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AB & Ors v Nugent Care Society & GR v Wirral Metropolitan Borough Council

11 August 2009
The issues

Sexual abuse – Section 33 Limitation Act 1980 – Section 11 Limitation Act 1980 – date of knowledge – exercise of discretion – vicarious liability – KR v Bryn Alyn Community (Holdings) Ltd – A v Hoare.

The facts

Four cases on Appeal raised questions as to the correct approach as to the application of Section 33 of the Limitation Act 1980 in the light of the decision of the House of Lords in A v Hoare. Each Appeal arose out of allegations of historic sexual abuse at a children’s home.

The decision

In A v Hoare, the House of Lords had held that a claim for damages for trespass to the person (in these cases arising out of sexual abuse) was a claim for damages for breach of duty, disapproving of the earlier decision of the House of Lords in Stubbings v Webb. It followed therefore that the limitation period was 3 years but was subject to the Court’s discretion to extend the period under Section 33 of the Limitation Act 1980.

The decision in A v Hoare, together with the decision in Lister v Hesley Hall Ltd had had a significant effect on cases of alleged historic sexual abuse. In Lister, the House of Lords had made it clear that where there was a sufficient connection between the work of an employee and the acts of abuse committed by him, such as arose from employment in a care home or school (where there was close contact between the employees and pupils or patients, with the inherent risks involved in that situation) vicarious liability was likely to be established. This was a significant development because it meant that it was no longer necessary for a Claimant to seek to establish a breach of a duty of care by alleging that the system in place was such as to give rise to such a breach and thus to a primary liability in negligence. It was now sufficient to establish the trespass to the person in most cases.

Another important aspect of the decision in A v Hoare was with regard to the date of knowledge. The House of Lords construed Section 14 more narrowly than it had been construed before. In particular, Lord Hoffman had observed that the date of knowledge was the date the Claimant first had knowledge of various facts, including that the injury was significant and that the test to be applied was an entirely impersonal standard, ie not whether the Claimant himself would have considered the injuries sufficiently serious to justify proceedings, but whether he would “reasonably” have done so.

Before A v Hoare, the leading case on the correct approach as to knowledge and the exercise of discretion was KR v Bryn Alyn Community (Holdings) Ltd. Insofar as that case related to issues relating to the date of knowledge, it had now been superseded by the approach in Hoare. However, its approach to the exercise of the discretion under Section 33 remained valid subject to certain amendments in the light of Hoare. Bryn Alyn set out the starting points which were well established and uncontroversial. They were as follows:-

1. In multiple claims a Judge should consider the exercise of his discretion separately in relation to each claim.
2. The burden of showing that it would be equitable to dis-apply the limitation period lay on the Claimant and was a heavy burden. It was an exceptional indulgence to a Claimant to be granted only where equity between the parties demanded it.
3. Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely and the greater the prejudice to the Defendant.
4. Where a Judge was minded to grant a long “extension” he should take meticulous care in giving reasons for doing so.
5. A Judge should not reach a decision concluding the matter effectively on the strength of any one of the circumstances specified in Section 33(3) or on any one of any other circumstances relevant to his decision, or without regard to all the issues of the case. He should conduct a balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all of the issues, taking them all into account.
6. Wherever the Judge thinks it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings, written witness statements and the extent and content of discovery.
7. Where a Judge determines the Section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues before determining the issue of liability.
8. Where a Judge has assessed the likely cogency of the available evidence, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the Claimant’s case, the greater the prejudice to the Defendant in depriving him of the benefit of the limitation period.

There were important distinctions between the questions considered in Bryn Alyn and those considered since A v Hoare. The two critical points were firstly that it was necessary previously for the evidence to cover the whole system being operated in the relevant home over a long period and for the Court to consider whether there was a relevant breach of duty. Now no such analysis was required. In order to succeed the Claimant had to show firstly, that he was assaulted; secondly, that the Defendant was vicariously responsible; thirdly, that the abuse had caused the alleged damage and fourthly quantum. The second distinction was that the exercise under Section 33 was significantly different from before. Evidence of the Claimant that he or she was inhibited by the abuse was now relevant to the exercise of the discretion, whereas previously it was not. The consideration was previously treated as relevant to knowledge. In the light of these considerations the starting points taken from Bryn Alyn remain valid.

As to point 2, it was correct to describe the exercise of the discretion as an exceptional indulgence. But it was only exceptional but for its exercise the claim would be time barred. The discretion was wide and unfettered. As to 6, there were not now likely to be many cases in which a Judge would consider it was not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery.

The Court would only add that where a Claimant gave evidence for the purposes of a preliminary issue on limitation and where the Judge exercised the discretion of the Court to permit the claim to continue, every effort should be made to make sure that the Claimant did not have to give oral evidence again on the issue of liability.

As to the issues with regard to date of knowledge, in the two relevant cases the acts involved had been beyond casual fondling and in the first case had involved oral sex on one occasion. In the second case the acts had included, but had not been limited to, repeated oral penetration. The assaults were not violent and there had been no physical injury. A cause of action in negligence did not require proof of physical or psychiatric damage. It followed that in cases involving the sexual abuse of young people, an absence of immediate physical or psychiatric damage did not mean that the right to a significant award of damages had not arisen. Lord Hoffman had recommended a “practical and relatively unsophisticated approach to the question of knowledge”. Whilst it was true that Lord Griffiths in Stubbings v Webb had drawn a distinction between rape and sexual abuse “that goes no further than indecent fondling of a child” it was clear that in these cases the Court was concerned with the more serious type of sexual abuse. However, the Court would disavow a rigid taxonomy, which would be inconsistent with Lord Hoffman’s practical and relatively unsophisticated approach.

Cross Appeals in respect of date of knowledge dismissed.

Appeals in respect of exercise of discretion dismissed.

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