ALBONETTI V WIRRAL METROPOLITAN BOROUGH COUNCIL [2008] EWCA Civ 783
FACTS:-
The Claimant was born in 1955. At the age of 15 he was taken into care by the Defendant because of his failure to attend school regularly. He was placed at a children’s home where he alleged that he was subjected to sexual abuse by a man named Alistair Norman, who was a friend of the house parents, Mr and Mrs Harrison. The abuse consisted of masturbation, anal intercourse and oral sex and Mr Norman also permitted his friend or friends to have anal intercourse with the Claimant.
In 1984 the Claimant emigrated to Australia, and in 1986 he was admitted to a psychiatric hospital following the breakdown of his marriage. He did not tell the doctors at the time of his sexual abuse. In 1996, the Claimant’s mother died and he felt able to speak about the abuse and he told his partner. In 1998 he told the Australian police and in 1999 he made a statement to Merseyside police. Mr Norman had died in 1983.
The police advised the Claimant to consult a solicitor and he did so in August 1999. Proceedings were issued in August 2001. The particulars of injury comprised only the long term effects of post traumatic stress disorder. No claim was made for the immediate effects of the abuse.
A preliminary hearing was held on the issue of limitation. The judge directed himself to the case of KR and others v Bryn Alyn Community (Holdings) Limited (in liquidation) and another [2003] QB 1441 as well as the Court of Appeal judgment in Stubbings v Webb [1992] 1 QB 197. Both of these cases dealt with the issue of “date of knowledge” under of section 14 of the Limitation Act 1980 and in particular the meaning of the words “significant” in Section 14(2). Stubbings v Webb had been overturned in relation to the issue of the six year rule for trespass to the person, by the House of Lords but the judgment in Stubbings of Bingham LJ on section 14 was not undermined.
The trial judge had decided that the Claimant had not known that his injury was significant and attributable to the abuse until he saw his psychiatrist in 2001.
HELD:-
Lady Justice Smith referred to the cases of A v Hoare, C v Middlesborough Council, X and Another v London Borough of Wandsworth, H v Suffolk, Young v Catholic Care and Others [2008] UKHL 6. The case of Young v Catholic Care had had an important effect on the approach which had to be adopted to questions of knowledge under section 14. The House of Lords had disapproved the partly subjective approach applied in Bryn Alyn. Lord Hoffman had said that the test under section 14(2) was an entirely impersonal standard, not whether the Claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonably” have done so. Smith LJ said that from this approach it was clear that all subjective factors such as the Claimant determination to put the abuse out of his mind or his unwillingness to mention it to anyone were matters which went to his explanation for the delay and were to be considered under section 33.
The Defendant’s counsel had submitted that the “injury in question” for the purpose of section 14 was the whole injury which the Claimant had suffered including any psychiatric harm which later manifested itself. Therefore a personal injury could not be separated into parts. Smith LJ could not accept that submission. The “injury in question” had to be the injury which the Claimant knew about at the material time. The intention of Parliament in drafting the Limitation Act 1980 was to assist a Claimant who did not know at the time that he had suffered any injury at all, or that he had suffered a trivial injury and only discovered that he had been injured or injured in a significant sense years after the tort was committed.
The Claimant’s counsel submitted that the pain of the anal rape had been transitory and any bleeding would have stopped by the following morning. The more serious aspects of what had happened were the distress and humiliation for which damages were not recoverable in 1976. Again Smith LJ could not accept that submission. A person who had been raped whether vaginally or anally must know that she or he had suffered not only a grave wrong but also a significant injury. That was the view expressed obiter by Lord Griffiths in Stubbings v Webb [1993] AC 498 HL.
The Claimant’s counsel accepted that he could not contend that, once the decision in W v Meah, D v Meah [1986] 1 All ER 935 had been reported, a solicitor would have advised the respondent that his claim was not worth enough money to warrant pursuing it. In Meah, Woolf J awarded two Claimants £6,750 and £10,250 respectively as general damages for rape. Aggravated damages were included. The Defendant’s counsel pointed out that the Criminal Injuries Compensation Board had been making awards for rape since its inception in the mid – 1960’s. Therefore Smith LJ could not accept the Claimant’s counsel submission that if the Claimant had consulted a solicitors in the mid-1970’s, shortly before the primary limitation period ran out, he would have been advised that he had not suffered a significant injury, nor could she accepted that damages were not awarded for distress and humiliation. Such elements were recoverable as long as they were related to the physical or psychiatric injury on which to found a claim.
However Smith LJ accepted that if the Claimant had consulted a solicitor in the mid-1970’s, with a view to bringing a claim, he would probably have been advised not to proceed. People at that time were less ready to accept that the abuse of children took place and it was not thought possible to bring a claim against a public authority. However the difficulty in making a claim was not caused by the fact that the Claimant had not suffered a significant injury.
Smith LJ said that she had no hesitation in holding that the Claimant knew at all time after the abuse had occurred that the abuse amounted to a significant injury. However she made it plain that where the abuse was of a less obviously intrusive nature, a different conclusion might be reached.
Therefore the appeal against the trial judge’s conclusions on sections 11 and 14 of the Limitation Act 1980 should be allowed. Time ran from the Claimant’s majority and ran out in 1976.
That left the issue of section 33 of the Limitation Act 1980 – the court’s discretion to disapply the limitation provisions. The trial judge had not considered section 33 but the Court of Appeal was now urged to make a decision. When the Claimant’s counsel had made submissions on section 33 before the trial judge, he had conceded that he could not hope to persuade the judge to exercise his discretion in the Claimant’s favour. The delay from 1976 was too long. Now that the law had been clarified in the case of Young v Catholic Care, the Claimant’s case on section 33 would be put rather differently and it was accepted that the Claimant could not be held to that concession. The case would be remitted back to the trial judge to exercise his discretion, having put the Claimant’s counsel’s concession out of his mind.
Lord Justice Keene and Lord Justice May agreed.
FACTS:-
The Claimant was born in 1955. At the age of 15 he was taken into care by the Defendant because of his failure to attend school regularly. He was placed at a children’s home where he alleged that he was subjected to sexual abuse by a man named Alistair Norman, who was a friend of the house parents, Mr and Mrs Harrison. The abuse consisted of masturbation, anal intercourse and oral sex and Mr Norman also permitted his friend or friends to have anal intercourse with the Claimant.
In 1984 the Claimant emigrated to Australia, and in 1986 he was admitted to a psychiatric hospital following the breakdown of his marriage. He did not tell the doctors at the time of his sexual abuse. In 1996, the Claimant’s mother died and he felt able to speak about the abuse and he told his partner. In 1998 he told the Australian police and in 1999 he made a statement to Merseyside police. Mr Norman had died in 1983.
The police advised the Claimant to consult a solicitor and he did so in August 1999. Proceedings were issued in August 2001. The particulars of injury comprised only the long term effects of post traumatic stress disorder. No claim was made for the immediate effects of the abuse.
A preliminary hearing was held on the issue of limitation. The judge directed himself to the case of KR and others v Bryn Alyn Community (Holdings) Limited (in liquidation) and another [2003] QB 1441 as well as the Court of Appeal judgment in Stubbings v Webb [1992] 1 QB 197. Both of these cases dealt with the issue of “date of knowledge” under of section 14 of the Limitation Act 1980 and in particular the meaning of the words “significant” in Section 14(2). Stubbings v Webb had been overturned in relation to the issue of the six year rule for trespass to the person, by the House of Lords but the judgment in Stubbings of Bingham LJ on section 14 was not undermined.
The trial judge had decided that the Claimant had not known that his injury was significant and attributable to the abuse until he saw his psychiatrist in 2001.
HELD:-
Lady Justice Smith referred to the cases of A v Hoare, C v Middlesborough Council, X and Another v London Borough of Wandsworth, H v Suffolk, Young v Catholic Care and Others [2008] UKHL 6. The case of Young v Catholic Care had had an important effect on the approach which had to be adopted to questions of knowledge under section 14. The House of Lords had disapproved the partly subjective approach applied in Bryn Alyn. Lord Hoffman had said that the test under section 14(2) was an entirely impersonal standard, not whether the Claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonably” have done so. Smith LJ said that from this approach it was clear that all subjective factors such as the Claimant determination to put the abuse out of his mind or his unwillingness to mention it to anyone were matters which went to his explanation for the delay and were to be considered under section 33.
The Defendant’s counsel had submitted that the “injury in question” for the purpose of section 14 was the whole injury which the Claimant had suffered including any psychiatric harm which later manifested itself. Therefore a personal injury could not be separated into parts. Smith LJ could not accept that submission. The “injury in question” had to be the injury which the Claimant knew about at the material time. The intention of Parliament in drafting the Limitation Act 1980 was to assist a Claimant who did not know at the time that he had suffered any injury at all, or that he had suffered a trivial injury and only discovered that he had been injured or injured in a significant sense years after the tort was committed.
The Claimant’s counsel submitted that the pain of the anal rape had been transitory and any bleeding would have stopped by the following morning. The more serious aspects of what had happened were the distress and humiliation for which damages were not recoverable in 1976. Again Smith LJ could not accept that submission. A person who had been raped whether vaginally or anally must know that she or he had suffered not only a grave wrong but also a significant injury. That was the view expressed obiter by Lord Griffiths in Stubbings v Webb [1993] AC 498 HL.
The Claimant’s counsel accepted that he could not contend that, once the decision in W v Meah, D v Meah [1986] 1 All ER 935 had been reported, a solicitor would have advised the respondent that his claim was not worth enough money to warrant pursuing it. In Meah, Woolf J awarded two Claimants £6,750 and £10,250 respectively as general damages for rape. Aggravated damages were included. The Defendant’s counsel pointed out that the Criminal Injuries Compensation Board had been making awards for rape since its inception in the mid – 1960’s. Therefore Smith LJ could not accept the Claimant’s counsel submission that if the Claimant had consulted a solicitors in the mid-1970’s, shortly before the primary limitation period ran out, he would have been advised that he had not suffered a significant injury, nor could she accepted that damages were not awarded for distress and humiliation. Such elements were recoverable as long as they were related to the physical or psychiatric injury on which to found a claim.
However Smith LJ accepted that if the Claimant had consulted a solicitor in the mid-1970’s, with a view to bringing a claim, he would probably have been advised not to proceed. People at that time were less ready to accept that the abuse of children took place and it was not thought possible to bring a claim against a public authority. However the difficulty in making a claim was not caused by the fact that the Claimant had not suffered a significant injury.
Smith LJ said that she had no hesitation in holding that the Claimant knew at all time after the abuse had occurred that the abuse amounted to a significant injury. However she made it plain that where the abuse was of a less obviously intrusive nature, a different conclusion might be reached.
Therefore the appeal against the trial judge’s conclusions on sections 11 and 14 of the Limitation Act 1980 should be allowed. Time ran from the Claimant’s majority and ran out in 1976.
That left the issue of section 33 of the Limitation Act 1980 – the court’s discretion to disapply the limitation provisions. The trial judge had not considered section 33 but the Court of Appeal was now urged to make a decision. When the Claimant’s counsel had made submissions on section 33 before the trial judge, he had conceded that he could not hope to persuade the judge to exercise his discretion in the Claimant’s favour. The delay from 1976 was too long. Now that the law had been clarified in the case of Young v Catholic Care, the Claimant’s case on section 33 would be put rather differently and it was accepted that the Claimant could not be held to that concession. The case would be remitted back to the trial judge to exercise his discretion, having put the Claimant’s counsel’s concession out of his mind.
Lord Justice Keene and Lord Justice May agreed.