BRIDGE V COVENTRY CITY COUNCIL [2009] EWCA Civ 273
FACTS:-
This was an oral application for permission to appeal against the order of Mr Recorder Spink QC, awarding the Claimant damages of £61,250 including interest in respect of a claim for damages for personal injury. The Claimant alleged that she had been raped in 1979 whilst she was a child in one of the Defendant’s care homes. On the 26th July 2006, her abuser had been convicted of raping the Claimant and another girl at the home and of various other sexual offences. Proceedings were issued on the 28th December 2006. Vicarious liability was conceded by the Defendant and the issues before the Recorder were that of limitation, specifically Section 33 of the Limitation Act 1980, liability, causation and quantum.
The recorded exercised Section 33 in the Claimant’s favour and disapplied the limitation bar.
In relation to causation, the principal issue was the long term psychological effect. The Recorder made findings on the expert evidence. In relation to quantum he awarded the Claimant £40,000 for pain and suffering, £17,500 for loss of earnings and £2000 for the cost of therapy, making a total of £59,500 exclusive of interest.
The Defendant sought permission to appeal on all the issues.
HELD:-
Lord Justice Sullivan said that Lady Justice Smith had considered the application for permission to appeal, and had granted it in part. She did not think that there were grounds for disturbing the findings of the judge on Section 33 of the Limitation Act 1980, but said that the Recorder may have been too generous on pain and suffering, and the loss of earnings capacity claim was somewhat speculative.
The skeleton argument submitted by the Defendant’s counsel was in reality no more than an attempt to reargue the merits and did not identify any arguable material error of fact or law. One of the criticisms was that the trial judge had failed to take account of certain evidence.
The plain fact of the matter was that the Claimant’s allegation of rape had now been believed not just by a jury but also by a judge, both of whom had the advantage of hearing her giving evidence. In such circumstances, there was no realistic prospect of persuading the Court of Appeal to take a different view on liability on the papers.
The Defendant had said that there was much more evidence before the civil court than there was before the criminal court. The Recorder in the civil trial should have taken account of the inconsistencies between the documentary evidence and the oral evidence of the Claimant. Sullivan LJ said that again this was an argument that the Recorder should have preferred one piece of evidence to another.
It was also said by the Defendant’s counsel that the Recorder had not taken into account the sheer length of the delay since the alleged rape in 1979 and/or the expiry of the limitation period in 1986. Sullivan J said that the Recorder had clearly treated limitation as a “heavy burden” for the Claimant to overcome. No reasonably criticism could be made of the Recorder’s scrupulous consideration of the limitation issue.
The Defendant’s counsel had also complained about the fact that delay had caused difficulties addressing the causation issues. Sullivan J said that the principal difficulty was resolving the differences between the two experts. Neither medical expert felt unable to express an opinion in the absence of those records, and of course the delay had afforded to both of them the not inconsiderable advantage of hindsight. It was also fair to note that on causation, the Defendant had permission to argue the Recorder’s consideration of the psychiatric evidence in any event.
Therefore Sullivan LJ would refuse this renewed application for permission to appeal and confine the permission to those grounds that had already been permitted to be argued on paper.
FACTS:-
This was an oral application for permission to appeal against the order of Mr Recorder Spink QC, awarding the Claimant damages of £61,250 including interest in respect of a claim for damages for personal injury. The Claimant alleged that she had been raped in 1979 whilst she was a child in one of the Defendant’s care homes. On the 26th July 2006, her abuser had been convicted of raping the Claimant and another girl at the home and of various other sexual offences. Proceedings were issued on the 28th December 2006. Vicarious liability was conceded by the Defendant and the issues before the Recorder were that of limitation, specifically Section 33 of the Limitation Act 1980, liability, causation and quantum.
The recorded exercised Section 33 in the Claimant’s favour and disapplied the limitation bar.
In relation to causation, the principal issue was the long term psychological effect. The Recorder made findings on the expert evidence. In relation to quantum he awarded the Claimant £40,000 for pain and suffering, £17,500 for loss of earnings and £2000 for the cost of therapy, making a total of £59,500 exclusive of interest.
The Defendant sought permission to appeal on all the issues.
HELD:-
Lord Justice Sullivan said that Lady Justice Smith had considered the application for permission to appeal, and had granted it in part. She did not think that there were grounds for disturbing the findings of the judge on Section 33 of the Limitation Act 1980, but said that the Recorder may have been too generous on pain and suffering, and the loss of earnings capacity claim was somewhat speculative.
The skeleton argument submitted by the Defendant’s counsel was in reality no more than an attempt to reargue the merits and did not identify any arguable material error of fact or law. One of the criticisms was that the trial judge had failed to take account of certain evidence.
The plain fact of the matter was that the Claimant’s allegation of rape had now been believed not just by a jury but also by a judge, both of whom had the advantage of hearing her giving evidence. In such circumstances, there was no realistic prospect of persuading the Court of Appeal to take a different view on liability on the papers.
The Defendant had said that there was much more evidence before the civil court than there was before the criminal court. The Recorder in the civil trial should have taken account of the inconsistencies between the documentary evidence and the oral evidence of the Claimant. Sullivan LJ said that again this was an argument that the Recorder should have preferred one piece of evidence to another.
It was also said by the Defendant’s counsel that the Recorder had not taken into account the sheer length of the delay since the alleged rape in 1979 and/or the expiry of the limitation period in 1986. Sullivan J said that the Recorder had clearly treated limitation as a “heavy burden” for the Claimant to overcome. No reasonably criticism could be made of the Recorder’s scrupulous consideration of the limitation issue.
The Defendant’s counsel had also complained about the fact that delay had caused difficulties addressing the causation issues. Sullivan J said that the principal difficulty was resolving the differences between the two experts. Neither medical expert felt unable to express an opinion in the absence of those records, and of course the delay had afforded to both of them the not inconsiderable advantage of hindsight. It was also fair to note that on causation, the Defendant had permission to argue the Recorder’s consideration of the psychiatric evidence in any event.
Therefore Sullivan LJ would refuse this renewed application for permission to appeal and confine the permission to those grounds that had already been permitted to be argued on paper.