AB AND OTHERS V THE NUGENT CARE SOCIETY [2009] EWHC 481
FACTS:-
The judgment concerned four cases of historic child abuse in St Aidan’s children’s home and the issue was limitation. One concerned the issue of when the “date of knowledge” was triggered for the purposes of the Limitation Act 1980 and all concerned the issue of whether section 33 of that Act should be exercised in the Claimants’ favour.
Holland J had already made findings in two cases, JB and JPM and refused to exercise his discretion under section 33. However the Court of Appeal reviewed the cases in the light of A v Hoare [2008] 1 AC 844 and remitted the cases back to Mr Justice Holland. As he unable to adjudicate, they came before Irwin J. There were two other cases also to be decided by Irwin J, DVB and HC.
The Defendant was responsible for the running of St Aidan’s.
HELD:-
Mr Justice Irwin said that the issue before him on all four cases was that of limitation. The Court of Appeal had not disturbed the findings of Mr Justice Holland, and therefore he could not go against those findings.
Irwin J considered the law on limitation. In the case of Donovan v Gwentoys [1990] 1 WLR 472 Lord Oliver had said that a Defendant was always likely to be prejudiced by any delay by the Claimant in issuing proceedings. The law on limitation since 1939 had been summarised by Lord Griffiths in Stubbings v Webb [1993] AC 498 who referred to the case of Letang v Cooper [1965] 1 WB 232. In that case, a car driver had driven across the Claimant’s legs whilst she was sunbathing. The Claimant issued proceedings after the limitation period and then tried to get around the three year period provided by the Limitation Act 1980 by claiming that the act in question was not only negligent, but also a trespass, which was subject to a six year period. The Court of Appeal held that Section 2(1) applied to the Claimant’s claim, which was subject to the three year period. Lord Denning said that the only cause of action lay in negligence, but he also said that if he was wrong, the phrase “breach of duty” covered a breach of any duty under the law of tort. Diplock LJ held that the cause of action was one of negligence, and that it should be construed as applying to any cause of action which gave rise to a claim for damages for personal injury.
In Cartledge v E Jopling and Sons Limited [1963] AC 758 the House of Lords held that the limitation period ran from the point of injury, long before the Claimant knew that he was injured. Parliament reversed that injustice. That Act was repealed and replaced with the Limitation Act 1975, which was then incorporated into the present Limitation Act 1980.
Irwin J considered the provisions of Sections 11, 14 and 33. Lord Griffiths had said in Stubbings v Webb that he had the greatest difficulty accepting that a woman who had been raped, did not know that she had suffered significant injury. He also said that a cause of action based on indecent assault or rape came under a limitation period of six years. Section 11 of the 1980 Act did not apply and consequently there could be no extension under Section 33. Lord Griffiths accepted that Letang v Cooper was correctly decided insofar as it held that negligent driving was a cause of action falling within Section 2(1) of the 1954 Act, but he could not agree that the words “breach of duty” had the effect of including within the scope of the section all actions in which damages for personal injuries were claimed. Rape and indecent assault were a trespass to the person not a breach of duty, and consequently they came under the non extendable six year period. The language of Section 2(1) was carried without alteration into the Act of 1975 and then into Section 11(1) of the Act of 1980.
Irwin J then turned to the later case of Lister and Others v Hesley Hall Limited [2002] 1 AC 215. In that case the House of Lords found that there was a sufficient connection between the work of an employee and the acts of abuse committed by him. Therefore the owners of a children’s home, which employed him as warden, were vicariously liable for his actions. This was a policy decision on the part of the House of Lords.
The next important change in the law came in A v Hoare. The House of Lords decided that claims for personal injury based on trespass would come under the extendable three period limitation period, the category defined by Section 11 of the Limitation Act 1980. The limitation period would now be three years.
All the cases before Irwin J fell within Section 11. Under that section the three years ran from a) the date on which the cause of action accrued b) the date of knowledge (if later) of the person injured. Section 14 then defined the criteria for “date of knowledge”, one of which (Section 14(1)(a)) was that the Claimant had to know that his injury was “significant” and Section 14(2) then further defined the word “significant.”
In relation to the “date of knowledge” Lord Hoffman had set out the approach in A v Hoare. He had said in relation to Section 14(2) of the Limitation Act 1980 that the test for a “significant” injury was mainly subjective. Even then, knowledge might have to be supplemented with imputed “objective” knowledge under Section 14(3). However judges should not have to grapple with the notion of the reasonable unintelligent person.
The same question was considered in the case of Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783.
Irwin J then considered Section 33. The Court of Appeal in KR v Bryn Alyn Community Ltd (CA) [2003] QB 1441 addressed the issue of how the discretion should be exercised. Although their decision on Section 14, “date of knowledge” was now disapproved by A v Hoare, Irwin J said that their approach to Section 33 should still be considered. In Bryn Alyn the Court of Appeal had made a number of points:-
· The discretion of a judge under section 33 to disapply the limitation period was fettered only to the extent that it provided a non exhaustive list of circumstances to which he had to have regard. However the matter was not determined simply assessing comparative scales of hardship. The overall question was one of equity.
· The width of the discretion was such an appellate court should not intervene, save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement was possible.
· The task for a judge was particularly difficult where he had to decide whether he should attempt to determine and evaluate what happened many years ago. The difficulty of determining the fact of the injury and its extent and causation was formidable.
· Where a judge had assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, 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. However in all, or nearly all cases the prejudice to the Claimant by the operation of the relevant limitation period and the prejudice which would result to the Defendant if the relevant provisions were disapplied, as the prejudice resulting from the loss of the limitation defence would always or almost always be balanced by the prejudice to the Claimant from the operation of the limitation provision. What was of paramount importance was the effect of the delay on the Defendant’s ability to defend.
Irwin J said that he did have some difficulty in following how the cogency of a Claimant’s case could be held to be neutral. An incoherent and weak case from an impecunious Claimant would be likely to prejudice a Defendant, who would probably defend successfully, but not recover the cost of doing so. However a cogent and well supported case for a Claimant must usually argue at least to some degree in favour of the extension of discretion.
In the case of Dobbie v Medway HA [1994] 1 WLR 1234 the Court of Appeal upheld the decision of the trial judge not to exercise discretion. The Claimant had a breast lump excised in 1973 and found out soon afterwards that the lump was not cancerous. In 1988 she became aware that her breast need not have been removed and in 1989 she issued proceedings for personal injury. The trial judge did not consider it equitable for the case to proceed. The evidence would be less cogent than if the action had been brought timeously, the Claimant should have taken advice earlier and the surgeon should not have to meet this complaint now. Irwin J said that this seemed a harsh decision, but there were real issues of causation.
Irwin J also referred to another case, Robinson v St Helen’s Metropolitan BC [2002] EWCA Civ 1099. This was a case where the Claimant claimed educational failure had given rise to psychological injuries. Sir Murray Stuart-Smith said that the courts should be slow in such cases to find that the balance of prejudice was in favour of the Claimant. His approach was approved by the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 AC 76.
In relation to the “date of knowledge” Lord Hoffman in A v Hoare had said that should be an unsophisticated issue. A Claimant might have any number of reasons for failing to take timely action, including the psychological injuries suffered as a result of the abuse, but the correct place to consider such matters was Section 33, which enabled the judge to look at the matter broadly and not have to decide the highly artificial question of whether the Claimant had suppressed his “knowledge.”
Irwin J made some further specific points.
First of all Section 11 of the Civil Evidence Act 1968 allowed a conviction to be admissible in evidence and said that conviction was proof that the person convicted committed the offence in question. Irwin J found it difficult to see in the absence of some specific point how a relevant conviction would not weigh against a Defendant, where the person convicted was the alleged abuser and the victim was the Claimant.
Where the Claimant was not the victim, but the Defendant had been convicted, a relevant conviction might be evidence of propensity for sexual abuse. However judges would need to be astute to Claimants jumping on the bandwagon.
An acquittal of a charge, which was in substance the allegation in civil proceedings was capable of being neutral, given the different standard of proof between criminal and civil proceedings. However it might form part of the judge’s consideration weighing against the exercises of discretion in favour of the Claimant.
The Claimants’ counsel argued that a want of expedition in investigating claims of abuse once raised with the Defendants was capable of being conduct of the Defendant after the cause of action arose, which was a relevant consideration under Section 33(3)(c). Irwin J said that this was a strained interpretation of the statutory wording, which was concerned with legal proceedings and overlapped with issues of systemic negligence. However if a Claimant chose to take a point on conduct, where systemic allegations had been abandoned, they could not be prevented from doing so, even where the conduct alleged was in truth covering the same or similar territory as the abandoned allegation. The court would then have to consider whether this issue could be properly tried out.
Irwin J said that this material was relevant to the equity or fairness of permitting proceedings against the Defendant. If and to the extent the Defendant was warned that abuse was ongoing in their institution, then in his judgment, that might very well be a factor which could be taken into account, when considering whether the Defendant was prejudiced by a lack of evidence about those allegations.
The Claimants’ counsel had also argued that there was a public interest in having allegations of this kind tested in civil proceedings. Irwin J rejected that argument. There was a public interest in having a proper system by which grievances could be tried, but that was different from a particular class of cases such as these.
The Individual Cases
Irwin J turned to the cases of JPM and JB. In each case, sexual abuse had been proven in a criminal court.
JPM
Irwin J considered the judgment of Holland J, who had found the evidence of this Claimant to be credible. There had been three reasons for his delay, firstly the Claimant’s hope that he could cope with the symptoms by avoidance and alcohol, secondly the inhibitions on the complaint caused by the abuse, and thirdly the Claimant’s lack of interest in compensation.
In considering in the impact of delay, abuse had been proved and the systemic negligence evidence was no longer relevant. The question of causation was a separate one from systemic negligence, and might be rather difficult to try in this case. The Defendant said that it was hampered by loss of records, particularly prior to the Claimant’s entry to St Aidan’s. Irwin J turned to the joint experts who agreed that the abuse would have had some effect on the Claimant. It was clear that analysis of this case was difficult because of the passage of time, but the dispute between the experts was a familiar one. The difficulty lay mostly in the inherent problem of tackling the issue of causation, rather than anything to do with the passage of time.
The conclusions of Holland J in relation to conduct did not need any alteration, here it was not relevant and neither was disability and in relation to sub paragraphs (e) and (f) of Section 33(3), they were covered by the findings that Irwin J had already touched upon.
Irwin J considered whether it would be proportionate to exercise the discretion, bearing in mind the approach outlined by Sir Murray Stuart Smith in Robinson v St Helen’s Metropolitan BC [2002] EWCA Civ 1099.
There might be dispute about the abuse, but mostly the case would turn on the effect of the abuse and general damages. The analysis of credibility and causation were not radically affected by the passage of time. The question was whether the dispute could fairly be resolved, and whether the Defendants had been prejudiced to any significant degree.
Section 33 would be exercised in the Claimant’s favour.
JB
JB had been subjected to excessive and arbitrary corporal punishment, and sexual groping on three occasions by a house master, Mr James McEvoy. He had given a manuscript account dated 30th July 1972 to the authorities of abuse of another boy by Mr McEvoy. Holland J said that the Claimant had known from the beginning what had happened to him, and that there was no psychological condition inhibiting him from reporting what had happened. The experts agreed that there was a prior psychological disorder before the Claimant went into care. The Defendant’s expert advanced a percentage attribution to the abuse.
In relation to the issue of delay under the Limitation Act 1980, Holland J found that the Claimant had no thought of suing, and there was a clear inhibitory effect. The systemic negligence was no longer an issue, and the primary abuse was proven. The causation issue seemed to be more complex than that of JPM and that issue did appear to be affected by the passage of time. The conduct of the Defendant did not arise here, nor was there any history of disability.
In considering whether it would be proportionate to exercise a discretion, Irwin J would bear in mind that this was a general damages claim only and it was not a large claim. The Claimant had been believed but the House of Lords had made it clear that this could not be the only consideration. The nature of the abuse was much less stark. On balance, Irwin J would not extend Section 33 in the Claimant’s favour.
DB
DB had been born in 1964 and came from a troubled family. In 1979 he was sent to St Aidan’s. He gave a statement to the police alleging sexual abuse by Colin Dick, a care worker at St Aidan’s but was not a complainant in relation to any count on the indictment against Mr Dick. The counts on the indictment related to ten different complainants, all male and all the offences taking place between July 1980 and June 1981. However the police considered it better to accept the pleas offered, than put the victims through a three week trial.
Following his discharge from St Aidan’s the Claimant led a troubled life.
Irwin J considered the expert evidence. It appeared that there was a relatively narrow issue between the experts on both sides. The Claimant’s problems had arisen relatively recently, because he had suffered an adjustment disorder or reaction to the police involvement.
The conviction of the abuser in 1995 was powerful evidence in favour of the Claimant’s case.
In this case the Claimant had said that he did have not have “knowledge” for the purposes of the Limitation Act 1980 until 1998 or 1999 when he was told that the psychological problems leading to referral for therapy, derived from sexual abuse. Irwin J was not persuaded by this, the indicators at the time of the abuse were strong.
Proceedings had been issued in 2001. In relation to discretion, there was a period of 22 years from the abuse to the issue of proceedings and 16 years from the end of primary limitation. It was a long delay but it was to be explained by the Claimant’s avoidance of referring to the sexual abuse and its consequences.
In relation to the cogency of the evidence, the fact of the abuse would not be made less cogent in this case. There was no possibility that the abuser would have been called as a witness to deny a single episode of this kind, given the convictions in his case.
The key medical issues were still relatively recent (despite the dreadful delay since the issue of proceedings). There was no relevant conduct on the part of the Defendant and no question of disability.
Therefore it would be both proportionate and equitable to let this case proceed.
HC
HC was born in 1960. He attended St Aidan’s in 1975 and was caned (excessively according to his account) by a care worker, who was also convicted of multiple sexual assaults against other boys. There was also another physical assault. The care worker was convicted of the physical assault on HC.
HC admitted that he had been a career criminal since leaving St Aidan’s although after a while he had ceased offending. Experts on both side agreed that he had suffered no psychiatric disorder. His reasons for delay were that he never thought that he would get compensation.
The abuse occurred in 1975, a statement was made to the police in 1994, the care worker was convicted in 1996 and the claim issued in 1997.
Irwin J said that there was no significant inhibitory delay factor produced by the abuse here. It was simply that he did not think that he could sue.
In relation to the cogency of the evidence, time had undoubtedly muddled and extended the Claimant’s story and it would be very difficult to disentangle the truth.
On the other hand, there was little prejudice to the Defendants from the sheer passage of time and that was not the key element in Irwin J’s decision. There was no relevant conduct here, nor any disability.
The damages here would be likely to be very modest indeed on what might conceivably be proved. Irwin J would conclude that it would not be equitable in this case to permit the action to proceed.
FACTS:-
The judgment concerned four cases of historic child abuse in St Aidan’s children’s home and the issue was limitation. One concerned the issue of when the “date of knowledge” was triggered for the purposes of the Limitation Act 1980 and all concerned the issue of whether section 33 of that Act should be exercised in the Claimants’ favour.
Holland J had already made findings in two cases, JB and JPM and refused to exercise his discretion under section 33. However the Court of Appeal reviewed the cases in the light of A v Hoare [2008] 1 AC 844 and remitted the cases back to Mr Justice Holland. As he unable to adjudicate, they came before Irwin J. There were two other cases also to be decided by Irwin J, DVB and HC.
The Defendant was responsible for the running of St Aidan’s.
HELD:-
Mr Justice Irwin said that the issue before him on all four cases was that of limitation. The Court of Appeal had not disturbed the findings of Mr Justice Holland, and therefore he could not go against those findings.
Irwin J considered the law on limitation. In the case of Donovan v Gwentoys [1990] 1 WLR 472 Lord Oliver had said that a Defendant was always likely to be prejudiced by any delay by the Claimant in issuing proceedings. The law on limitation since 1939 had been summarised by Lord Griffiths in Stubbings v Webb [1993] AC 498 who referred to the case of Letang v Cooper [1965] 1 WB 232. In that case, a car driver had driven across the Claimant’s legs whilst she was sunbathing. The Claimant issued proceedings after the limitation period and then tried to get around the three year period provided by the Limitation Act 1980 by claiming that the act in question was not only negligent, but also a trespass, which was subject to a six year period. The Court of Appeal held that Section 2(1) applied to the Claimant’s claim, which was subject to the three year period. Lord Denning said that the only cause of action lay in negligence, but he also said that if he was wrong, the phrase “breach of duty” covered a breach of any duty under the law of tort. Diplock LJ held that the cause of action was one of negligence, and that it should be construed as applying to any cause of action which gave rise to a claim for damages for personal injury.
In Cartledge v E Jopling and Sons Limited [1963] AC 758 the House of Lords held that the limitation period ran from the point of injury, long before the Claimant knew that he was injured. Parliament reversed that injustice. That Act was repealed and replaced with the Limitation Act 1975, which was then incorporated into the present Limitation Act 1980.
Irwin J considered the provisions of Sections 11, 14 and 33. Lord Griffiths had said in Stubbings v Webb that he had the greatest difficulty accepting that a woman who had been raped, did not know that she had suffered significant injury. He also said that a cause of action based on indecent assault or rape came under a limitation period of six years. Section 11 of the 1980 Act did not apply and consequently there could be no extension under Section 33. Lord Griffiths accepted that Letang v Cooper was correctly decided insofar as it held that negligent driving was a cause of action falling within Section 2(1) of the 1954 Act, but he could not agree that the words “breach of duty” had the effect of including within the scope of the section all actions in which damages for personal injuries were claimed. Rape and indecent assault were a trespass to the person not a breach of duty, and consequently they came under the non extendable six year period. The language of Section 2(1) was carried without alteration into the Act of 1975 and then into Section 11(1) of the Act of 1980.
Irwin J then turned to the later case of Lister and Others v Hesley Hall Limited [2002] 1 AC 215. In that case the House of Lords found that there was a sufficient connection between the work of an employee and the acts of abuse committed by him. Therefore the owners of a children’s home, which employed him as warden, were vicariously liable for his actions. This was a policy decision on the part of the House of Lords.
The next important change in the law came in A v Hoare. The House of Lords decided that claims for personal injury based on trespass would come under the extendable three period limitation period, the category defined by Section 11 of the Limitation Act 1980. The limitation period would now be three years.
All the cases before Irwin J fell within Section 11. Under that section the three years ran from a) the date on which the cause of action accrued b) the date of knowledge (if later) of the person injured. Section 14 then defined the criteria for “date of knowledge”, one of which (Section 14(1)(a)) was that the Claimant had to know that his injury was “significant” and Section 14(2) then further defined the word “significant.”
In relation to the “date of knowledge” Lord Hoffman had set out the approach in A v Hoare. He had said in relation to Section 14(2) of the Limitation Act 1980 that the test for a “significant” injury was mainly subjective. Even then, knowledge might have to be supplemented with imputed “objective” knowledge under Section 14(3). However judges should not have to grapple with the notion of the reasonable unintelligent person.
The same question was considered in the case of Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783.
Irwin J then considered Section 33. The Court of Appeal in KR v Bryn Alyn Community Ltd (CA) [2003] QB 1441 addressed the issue of how the discretion should be exercised. Although their decision on Section 14, “date of knowledge” was now disapproved by A v Hoare, Irwin J said that their approach to Section 33 should still be considered. In Bryn Alyn the Court of Appeal had made a number of points:-
· The discretion of a judge under section 33 to disapply the limitation period was fettered only to the extent that it provided a non exhaustive list of circumstances to which he had to have regard. However the matter was not determined simply assessing comparative scales of hardship. The overall question was one of equity.
· The width of the discretion was such an appellate court should not intervene, save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement was possible.
· The task for a judge was particularly difficult where he had to decide whether he should attempt to determine and evaluate what happened many years ago. The difficulty of determining the fact of the injury and its extent and causation was formidable.
· Where a judge had assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, 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. However in all, or nearly all cases the prejudice to the Claimant by the operation of the relevant limitation period and the prejudice which would result to the Defendant if the relevant provisions were disapplied, as the prejudice resulting from the loss of the limitation defence would always or almost always be balanced by the prejudice to the Claimant from the operation of the limitation provision. What was of paramount importance was the effect of the delay on the Defendant’s ability to defend.
Irwin J said that he did have some difficulty in following how the cogency of a Claimant’s case could be held to be neutral. An incoherent and weak case from an impecunious Claimant would be likely to prejudice a Defendant, who would probably defend successfully, but not recover the cost of doing so. However a cogent and well supported case for a Claimant must usually argue at least to some degree in favour of the extension of discretion.
In the case of Dobbie v Medway HA [1994] 1 WLR 1234 the Court of Appeal upheld the decision of the trial judge not to exercise discretion. The Claimant had a breast lump excised in 1973 and found out soon afterwards that the lump was not cancerous. In 1988 she became aware that her breast need not have been removed and in 1989 she issued proceedings for personal injury. The trial judge did not consider it equitable for the case to proceed. The evidence would be less cogent than if the action had been brought timeously, the Claimant should have taken advice earlier and the surgeon should not have to meet this complaint now. Irwin J said that this seemed a harsh decision, but there were real issues of causation.
Irwin J also referred to another case, Robinson v St Helen’s Metropolitan BC [2002] EWCA Civ 1099. This was a case where the Claimant claimed educational failure had given rise to psychological injuries. Sir Murray Stuart-Smith said that the courts should be slow in such cases to find that the balance of prejudice was in favour of the Claimant. His approach was approved by the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 AC 76.
In relation to the “date of knowledge” Lord Hoffman in A v Hoare had said that should be an unsophisticated issue. A Claimant might have any number of reasons for failing to take timely action, including the psychological injuries suffered as a result of the abuse, but the correct place to consider such matters was Section 33, which enabled the judge to look at the matter broadly and not have to decide the highly artificial question of whether the Claimant had suppressed his “knowledge.”
Irwin J made some further specific points.
First of all Section 11 of the Civil Evidence Act 1968 allowed a conviction to be admissible in evidence and said that conviction was proof that the person convicted committed the offence in question. Irwin J found it difficult to see in the absence of some specific point how a relevant conviction would not weigh against a Defendant, where the person convicted was the alleged abuser and the victim was the Claimant.
Where the Claimant was not the victim, but the Defendant had been convicted, a relevant conviction might be evidence of propensity for sexual abuse. However judges would need to be astute to Claimants jumping on the bandwagon.
An acquittal of a charge, which was in substance the allegation in civil proceedings was capable of being neutral, given the different standard of proof between criminal and civil proceedings. However it might form part of the judge’s consideration weighing against the exercises of discretion in favour of the Claimant.
The Claimants’ counsel argued that a want of expedition in investigating claims of abuse once raised with the Defendants was capable of being conduct of the Defendant after the cause of action arose, which was a relevant consideration under Section 33(3)(c). Irwin J said that this was a strained interpretation of the statutory wording, which was concerned with legal proceedings and overlapped with issues of systemic negligence. However if a Claimant chose to take a point on conduct, where systemic allegations had been abandoned, they could not be prevented from doing so, even where the conduct alleged was in truth covering the same or similar territory as the abandoned allegation. The court would then have to consider whether this issue could be properly tried out.
Irwin J said that this material was relevant to the equity or fairness of permitting proceedings against the Defendant. If and to the extent the Defendant was warned that abuse was ongoing in their institution, then in his judgment, that might very well be a factor which could be taken into account, when considering whether the Defendant was prejudiced by a lack of evidence about those allegations.
The Claimants’ counsel had also argued that there was a public interest in having allegations of this kind tested in civil proceedings. Irwin J rejected that argument. There was a public interest in having a proper system by which grievances could be tried, but that was different from a particular class of cases such as these.
The Individual Cases
Irwin J turned to the cases of JPM and JB. In each case, sexual abuse had been proven in a criminal court.
JPM
Irwin J considered the judgment of Holland J, who had found the evidence of this Claimant to be credible. There had been three reasons for his delay, firstly the Claimant’s hope that he could cope with the symptoms by avoidance and alcohol, secondly the inhibitions on the complaint caused by the abuse, and thirdly the Claimant’s lack of interest in compensation.
In considering in the impact of delay, abuse had been proved and the systemic negligence evidence was no longer relevant. The question of causation was a separate one from systemic negligence, and might be rather difficult to try in this case. The Defendant said that it was hampered by loss of records, particularly prior to the Claimant’s entry to St Aidan’s. Irwin J turned to the joint experts who agreed that the abuse would have had some effect on the Claimant. It was clear that analysis of this case was difficult because of the passage of time, but the dispute between the experts was a familiar one. The difficulty lay mostly in the inherent problem of tackling the issue of causation, rather than anything to do with the passage of time.
The conclusions of Holland J in relation to conduct did not need any alteration, here it was not relevant and neither was disability and in relation to sub paragraphs (e) and (f) of Section 33(3), they were covered by the findings that Irwin J had already touched upon.
Irwin J considered whether it would be proportionate to exercise the discretion, bearing in mind the approach outlined by Sir Murray Stuart Smith in Robinson v St Helen’s Metropolitan BC [2002] EWCA Civ 1099.
There might be dispute about the abuse, but mostly the case would turn on the effect of the abuse and general damages. The analysis of credibility and causation were not radically affected by the passage of time. The question was whether the dispute could fairly be resolved, and whether the Defendants had been prejudiced to any significant degree.
Section 33 would be exercised in the Claimant’s favour.
JB
JB had been subjected to excessive and arbitrary corporal punishment, and sexual groping on three occasions by a house master, Mr James McEvoy. He had given a manuscript account dated 30th July 1972 to the authorities of abuse of another boy by Mr McEvoy. Holland J said that the Claimant had known from the beginning what had happened to him, and that there was no psychological condition inhibiting him from reporting what had happened. The experts agreed that there was a prior psychological disorder before the Claimant went into care. The Defendant’s expert advanced a percentage attribution to the abuse.
In relation to the issue of delay under the Limitation Act 1980, Holland J found that the Claimant had no thought of suing, and there was a clear inhibitory effect. The systemic negligence was no longer an issue, and the primary abuse was proven. The causation issue seemed to be more complex than that of JPM and that issue did appear to be affected by the passage of time. The conduct of the Defendant did not arise here, nor was there any history of disability.
In considering whether it would be proportionate to exercise a discretion, Irwin J would bear in mind that this was a general damages claim only and it was not a large claim. The Claimant had been believed but the House of Lords had made it clear that this could not be the only consideration. The nature of the abuse was much less stark. On balance, Irwin J would not extend Section 33 in the Claimant’s favour.
DB
DB had been born in 1964 and came from a troubled family. In 1979 he was sent to St Aidan’s. He gave a statement to the police alleging sexual abuse by Colin Dick, a care worker at St Aidan’s but was not a complainant in relation to any count on the indictment against Mr Dick. The counts on the indictment related to ten different complainants, all male and all the offences taking place between July 1980 and June 1981. However the police considered it better to accept the pleas offered, than put the victims through a three week trial.
Following his discharge from St Aidan’s the Claimant led a troubled life.
Irwin J considered the expert evidence. It appeared that there was a relatively narrow issue between the experts on both sides. The Claimant’s problems had arisen relatively recently, because he had suffered an adjustment disorder or reaction to the police involvement.
The conviction of the abuser in 1995 was powerful evidence in favour of the Claimant’s case.
In this case the Claimant had said that he did have not have “knowledge” for the purposes of the Limitation Act 1980 until 1998 or 1999 when he was told that the psychological problems leading to referral for therapy, derived from sexual abuse. Irwin J was not persuaded by this, the indicators at the time of the abuse were strong.
Proceedings had been issued in 2001. In relation to discretion, there was a period of 22 years from the abuse to the issue of proceedings and 16 years from the end of primary limitation. It was a long delay but it was to be explained by the Claimant’s avoidance of referring to the sexual abuse and its consequences.
In relation to the cogency of the evidence, the fact of the abuse would not be made less cogent in this case. There was no possibility that the abuser would have been called as a witness to deny a single episode of this kind, given the convictions in his case.
The key medical issues were still relatively recent (despite the dreadful delay since the issue of proceedings). There was no relevant conduct on the part of the Defendant and no question of disability.
Therefore it would be both proportionate and equitable to let this case proceed.
HC
HC was born in 1960. He attended St Aidan’s in 1975 and was caned (excessively according to his account) by a care worker, who was also convicted of multiple sexual assaults against other boys. There was also another physical assault. The care worker was convicted of the physical assault on HC.
HC admitted that he had been a career criminal since leaving St Aidan’s although after a while he had ceased offending. Experts on both side agreed that he had suffered no psychiatric disorder. His reasons for delay were that he never thought that he would get compensation.
The abuse occurred in 1975, a statement was made to the police in 1994, the care worker was convicted in 1996 and the claim issued in 1997.
Irwin J said that there was no significant inhibitory delay factor produced by the abuse here. It was simply that he did not think that he could sue.
In relation to the cogency of the evidence, time had undoubtedly muddled and extended the Claimant’s story and it would be very difficult to disentangle the truth.
On the other hand, there was little prejudice to the Defendants from the sheer passage of time and that was not the key element in Irwin J’s decision. There was no relevant conduct here, nor any disability.
The damages here would be likely to be very modest indeed on what might conceivably be proved. Irwin J would conclude that it would not be equitable in this case to permit the action to proceed.