension of the period of limitation by reference to it, the wait for the reasons of delay would in normal circumstances be very limited. In this regard, many of the difficulties inherent in this type of issue would be simplified if the Law Commission’s recommendations for the amendment of Section 14 were followed through. If Section 14 was amended to provide for a more subjective definition of the date of knowledge, whilst there would be a relaxation in favour of the Claimant, the corollary would be that once the time limit had expired, it should only be in the most exceptional cases that the Court would be justified in allowing a Claimant a more generous time period by way of disapplying under Section 33.

3. The Lister Point

Following Lister -v- Hesley Hall Limited, the First Defendant was vicariously liable for the actions of its employees, whether deliberate or negligent. The correct test was to identify the wrongful Act, deliberate or otherwise in respect of which vicarious responsibility was claimed and to assess the closeness of its connection to the employment in question. If it was sufficiently closely connected with the employment, there would be vicarious responsibility. There was no need to add any alternative duty as had been suggested by Lord Steyne in Hesley Hall. Rather, the Court of Appeal felt that the correct approach was Lord Milletts when he said in Lister “I would not base liability on the Warden’s failure to report his own wrong doing to his employer, an approach which I regard as both artificial and unrealistic. Even if such a duty did exist%u2026 I am inclined to think that it would be a duty owed exclusively to the employer and not a duty for breach of which the employer could be vicariously liable”.

4. Where Section 11 was being considered, claims for personal injuries in respect of deliberate conduct were not caught by its provisions. Accordingly, in the absence of a provable allegation of systemic negligence against the First Defendant, its employee’s deliberate abuse did not fall within Section 11 and therefore was governed by the 6-year period of limitation.

5. Quantum

In these difficult cases where there were many causes going to make up the eventual psychiatric injury, that nonetheless general principles as stated in Sutherland -v- Hatton and Allen -v- British Rail Engineering Limited should be applied, namely that the tort feasor’s liability should be limited to the extent of the contribution which its tortious conduct had made to the [employees disability].

6. Notwithstanding the decision of the Court of Appeal in Clunis -v- Camden and Islington Health Authority (the Court will not make an award to a Claimant in respect of his own criminal or immoral acts even where it is his case that he would not otherwise have done those acts if it had not been for the injury caused to him by the tort feasor) there might remain an argument in future that damages were recoverable in respect of tortious acts that had resulted in a law-abiding citizen becoming a criminal.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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