A.B. AND OTHERS AND THE NUGENT CARE SOCIETY (formerly Catholic Social Services (Liverpool)) [2006] EWHC 3031 (QB)
FACTS:-
The Claimant was born on the 11th June 1964. On the 29th January 1976, he was made the subject of a care order. Between October 1977 and June 1978 he was resident in St Aidans School. He was sexually abused by the headmaster of the school. The act amounted to gross indecency and he was also caned on his bare buttocks. His abuser was convicted of abuse in March 1996. The Claimant was also abused by another member of staff at the school. The Claimant said that he was abused perhaps 30 to 40 times by the headmaster and the other member of staff, who later pleaded guilty to abusing boys at the school.
The school was covered by the Community Homes Regulations 1972, and the St Aidans, Widnes Instrument of Management Order 1973 which both dealt with the issue of responsibility for the school. The Claimant’s personal file also survived, which showed that the headmaster himself had been told that the member of staff had slept in a bed with two boys.
Justice Holland had already heard the Claimant’s case on limitation together with two other cases in 1) A (2) B & OTHERS V NUGENT CARE SOCIETY (formerly Catholic Social Services (Liverpool)) [2006] EWHC 2986 (QB).
The three original Claimants, were all abused whilst in the care of the Defendant. They claimed damages in a test action and the Defendant raised the issue of limitation. They had brought their action many years after the end of the primary limitation period.
The First Claimant approached a doctor in relation to his drink problem some 28 years after the abuse had occurred, and told the doctor of the abuse. He was then referred to a psychiatrist. Two years later he gave a statement to the police. The Second Claimant had told his wife about the abuse about 5 years after it had occurred. Nineteen years after the abuse, he gave a statement to the police. The third Claimant had made a witness statement about his abuse some 17 years after his experience of abuse. He delayed his pursuit of compensation until the criminal trial was over.
All three submitted that (a) they did not have knowledge for the purposes of section 14 of the Limitation Act 1980 until less than 3 years before the issue of proceedings (b) they were entitled to rely on section 33 of the Limitation Act 1980, which enabled the court to waive the limitation period if it was just and equitable to do so.
Justice Holland had said that it was arguable that the First Claimant had knowledge for the purposes of section 14 of the Limitation Act 1980 at the time of the abuse. It was clear that he appreciated the continuing impact of the abuse and his date of knowledge in terms of significant injury long pre-dated his witness statement. He was reasonably inhibited from obtaining medical evidence and that was common and understandable, but it was not a decisive factor. The First Claimant never had knowledge of the facts. It was a matter upon which a case in negligence could be based nor of the identity of those responsible for breaches of duty of care. He had failed to show that he had acquired section 14 knowledge less than three years before issuing proceedings.
The Second Claimant’s case was stronger than that of X on the issue of significant injury but not to material degree. He had acute actual awareness of an injury in its origins, in its history. Therefore he had also acquired section 14 knowledge more than three years before the issue of proceedings. Furthermore neither the First nor Second Claimant was eligible for equitable relief under section 33 of the Limitation Act 1980.
The Third Claimant (who was the subject of this case report) also had actual knowledge more than three years before the issue of proceedings, but he did qualify for equitable relief under section 33. The headmaster who abused him was prima facie the person through whom the Defendant had to fulfil a duty of care. The headmaster was the person who had to devise the appropriate systems. Those systems were obviously inadequate to fulfil the duty and they did not serve to prevent the headmaster from abusing the Third Claimant.
The Defendant’s counsel made further submissions to the court in relation to this Third Claimant.
HELD:-
The Defendant submitted that the Claimant’s cause of action arising out of the facts as set out above was not covered by section 11 of the Limitation Act 1980. It was an action in trespass so as to be subject to the six year fixed time limit. This expired on the 4th June 1988.
Mr Justice Holland considered the provisions of section 2 and section 11 of the Limitation Act 1980 and also the previous case law, including Trotman v North Yorkshire County Council (1999) LGR 584 and Lister v Hesley Hall Ltd (2002) 1 AC 227 where the House of Lord overruled Trotman.
He also considered the case of KR v Bryn Alyn Community (Holdings) Ltd (2003) QB 1441 and A v Hoare (2006) 1 WLR 2320.
In Bryn Alyn the Court of Appeal had said that one of the Claimants, MCK was time barred under the six year rule from making any claim in respect of deliberate abuse by the employees of the Defendant Company. In the absence of some provable allegation of systemic negligence, employees’ deliberate abuse did not
fall under section 11 of the Limitation Act 1980 and was caught by the six year time limit.
In A v Hoare the Court of Appeal had said that they were bound by the decision of the Court of Appeal in Bryn Alyn although they criticised the injustice of the present state of the law.
The Defendant’s counsel submitted that the Claimant’s claim was on all fours with that of MCK in Bryn Alyn.
Justice Holland applied the tenets of the Bryn Alyn case to the assaults by the headmaster and the other member of staff.
Assaults by the headmaster
Justice Holland could not draw any effective distinction between this part of the Claimant’s claim and the claim by MCK in Bryn Alyn. He said that were he unconstrained by binding authority, he would hold that there was a breach of duty, and that the Defendant was vicariously liable for that breach of duty, which was capable of being advanced by an extension under section 33 of the Limitation Act 1980.
Assaults by the member of staff
This time, Justice Holland was able to draw an effective distinction between this claim and that of MCK. The matter had to be considered as a claim for negligence, because the headmaster had to satisfy the Defendant’s duty of care by instituting and maintaining systems to ensure, so far as was reasonably practicable, that the Claimant avoided reasonable foreseeable injury, and this he failed to do by spotting the member of staff’s paedophile activity.
In MCK’s case in Bryn Alyn the trial judge had found the Defendant vicariously liable in negligence for the failure of its staff to heed warning signs of the abuser’s misconduct. However the assaults on MCK had taken place in private and in the course of legitimate unsuspicious visits to Allen’s office. The Claimant in this case had no such difficulty. Therefore claim in respect of the assaults by the member of staff was not a claim based in trespass, but in negligence. Justice Holland’s exercise of his discretion under section 33 would therefore still stand.
FACTS:-
The Claimant was born on the 11th June 1964. On the 29th January 1976, he was made the subject of a care order. Between October 1977 and June 1978 he was resident in St Aidans School. He was sexually abused by the headmaster of the school. The act amounted to gross indecency and he was also caned on his bare buttocks. His abuser was convicted of abuse in March 1996. The Claimant was also abused by another member of staff at the school. The Claimant said that he was abused perhaps 30 to 40 times by the headmaster and the other member of staff, who later pleaded guilty to abusing boys at the school.
The school was covered by the Community Homes Regulations 1972, and the St Aidans, Widnes Instrument of Management Order 1973 which both dealt with the issue of responsibility for the school. The Claimant’s personal file also survived, which showed that the headmaster himself had been told that the member of staff had slept in a bed with two boys.
Justice Holland had already heard the Claimant’s case on limitation together with two other cases in 1) A (2) B & OTHERS V NUGENT CARE SOCIETY (formerly Catholic Social Services (Liverpool)) [2006] EWHC 2986 (QB).
The three original Claimants, were all abused whilst in the care of the Defendant. They claimed damages in a test action and the Defendant raised the issue of limitation. They had brought their action many years after the end of the primary limitation period.
The First Claimant approached a doctor in relation to his drink problem some 28 years after the abuse had occurred, and told the doctor of the abuse. He was then referred to a psychiatrist. Two years later he gave a statement to the police. The Second Claimant had told his wife about the abuse about 5 years after it had occurred. Nineteen years after the abuse, he gave a statement to the police. The third Claimant had made a witness statement about his abuse some 17 years after his experience of abuse. He delayed his pursuit of compensation until the criminal trial was over.
All three submitted that (a) they did not have knowledge for the purposes of section 14 of the Limitation Act 1980 until less than 3 years before the issue of proceedings (b) they were entitled to rely on section 33 of the Limitation Act 1980, which enabled the court to waive the limitation period if it was just and equitable to do so.
Justice Holland had said that it was arguable that the First Claimant had knowledge for the purposes of section 14 of the Limitation Act 1980 at the time of the abuse. It was clear that he appreciated the continuing impact of the abuse and his date of knowledge in terms of significant injury long pre-dated his witness statement. He was reasonably inhibited from obtaining medical evidence and that was common and understandable, but it was not a decisive factor. The First Claimant never had knowledge of the facts. It was a matter upon which a case in negligence could be based nor of the identity of those responsible for breaches of duty of care. He had failed to show that he had acquired section 14 knowledge less than three years before issuing proceedings.
The Second Claimant’s case was stronger than that of X on the issue of significant injury but not to material degree. He had acute actual awareness of an injury in its origins, in its history. Therefore he had also acquired section 14 knowledge more than three years before the issue of proceedings. Furthermore neither the First nor Second Claimant was eligible for equitable relief under section 33 of the Limitation Act 1980.
The Third Claimant (who was the subject of this case report) also had actual knowledge more than three years before the issue of proceedings, but he did qualify for equitable relief under section 33. The headmaster who abused him was prima facie the person through whom the Defendant had to fulfil a duty of care. The headmaster was the person who had to devise the appropriate systems. Those systems were obviously inadequate to fulfil the duty and they did not serve to prevent the headmaster from abusing the Third Claimant.
The Defendant’s counsel made further submissions to the court in relation to this Third Claimant.
HELD:-
The Defendant submitted that the Claimant’s cause of action arising out of the facts as set out above was not covered by section 11 of the Limitation Act 1980. It was an action in trespass so as to be subject to the six year fixed time limit. This expired on the 4th June 1988.
Mr Justice Holland considered the provisions of section 2 and section 11 of the Limitation Act 1980 and also the previous case law, including Trotman v North Yorkshire County Council (1999) LGR 584 and Lister v Hesley Hall Ltd (2002) 1 AC 227 where the House of Lord overruled Trotman.
He also considered the case of KR v Bryn Alyn Community (Holdings) Ltd (2003) QB 1441 and A v Hoare (2006) 1 WLR 2320.
In Bryn Alyn the Court of Appeal had said that one of the Claimants, MCK was time barred under the six year rule from making any claim in respect of deliberate abuse by the employees of the Defendant Company. In the absence of some provable allegation of systemic negligence, employees’ deliberate abuse did not
fall under section 11 of the Limitation Act 1980 and was caught by the six year time limit.
In A v Hoare the Court of Appeal had said that they were bound by the decision of the Court of Appeal in Bryn Alyn although they criticised the injustice of the present state of the law.
The Defendant’s counsel submitted that the Claimant’s claim was on all fours with that of MCK in Bryn Alyn.
Justice Holland applied the tenets of the Bryn Alyn case to the assaults by the headmaster and the other member of staff.
Assaults by the headmaster
Justice Holland could not draw any effective distinction between this part of the Claimant’s claim and the claim by MCK in Bryn Alyn. He said that were he unconstrained by binding authority, he would hold that there was a breach of duty, and that the Defendant was vicariously liable for that breach of duty, which was capable of being advanced by an extension under section 33 of the Limitation Act 1980.
Assaults by the member of staff
This time, Justice Holland was able to draw an effective distinction between this claim and that of MCK. The matter had to be considered as a claim for negligence, because the headmaster had to satisfy the Defendant’s duty of care by instituting and maintaining systems to ensure, so far as was reasonably practicable, that the Claimant avoided reasonable foreseeable injury, and this he failed to do by spotting the member of staff’s paedophile activity.
In MCK’s case in Bryn Alyn the trial judge had found the Defendant vicariously liable in negligence for the failure of its staff to heed warning signs of the abuser’s misconduct. However the assaults on MCK had taken place in private and in the course of legitimate unsuspicious visits to Allen’s office. The Claimant in this case had no such difficulty. Therefore claim in respect of the assaults by the member of staff was not a claim based in trespass, but in negligence. Justice Holland’s exercise of his discretion under section 33 would therefore still stand.