GR V WIRRAL METROPOLITAN BOROUGH COUNCIL (Unreported) 12th November 2008 in Liverpool County Court
FACTS:-
The Claimant was born on the 17th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November 1976. He was then returned to the care of his mother.
Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse.
The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in 1999. In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January 2002.
In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20th June 2003. The case was stayed whilst the appeal in A v Hoare and Others [2008] 2 WLR 311 was awaited. Then in June 2008, it was listed for a preliminary hearing on limitation.
HELD:-
Judge Main went over the decision in A v Hoare. The medical expert evidence was provided by Dr Webster for the Claimant and Dr Boakes for the Defendant. Both experts were surprised by the extent to which the Claimant had such an inaccurate recollection of key dates and the duration of the alleged abuse. Dr Boakes said that this did raise the issue as to whether the Claimant had developed a false memory, although she was taken to one of her own publications and on recounting some 11 features of false memory syndrome, the vast majority of the indicators were absent.
The medical experts agreed that the event from between 1975 and 1976 did not result in any psychiatric injury. After the onset of disclosure in November 2000, the Claimant did experience the onset of a psychiatric illness, which was triggered by the police interview.
In relation to the injury that the Claimant suffered in 1975/1976, the Claimant’s own account was that he did not suffer any physical injury or discomfort. He was given sweets and cigarettes and provided with pornography, which made him sexually aroused. Judge Main said that whatever feelings of defilement, degradation and humiliation the Claimant experienced, these were not injuries. Reference was made to the case of Albonetti v Wirral MBC [2008] EWCA Civ 783.
However in the case of a child of 11 or 12 years, as a matter of law, no consent to a trespass to the person would be available to an adult, even in the absence of physical injury. Therefore in this case there was an accrued cause of action within the meaning of Section 11(4)(a) of the Limitation Act 1980.
There was greater difficulty when one looked at the longer time period under Section 11(4)(b) of the 1980 Act. Judge Main could see that the seeming lack of any injury might well go the question of whether the injury was “significant” under Section 14(1)(a) and under 14(3). This would also be relevant to the exercise of section 33.
Judge Main applied the section 14 test and quoted the dicta of Lord Hoffman at paragraphs 34 and 35 in A v Hoare.
In Albonetti the Claimant’s counsel had sought to argue that a Claimant who had been anally raped had not suffered a significant injury within section 14. That was not accepted by the court, but this case posed a more difficult question. In the case of Stubbings v Webb [1993] AC 498 Lord Griffiths had said that (page 506B) that whilst rape was almost certainly a significant injury, indecent fondling of a child raised a more difficult question.
This case was more than just indecent fondling. It concerned repeated oral penetration and indecent assaults over many months. Judge Main took the view that given the vulnerability and youth of the Claimant, it was reasonable for him not to have regarded his repeated sexual insults as “significant”. However as he grew older, the situation changed. Accordingly Judge Main was satisfied that by the age of 16, the Claimant did have knowledge of the “significance” of what had happened.
The Claimant had reached his majority in January 1982 and therefore had three years to commence his proceedings by January 1985. The actual delay before proceedings were in fact commenced was 18 ½ years.
The case under Section 11 of the 1980 Act was statute barred.
Judge Main then considered the provisions of section 33(3). The housemother of the home where he was abused had died in July 1996 and the housefather who abused him died in June 2004. There were enormous evidential difficulties looking into detailed factual issues, over 30 years on. The cogency of any witness after so long had elapsed was bound to be affected, regardless of the number of witnesses still available to give evidence. How would the Defendant go about investigating the allegations when witnesses have long since left the employment of the Defendants, when witnesses have died and some if not al of the documents have been lost? Judge Main referred to the dicta of Lord Brown in A v Hoare (paragraph 86).
There was also an issue in relation to the abuser’s employment. He was not a care worker, but an “escort” employed by the Defendant. An examination of the vicarious liability issue would be very difficult to perform, and the case was very different to that of Lister v Hesley Hall [2001] UKHL 22.
There were also errors in recollection as highlighted by both medical experts.
Reference was also made to the case of sub nom Bowden and Whitton v Poor Sisters of Nazareth and others (Scotland) [2008] UKHL 32. In that case it was of some importance that the events complained of were every day events over a long period of time as opposed to one or two vivid incidents.
The Claimant had criticised the process whereby the Defendant had investigated the case, and alleged that no real effort had been made to find witnesses. Consequently it was suggested that Court had no real flavour as to just what the extent of the prejudice was. In relation to documents there would be no records of the actual assaults. The Claimant’s counsel submitted that the key question here was whether these assaults had taken place. Apparently there were witnesses who could corroborate the Claimant’s story, by way of similar fact evidence. The abuser had been interviewed by the police in 2003 but had not been charged, possibly because of the fact that he was 83 at the time. Therefore he could have been interviewed by the Defendant.
Judge Main summarised the provisions of Section 33(3):-
Taking these matters into account, it would be unfair to the Defendant to allow the case to proceed. It was not possible to see there could be a fair trial of these issues.
However Judge Main could see no good reason why the allegations of indecent assault and abuse should not be placed before the Court so that the Court could assess the weight, consistency and cogency of the evidence relied in support of these allegations. There was the issue of whether the Defendant was vicariously liable, but there would be abundant evidence before the Court to enable those factual questions to be answered adequately.
FACTS:-
The Claimant was born on the 17th January 1964 and was aged 44. In August 1973 he was taken into care by Knowsley Borough Council at the request of his father. He was placed in a family group home where he remained (save for a two week period in another home) until November 1976. He was then returned to the care of his mother.
Some 18 months after his arrival, the Claimant was subjected to regular sexual abuse at the hands of Mr Robbins, who was employed from 1975 until 1985 as an escort officer. He did not tell anyone about the abuse.
The Claimant having returned to his mother, left school at 15 and found work. He married at the age of 25 and he and his wife had a baby girl in 1999. In November 2000 he was contacted by police in relation to another home, and he mentioned the abuse to the officers. He mentioned it to his wife two weeks later. She was a local solicitor specialising in childcare. The disclosure put strain on his marriage and in early 2001 he separated from his wife and they later divorced. He was also unable to return to work and resigned from his employment after being off for over a year in January 2002.
In August 2002, the Claimant sent a letter before action to the Defendants and a claim form was issued on the 20th June 2003. The case was stayed whilst the appeal in A v Hoare and Others [2008] 2 WLR 311 was awaited. Then in June 2008, it was listed for a preliminary hearing on limitation.
HELD:-
Judge Main went over the decision in A v Hoare. The medical expert evidence was provided by Dr Webster for the Claimant and Dr Boakes for the Defendant. Both experts were surprised by the extent to which the Claimant had such an inaccurate recollection of key dates and the duration of the alleged abuse. Dr Boakes said that this did raise the issue as to whether the Claimant had developed a false memory, although she was taken to one of her own publications and on recounting some 11 features of false memory syndrome, the vast majority of the indicators were absent.
The medical experts agreed that the event from between 1975 and 1976 did not result in any psychiatric injury. After the onset of disclosure in November 2000, the Claimant did experience the onset of a psychiatric illness, which was triggered by the police interview.
In relation to the injury that the Claimant suffered in 1975/1976, the Claimant’s own account was that he did not suffer any physical injury or discomfort. He was given sweets and cigarettes and provided with pornography, which made him sexually aroused. Judge Main said that whatever feelings of defilement, degradation and humiliation the Claimant experienced, these were not injuries. Reference was made to the case of Albonetti v Wirral MBC [2008] EWCA Civ 783.
However in the case of a child of 11 or 12 years, as a matter of law, no consent to a trespass to the person would be available to an adult, even in the absence of physical injury. Therefore in this case there was an accrued cause of action within the meaning of Section 11(4)(a) of the Limitation Act 1980.
There was greater difficulty when one looked at the longer time period under Section 11(4)(b) of the 1980 Act. Judge Main could see that the seeming lack of any injury might well go the question of whether the injury was “significant” under Section 14(1)(a) and under 14(3). This would also be relevant to the exercise of section 33.
Judge Main applied the section 14 test and quoted the dicta of Lord Hoffman at paragraphs 34 and 35 in A v Hoare.
In Albonetti the Claimant’s counsel had sought to argue that a Claimant who had been anally raped had not suffered a significant injury within section 14. That was not accepted by the court, but this case posed a more difficult question. In the case of Stubbings v Webb [1993] AC 498 Lord Griffiths had said that (page 506B) that whilst rape was almost certainly a significant injury, indecent fondling of a child raised a more difficult question.
This case was more than just indecent fondling. It concerned repeated oral penetration and indecent assaults over many months. Judge Main took the view that given the vulnerability and youth of the Claimant, it was reasonable for him not to have regarded his repeated sexual insults as “significant”. However as he grew older, the situation changed. Accordingly Judge Main was satisfied that by the age of 16, the Claimant did have knowledge of the “significance” of what had happened.
The Claimant had reached his majority in January 1982 and therefore had three years to commence his proceedings by January 1985. The actual delay before proceedings were in fact commenced was 18 ½ years.
The case under Section 11 of the 1980 Act was statute barred.
Judge Main then considered the provisions of section 33(3). The housemother of the home where he was abused had died in July 1996 and the housefather who abused him died in June 2004. There were enormous evidential difficulties looking into detailed factual issues, over 30 years on. The cogency of any witness after so long had elapsed was bound to be affected, regardless of the number of witnesses still available to give evidence. How would the Defendant go about investigating the allegations when witnesses have long since left the employment of the Defendants, when witnesses have died and some if not al of the documents have been lost? Judge Main referred to the dicta of Lord Brown in A v Hoare (paragraph 86).
There was also an issue in relation to the abuser’s employment. He was not a care worker, but an “escort” employed by the Defendant. An examination of the vicarious liability issue would be very difficult to perform, and the case was very different to that of Lister v Hesley Hall [2001] UKHL 22.
There were also errors in recollection as highlighted by both medical experts.
Reference was also made to the case of sub nom Bowden and Whitton v Poor Sisters of Nazareth and others (Scotland) [2008] UKHL 32. In that case it was of some importance that the events complained of were every day events over a long period of time as opposed to one or two vivid incidents.
The Claimant had criticised the process whereby the Defendant had investigated the case, and alleged that no real effort had been made to find witnesses. Consequently it was suggested that Court had no real flavour as to just what the extent of the prejudice was. In relation to documents there would be no records of the actual assaults. The Claimant’s counsel submitted that the key question here was whether these assaults had taken place. Apparently there were witnesses who could corroborate the Claimant’s story, by way of similar fact evidence. The abuser had been interviewed by the police in 2003 but had not been charged, possibly because of the fact that he was 83 at the time. Therefore he could have been interviewed by the Defendant.
Judge Main summarised the provisions of Section 33(3):-
- Reasons for delay – the Claimant’s reasons for delay were reasonable.
- Effect of delay on the evidence – inevitably the Court would be faced with a difficult task in examining the evidence. However the issue of the individual complaints of assault made by the Claimant and the other three witnesses might well be very cogent and reliable evidence. Judge Main commented that the abuser would probably have made denials in any event.
- The conduct of the Defendant – there was some substance to the Claimant’s criticisms. It was surprising that the Defendant had not got access to the police files, and had made little progress in identifying and making contact with the long list of possible witnesses.
- The promptness of the Claimant – Judge Main was surprised that it took the Claimant until 2003 to make the claim, but doubted that the delay between 2001 (when the Claimant first suffered his psychiatric illness) and 2003 was very important. The Claim in any event was presented in the 3 years from November 2000 which put the delay in context.
- Steps taken by the Claimant – once the Claimant realised he was ill, he did seek assistance.
Taking these matters into account, it would be unfair to the Defendant to allow the case to proceed. It was not possible to see there could be a fair trial of these issues.
However Judge Main could see no good reason why the allegations of indecent assault and abuse should not be placed before the Court so that the Court could assess the weight, consistency and cogency of the evidence relied in support of these allegations. There was the issue of whether the Defendant was vicariously liable, but there would be abundant evidence before the Court to enable those factual questions to be answered adequately.