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Albonetti v Wirral Metropolitan Borough Council, Court of Appeal, 4 July 2008

17 July 2008
The issues

Limitation – sexual abuse.

The facts

The Claimant was born in 1955. When he was 15 he was taken into the care of the Local Authority because of his failure to attend school regularly. He was placed at a children’s home operated by the Authority and managed by a couple, Mr and Mrs Harrison. He was at the home for 6 months. The Claimant commenced proceedings in August 2001 alleging that he was subjected to sexual abuse by a man called Alistair Norman, who was a friend of Mr and Mrs Harrison. The Claimant alleged that Mr Norman had, amongst other matters, anal intercourse with him. On two occasions Mr Norman allowed his friend(s) to have anal intercourse with him. The Claimant left the home shortly before his 16th birthday and joined the army. In 1984 he went to Australia and in 1986 was admitted to a psychiatric hospital after the breakdown of his marriage. He did not tell the doctors that he had been sexually abused as a child, although a full social history was taken from him at the time. In 1996, the Claimant’s mother died and for the first time he felt able to speak about the abuse. He told his partner. In 1998 or 1999 he told that Australian police and in 1999 made a statement for the Merseyside police. In August 2001 he issued proceedings in the Birkenhead County Court and in September 2001 obtained a medical report from an Australian psychiatrist. On the basis of that report Particulars of Claim were drafted.

The particulars of injury pleaded comprised only the long term effects of post-traumatic stress disorder and no claim was made for the immediate effects of the abuse. The Claimant pleaded reliance on Sections 11 and 14 of the Limitation Act in the event of limitation being pleaded against him. He claimed that at the time of the abuse he did not know he had suffered a significant injury and that his date of knowledge for the purposes of the Limitation Act 1980 was November 2001 when he received the report of the Australian psychiatrist. The Claimant also relied on Section 33 on the basis that he had attempted to block the abuse out of his mind. He denied that the cogency of his evidence had been affected or that a fair trial of the issues was not possible. The matter came before the High Court Judge. The Judge ordered that the Claimant’s claim was not barred by the provisions of Section 11 and Section 14 of the Limitation Act 1980. Permission to Appeal was granted by the Court of Appeal but stayed pending the Appeal to the House of Lords in A v Hoare.

The decision

The decision of the House of Lords in the Hoare case had had an important effect on the approach which had to be adopted to questions of knowledge under Section 14. The partly subjective test applied in Bryn Allen was disapproved and it was now clear that the test of whether a Claimant knew at any particular date that he had suffered a significant injury was an objective one. As the House of Lords had put it, Section 14 may time run from when the Claimant had knowledge of certain facts, not from when he could have been expected to take certain steps. From this it followed that all subjective factors such as the Claimant’s determination to put the abuse out of his mind or his unwillingness to mention it to anyone or matters which went to his explanation for the delay were to be considered under Section 33.

A person who had been raped, whether vaginally or anally must know that she or he has suffered not only a grave wrong but also a significant injury. This was the view expressed obiter by Lord Griffiths in Stubbings v Webb, with which the Court respectfully agreed. Lord Griffiths had drawn a distinction between an allegation of rape and lesser forms of sexual abuse such as fondling, which might not amount to a significant injury. The allegation in this case of anal rape by more than one man on more than one occasion could not, in the Court’s view, sensibly be regarded as other than a significant injury. The Claimant’s submission that if the Respondent had consulted a solicitor in the mid-1970’s, shortly before the primary limitation period had run out, he would have been advised that he had not suffered a significant injury and that the damages and common law would be so small as not to be worth pursuing could not be accepted. The Court had taken notice of the fact that the Criminal Injuries Compensation Board had been making awards for rape since it inception in the mid-1960’s.

Nor was it accepted that damages were not available for distress and humiliation. Although those experiences could not in themselves amount to a personal injury which could sustain a free standing action, it had always been possible to include a claim for such experiences in a claim for personal injury as long as they were related to the physical or psychiatric injury on which the claim was based. In a case of rape or buggary, there was a sufficient physical injury on which to found a claim, even where no act or psychiatric harm had been caused. It had always been possible to claim for the humiliation and distress inherent in rape or buggary.

Did the Claimant know he had suffered a significant injury?

On the assumption that the Claimant’s allegations were true, the Court had no hesitation holding that he knew at all times after it had occurred that the abuse amounted to a significant injury. He would have known enough to make it reasonable to expect him to consult a solicitor and, had he done so, he would have discovered from a reasonably competent solicitor that substantial damages could, in theory, be awarded for such abuse. The Appeal against the Judge’s finding on Section 11 and Section 14 must be allowed. The Claimant cannot rely on those provisions to postpone the time at which time began to run against him for limitation purposes. Time ran from the date of his majority and ran out in 1976. This was not an appropriate case for the Court of Appeal to make a first decision on Section 33, which was the function of the Judge at first instance. The Court of Appeal had not heard the evidence and could not read the transcript, whereas the Judge had done so. The case would be remitted to the Judge as to whether or not to exercise his discretion.

Appeal allowed.

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