KR AND OTHERS VERSUS BRYN ALYN COMMUNITY (HOLDINGS) LIMITED (IN LIQUIDATION) AND ROYAL & SUN ALLIANCE PLC  EWCA Civ 85
This was an appeal brought by fourteen adults all whom claimed to have suffered sexual and/or physical abuse and/or emotional abuse between 1973 and 1991 whilst they were children in the care of the First Defendant’s care home in North Wales, the Bryn Alyn Community (“the Community”). The Second Defendant joined itself into the action to enable itself to protect its position as the First Defendant’s putative insurer.
On the 26th June 2001, Connell J found at first instance that the First Defendant was liable in negligence in respect of all the claims, save that of one Claimant (“MCK”) and part of those of two other Claimants (“JS” and “CD”). He also held that whilst the Claimants could not benefit from sections 11 and 14 (“date of knowledge”) of the Limitation Act 1980 (“the 1980 Act”), he would exercise his discretion under section 33 of that Act to disapply the period of limitation. Damages were awarded to all the successful Claimants.
The Claimants challenged the level and/or make-up of Judge’s award of damages. MCK appealed against the dismissal of her claim and JS and CD appealed against the dismissal of part of their claims. JS, CD and MCK also challenged the judge’s ruling to the effect that he had no power under section 33 of the 1980 Act to extend the limitation period for tortuous conduct in respect of which the First Defendant was vicariously liable, but which was not of itself negligent. The judge had followed the ruling in Lister & Others versus Hesley Hall Limited  2 WLR 1311.
The Second Defendant cross appealed the decision to apply section 33 of the 1980 in the Claimants’ favour. That cross appeal included the case of MCK on a contingent basis, if she were successful in overturning the judge’s finding on
Negligence. The Claimants had also tried to appeal the judge’s findings on section 14 of the 1980 Act. Their appeal was contingent on the Second Defendant being able to overturn the trial judge’s finding on section 33 of the 1980 Act. Initially they were refused permission by Connell J but were later granted permission during the course of the hearing before the Court of Appeal.
In 1995 John Allen operated a number of children’s care home in North Wales, which were known as the Bryn Alyn Community.
He was convicted of 6 offences of indecent assault against young male residents between 1972 and 1983. He and other also became the subject of allegations of abuse which were investigated by the North Wales Tribunal headed by Sir Ronald Waterhouse. Some of the allegations gave rise to civil actions and 15 lead cases against the Company were chosen to be tried before Connell J. 14 of these were heard between February and April 2001. The Royal and Sun Alliance (“the insurer”) was the liability insurer of the Company.
Lord Justice Auld considered the evidence that had been given at trial. Each Claimant gave oral evidence in support of his or her own claim. There is little other confirmatory evidence and only a few of the contemporary records from the Community still existed. Many of the records had been destroyed in a warehouse fire in 1996. The First Defendant played no part in the trial. The Second Defendant contested each case, but did not advance any positive case save in the case of JS where there were contemporaneous records. Only four former employees of the Community were called. Neither John Allen, nor another convicted abuser, David Stanley was called to give evidence.
All the Claimants had suffered serious trauma before coming to the Community.
“Date of knowledge” - Sections 11 and 14 of the Limitation Act 1980
Auld LJ considered sections 11 and 14 of the Limitation Act 1980, which he summarised. Section 11 states that time will run against the Claimant from the date on which the cause of action accrued or from his date of knowledge, where it is later than the accrual of the cause of action. Section 14 defines the date of knowledge”, which will be the date on which a Claimant knows:-
- That the injury in question was significant, namely one that the Claimant would reasonably have considered sufficient serious to justify instituting proceedings against a compliant Defendant who could satisfy judgment
- That the injury was attributable to the alleged breach of duty; and
- The identity of the Defendant
The trial judge had found that in every case, the Claimant’s date of knowledge preceded the three year period before issue of proceedings, and therefore all the claims were statute barred unless he exercised his discretion under section 33 of the 1980 Act (which he did).
Only one Claimant, MCK challenged the trial judge’s ruling on the application of section 11, and that had been contingent on the success of her appeal against the trial judge’s ruling against her on the issue of negligence.
Auld LJ said that once the original submissions of the parties had been heard by the Court of Appeal, judgment was reserved. During the course of writing this judgment, the Court of Appeal began to feel unease at way in which the trial judge had dealt with section 11 and his concentration on the immediate effects of the abuse. The Court of Appeal pointed out that these Claimants were not seeking damages for that kind of injury, but rather the long term effects of their injuries. This case was all about long-term, post-traumatic injury.
The trial judge appeared to have given the immediate effects of the injuries too much prominence when discussing limitation under section 14. He did not have sufficient regard to the special and partly subjective meaning of the word “significant” in section 14(2) or to the confining effect of words “the injury in question” in section 14(1)(a).
The trial judge had relied on the words of Lord Griffiths in Stubbings v Webb  AC 498. That case involved a Claimant who had been sexually abused as a child. Although she knew she had been raped by one Defendant and had been persistently sexually abused by the other, she did not realise she had suffered sufficiently serious injury to justify starting proceedings for damages until she realised there might be a causal link between psychiatric problems she had suffered in adult life and her sexual abuse as a child. The Court of Appeal accepted that argument, but on appeal to the House of Lords, Lord Griffiths had said that he had the greatest difficulty accepting that a woman who had been raped did not know that she had suffered significant injury. However he did not (for the purposes of that appeal) have to decide that point because the Claimant’s claim was for intentional assault, and it did not fall within section 11 of the Limitation Act. The claim was therefore time barred under non extendable six year rule and the Claimant’s date of knowledge of her injury was irrelevant.
Auld LJ said that the trial judge should have followed the judgment of the Court of Appeal on the issue of section 14 (Stubbings v Webb’s  QB 197) and not the qualified and obiter dicta of Lord Griffith in the House of Lords.
Lord Bingham in the Court of Appeal had said that sections 11(4)(b) and 14(1)(a) were tailored to meet the case where a Claimant knows more than three years before bringing his action that he has suffered some injury but not an injury that is within the meaning of section 14(2), significant. Nolan LJ and Sir Nicholas Browne-Wilkinson VC agreed with that judgment.
As a result of the Court of Appeal’s unease at what had been said by the trial judge, they invited the parties to consider pleading the point in relation to each Claimant and to making submissions on it in writing or orally.
Auld LJ said that section 14 required the court, on a case by case basis, to ask whether an already damaged child would reasonably turn his mind to litigation as a solution to his problems. Some put the abuse to the back of their minds some might block or try to suppress it. Whether that reaction was deliberate or unconscious, the question remained whether such a person would have reasonably seen the significance of his injury to as to turn his mind to litigation.
The posing of such a question had become less artificial in recent years as a result of the publicity given to child abuse enquiries. Consequently society was more sensitive to the seriousness and significance of child abuse injuries. However the question for the court was still fact-sensitive.
In any event, the trial judge had considered these issues too briefly. There were no short cuts in this exercise – it was not enough to ask the Claimant whether he or she thought what had happened was “wrong”. It was not normally for a Defendant to establish when, if at all, a Claimant had the relevant knowledge. It was for the Claimant to prove how long he was without it.
If the trial judge found that any Claimant had the requisite knowledge within three years after majority, that knowledge would operate to bar not only the claim for damages for the immediate injuries caused by the abuse, but also the long term psychiatric injury. However if the finding went the other way, then the claim could be made for both the early immediate injuries and the long term psychiatric damage.
Section 33 of the Limitation Act
Auld LJ then considered the effect of section 33. The discretion of the court under section 33 was fettered only to the extent that the section provides a non-exhaustive list of circumstances to which the court should have regard. The overall question is one of equity, namely, whether it would be “equitable” to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case.
An appellate court should not interfere with the trial judge’s discretion save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible.
Auld LJ set out the following well-established starting points for the exercise of discretion.
- In multiple claims, a judge should consider the exercise of his discretion separately in relation to each claim.
- The burden of showing that it would equitable to disapply the limitation period lies on the Claimant and it is a heavy burden. It is an exceptional indulgence, to be granted only where equity between the parties demands it.
- The longer the delay, the more likely, and the greater, the prejudice to the Defendant
- Where a judge is minded to grant a long extension, he should give meticulous reasons for doing so.
- The judge should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.
- Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of disclosure. It might not always be feasible or produce savings in time and cost for the parties to deal with the matter by way of preliminary hearing, but a judge should strain to do so wherever possible.
- Where the judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and in particular the effect of delay on the cogency of the evidence. Otherwise the Defendant is effectively left to prove a negative.
- The judge 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. Such a finding is usually neutral on the balance of prejudice because the Claimant with a strong case will likewise be prejudiced if the limitation rule operates against him. What is of paramount important is the effect of delay on the Defendant’s ability to defend.
- There could be instances of weak claims where disapplication of the limitation provision could cause Defendants considerable prejudice in putting them to the trouble and expenses of successfully defending them and then not being able to recover costs against impecunious Claimants.
The trial judge’s balancing exercise was flawed in a number of respects.
- In relation to sub section 3(a) of section 33 (length and reasons for delay) undue weight had been given to the basis on which the Claimants founded their reasons for delay, i.e. the effects of the abuse.
- He did not discriminate between claims for sexual and physical abuse – when considering the reasonableness of the Claimants in delaying seeking legal advice.
- He did not discriminate between claims where the delay was very long – some 20 years – and claims where the delay was very short.
- In relation to sub section 3(b) of section 33 (the effect of delay on cogency of evidence) he did not pay sufficient regard to the cogency of the evidence – which in this case was impaired after the passage of so many years. Whilst the judge had relied upon the Waterhouse report, but the conclusions in that report were not reached by applying the civil standard of proof, and were either highly general in nature or tentative.
- In relation to sub section 3(c) of section 33 (the conduct of the Defendants), there was no obstructive conduct here on the part of the Defendants and the judge had disregarded the obvious prejudice caused by the insolvency of the Defendant company.
- In relation to sub section 3(e) of section 33 (promptness and reasonableness of the Claimants actions after learning of the facts) there needed to be a separate consideration in relation to each claim.
- In relation to sub section 3(f) of section 33 (steps taken by the Claimants to obtain medical, legal or other expert advice) the relevant period of delay for consideration in the circumstances of these claims must be that from the date of knowledge, where appropriate extended by the Claimant’s date of knowledge.
Consequently the trial judge’s decision would be set aside and the Court of Appeal would re-examine the effect of section 33 in each of these cases.
Auld LJ said that the Court of Appeal did not think it appropriate to set any kind of tariff for the exercise of section 33. However he did set out the following guidelines:-
- As a general rule of thumb, the longer the delay after the occurrence of the matters giving a rise to the cause of action, the more likely it is that the balance of prejudice will swing against disapplication.
- In cases of this nature (child abuse) where liability, causation and quantum are so difficult with or without delay, the permissible delay in each case is likely to be highly sensitive to the prejudice it causes to the defence notwithstanding good reasons of the Claimant for its length.
- If the date of knowledge test in section 14 is properly applied so as to provide a Claimant with an extension of the period by reference to it, the weight to be given to his reasons for delay thereafter should, in normal circumstances be limited.
The Lister Point – Vicarious Liability
Auld LJ referred to the House of Lords ruling in Lister v Hesley Hall Limited  2 WLR 1311.
There was an issue in certain of the claims (MCK, JS and CD) as to what torts were committed by the abuser. The Claimants asserted that all their causes of action were “for damages for negligence, nuisance and breach of duty….where the damages claimed …. Consist of or include damages in respect of personal injuries” within section 11 of the 1980 Act. The Second Defendant argued that, in so far as the Claimant relied on deliberate acts of abuse by certain Bryn Alyn employees, their claims were not within section 11, but the appropriate period of limitation would be the non extendable six year time limit (as laid down by section 2 of the 1980 Act).
Auld LJ considered the dicta of Lord Hobhouse and Lord Millett in Lister. Lord Hobhouse appeared to have suggested that an employee’s duty of car including his duty as a citizen not to abuse children, breach of which, if closely connected with his employment would also engage his employer’s vicarious responsibility. Lord Millett on the other hand clearly distinguished between an employee’s deliberate wrong and his delegated duty of care. He had said that the school in the case of Lister was vicariously liable for the warden’s intentional assaults but not for his failure to perform his duty to take care of the pupils. That duty was owed exclusively to the employer and it was not a duty for breach of which the employer could be vicariously liable.
Auld LJ said that the approach of Lord Millett was the correct one. If limitation was not an issue, it would be difficult to conceive in what circumstances it would be possible and necessary to deploy the argument, that an employee who abuses children in his care is under a duty to report his sexual intentions or the consequences of his misdeeds. To rely on this argument, simply to overcome a limitation period, would seem to be a somewhat artificial basis for a claim. It would also run contrary to the firm and unanimous reasoning of the House of Lords in Stubbings versus Webb.
Therefore in the absence of some provable allegation of systemic negligence of the part of the First Defendant, the employees’ deliberate abuse did not fall within section 11 and was therefore governed by a non-extendable six year period of limitation rather than the extendable three years period.
Auld LJ considered each of the Claimants’ claims which primarily for damages for long-term psychiatric and/or psychological injury. There was no doubt that award’ in cases such as this should take account of the nature, severity and duration of the abuse itself and of its immediate effects, as well as any long term psychiatric harm.
One of the issues before any court was how to apportion the damage caused by the effects of abuse before the Claimant and the damages caused by abuse afterward. Auld LJ said that it was the duty of the judge, so far as possible to adopt a principled and logical approach to the difficult question of apportionment. A better practice was for judges to show the steps by which the result, however approximate, has been achieved.
In addition a wrongdoer must take his victims as he finds him. To abuse an already damaged individual might have the result of pushing him over the brink. The proper comparison was between how a particular Claimant turned out and how he would have turned out given proper support during his or her time in the First Defendant’s care.
Auld LJ said that the trial judge had used three pointers in making his assessment, and that the Court of Appeal agreed that all three provided useful points to the level of general damages in this class of case. Those pointers were:-
- The Judicial Studies Board Guidelines – although these did not directly address the kind of problems in these cases
- Assessments made by Potts J in I versus Leicestershire County Council 2nd April 1996 (unreported) QBD
- C versus Flintshire County Council  EWCA Civ 302
Loss of earnings
In many of the claims, there was a claim for Smith versus Manchester Corporation awards. The trial judge had adopted the approach of Scott Baker J in C versus Flintshire County Council. If the Claimant proved on the balance of probability that pre trial he had earned less money than he would have earned if he had not been abused whilst in the care of the First Defendant, then an award would be made in a round sum to reflect this fact; adopting a broad brush approach which was approved by the Court of Appeal in C versus Flintshire County Council.
In the case of future loss of earnings, the conventional Smith versus Manchester Corporation approach would be applied.
Auld LJ said that the Court of Appeal approved the trial judge’s approach but it was necessary to consider whether the approach was applied in each case. He acknowledged that the cumulative effect of the Bryn Alyn abuse may have made the difference between a Claimant being able to work and not being able to work.
Auld LJ said that in the Court of Appeal’s view, once it was established that the Bryn Alyn experience played a significant part in the need for therapy, the whole of the anticipated cost should be recoverable from the defendant, unless it could be clearly shown that the treatment was divisible.
The Individual Cases
KR was just under 15 years of age when taken into care and placed with the Bryn Alyn Community in July 1973. He remained at Bryn Alyn until August 1975. Up to the making of the care order, he had enjoyed a reasonably stable and happy background. He had some ability and had passed his eleven plus. However his parents could not afford the grammar school fees and at an alternative school he had fallen in with a bad crowd. He was sexually assaulted by John Allen who made a number of attempts to bugger him, reinforcing his demands with bribes and physical violence. KR suffered from post traumatic stress disorder as a result of his experiences, and he continued to have significant symptoms. It was recommended that he have a combination of anti-depressant medication and psychotherapeutic intervention by way of cognitive therapy.
The issue of proceedings in KR’s case was in September 1999 at the age of 41, 24 years after the last of the abuse and 20 years after the expiry of the extended limitation period (his 21st birthday).
KR had acknowledged that at the time he knew what was being done was wrong, and he had suffered some bruising from the physical assaults. In 1993 he had sought his social services records but he said that he had not yet then considered the possible impact on him of the abuse, which is of the insidious development of long term psychiatric injury. It was not until July 1999 when he saw Dr Holloway that he was able to talk about the abuse and only then that he realised the full impact of it on him. In the Court of Appeals view, given the nature, length and dates of the abuse involved and the Claimant’s and medical evidence, he cannot have known before the 16th July 1996 (three years before issue of proceedings) that the injury he had sustained was significant in the statutory sense. The two years period of sexual and physical abuse, though unpleasant and, in the long term, damaging, was not of such a degree as in the early 1970’s or 1980’s would have been regarded as significant in that sense by a Claimant of his age, experience and circumstances.
In the court’s view, there was no need to consider section 33 of the Limitation Act 1980. However if that section needed to be considered, the sheer length of delay in such a case would make it inequitable to allow the matter to proceed. The effect of that delay was bound to have had a serious effect on the judge’s ability to properly assess the cogency of the claimant’s evidence, given the absence of other evidential support for it and the lack of contemporaneous documents or witnesses by which to test and/or contradict it.
The trial judge had decided that KR had earned less money than would have been the case, had he not been abused and furthermore, he was at a continuing disadvantage in the job market. Past losses were assessed at £5,000, and £5,000 was awarded for losses in the future. There was £2,000 awarded for therapy.
General damages were assessed at £35,000 by the trial judge, who took into account the Claimant’s intense psychological distress, including sleeping difficulties, difficulty in concentrating and disturbing flashbacks. Auld LJ said that the Court of Appeal did not regard this award as over generous, and they would not interfere with it. However they did consider that the judge should have included in his award of general damages some additional sum for the Claimant’s pain and suffering caused by the two years of abuse itself. However there was no appeal against quantum in this particular case and so the Court of Appeal was confined to the issue of limitation.
DK was 36 at the date of trial. In mid 1979, when 14 years of age he was taken into Bryn Alyn where he was to remain for three years. He was clearly a difficult child before that time. He had suffered physical violence at the hands of members of staff and older children.
The Claimant’s evidence was that he had tried to block out all memory of the abuse and had not acquired the requisite section 14 knowledge until after he had obtained medical advice from a Dr Holloway in January 1998, following interview by the police and consulting solicitors in 1997. Under cross examination, he indicated that he simply had not thought about the abuse at the time it occurred. Proceedings were not issued until July 1999.
Auld LJ said that in the Court of Appeal’s view, by the time the Claimant reached 21 in February 1986, he would not have considered it sufficiently serious to justify proceedings. The court bore in mind the character and circumstances of the Claimant, the nature of the abuse and the period of time in which it occurred.
The Court of Appeal would not have applied section 33 of the Limitation Act 1980. Although there was some general support for his claims from another Claimant, (CGE) and one of the care workers, the period of delay from the occurrence of the abuse (17 years) and the trial judge’s assessment of “date of knowledge” when the Claimant left Bryn Alyn (13 years).
DK was suffering from a personality disorder that involved mood swings and that he periodically suffered from depression. There was disagreement between the psychiatrists as to the extent to which his experiences at Bryn Alyn had contributed to his current condition. Dr Holloway, the Claimant’s medical expert had said that the Bryn Alyn experience was a significant factor and this view was preferred by the trial judge. An award of £25,000 for pain and suffering was made.
Auld LJ said that the figure of £25,000 was insufficient to the extent that it did not appear to include an unapportioned element for the pain and suffering caused by the serious violence to which the Claimant was subjected for three years. The Court of Appeal would increase the award by £10,000 to reflect that injury so as to increase the total award to £35,000.
There was also a claim made by the Claimant for £20,000 for past loss of earnings and £10,000 for loss of earnings or handicap in the labour market. An award was made by the trial judge for £3,000 and £2,500 respectively.
Auld LJ commented that the difficulty for the Court of Appeal and the court below was that there was no firm evidence from which to reach a figure for past loss of earnings, let alone a sum for any likely losses in the future. The Claimant preferred to be self employed and he had a reasonable record of employment in the past and sensible plans for the future. His consumption of drink and drugs might have a detrimental effect on his ability to earn in the future. In the Court of Appeal’s view, the Claimant was fortunate to receive anything at all for loss of earnings, given the tenuous basis for the claim.
The Claimant also made a claim for therapy costs, and he was awarded by the trial judge two thirds of that amount. The Court of Appeal referred to their views on treatment costs (see above under the heading “Therapy”) and considered that the entirety of the amount should have been awarded - £1800.
CGE was 34 at the date of trial. From 1980 to 1983 between the ages of 13 and 17, he was at the Bryn Alyn Community. He was physically abused by members of staff and other residents. A consultant psychiatrist said in November 2000 that he displayed features of an emotionally unstable personality disorder. He had been disturbed prior to entering Bryn Alyn but (according to the psychiatrist) his experiences there would have contributed greatly to the further development of his personality problems.
CGE made a statement to the police in 1993 about the assault by one of the members of staff, and he made an application to the CICB in respect of that assault. His evidence was at the time, that he did not know at that time of the development of his personality disorder. It was not until 1998 or 1999 that he first consulted a solicitor and was seen by a medical expert. It was about then (according to the Court of Appeal) that he first learned of the significance of his injury in a section 14 senses.
The Court of Appeal would not have exercised section 33 in the Claimant’s favour. The period of delay was very long, nearly 16 years from the last of the abuse, and 12 from the expiry of the relevant limitation period. This had an effect on the cogency of the evidence. There were also issues as to the Claimant’s truthfulness as there was contradictory material.
The psychiatrists instructed by the parties had produced a joint report. Whilst both agreed that the abuse at Bryn Alyn had a bad effect on the Claimant’s pre-existing psychological difficulties, neither was able to say to what extent those experiences had been causative of his present problems.
The trial judge had awarded him £17,500 by way of general damages and £2,500 by way of future handicap in the labour market. He was also awarded £1000 for cost of therapy (against a claim of £1800).
Auld LJ said that in the Court of Appeal’s view, the figure of £17,500 was too low and with apportionment should not have been less than £35,000. Both doctors agreed that Bryn Alyn had made a material contribution to the Claimant’s mental state. CGE’s claim for psychological injury was worth slightly less than that of DK. £20,000 was the least sum that should have been awarded as an apportioned sum for the pain, suffering and loss of amenity caused by long term personality disorder resulting from abuse. To that should be added a further sum of £9,000 for the immediate pain and suffering caused by the abuse.
The award for loss of advantage in the job market (£2500) was far too little. The Court of Appeal would award the equivalent of two years purchase for past loss and one year for the future (£30,000). He was never likely to earn more than £10,000 per annum.
The whole of the treatment (£1800) would be recoverable.
RM spent just under two years in the Bryn Alyn Community from 1988 to 1990 between the ages of 15 and 17. She was 28 at the date of trial. Prior to being admitted to Bryn Alyn, her life was troubled. She had been regularly assaulted at Nazareth House in Lancaster and sexually abused by a nun there. At her next home, she had been assaulted by other residents and staff. She was a badly disturbed young woman when first admitted to Bryn Alyn.
At Bryn Alyn she was physically assaulted and terrorised by staff. When examined by psychiatrists, she was suffering from depression and agoraphobia, and addicted to drugs. Her prognosis was bleak. The conclusion of the psychiatrists was that her experiences at Bryn Alyn had exacerbated her disorder.
She issued proceedings in July 1999, some nine years after the last abuse complained of and five years after the expiry of the period of limitation. At the time of the abuse she had complained to a social worker and the police at the time about her treatment at the time it occurred. Her claim appeared to have been prompted by the mention of a radio programme about the possibility of such proceedings. Auld LJ said that in the Court of Appeal’s view RM did not have knowledge of significant injury for the purpose of section 14 until 1997 when she first contemplated proceedings. A particular issue in her case was one of attribution of cause for her present condition, one on which she could not reasonably have been expected to acquire the requisite knowledge without the assistance of expert advice.
In this case, the Court of Appeal would be minded to disapply the limitation period under section 33. Firstly although the period of delay was long (9 years after the last abuse and 5 years after the expiry of the limitation period), it was significantly shorter than some of the other claims. Secondly although the Claimant’s account was unsupported, there was some documentation in evidence covering the earlier part of her period at Bryn Alyn by which it could be, and was, tested. Third, her difficulty in bringing herself to relive the unhappy experience of her abuse at Bryn Alyn, would be a relevant circumstance in considering the exercise of discretion under section 33.
The Claimant had not appealed the trial judge’s refusal to award any damage in respect of loss of earnings or cost of therapy. However she did appeal the award of £5,000 for general damages. The Court of Appeal took the view that but for the difficulties of attribution, RM would have been entitled to compensation for psychological symptoms in the sum of £50,000. Even allowing for the fact that the experiences at Bryn Alyn had exacerbated her problems, the court would find it difficult to justify an award of less than £15,000 for a serious condition, from which she had a poor chance of recovery and also for the physical violence that she suffered at Bryn Alyn. That was the award they made.
At the date of trial, GS was aged 27. In late 1988 when aged 15 he had been admitted into the Bryn Alyn Community. He came from a poor and violent background. He remained at Bryn Alyn (Gatewen Hall) for nine months. During that time he was regularly assaulted by staff.
He made statements to the police in 1992 and 1993. On his own uncontradicted evidence, he had only realised in 1999, shortly before commencing proceedings that his psychiatric symptoms could be related to the violence that he suffered at Bryn Alyn. It was about that time that he first instructed solicitors and saw a psychiatrist.
Again in this case, the Court of Appeal would have disapplied the limitation period under section 33. Firstly the overall delay from the last abuse and that from the expiry of the limitation period – about ten and five years respectively was similar to the case of RM. Secondly although his account was largely unsupported, there was evidence from one of the care workers, challenging some of his allegations. There was also documentation in evidence covering his period of stay in Bryn Alyn. Finally the Claimant had given an explanation as to the delay in bringing proceedings.
There was a disagreement between the parties’ respective medical experts as to the attribution of GS’ problems, although both agreed that one significant, though not major, factor in bring about his present problems was the physical abuse suffered as an adolescent. The trial judge had preferred the view that the Claimant would have had the same problems irrespective of the abuse alleged at Bryn Alyn. The trial judge also said that the Claimant had exaggerated the regularity of the assaults, even if he accepted that assaults did in fact take place. If the whole of GS’ problem were attributable to mistreatment at Bryn Alyn, the award could hardly have been less than £35,000. It was agreed by the medical experts that the violence at Bryn Alyn had been a significant causative factor and there was also the issue of the violence at the time itself. The award of £5,000 for general damages would be replaced by an award of £12,000 to reflect both those considerations.
MCK was a 15 year old girl sexually abused by John Allen on about six occasions over a period of about six months between 1982 and 1983, some 16 years prior to the issue of proceedings. The trial judge held that:-
- Allen had indecently assaulted her as alleged
- On the evidence, there was systemic negligence on the part of the First Defendant.
- The First Defendant was vicariously responsible for Allen’s sexual abuse of her as an act of trespass, but not liable in negligence or for other breach of duty in respect of personal injuries (which would fall under section 11 of the Limitation Act 19800.
MCK appealed against that decision.
The Claimant’s counsel had submitted that if other employees of Bryn Alyn had been properly trained and supervised, they should have prevented these assaults. The problem with this submission (according to the trial judge) was that the assaults occurred when MCK attended John Allen’s office for a legitimate purpose. She did not suggest any distress after assaults, nor was any complaint made. It was asking too much of the Defendants to expect other staff members to monitor every visit by a resident to the principal in his office.
The Claimant’s counsel had also submitted that MCK’s allegations should be looked at in isolation, but in the context of the general failure of the First Defendant to establish a proper system of care and protection for children. The judge had found that the First Defendant was vicariously liable in negligence for the failure of staff to heed warning signs of Allen’s misconduct and intervene to prevent it. However the trial judge drew a distinction between conduct of which the First Defendant was or ought reasonably to have aware and conduct, which by reason of the particular circumstances even if there had been an adequate system by the standards of the time, other employees may not have been put on notice.
Auld LJ said that in the Court of Appeal’s view the judge was best placed to draw the line where he did, and they would not disturb his dismissal of the claim in negligence for the reasons given above.
The trial judge had said that the actions of John Allen towards the Claimant were covered by the tort of trespass and the First Defendant was vicariously liable for those assaults. The abuse was clearly connected with his employment. However that meant that MCK’s claim was statute barred under the non-extendable six year rule.
Auld LJ said that the trial judge’s ruling was correct.
MCK first related the abuse to her current partner in about 1997. The consultant psychiatrists agreed that the abuse which she suffered had no major impact on her personality development, although she suffered great distress following the revelations in relation to sexual abuse in the Waterhouse Inquiry.
Auld LJ said that MCK had not suffered any physical injury or short term psychological hurt from the abuse at the time. In the Court of Appeal’s view, if she had had case in negligence, her date of knowledge would not have arisen until about 1997. The Court of Appeal would have had difficulty in disapplying the limitation period. Such an approach would have required the Defendants to meet a 16 years old claim as well as being some ten years out of time.
The joint finding of the psychiatrists was that MCK did not have an identifiable psychiatric disorder and that her experiences did not have any major impact on her personality development. The trial judge had awarded £5,000 for general damages but the Court of Appeal would (but the fact that her claim had failed) increase this to £7,000 to take into account the effect on her of the sexual indecency at the time.
DJ was in the care of Bryn Alyn from March 1975 until January 1981. He entered the care home at the age of 10 and left just before 16. Prior to his placement at Bryn Alyn he had been physically, racially and sexually abused. At Bryn Alyn he was sexually abused by other staff and John Allen. He was buggered by John Allen and another member of staff, as well as being offered to Mr Allen’s friends as a sexual plaything. He also suffered physical abuse at the hands of staff. Since leaving Bryn Alyn DJ had acquired an extensive criminal record. He had been convicted of grievous bodily harm for which he had received a 12 year prison sentence. He was diagnosed with delayed post-traumatic stress disorder.
Proceedings were issued in January 1998, some 17 years after the last of the abusive incidents. Auld LJ said that even allowing for the seriousness of the abuse alleged it had taken place in a wholly different climate of public opinion and attitudes over twenty years ago. It was not significance to DJ within the meaning of section 14(1)(a) of the Limitation Act 1980. What was of significance was the delayed post-traumatic stress disorder in 1996, which prompted him to frame a claim for damages for it.
In relation to section 33 of the Limitation Act 1980, the period of delay was very long and it was bound to have a serious effect on the judge’s ability to assess the evidence properly. There was a lack of other evidential support and of contemporaneous documents or witnesses by which to test and/or contradict the evidence, which was in turn aggravated by the Claimant’s own unreliability, having a number of convictions for dishonesty and a history of prolonged use of illicit drugs and alcohol abuse.
The Claimant had made a claim for loss of earnings. Auld LJ said that the judge was right to dismiss this claim. However in relation to the claim for general damages, it appeared to the Court of Appeal that the judge had made the award in relation to the post 1996/1997 suffering, but did not include any allowance for the fact and the effect of the abuse at the time or some consequential psychiatric problems from 1981 to 1996/1997. The Court of Appeal would make an award in the sum of £50,000 and in addition would award to the Claimant the whole of the costs of his therapy, £2520.
KJM was in the care of Bryn Alyn from March 1973 until December 1975, between the ages of 13 and nearly 16. He was forty one at the date of trial. His parents were heavy drinkers and his father would beat his mother. As a child he was described as being insolent, using foul language and having a vicious temper. Whilst at Bryn Alyn he was indecently assaulted by John Allen on a number of occasions.
Proceedings had been issued in July 1999. Auld LJ said that in the Court of Appeal’s view, KJM’s injuries were not of significance to him even by the end of the primary limitation period in December 1980. The significance and attributability could possibly have become apparent to him in discussion with his probation officer in about 1992 at the earliest, leaving to his giving evidence against John Allen and making a claim to the Criminal Injuries Compensation Board in 1995. It appeared from the Claimant’s evidence unchallenged and uncontradicted on this point, that his state in 1992 and 1995 was of some uncertainty, particularly as to attributability – simply that his continuing difficulties might be sufficiently serious to warrant proceedings and might be attributable to the abuse. It certainly fell short of a firm belief that that was so. Auld LJ referred o the cases of Spargo versus North Essex District Health Authority  PIQR 235 and Roberts versus Winbow  PIQR P77. Auld LJ said that the date of knowledge was probably in 1999, when the Claimant first instructed solicitors to investigate his claim and/or was seen by the psychiatrist.
With regard to section 33 of the Limitation Act 1980, the period of delay was far too long, over 24 years from the last abuse and over 18 years from the expiry of the limitation period. The delay was bound to have an effect on the cogency of the evidence. The lack of other evidential support and of contemporaneous documents about matters in issue over 24 years was aggravated by his potential unreliability, particularly given his convictions for dishonesty. It would therefore be inequitable to require the Defendants by disapplication of section 33, to meet so stale a claim.
If (contrary to the Court of Appeal’s view) the Claimant had acquired knowledge in 1995 when he gave evidence at the trial of Allen and applied to the CICB for compensation, the period of delay after the expiry of the limitation period would have been minimal and the court would have been entitled to consider that as a relevant circumstance in the exercise of its discretion under section 33. Auld LJ said that in the instant case, the Court of Appeal would have given that short period of delay (subsequent to 1995) less weight that in other cases of shorter overall delay.
The trial judge had awarded £5,000 but the Court of Appeal substituted £12,000 on the grounds that the First Defendant should have alleviated the Claimant’s problems not made them worse. There was also the immediate two and a half years suffering caused by the abuse.
The Court of Appeal also felt that the entirety of the therapy should be awarded - £2000.
The Claimant was first taken into care at the age of five. She was prone to temper tantrums. By the time she arrived at Bryn Alyn in 1982 aged 12 and a half she had had a number of sexual encounters. During the three years she was at Bryn Alyn she claimed to have been sexually abused by three of the staff, including indecent assaults and one act of sexual intercourse with the deputy head of Bryn Alyn. There was no suggestion that JS was unwilling in relation to the act of sexual intercourse. The deputy head pleaded guilty to the offence of unlawful sexual intercourse. Another member of staff had tried to have intercourse with her on a camping trip, whilst the third had buggered her on a number of occasions and she alleged that she had masturbated him. The trial judge had found that the allegations against the third member of staff were not proven. The staff member in question had been prosecuted for these offences but acquitted.
The Claimant issued proceedings in January 1994 just under the age of 24.
The judge had found the First Defendant vicariously liable for the indecent assaults by the deputy head, in negligence for failing to prevent them. In relation to the indecent assault that took place on the camping trip, the trial judge held that this was an isolated occasion and he was unable to find negligence against the First Defendant.
However the Claimant was within the six year period for claiming against the First Defendant in respect of the camping trip assault. The Court of Appeal took the view that his abusive conduct had a sufficiently close connection with his work to satisfy the test in Lister v Hesley Hall Limited  2 WLR 1311.
So the Claimant was entitled to damages for the sexual abuse carried out by the deputy head, and the single indecent assault by a member of staff on the camping trip.
Auld LJ said that JS’ date of knowledge was likely to have been in the three years limitation period. However if they were wrong about that, they would exercise discretion under section 33 of the Limitation Act 1980 to disapply limitation, as the period of delay was relatively short.
The Claimant had had a very troubled life, which was mainly due to her experiences before being placed and since leaving Bryn Alyn. She lost a child in 1990, which in the view of the trial judge had made a significant contribution to her depression and her borderline personality disorder.
The trial judge had rejected the Claimant’s claim for loss of earnings. The Court of Appeal agreed with the trial judge’s view that the abuse by the deputy head had made a material contribution to her current symptoms but had made no award for the single camping site incident.
If all of JS’ symptoms had been attributable to her treatment at Bryn Alyn, the Court of Appeal would have awarded the sum of £45,000 to include the camping site assault. The trial judge’s finding on the loss of earnings claim was upheld. The Court of Appeal would substitute an award of £28,000 for general damages.
From 1984 to 1986 (just over two years) between the ages of 13 and 15, GOM was in the care of the First Defendant. At the date of trial he was aged 31. He had not known his father and his mother was a drunk. He witnessed violence from her male cohabitees, and he had tried to protect her. In March 1983 he was taken into the care of the local authority, but he got himself into further trouble.
Over the course of two years, he was repeatedly indecently assaulted and buggered by John Allen. He was also made to masturbate John Allen. There was also some minor physical abuse.
It had taken a long time for GOM to reveal the full story. He had disclosed to a solicitor representing him in a criminal matter in 1996 that he had been abused at Bryn Alyn. He had only revealed the buggery three weeks before the trial. At the time he saw the psychiatrists instructed by the parties in 2000, he was suffering from a personality disorder and post traumatic stress disorder.
In the Court of Appeal’s view, the sexual abuse suffered by him was serious but it was unlikely to have been of significance to him. It had not been secured by or accompanied with violence or threats of violence, but by bribery. Its effect on the Claimant at the time was one of confusion and shame, such that he felt unable to, and did not resist or complaint about Allen’s conduct. The physical abuse was not the sort of thing that a boy of GOM’s background would complain about. The effects of the abuse only became of significance in a section 14 sense much later when he first began to face up to its after effects. It was not until 1996 or 1997, shortly after the severe depressive illness had begun to manifest itself in 1996, and when prompted by his disclosure of the matter to the Waterhouse Inquiry, that he reasonably began to focus on the significance of what the abuse had done to him. In the meantime, he had “blocked out” the abuse at Bryn Alyn.
However the Court of Appeal would not have exercised their discretion under section 33 of the Limitation Act 1980. The period of delay was over 13 years from the last of the abuse complained of, and over 8 years from the expiry of the limitation period. That delay was bound to have an effect on the judge’s ability to assess the cogency of the evidence. There was some contemporaneous Bryn Alyn documentation but not very much and there was also the usual lack of evidential support for the Claimant’s evidence or by reference to which it could be tested. The Claimant had numerous convictions for dishonesty and a long history of drug and alcohol abuse. The consequence of the minimal delay between the Claimant’s date of knowledge (1996) and issue of proceedings July 1999 would not deter the Court of Appeal from concluding that the staleness of the claim and its consequences on the facts of this case would have made it inequitable to allow the claim to proceed.
Auld LJ said that in the Court of Appeal’s view, they should take into account not only the long term effects but also the effects of the abuse at the time. However the Claimant had been badly damaged by his early childhood experiences. In 1998, the Claimant had been attacked with a knife and his dependence on drugs had led to him committing many offences – over 90. He had never been in employment. An appropriate global figure should have been in excess of £50,000 but after apportionment in respect of the long term injury, the appropriate award for general damages would be £45,000.
The trial judge had rejected any claim for loss of employment in the past. GOM’s criminal record had rendered him virtually unemployable. The Court of Appeal upheld that finding.
However the judge had made an award for future loss on the employment market. The claim for future loss remained somewhat speculative although the Claimant had committed no further crimes since 1997. It was the Claimant’s responsibility to deal with his inability to mix with people and his drug addiction. A modest award would be made in the sum of £2500.
The Court of Appeal said that they would substitute an award of £10,000 as the figure of £2500 did not appear to be adequate.
The trial judge had awarded £10,000 for therapy against a total claim of £13,800. He had accepted that the treatment would be likely to contribute to some improvement in the future, thus reducing the level of damages and future loss of earnings. The trial judge had also considered that the Claimant would take full advantage of that therapy, which would have been necessary even without any contribution from the pre and post Bryn Alyn experiences. The Court of Appeal would make an award of £13,800.
DHM was at Bryn Alyn for just over three years from late 1977 to the start of 1981, between the ages of thirteen and sixteen and a half. He had been taken into care following a conviction for malicious damage. Previously he had been a very difficult child and was the product of a broken home. After leaving Bryn Alyn he became a heavy drinker and was convicted of a number of crimes involving dishonesty and violence.
In January 1997 he was interviewed by the police, and this was the first time on which he made a complaint about his treatment. He alleged a series of indecent assaults by a care worker, including mutual masturbation, oral sex and attempted buggery. The care worker was convicted of a number of sex crimes against children including indecent assault on this Claimant. In February 2001, the Claimant alleged that he had also been abused by John Allen. He accused John Allen or mutual masturbation and attempted buggery. He also complained of physical abuse.
The psychiatrists instructed by the parties, agreed that the police enquiries provoked the late onset of delayed onset post traumatic stress disorder. They also agreed that DHM suffered from alcohol dependence and that he had undergone an enduring personality change. His experiences at Bryn Alyn had played the major part in the development of his post traumatic stress disorder and enduring personality change. Treatment would be beneficial to the Claimant.
Auld LJ said that the sexual abuse suffered at Bryn Alyn was not significant to the Claimant within the meaning of section 14(2) of the Limitation Act 1980. It was likely that his first knowledge of significant injury for this purpose was after giving a statement to the police in 1997 and the onset of post traumatic stress disorder.
The Court of Appeal would not have exercised section 33 of the 1980 Act in the Claimant’s favour. First the overall period of delay of 18 years from the last of the alleged abuse was very long and likely to have an effect on the cogency of the evidence, notwithstanding the potential availability of two of the Bryn Alyn staff alleged to have played a part in it. The issue here was not whether the abuse had taken place, but whether, having regard to the standards to be expected of the time, up to 20 or more years before the trial, the First Defendant had been in breach of its duty of care. The judge’s reliance in this respect on the Waterhouse report was somewhat tenuous. There were various other obstacles, common to nearly all the claims to a fair trial of all the issues, including the potential unreliability of the Claimant.
The judge had awarded £30,000 and the Court of Appeal took the view that he was entitled to conclude that the greater part of the Claimant’s symptoms was attributable to his abuse at Bryn Alyn. Auld LJ said that that figure might be on the low side but not by much for the long term effects of the serious nature and duration of the abuse. However the award took no account of the immediate effects of the abuse. The Court of Appeal would substitute an award of £50,000.
No award had been made for past loss of earnings. The Claimant had been in work for much of the time since he had left Bryn Alyn. His last criminal conviction was in 1987. He had stopped work because one of his children had suffered severe brain damage. The Court of Appeal upheld the judge’s decision here.
The sum of £10,000 had been awarded for future loss or handicap on the labour market. The judge had concluded that the Claimant should be employable in about two or three year’s time, when his child no longer needed long term care. However it was likely that there would be some lapses in the future. This was upheld by the Court of Appeal.
The whole of the therapy costs were awarded by the trial judge.
PS was 38 at the date of trial. His father was a violent drunk and his mother had died when he was about five years old. He was placed at Nazareth House in Newcastle where he was physically abused. There was also sexual abuse by a girl. He was then transferred to other homes by which time, he was a very troubled youngster. In 1976 he was sent at the age of 13 to Bryn Alyn where stayed for three and a half years until he was 17. There he sustained physical abuse from members of staff.
On leaving Bryn Alyn the Claimant was in the army for eight and a half years, and by the time of his discharge was suffering from acute depression. He had a variety of jobs. In late 1996 he read a newspaper article about John Allen and he was interviewed and seen by psychiatrists. In 1998 one of those psychiatrists diagnosed him with chronic post traumatic stress disorder.
Auld LJ said that the Court of Appeal were of the view that the Claimant did not have knowledge of significant injury before about 1997. His uncontradicted account was that he had not had recognised or realised that he had problems, later identified as post traumatic stress syndrome, until 1997, after he had been interviewed by the police and had given a witness statement to the Waterhouse Tribunal.
The Court of Appeal would not have applied section 33 of the Limitation Act 1980. There was an exceptionally long period of delay of nearly 18 years from the latest of the abuse, and 14 years after the expiry of the primary time limit. Secondly there were all or most of the factors present in the other claims gong to the cogency of the evidence. There was something in the submission that cumulative effect of the evidence in several of the claims; it is of limited weight given that the integrity of those claims was also under question by reason of their staleness. Also for consideration in cases like this is whether, if the matter is to go to trial, a court of first instance would be capable of satisfying itself that an individual Claimant is not simply “jumping on the bandwagon.”
Auld LJ referred to a social worker’s report on the Claimant just before he went to Bryn Alyn, which said that with proper treatment, the Claimant stood a fair chance of success. That evidence was important in apportioning damages between the effects of abuse on the Claimant pre Bryn Alyn and the effects from Bryn Alyn itself. The Court of Appeal said that this must lead to the conclusion that the First Defendant should bear a significant share of responsibility for the Claimant’s eventual condition.
The judge had preferred the evidence of one of the psychiatrists who had said that it was likely that there would be a gradual and probably substantial improvement in the Claimant’s condition. The Court of Appeal could not see a problem with that view, but would substitute the award made by the trial judge (£12,500) to £30,000.
There had been a claim for past loss of earnings, and the judge had awarded the sum of £2500 as the extent of it had not been clearly proved. The Court of Appeal commented that the Claimant was fortunate to be awarded anything at all.
The trial judge had awarded £10,000 for future loss of earnings. The judge did not attempt to apportion responsibility for loss of earnings between Bryn Alyn and experience prior to that time. Furthermore the Court of Appeal had not been shown any material that might suggest that the sums awarded, whether on the basis of full recovery or proper apportionment were too low.
In relation to the cost of therapy, the trial judge had apportioned half to Nazareth House and half to Bryn Alyn. The Court of Appeal applying the reasoning used to assess the general damages claim, would award the whole amount - £4,000.
CD was first taken into care at the age of nine months, and was moved over twenty placements. In many of these placements he was very badly sexually and physically abused. At the age of 15 he was described by an educational psychologist as having severe emotional and behavioural problems. He was placed at Bryn Alyn at the age of 15 for a year. Whilst there he was repeatedly buggered by a member of staff and endured indecent assaults by another care worker. He also sustained extensive physical abuse. By the date of trial, CD was twenty six years of age and the youngest of all the Claimants. He first spoke about the abuse in 1995 to his girlfriend, although two years previously he had made a statement to the police about assaults about John Allen and other members of staff. Psychiatric evidence concluded that CD was suffering from post traumatic stress disorder as well as a mixed personality disorder.
Vicarious Liability and Negligence
The trial judge had drawn a distinction between the buggery that occurred within Bryn Alyn and three incidents of buggery which occurred outside the home. There had been no warning signs in relation to the member of staff who carried out the buggery, and therefore no negligence was proved against the First Defendant in relation to those assaults that took place outside the Bryn Alyn home. The finding was that of negligence in relation to the assaults that took place within Bryn Alyn since there had been too many trips by the Claimant to the staff members’ home.
Auld LJ said that the judge was entitled, when considering the Defendants’ liability in negligence to make the distinction he did, just as he had done in respect of the abuse alleged by MCK and of part of that alleged by JS. The First Defendant would have been vicariously liable for the assaults committed outside the home as acts of trespass, but the claim was issued just past the six year period. However the practical consequences for the Claimant were minimal, given the finding in negligence against the First Defendant for the multiple acts of buggery.
In relation to the negligence claim, the claim was just over three years out of time. In this particular case, the trial judge had had doubts about the veracity of CD’s claim. In 1993, two years after leaving Bryn Alyn the Claimant had told a social worker that he had been physically assaulted but not sexually abused. Shortly afterwards, he told the police in a statement that he had been physically assaulted by Allen and other staff, but he did not allege any sexual abuse. His explanation was that he had lied to the police on the advice of the social worker in order to get out of having to be a witness. The social worker had since died.
The trial judge said that the member of staff accused of buggery could not be traced, but he had been accused of sexual abuse by JS and that abuse had been proved.
The trial judge had exercised section 33 in the Claimant’s favour. Auld LJ said that this part of his judgment was a good illustration of the danger in the section 33 exercise of determining the claim, and relying on that determination in undertaking the balance of prejudice as to whether the claim should have proceeded at all. The Court of Appeal said that CD did not have knowledge of significant injury in the section 14 sense until later, possibly in 1995 or 1996 when he was prompted by the publicity given to the Waterhouse Inquiry.
The Court of Appeal would exercise their discretion under section 33 in favour of the Claimant, taking into account that the period of delay from the last of the abuse, some 8 years – was not as long as in some of the others. Also the possibly delay from the earliest date of knowledge was relatively short, a year or so at the most.
If all of CD’s psychiatric symptoms could be laid at the door of the First Defendant an award of £60,000 would not have been unreasonable. However the judge had found that the First Defendant should be held responsible for just over a third of his present symptoms. The Court of Appeal saw no reason to disagree with such an apportionment for the purpose of general damages and would substitute a figure of £22,500 for the long term psychiatric harm and a further sum of £12,500 for allow for the assaults over a nine month period.
The Court of Appeal would not apportion the costs of therapy and the Claimant would recover the entirety - £8100. However the trial judge was right to apportion the cost of care. The full award made for past and future care made by the judge would be upheld at £21,450.
JM was one of seven children in a family where the father drank and gambled and the mother played around with younger men. In January 1981, JM was admitted to a children’s home. He was sent to Bryn Alyn in October 1985 and left in May 1986. He then returned in January 1987 and stayed there until June 1989. He was therefore in the First Defendant’s care for two periods totalling about three years. He had been the victim of extensive physical and sexual abuse before Bryn Alyn. After leaving he was buggered by a man, whom the Claimant later shot. Whilst at Bryn Alyn he was indecently assaulted by John Allen on many occasions, leading eventually to buggery and he was indecently assault and buggered by another member of staff. There was also physical abuse.
The Claimant was diagnosed as suffering from post traumatic stress disorder as at the time of trial.
As to limitation, the overall delay was ten years from the last of the alleged abuse in mid 1989 to the institution of proceedings in July 1999. Auld LJ said that the Court of Appeal was of the view that JM did not have knowledge for the purposes of section 14 before about the mid 1990’s. Depending on the precise date of the Claimant’s proper date of knowledge, his claim might after all be in time, or the period of delay would justify the Court of Appeal in exercising their discretion under section 33 in the Claimant’s favour. The decision in this claim was particularly finely balanced, given the overall delay of ten years from the last of the alleged abuse. However, given also the uncertainty of the exact date of knowledge so near to the date when the action could have been barred, the court would in any event be inclined to exercise their discretion in the Claimant’s favour. There had been potential prejudice to the Defendants caused by the death of the abuser in August 1998,but the Court of Appeal doubted whether the inability to call him was a potential prejudice attributable to delay.
The psychiatric evidence indicated that both the pre and post Bryn Alyn experiences had had a part to play in the eventual outcome, although there was a dispute as to the actual contribution made by these experiences. The trial judge had arrived at a global sum for general damages for £50,000, and had then made an apportionment to bring the figure down to £17,500. The Court of Appeal felt that the Claimant was entitled to a substantial further sum for the serious abuse, particularly sexual abuse to which he was subject for about three years. The Court of Appeal would assess that sum at £20,000, so as to bring the award up to £37,500. There was no claim for treatment costs and no appeal against the judge’s refusal to award a sum for loss of earnings.