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A v Hoare; H v Suffolk County Council; X and Y v London Borough of Wandsworth; C v Middlesbrough CC; Catholic Care v Young [2008] UKHL 6

8 February 2008
The issues

Date of knowledge – Limitation – Discretion – S.14 Limitation Act 1980 – S33 Limitation Act – Sexual Abuse Claims

The facts

On 30 January 2008 the House of Lords delivered judgment in these cases. The House departed from its previous decision in Stubbings v Webb [1993] AC 498, overruled the Court of Appeal’s decision in KR v Bryn Alyn Community Holdings Ltd [2003] QB 1441 as regards the construction of section 14 of the Limitation Act 1980 and gave guidance on the exercise of the section 33 discretion in cases of historic child abuse.

The cases
In A the defendant was the assailant (the so called “lottery rapist”) and in X and Y, H and C the defendants were local authorities, who were vicariously liable for sexual assaults committed by employees. In each case the Court of Appeal dismissed the assault claims because they were all subject to the fixed 6 year limitation period under section 2 of the 1980 Act and therefore statute barred: Stubbings.

X, Y, H and C had all established that they brought their claims within 3 years of their dates of knowledge (the courts applying the Bryn Alyn test), but they had failed to prove negligence. In Young the issue was whether the claim had been brought within 3 years of his date of knowledge and, if not, whether the discretion should be exercised in his favour.

A, X and Y, H and C therefore all raised the issue of whether Stubbings was rightly decided. The cases of X and Y, H and C also raised a series of further issues (including whether the assailant was under a duty to report his own wrongdoing and whether the assault also amounted to a breach of the duty of care – “the Lister point”) which would only arise if Stubbings were upheld.

The decision

Stubbings
The House of Lords held that Stubbings was wrongly decided. The words “negligence, nuisance and breach of duty” in section 11 of the Limitation Act 1980 cover deliberate assault. Therefore the postponement of the commencement of the 3 year limitation period by reference to a delayed date of knowledge, and the discretionary power to allow actions to proceed even if not brought within the 3 year period, apply to claims for assault.

Lord Hoffmann, who gave the leading opinion, said that Stubbings was wrongly decided for the following reasons:

– Both before and after Parliament enacted the Limitation Act 1954, and used the phrase “negligence, nuisance and breach of duty” to define the claims to which the new 3 year limitation period would apply, that phrase had been judicially considered by the Court of Appeal and courts in other Commonwealth jurisdictions and found to include claims in assault.

– Even if Parliament had intended the words “negligence, nuisance and breach of duty” to exclude assault when enacting the 1954 Act (thereby allowing the victim of a deliberate assault a longer period to bring the claim than a claimant injured by negligence) that intention cannot have survived the advent of the Limitation Act 1975, which first introduced the concepts of date of knowledge and discretionary extension, because the result may then be that a deliberately injured claimant had a shorter period in which to bring the claim than a carelessly injured one.

– Stubbings gives rise to practical difficulties and anomalies which did not become fully apparent until the House of Lords decision in Lister v Hesley Hall [2002] 1 AC 215. Claimants, unable to bring their claims in trespass, advance “increasingly artificial” theories of liability in negligence (a reference to the further issues raised by X and Y, H and C) in order to succeed, when their real cause of complaint is sexual abuse for which the employer is vicariously liable.

The decision: significant injury
The House of Lords held that the test for the meaning of “significant” as defined by section 14(2) of the 1980 Act is objective. Lord Hoffmann said:

“[34]…You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. [35]…Once you have ascertained what the claimant knew and what he should be treated as having known, the actual claimant drops out of the picture. Section 14(2) is, after all, simply a standard of the seriousness of the injury and nothing more. Standards are in their nature impersonal and do not vary with the person to whom they are applied.”

The claimant’s attitude towards bringing proceedings is not relevant to his date of knowledge. The Bryn Alyn approach treats the statute as if it had said that time runs from the date on which it would be reasonable to expect the claimant to institute proceedings. The statute does not say that. It was accepted that some abused claimants may not bring proceedings because they have blocked out their memories or tried to put their experiences behind them, but these were matters to be considered in the exercise of the section 33 discretion. They were not relevant to what the claimant knew about the seriousness of the injury:

“[43]…In my opinion the subsection assumes a practical and relatively unsophisticated approach to the question of knowledge…there seems to me to have been much sense in Lord Griffiths’ observation in Stubbings that he had “the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury.”

The decision: discretion
The House of Lords rejected the “exceptional indulgence” approach of the Bryn Alyn decision and confirmed, as it had in Horton v Sadler [2007] 1 AC 307, that the discretion was broad and unfettered.

Lord Brown of Eaton-Under-Heywood gave some guidance on how the exercise of the discretion should be approached:

– Claims against employers alleging vicarious liability for sexual assaults were now likely to involve more straightforward issues of fact than previously and this would bear significantly on whether there could be a fair trial.

– Whether it will be possible for there to be a fair trial of allegations of sexual assault will depend on a number of factors including: whether a contemporaneous complaint was made or whether the complaint came “out of the blue”, when the complaint was made and with what effect, whether there were records of the complaint, whether the assailant was convicted.

“[86]…By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations-see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay. Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier…It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position.”

The consequences
Although the “lottery rapist” case has been the subject of much publicity, cases in which an assailant becomes worth suing many years after the assault are likely to be few and far between. The decision will have much more impact in cases such as X and Y, H, C and Young where the assaults occurred in the course of the assailant’s employment. The employer is likely to be insured and worth suing, and Lister has made “course of employment” arguments difficult for defendants.

Such claimants have of course always been able to bring claims against employers in these circumstances, but in order to bring the claim within the extendible (rather than the fixed 6 year) limitation regime it has been necessary for the claimant to prove not just that there was an assault, but that the assault occurred owing to negligence. Now the claimant can rely on the extendible limitation regime in his assault claim.

The decision has both advantages and disadvantages for claimants:

– It is to the claimant’s advantage that he no longer needs to prove negligence. The claimant need only prove the assault and, if he can overcome the limitation hurdle, the claim will succeed.

– As the only liability issue will be whether the assault occurred, the allegations and the factual issues they raise will in many cases, as Lord Brown observed, be more straightforward. It may be more difficult for a defendant to claim prejudice in meeting these more limited allegations than it would be if the defendant were facing allegations of negligence.

– It is to the disadvantage of claimants that they now only have 3 years to bring an assault claim as of right, rather than 6 years.

– Under the Bryn Alyn approach claimants regularly succeeded in proving that their claims had been brought within 3 years of their date of knowledge. Claimants are now rarely likely to succeed on this basis. The effect of this is that, whereas previously claims had been brought as of right, now the claimant must prove that it is equitable to allow the action to proceed and the defendant’s prejudice in meeting the claim will be brought into account. In some cases that prejudice will be considerable.

Kate Thirlwall QC and Steven Ford appeared for the local authority defendants in X and Y, H and C; Rosalind Coe QC appeared for the claimant in Young. This summary was prepared by Steven Ford.

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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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