S V W [1994] EWCA Civ 35
FACTS:-
The Claimant was born on the 5th November 1965 and was aged at the date of the hearing 29 years of age. She attained her majority on the 5th November 1983. The Defendant was the Claimant’s mother. She alleged that she was subjected to repeated sexual and physical abuse by her father, which came to the notice of her mother. In 1985 the father was convicted of five counts of incest with the Claimant. In March 1992 she instituted proceedings against her father and her mother. Both claims against the father and mother were initially struck out. The judge at first instance found that the correct period of limitation was Section 2 of the Limitation Act 1980, and the time limit expired six years after the Claimant’s 18th birthday. The Claimant abandoned the action against the father, but appealed in relation to her claim against the mother. Her appeal was successful, but the mother appealed to the Court of Appeal.
HELD:-
Lord Justice Russell considered the provisions of the Limitation Act 1980, and in particular Sections 11 and 14, which prescribed a three year time limit for personal injury actions based on negligence, and Section 33 which allowed the waiver of that time limit. He also referred to the case of Stubbings v Webb [1993] AC 498. In that case, Lord Griffiths had said that another case Letang v Cooper [1992] QB 197 was correctly decided insofar as it held that negligent driving was a cause of action falling within Section 2(1) of the Limitation Act 1954. However certain categories of action, namely damages for trespass to the person, false imprisonment, malicious prosecution or defamation did not come under the three year time limit. Rape and indecent assault came under the category of trespass to the person.
However in this case, there was no doubt that the claim against the mother was not a case involving direct physical contact, as the allegations against the father were. This was a claim involving acts of omission by her, such as constituted on her part a breach of the common law duty to take care of her child and not to expose that child to the unnecessary risk of injury or further injury.
Lord Justice Millett said that the state of the law was unsatisfactory, since it was illogical that the Claimant should have a claim against one parent but not the other. However the law was quite clear as Russell LJ had said.
Sir Ralph Gibson agreed.
FACTS:-
The Claimant was born on the 5th November 1965 and was aged at the date of the hearing 29 years of age. She attained her majority on the 5th November 1983. The Defendant was the Claimant’s mother. She alleged that she was subjected to repeated sexual and physical abuse by her father, which came to the notice of her mother. In 1985 the father was convicted of five counts of incest with the Claimant. In March 1992 she instituted proceedings against her father and her mother. Both claims against the father and mother were initially struck out. The judge at first instance found that the correct period of limitation was Section 2 of the Limitation Act 1980, and the time limit expired six years after the Claimant’s 18th birthday. The Claimant abandoned the action against the father, but appealed in relation to her claim against the mother. Her appeal was successful, but the mother appealed to the Court of Appeal.
HELD:-
Lord Justice Russell considered the provisions of the Limitation Act 1980, and in particular Sections 11 and 14, which prescribed a three year time limit for personal injury actions based on negligence, and Section 33 which allowed the waiver of that time limit. He also referred to the case of Stubbings v Webb [1993] AC 498. In that case, Lord Griffiths had said that another case Letang v Cooper [1992] QB 197 was correctly decided insofar as it held that negligent driving was a cause of action falling within Section 2(1) of the Limitation Act 1954. However certain categories of action, namely damages for trespass to the person, false imprisonment, malicious prosecution or defamation did not come under the three year time limit. Rape and indecent assault came under the category of trespass to the person.
However in this case, there was no doubt that the claim against the mother was not a case involving direct physical contact, as the allegations against the father were. This was a claim involving acts of omission by her, such as constituted on her part a breach of the common law duty to take care of her child and not to expose that child to the unnecessary risk of injury or further injury.
Lord Justice Millett said that the state of the law was unsatisfactory, since it was illogical that the Claimant should have a claim against one parent but not the other. However the law was quite clear as Russell LJ had said.
Sir Ralph Gibson agreed.