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Dunnett v Devon County Council Dewsbury, County Court, 4 April 2012

17 April 2012
The issues

Sexual abuse – limitation period – untraceable / dead witnesses – credibility of the claimant – claimant’s previous convictions

The facts

The claimant was born on 27 February 1965. He alleged that while he attended Forde Park residential school he was abused by both Mr Ely, the Scout Master and Mr Hooper, the gardener at the school. Mr Dunnett also made further allegations to the police with regard to other employees but these were found to be untrue.

The claimant claims the Scout Master’s abuse was the most prolonged and progressive resulting in anal rape. The abuse ended when the scout master left the school suddenly and unexpectedly (it is believed in conjunction with allegations of abuse by another resident). Mr Hooper, it is alleged, abused the claimant whilst Mr Dunnett was assigned the task of assisting the gardener. The abuse took place in the garden shed and also at the gardener’s home, which was located opposite the school.

The claimant issued proceedings on 12 April 2010 seeking damages against the defendant for personal injury caused by the abusive treatment whilst in the care of the defendant. The primary limitation expired when Mr Dunnett reached the age of 21 in 1986. The claimant made an application pursuant to s.33 of the Limitation Act to disapply the limitation period.

The decision

There were four issues before the judge:

  • limitation
  • whether the alleged abuse occurred
  • the causation of psychological damage (if any)
  • quantum.

With regard to limitation; at the time proceedings were commenced the events complained of, if they occurred, were at least 29 years old. The judge first considered the lack of any records that there might be and the fact the defendants could not have either Mr Ely or Mr Hooper as witnesses (Hooper had since died and Ely could not be traced). This was particularly crucial in light of the dates the claimant stated he attended Forde Park, as Hooper and Ely left employment in 1976 and 1977 respectively, with the claimant stating in a police interview he did not attend Ford Park until 1978 / 1979, in which case abuse by these individuals at Forde Park was highly unlikely.

The judge found for the purposes of resolving the s.33 Limitation issue the overwhelming feature as being the absence of any real prejudice to the defendants as he did not see that the absence of Ely and Hooper from the defendant’s list of available witnesses as truly prejudicial regardless of when the litigation had commenced.

The limitation would therefore be disapplied.

In relation to liability, there was no direct evidence to contradict what the claimant was alleging. The claimant relied on the fact that both Ely and Hooper were convicted of abuse at Ford Park around the time of his attendance and the fact the claimant made a statement to the police in May 1999 where he identified both Hooper and Ely as abusing him, prior to the claimant being made aware of their identification.

However, the judge emphasised that it was a “question on the balance of probabilities [that he] is satisfied that the Claimant’s evidence of abuse is a truthful account given by him”. The judge held that the claimant lacked credibility in light of mis-reference to dates, mis-reference to potential abusers in past police records as well as the fact that the claimant was currently serving a life sentence for a brutal murder.

He therefore dismissed the claimants claim on the basis that having seen and heard the claimant and in the light of the other evidence, the judge could not conclude that the account given by Mr Dunnett was more likely than not to be true.

Claim dismissed.

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