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C v Middlesbrough Council, Court of Appeal, 21 December 2004

6 January 2005
The issues

Limitation – Sexual Abuse – Psychiatric Injury – Deliberate Assault – Whether A Claim For Personal Injury Or In Trespass

The facts

The Claimant was aged 32 at the time of the appeal. From a young age he had been a victim of assault and neglect by his mother. The predecessors to Middlesbrough Council were involved in the Claimant’s care when he was 2 years old. At the age of 7 he was placed in a school in Gloucestershire from 1979 until 1982. He was happy at the school but was subject to ill treatment whenever he went home.

In 1982 he was moved to Saltergill School, a school for children with special educational needs. He stayed there until March 1988 when he was aged 16. Before he left the school he complained to his key worker that he had been subject to sexual abuse by a teacher, Mr Brady Mr Brady was subsequently charged with offences of gross indecency but acquitted at a Trial in September 1988. He subsequently went to Ireland where he was convicted and sentenced for sexual abuse which had occurred in Ireland before he worked at Saltergill School and died in prison in 1999.

The Claimant began proceedings against the Council claiming damages for psychiatric and consequential damage suffered as a result of the abuse. He alleged that the abuse had continued after he left the school and that he had been introduced to prostitution by Mr Brady. Psychiatric evidence was to the effect that although he was disturbed before the abuse commenced, the abuse had had a significant affect on his ability to cope with life, to form relationships and to hold down regular work. The Claimant’s claim was based on negligence of the respondent’s Council’s predecessors in the care which they provided for him and vicariously for the actions of Mr Brady. The abuse was not formally admitted but in effect it was not in dispute.
The Defendant pleaded limitation.

The Judge found that the Claimant had knowledge under Section 14 of the Limitation Act 1980 by the end of December 1996 at the latest and that therefore the action was statute barred by the end of 1999. He allowed it to proceed, exercising his discretion under Section 33(1). The Judge found that the Claimant had not established any breach of duty on the part of the Defendant which caused the damage about which he complained and that insofar as the vicarious claim was concerned, that this was a claim for trespass and not negligence or any other breach of duty and accordingly the claim fell within Section 2 of the Limitation Act and was therefore subject to a non extendable limitation period of 6 years. He therefore dismissed the claim.

The Claimant appealed both against the findings with regard to dismissal of the claim on the facts and in respect of the Judge’s finding that the claim fell within Section 2 and not Section 11 of the Limitation Act 1980.

The decision

The Claimant sought to attack the Judge’s findings on the basis that the Judge had failed to deal with the allegation that the local authority should have assigned him a Social Worker sooner and that if he had done so the abuse might have been identified earlier.

The difficulty with this argument was that there was no expert evidence before the Trial Judge as to proper Social Worker practice. In those circumstances it seemed to be impossible for the Claimant to make good his submission that the fact that he was not provided with a Social Worker on transfer to Saltergill could amount to a breach of duty.

The Judge had also found that the Claimant had suffered no harm as a result of any breach of duty.

The Judge had had sufficient evidence before him to justify that finding. Mr Brady had always provided innocent explanations with regard to visits to his room. The fact that the teacher had visited the Claimant at his home was significant only in hindsight. The Judge was entitled to find that the school had made reasonable investigations and that the evidence only showed the teacher to be an abuser in hindsight.

The Judge had correctly found that the respondents were vicariously liable for the actions of Mr Brady. In Stubbings v Webb the House of Lords had considered a claim for intentional wrongdoing in the context of a claim by a Plaintiff alleging sexual and physical abuse during her childhood by her stepfather, stepbrother and stepmother. The House of Lords found that the Plaintiff’s action was one for trespass to the person which was not a cause of action falling within Section 11. In KR v Bryn Alyn Community Holdings the Court of Appeal acknowledged that this situation created an anomaly and noted that the law commission had recommended that the distinction be abolished and that all such actions be subject to the Section 11 regime but nonetheless had concluded that where the actions for which an employer is held vicariously responsible consisted of deliberate abuse, the cause of action did not fall within Section 11.

In Lister v Hesley Hall Lord Steyn in particular had expressly left open the question of whether or not an abuser’s actions might amount to a breach of a duty akin to a duty of care, so as to engage Section 11 of the Act. However, the Court of Appeal in the Bryn Alyn case had taken the view that to try to create a duty which would fall within Section 11 in order to avoid the logic of the decision in Stubbings v Webb would be to create an artificial basis for the claim and preferred Lord Millet’s approach in Lister in finding the school vicariously liable for the Warden’s intentional assaults (in that case) and not for his failure to perform his duty to take care of the boys. The Judge had been correct in his findings.

Appeal dismissed.

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