(1) CATHOLIC CARE (DIOCESE OF LEEDS) (2) THE HOME OFFICE AND KEVIN RAYMOND YOUNG [2006] EWCA Civ 1534
FACTS:-
The facts of this case and the decision at first instance can be seen in the case of KEVIN RAYMOND YOUNG VERSUS CATHOLIC CARE AND THE HOME OFFICE (unreported) 18th November 2005 in Leeds Civil Hearing Centre
The Claimant was born on the 18th June 1959 and taken into care on the 15th September 1961, suffering from neglect. He was passed from pillar to post during his childhood and resided in some 50 different institutions and homes.
From October 1974 to July 1976 he was resident at the Second Defendant’s school, St Camillus in Tadcaster, York. There he was the victim of sexual assaults by a member of staff. He left St Camillus in June 1976 and then committed an offence of dishonesty for which he was sentenced to 3 months detention at Medomsley Detention Centre, Consett, County Durham owned by the Third Defendant. There he was sexually assaulted by another member of staff. He was released from the Centre in June 1977. The experts all agreed by that by his own account, the Claimant had suffered post traumatic stress disorder.
From 1980 to 1996, the Claimant was very successful in forming and running various businesses as well as having satisfactory long term heterosexual relationships. In January 1986 he asked to see his social services file, because he was writing a book about his experiences. He wanted to check why certain decisions had been made about his placements.
In December 1996, he was in the process of selling his security business (which had an annual turnover of £1 million). He collided with one of his abusers. This caused him to have a mental breakdown.
The police began enquires into the conduct of his abuser, but he was not seen by the police until December 2000 and made a statement on the 3rd March 2001. He consulted a GP about his psychiatric problems on the 3rd March 2001, and was referred to a hospital, but there was no follow up. He was advised by the police to consult a solicitor and he went to solicitor on the 21st September 2001, but they could not arrange funding. He was also advised to await the outcome of the criminal proceedings.
On the 2nd May 2002, one of his abusers was convicted of abusing children although none of these counts involved the Claimant. On the 14th February 2003 the other abuser was convicted of abusing children. The counts involved four offences committed against the Claimant.
The Claimant’s solicitors wrote a letter before action on the 6th March 2003 and issued proceedings on the 11th April 2003. His claim came before His Honour Judge Cockcroft in Kevin Raymond Young Versus Catholic Care And The Home Office (unreported) 18th November 2005 in Leeds Civil Hearing Centre. Judge Cockcroft found that the Claimant did not “know” that he had a claim for the purposes of sections 11 and 14 of the Limitation Act 1980, until after he approached the police. The Defendants appealed.
HELD:-
Sections 11 and 14 of the Limitation Act 1980
Dyson LJ gave the lead judgment, and he considered sections 11 and 14 of the Limitation Act 1980.
“11(4) Except where subsection (5) below applies, the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
14(1)……in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant;
………
and knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
The trial judge had held that the Defendant had first known that he had suffered a significant injury attributable to the omissions of the Defendants when he spoke to the police at the end of 2000 or beginning of 2001.
Dyson LJ considered the relevant authorities. It was now clearly established that time starts to run against a Claimant for the purposes of section 14(1) when he knows that the injury on which he founds his claim is capable of being attributed to the act or omission of the Defendant he wishes to sue, irrespective of whether, at that point, he knows that the act or omission is actionable or tortious. (Dobbie v Medway Health Authority [1974] 1 WLR 1234).
Dyson LJ referred to the case of KR and others v Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ 85. The court had sought to elucidate the meaning of “significant injury” in section 14(2) of the Limitation Act 1980. Auld LJ had observed that there may be difficulty in disentangling the immediate injury from long term psychiatric injury diagnosed much later, and that the test for “knowledge” was partly a subjective test.
Dyson LJ quoted Auld LJ’s speech from the Bryn Alyn case and also referred to another important case, Adams v Bracknell Forest BC [2004] UKHL 29. This case concerned a Claimant who attended the Defendant’s schools between 1977 and 1988 and had literacy problems. In 1999, aged 27 he was told by an educational psychologist that he might be dyslexic. Upon a doctor confirming that diagnosis he issued proceedings. At trial the Claimant was able to successfully argue that he was within the three years for the bringing of proceedings by reason of sections 14(1) and 14(3). The Defendant’s appeal was dismissed by the Court of Appeal but this decision was reversed by the House of Lords.
Lord Hoffman had said in that case that section14(3) uses the word “reasonable” three times. The word is generally used in the law to import an objective standard, but the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question. The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard.
Lord Hoffman had also drawn on the reasoning of the majority of the Court of Appeal in Forbes v Wandsworth Health Authority [1997] QB 402. Section 14 should not be construed narrowly, in view of the wide discretionary power to extend time under section 33 of the Limitation Act 1980. It was therefore possible to interpret section 14(3) with a greater regard to the potential injustice to Defendants if the limitation period would be indefinitely extended.
According to Lord Hoffman, the trial judge in Adams was right to apply the standard of reasonable behaviour of a person assumed to be suffering from untreated dyslexia. If the injury itself would reasonably inhibit him from seeking advice, then that was a factor which had to be taken into account. Lord Scott in the same case had said that personal characteristics such as shyness and embarrassment, which may have inhibited the Claimant from seeking advice about his illiteracy should be left out of the equation.
The test was not wholly objective. The distinction between circumstances and personal characteristics was intelligible and helpful in many cases.
Dyson LJ then turned to the judgment of Judge Cockcroft at first instance. The Bryn Alyn case is concerned with the meaning of section 14(2) and the test to be applied in deciding whether an injury is significant for the purposes of section 14(1)(a). Adams was concerned about the test to be applied in deciding whether a Claimant has constructive knowledge within the meaning of section 14(3)(b) of one of the facts stated in section 14(1).
In Adams it was held that a substantially objective test was to be applied for the purposes of section 14(3)(b).
Bryn Alyn had been cited in Adams and was not disapproved. However the reasoning summarised by Dyson LJ in this case compelled him to conclude that the Court of Appeal in Bryn Alyn adopted the wrong approach, by enunciating a substantially subjective test. In the judgment of Dyson LJ, the presence of the word “reasonably” in section 14(2) and “reasonable” in section 14(3) required the same approach to be adopted in both subsections. Parliament could not have intended that 14(3) carried a substantially objective test and section 14(2) a substantially subjective test.
Again if a person who had suffered a particular type of injury would reasonably have been inhibited by the injury itself from instituting proceedings, then that is a factor that should be taken into account in deciding whether he or she would reasonably have considered it sufficiently serious to justify proceedings. The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered the degree of injury suffered by the Claimant in question and of which he has knowledge.
In Dyson LJ’s view, it would be a question of fact in every case whether, having regard to the (i) the Claimant’s knowledge of the seriousness of the injury and (ii) the inhibiting and other consequences of the injury for the Claimant, at the date of knowledge he would reasonably have considered the injury to be sufficiently serious to justify his instituting proceedings.
In Bryn Alyn, Auld LJ had used the words “reasonably turn his mind to litigation as a solution to his problems.” Dyson LJ doubted whether it was helpful to explain the test in this way.
Dyson LJ then came to a consideration of the evidence in the case. The experts agreed that the Claimant had suffered a complex post traumatic stress disorder, which was at its height during the first three years after his release from the last institution. Dyson LJ said that in his view the evidence showed that he did have actual knowledge at this time that he had suffered and was suffering from a psychiatric illness. Physical and mental injuries were indivisible for the purposes of establishing the Claimant’s date of knowledge. Viewed objectively and without regard for the fact that the Claimant suppressed his memories, the injuries were sufficiently serious.
However Dyson LJ considered the relevance of the fact that the Claimant did suppress his memories of the assaults. The trial judge was entitled to hold that it would have been wholly unrealistic to hold that time began to run by reason of the very disability the Claimant then suffered from. His reaction according to the expert evidence was typical of victims of childhood assaults.
There was a distinct question as to when the Claimant first knew that his injuries were attributable to the omission of the Defendants, which are said to constitute negligence. The Claimant had said in his first witness statement that he always felt betrayed by the system. He had been trying to gain access to his social services records for 20 years.
In January 1986, the Claimant asked to see his social services files. The trial judge had found that at that time he was willing, if not eager to confront the evidence. Dyson LJ said that this finding did not sit easily with the other finding of the trial judge that the Claimant had kept his box of memories “firmly sealed in the attic.”
Dyson LJ did not find it necessary to find whether the Claimant had relevant knowledge in 1986 because in his view, the Claimant had relevant knowledge in December 1996 when he bumped into one of his abusers. Dyson LJ went over the Claimant’s evidence under cross examination and said that in his view, the Claimant knew that he was ill. The trial judge had found that around that time, the Claimant’s world had collapsed around him and he knew why. He was now suffering from a cluster of serious psychiatric symptoms because of being in care and at Medomsley.
In Dyson L J’s view, the trial judge had erred in two respects. First he had applied the “reasonable curiosity” test mentioned by Lord Hoffman in Adams but these comments were made in relation to section 14(3) of the Limitation Act 1980. These relate to curiosity about the origins or cause of the Claimant’s illness, something that in this case the Claimant already knew. Once such knowledge was established, there is no role for “curiosity” about whether legal proceedings were justified.
Second the trial judge had concluded that the injury reasonably inhibited the Claimant from instituting proceedings and he regarded this as determinative of the section 14(2) issue. It was a factor to be taken into account, but it was not determinative.
Dyson LJ concluded that the Claimant knew that the injuries of which he now complained were significant shortly after December 1996. Subject to section 33 of the Limitation Act 1980, the proceedings were therefore time barred.
Section 33 of the Limitation Act 1980
The trial judge had considered whether it would be equitable to allow an action to proceed under section 33. Dyson LJ agreed with the trial judge when he said that section 33 imposed a heavy burden on the Claimant. The overall question was one of equity, namely whether it would be equitable to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case.
The trial judge had said that Section 33(3) provided a useful checklist of criteria, but in the end one had to stand back and ask whether a fair trial could now be heard. Dyson LJ said that the Claimant’s attempt to impugn the judge’s exercise of discretion could not succeed. The fact that there were fair criminal trials of the two abusers more than 20 years after the event carried little if any weight. The issues in this case were very different and involved an examination of responsibility within the Defendant organisations for children and employees.
Sir Peter Gibson agreed with the comments of Dyson LJ.
Lord Justice Buxton also agreed with Dyson LJ. There could be no doubt that the House of Lords in Adams decided that the test under section 14(3) was objective rather than subjective. The three references in section 14(3) to reasonableness outweighed the six references to the perception or action of the Claimant himself.
Secondly although the House of Lords in Adams addressed section 14(3) and not section 14(2), its reasoning in relation to section 14(3) must apply to section 14(2).
Thirdly the House of Lord in Adams had not pass on what has been identified as the “Bryn Alyn” test, that is, when such an already damaged child would reasonably turn his mind to litigation and a solution to problems. The only amendment to that formula that followed from Adams was to express it in terms of the reaction in respect of litigation of a hypothetical reasonable child in the position of the Claimant. Therefore the Court of Appeal would now apply an amended Bryn Alyn test.
In relation to sections 14(2) and (3) the reasonable man does not share traits of character and intelligence that are personal to the Claimant. That reasonable man does however share the characteristics of any class or category into which the Claimant falls. In order to establish that categorisation there must be expert evidence, usually of a medical nature.
Buxton LJ said that the Bryn Alyn test, binding though it was, did not correctly interpret the statute. The reasonable man had to think that he was justified in bringing the claim, which was to be distinguished from his being embarrassed, uninterested or in a state of fugue. The court should assess the nature, amount and circumstances of the claim and not the nature and circumstances of the Claimant. The Bryn Alyn test asks when it would be reasonable for the Claimant to think of litigation, and that question had nothing to do with justification.
Even where the victim’s inhibitions in starting litigation are caused by the abuse itself, which should be a factor under section 33 of the Limitation Act 1980.
The modified Bryn Alyn test applied to the Claimant in 1980
Under the Bryn Alyn test, the judge was entitled to find that a reasonable sexually abused child would not have turned his mind to litigation. That suffices to meet the Bryn Alyn test.
However if there were to be applied the analysis of section 14(2) promulgated by Buxton LJ, there was no expert evidence that an abused person in the position of the Claimant was incapable of assessing whether recourse to the courts would be justified. The Claimant’s psychiatrist had stated that an abused person would think that such a claim would be unsuccessful, but that could not be relevant because section 14(2) requires it to be assumed that the claim would not be contested. The Bryn Alyn test wrongly assisted the Claimant, but that was the jurisprudence that the court had to apply.
The modified Bryn Alyn test applied to the Claimant in 1986
Buxton LJ said that he found the evidence around this period difficult. In particular there was a concern about the Claimant asking to see his social services file in about January 1986. The Claimant’s psychiatrist had said that the Claimant was driven by a desire to make sense of his life. There was a clear inconsistency in the evidence. The Claimant had made a conscious decision to get on with his life, notwithstanding the mental problems that he had suppressed in his head. The trial judge had said that he had come to terms with his past experience. If the judge had asked whether a reasonable abused man who was now willing to confront the past would reasonably turn his mind to litigation, there would seem to be only one possible answer.
The psychiatric evidence showed that the Claimant had suppressed his symptoms, but that is not the same as suppressing the facts of what had happened to him to produce those symptoms, and specific evidence about the Claimant suggests that he did not do that.
Consequently Buxton LJ said that the Claimant should reasonably have turned his mind to litigation in 1986.
The modified Bryn Alyn test applied to the Claimant in 1996
Buxton LJ said that the actual evidence showed that shortly after the Claimant bumped into one of his abusers, he knew that he was suffering from a serious illness. Others in his position would have reacted in the same way. The Claimant already knew what the cause of his illness was. Once that was established, there would not seem to be any role for “curiosity” about whether legal proceedings were justified.
Buxton LJ would therefore allow the appeals of the both the Defendants. He also agreed with Dyson LJ’s analysis of section 33.
FACTS:-
The facts of this case and the decision at first instance can be seen in the case of KEVIN RAYMOND YOUNG VERSUS CATHOLIC CARE AND THE HOME OFFICE (unreported) 18th November 2005 in Leeds Civil Hearing Centre
The Claimant was born on the 18th June 1959 and taken into care on the 15th September 1961, suffering from neglect. He was passed from pillar to post during his childhood and resided in some 50 different institutions and homes.
From October 1974 to July 1976 he was resident at the Second Defendant’s school, St Camillus in Tadcaster, York. There he was the victim of sexual assaults by a member of staff. He left St Camillus in June 1976 and then committed an offence of dishonesty for which he was sentenced to 3 months detention at Medomsley Detention Centre, Consett, County Durham owned by the Third Defendant. There he was sexually assaulted by another member of staff. He was released from the Centre in June 1977. The experts all agreed by that by his own account, the Claimant had suffered post traumatic stress disorder.
From 1980 to 1996, the Claimant was very successful in forming and running various businesses as well as having satisfactory long term heterosexual relationships. In January 1986 he asked to see his social services file, because he was writing a book about his experiences. He wanted to check why certain decisions had been made about his placements.
In December 1996, he was in the process of selling his security business (which had an annual turnover of £1 million). He collided with one of his abusers. This caused him to have a mental breakdown.
The police began enquires into the conduct of his abuser, but he was not seen by the police until December 2000 and made a statement on the 3rd March 2001. He consulted a GP about his psychiatric problems on the 3rd March 2001, and was referred to a hospital, but there was no follow up. He was advised by the police to consult a solicitor and he went to solicitor on the 21st September 2001, but they could not arrange funding. He was also advised to await the outcome of the criminal proceedings.
On the 2nd May 2002, one of his abusers was convicted of abusing children although none of these counts involved the Claimant. On the 14th February 2003 the other abuser was convicted of abusing children. The counts involved four offences committed against the Claimant.
The Claimant’s solicitors wrote a letter before action on the 6th March 2003 and issued proceedings on the 11th April 2003. His claim came before His Honour Judge Cockcroft in Kevin Raymond Young Versus Catholic Care And The Home Office (unreported) 18th November 2005 in Leeds Civil Hearing Centre. Judge Cockcroft found that the Claimant did not “know” that he had a claim for the purposes of sections 11 and 14 of the Limitation Act 1980, until after he approached the police. The Defendants appealed.
HELD:-
Sections 11 and 14 of the Limitation Act 1980
Dyson LJ gave the lead judgment, and he considered sections 11 and 14 of the Limitation Act 1980.
“11(4) Except where subsection (5) below applies, the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
14(1)……in sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts-
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant;
………
and knowledge that any acts or omission did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire-
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek.
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”
The trial judge had held that the Defendant had first known that he had suffered a significant injury attributable to the omissions of the Defendants when he spoke to the police at the end of 2000 or beginning of 2001.
Dyson LJ considered the relevant authorities. It was now clearly established that time starts to run against a Claimant for the purposes of section 14(1) when he knows that the injury on which he founds his claim is capable of being attributed to the act or omission of the Defendant he wishes to sue, irrespective of whether, at that point, he knows that the act or omission is actionable or tortious. (Dobbie v Medway Health Authority [1974] 1 WLR 1234).
Dyson LJ referred to the case of KR and others v Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ 85. The court had sought to elucidate the meaning of “significant injury” in section 14(2) of the Limitation Act 1980. Auld LJ had observed that there may be difficulty in disentangling the immediate injury from long term psychiatric injury diagnosed much later, and that the test for “knowledge” was partly a subjective test.
Dyson LJ quoted Auld LJ’s speech from the Bryn Alyn case and also referred to another important case, Adams v Bracknell Forest BC [2004] UKHL 29. This case concerned a Claimant who attended the Defendant’s schools between 1977 and 1988 and had literacy problems. In 1999, aged 27 he was told by an educational psychologist that he might be dyslexic. Upon a doctor confirming that diagnosis he issued proceedings. At trial the Claimant was able to successfully argue that he was within the three years for the bringing of proceedings by reason of sections 14(1) and 14(3). The Defendant’s appeal was dismissed by the Court of Appeal but this decision was reversed by the House of Lords.
Lord Hoffman had said in that case that section14(3) uses the word “reasonable” three times. The word is generally used in the law to import an objective standard, but the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question. The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard.
Lord Hoffman had also drawn on the reasoning of the majority of the Court of Appeal in Forbes v Wandsworth Health Authority [1997] QB 402. Section 14 should not be construed narrowly, in view of the wide discretionary power to extend time under section 33 of the Limitation Act 1980. It was therefore possible to interpret section 14(3) with a greater regard to the potential injustice to Defendants if the limitation period would be indefinitely extended.
According to Lord Hoffman, the trial judge in Adams was right to apply the standard of reasonable behaviour of a person assumed to be suffering from untreated dyslexia. If the injury itself would reasonably inhibit him from seeking advice, then that was a factor which had to be taken into account. Lord Scott in the same case had said that personal characteristics such as shyness and embarrassment, which may have inhibited the Claimant from seeking advice about his illiteracy should be left out of the equation.
The test was not wholly objective. The distinction between circumstances and personal characteristics was intelligible and helpful in many cases.
Dyson LJ then turned to the judgment of Judge Cockcroft at first instance. The Bryn Alyn case is concerned with the meaning of section 14(2) and the test to be applied in deciding whether an injury is significant for the purposes of section 14(1)(a). Adams was concerned about the test to be applied in deciding whether a Claimant has constructive knowledge within the meaning of section 14(3)(b) of one of the facts stated in section 14(1).
In Adams it was held that a substantially objective test was to be applied for the purposes of section 14(3)(b).
Bryn Alyn had been cited in Adams and was not disapproved. However the reasoning summarised by Dyson LJ in this case compelled him to conclude that the Court of Appeal in Bryn Alyn adopted the wrong approach, by enunciating a substantially subjective test. In the judgment of Dyson LJ, the presence of the word “reasonably” in section 14(2) and “reasonable” in section 14(3) required the same approach to be adopted in both subsections. Parliament could not have intended that 14(3) carried a substantially objective test and section 14(2) a substantially subjective test.
Again if a person who had suffered a particular type of injury would reasonably have been inhibited by the injury itself from instituting proceedings, then that is a factor that should be taken into account in deciding whether he or she would reasonably have considered it sufficiently serious to justify proceedings. The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered the degree of injury suffered by the Claimant in question and of which he has knowledge.
In Dyson LJ’s view, it would be a question of fact in every case whether, having regard to the (i) the Claimant’s knowledge of the seriousness of the injury and (ii) the inhibiting and other consequences of the injury for the Claimant, at the date of knowledge he would reasonably have considered the injury to be sufficiently serious to justify his instituting proceedings.
In Bryn Alyn, Auld LJ had used the words “reasonably turn his mind to litigation as a solution to his problems.” Dyson LJ doubted whether it was helpful to explain the test in this way.
Dyson LJ then came to a consideration of the evidence in the case. The experts agreed that the Claimant had suffered a complex post traumatic stress disorder, which was at its height during the first three years after his release from the last institution. Dyson LJ said that in his view the evidence showed that he did have actual knowledge at this time that he had suffered and was suffering from a psychiatric illness. Physical and mental injuries were indivisible for the purposes of establishing the Claimant’s date of knowledge. Viewed objectively and without regard for the fact that the Claimant suppressed his memories, the injuries were sufficiently serious.
However Dyson LJ considered the relevance of the fact that the Claimant did suppress his memories of the assaults. The trial judge was entitled to hold that it would have been wholly unrealistic to hold that time began to run by reason of the very disability the Claimant then suffered from. His reaction according to the expert evidence was typical of victims of childhood assaults.
There was a distinct question as to when the Claimant first knew that his injuries were attributable to the omission of the Defendants, which are said to constitute negligence. The Claimant had said in his first witness statement that he always felt betrayed by the system. He had been trying to gain access to his social services records for 20 years.
In January 1986, the Claimant asked to see his social services files. The trial judge had found that at that time he was willing, if not eager to confront the evidence. Dyson LJ said that this finding did not sit easily with the other finding of the trial judge that the Claimant had kept his box of memories “firmly sealed in the attic.”
Dyson LJ did not find it necessary to find whether the Claimant had relevant knowledge in 1986 because in his view, the Claimant had relevant knowledge in December 1996 when he bumped into one of his abusers. Dyson LJ went over the Claimant’s evidence under cross examination and said that in his view, the Claimant knew that he was ill. The trial judge had found that around that time, the Claimant’s world had collapsed around him and he knew why. He was now suffering from a cluster of serious psychiatric symptoms because of being in care and at Medomsley.
In Dyson L J’s view, the trial judge had erred in two respects. First he had applied the “reasonable curiosity” test mentioned by Lord Hoffman in Adams but these comments were made in relation to section 14(3) of the Limitation Act 1980. These relate to curiosity about the origins or cause of the Claimant’s illness, something that in this case the Claimant already knew. Once such knowledge was established, there is no role for “curiosity” about whether legal proceedings were justified.
Second the trial judge had concluded that the injury reasonably inhibited the Claimant from instituting proceedings and he regarded this as determinative of the section 14(2) issue. It was a factor to be taken into account, but it was not determinative.
Dyson LJ concluded that the Claimant knew that the injuries of which he now complained were significant shortly after December 1996. Subject to section 33 of the Limitation Act 1980, the proceedings were therefore time barred.
Section 33 of the Limitation Act 1980
The trial judge had considered whether it would be equitable to allow an action to proceed under section 33. Dyson LJ agreed with the trial judge when he said that section 33 imposed a heavy burden on the Claimant. The overall question was one of equity, namely whether it would be equitable to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case.
The trial judge had said that Section 33(3) provided a useful checklist of criteria, but in the end one had to stand back and ask whether a fair trial could now be heard. Dyson LJ said that the Claimant’s attempt to impugn the judge’s exercise of discretion could not succeed. The fact that there were fair criminal trials of the two abusers more than 20 years after the event carried little if any weight. The issues in this case were very different and involved an examination of responsibility within the Defendant organisations for children and employees.
Sir Peter Gibson agreed with the comments of Dyson LJ.
Lord Justice Buxton also agreed with Dyson LJ. There could be no doubt that the House of Lords in Adams decided that the test under section 14(3) was objective rather than subjective. The three references in section 14(3) to reasonableness outweighed the six references to the perception or action of the Claimant himself.
Secondly although the House of Lords in Adams addressed section 14(3) and not section 14(2), its reasoning in relation to section 14(3) must apply to section 14(2).
Thirdly the House of Lord in Adams had not pass on what has been identified as the “Bryn Alyn” test, that is, when such an already damaged child would reasonably turn his mind to litigation and a solution to problems. The only amendment to that formula that followed from Adams was to express it in terms of the reaction in respect of litigation of a hypothetical reasonable child in the position of the Claimant. Therefore the Court of Appeal would now apply an amended Bryn Alyn test.
In relation to sections 14(2) and (3) the reasonable man does not share traits of character and intelligence that are personal to the Claimant. That reasonable man does however share the characteristics of any class or category into which the Claimant falls. In order to establish that categorisation there must be expert evidence, usually of a medical nature.
Buxton LJ said that the Bryn Alyn test, binding though it was, did not correctly interpret the statute. The reasonable man had to think that he was justified in bringing the claim, which was to be distinguished from his being embarrassed, uninterested or in a state of fugue. The court should assess the nature, amount and circumstances of the claim and not the nature and circumstances of the Claimant. The Bryn Alyn test asks when it would be reasonable for the Claimant to think of litigation, and that question had nothing to do with justification.
Even where the victim’s inhibitions in starting litigation are caused by the abuse itself, which should be a factor under section 33 of the Limitation Act 1980.
The modified Bryn Alyn test applied to the Claimant in 1980
Under the Bryn Alyn test, the judge was entitled to find that a reasonable sexually abused child would not have turned his mind to litigation. That suffices to meet the Bryn Alyn test.
However if there were to be applied the analysis of section 14(2) promulgated by Buxton LJ, there was no expert evidence that an abused person in the position of the Claimant was incapable of assessing whether recourse to the courts would be justified. The Claimant’s psychiatrist had stated that an abused person would think that such a claim would be unsuccessful, but that could not be relevant because section 14(2) requires it to be assumed that the claim would not be contested. The Bryn Alyn test wrongly assisted the Claimant, but that was the jurisprudence that the court had to apply.
The modified Bryn Alyn test applied to the Claimant in 1986
Buxton LJ said that he found the evidence around this period difficult. In particular there was a concern about the Claimant asking to see his social services file in about January 1986. The Claimant’s psychiatrist had said that the Claimant was driven by a desire to make sense of his life. There was a clear inconsistency in the evidence. The Claimant had made a conscious decision to get on with his life, notwithstanding the mental problems that he had suppressed in his head. The trial judge had said that he had come to terms with his past experience. If the judge had asked whether a reasonable abused man who was now willing to confront the past would reasonably turn his mind to litigation, there would seem to be only one possible answer.
The psychiatric evidence showed that the Claimant had suppressed his symptoms, but that is not the same as suppressing the facts of what had happened to him to produce those symptoms, and specific evidence about the Claimant suggests that he did not do that.
Consequently Buxton LJ said that the Claimant should reasonably have turned his mind to litigation in 1986.
The modified Bryn Alyn test applied to the Claimant in 1996
Buxton LJ said that the actual evidence showed that shortly after the Claimant bumped into one of his abusers, he knew that he was suffering from a serious illness. Others in his position would have reacted in the same way. The Claimant already knew what the cause of his illness was. Once that was established, there would not seem to be any role for “curiosity” about whether legal proceedings were justified.
Buxton LJ would therefore allow the appeals of the both the Defendants. He also agreed with Dyson LJ’s analysis of section 33.