XA V YA [2010] EWHC 1983 (QB)
FACTS:-
The Claimant was a 32 year old man who claimed that during his childhood his mother had assaulted him, was responsible jointly with his father for assaults upon him and negligently failed to protect him from his father. As a result he suffered physical injury and long term psychiatric damage. He also sought aggravated damages.
His brother and sister had already brought proceedings against his father and obtained awards of damages. The father, who lived in Eire took no part in the proceedings and enforcement proceedings were still current against him in that jurisdiction. XA was taking proceedings against his father because she lived in England and it would be easier to enforce a judgement against her. He also considered her to be at least as responsible as his father.
JUDGEMENT:-
Justice Thirlwall went over the history of the family. It was plain that the Claimant’s father was the uncompromising head of the household. Contravention led to physical punishment and his wife, the Claimant’s mother accepted that for the most part. The claim was brought for a) assault by the mother jointly with the father, assault by the mother directly and negligence by the mother in failing to protect the Claimant. The Claimant’s counsel submitted that there was a duty of care on the Defendant as described in the case of S v W [1995] PIQR 470 and it was argued that the mother should have effectively separated her children from the father. The Defendant’s case was that she never encouraged or instigated any assaults, she owed no common law duty of care to her son and further that the Claimant’s action was statute barred.
Thirlwall J considered the provisions of the Limitation Act 1980 and the case of A v Hoare [2008] UKHL 6. Primary limitation had expired in 1999. The Claimant relied solely on section 33 of the 1980 Act, the court’s power to disapply limitation. Thirlwall J was reminded by both counsel that in making a determination on Section 3, the judge should take care not to determine the substantive issues before determining the issue of limitation and in particular the effect of delay on the cogency of the evidence. She referred to two cases, KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 and AB and Others v Nugent Care Society [2009] EWCA Civ 827.
Thirlwall J then proceeded to set out the evidence. The Claimant had given a clear statement, although some of his recollection clearly came from documents or information given to him by others. His mother’s statement was lengthy, but again it was clear that much of what she said came from information given to her by her other children. Her memory was described by the Claimant’s counsel as “patchy” as she could not remember particular incidents. Thirlwall J said that she seemed to be genuinely baffled and distressed by these proceedings although she did not think that the Defendant was being evasive.
There were social services records from 1978 to 1979 and 1993. These showed the concern of social services about the physical punishment meted out to the Defendant’s children by the father. There were also the Claimant’s medical records and court documents from a family court case in 1993 when the mother had taken out an injunction against the father and was seeking judicial separation. Two of the Claimant’s brothers had given a statement but only one had attended court to give evidence. Statements had also been supplied from the brother and sister who had sued their father, as well as the final judgments in their cases. Finally there was a report from a psychiatrist, Dr Anthony Maden.
The Defendant remained married to her husband, although he had sold their house, taken the proceeds of sale and moved to Eire.
Thirlwall J said that there was no evidence of any injury arising out of the alleged assaults upon the Claimant by his mother. In relation to the father’s assaults, it was accepted that these would cause some physical injury although the main damage was psychological.
Thirlwall J summed up the common issues on each limb of the claim. These were:-
Joint enterprise for assault
Assault by the mother on the Claimant
Negligence
Thirlwall J said that the corporal punishment was lawful in schools in England and Wales until the 1980’s. The defence of lawful chastisement was available until Section 58 of the Children Act 2004 came into force. The legislation had been passed in the light of jurisprudence arising out of the Human Rights Act 1998. The prior common law position was summarized in the case of R v Hopley [(1860) 2 F.and F.202 App 206 as well as other cases R v H(1973) 57 Cr App Rep 453 and R v. Mackie (1973) 57 Cr App Rep 453. The reasonableness of the force used during chastisement was judged by the prevailing standards of the time.
Thirlwall J then turned to Section 33 of the Limitation Act 1980. She went over each of the sub sections in turn.
The period of delay was 10 years from the expiration of the limitation period to receipt of the letter of claim and 13 years from the date upon which the Claimant reached his majority. He had first consulted a solicitor 10 years ago. The psychological evidence showed that he had had significant mental health problems since his teenage years. Thirlwall J would take these into account. She also found that the Claimant’s changed view of his mother was the reason why he was suing her.
The Claimant’s psychiatrist, Professor Maden was confident that his ability to determine causation and damage was not compromised. However it was plain that the delay had had an adverse effect on the cogency of the factual evidence on both sides in respect of all three limbs of the claim but to differing degrees.
The broad sweep of the father’s conduct was sufficiently well described, and the evidence remained sufficiently cogent on both sides. In relation to the Defendant being a party to the assaults, again the evidence on this issue remained cogent and likewise the evidence as to whether the Defendant assaulted the Claimant herself.
In relation to the issue of whether there was a duty of care, what was clear was that the Defendant simply could not give any detailed or coherent account. The Claimant’s counsel had submitted that whatever the Defendant said, a finding of negligence was inevitable. Thirlwall J did not accept this. Human relationships were complex and the orthodoxy was that children were best brought up by their families.
As to sub paragraphs (e) and (f) of Section 33 Thirlwall J considered that the delay in taking legal advice and failing to act promptly was explained by the reasons for the delay as set out above.
Thirlwall J then turned to the exercise of her discretion. In relation to the claims for assault, she would exercise her discretion in favour of the Claimant, but the position for the issue of negligence was different. The defence depended almost entirely on the evidence of the Defendant, who was genuinely bewildered and quite unable to help beyond generalities. Consequently the quality and quantity of the evidence was simply not sufficient for her to come to any secure conclusions on the question of breach of duty.
Thirlwall J considered the substantive claim of the mother’s joint responsibility for the father’s assaults. She did not accept that the beating of her children was in any way joint. The household was run in the way that the father wanted and the mother did not encourage the abuse. In any event, the father would have beaten the children whether the mother told him to or not. It was also quite impossible to establish whether the occasions on which the father went beyond lawful chastisement were the occasions when the Defendant had reported the Claimant to his father. The principle was laid down in the case of Sabaf SPA v MFI [2002] EWCA Civ 976 that the joint tortfeasor had been so involved in the commission of the tort as to make himself liable for the tort.
As for the assault upon the Claimant by the Defendant, Thirlwall J was quite satisfied that the Defendant did strike her children, but that striking was minor. At most it was lawful chastisement.
Therefore the assault based claims would both fail.
In relation to the negligence claim, Thirlwall J would comment on the issue of whether there was a duty of care.
In Camarthenshire CC v Lewis [1955] AC 549, the Claimant was the wido of the driver of a care who had collided wth a tree and died, having swerved to avoid colliding with a very young child, who had wandered out of a nursery. The House of Lords decided that the local authority had been negligent in failing to secure properly the gates of the nursery school. The Claimant’s counsel had relied on this case, but the question of negligence was there being considered in a wholly circumscribed context. The same was true of the case of Surtees v The Royal Borough of Kingston upon Thames [1992] PIQR P101 where the court said that it should be wary in its approach to holding parents in breach of a duty of care owed to their children.
Thirlwall J said that in order to discharge any such duty, the Defendant would have had to break up the family. In her view the duty contended for should be treated with caution, and it was novel. There were also the comments of Lord Hutton in the case of Barrett v Enfield Borough Council [1999] 3 WLR 79 where he had said that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong. There were very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings were to be brought into family relationships.
It had been conceded by the Defendant’s counsel that the first two limbs in the case of Caparo Industries Plc v Dickman [1990] UKHL 2 (proximity and foreseeability of damage) were satisfied. However it was not just, fair and reasonable to impose a duty. Thirlwall J felt that there was merit in those submissions for the reasons set out above and also:-
Permission to appeal would be refused.
FACTS:-
The Claimant was a 32 year old man who claimed that during his childhood his mother had assaulted him, was responsible jointly with his father for assaults upon him and negligently failed to protect him from his father. As a result he suffered physical injury and long term psychiatric damage. He also sought aggravated damages.
His brother and sister had already brought proceedings against his father and obtained awards of damages. The father, who lived in Eire took no part in the proceedings and enforcement proceedings were still current against him in that jurisdiction. XA was taking proceedings against his father because she lived in England and it would be easier to enforce a judgement against her. He also considered her to be at least as responsible as his father.
JUDGEMENT:-
Justice Thirlwall went over the history of the family. It was plain that the Claimant’s father was the uncompromising head of the household. Contravention led to physical punishment and his wife, the Claimant’s mother accepted that for the most part. The claim was brought for a) assault by the mother jointly with the father, assault by the mother directly and negligence by the mother in failing to protect the Claimant. The Claimant’s counsel submitted that there was a duty of care on the Defendant as described in the case of S v W [1995] PIQR 470 and it was argued that the mother should have effectively separated her children from the father. The Defendant’s case was that she never encouraged or instigated any assaults, she owed no common law duty of care to her son and further that the Claimant’s action was statute barred.
Thirlwall J considered the provisions of the Limitation Act 1980 and the case of A v Hoare [2008] UKHL 6. Primary limitation had expired in 1999. The Claimant relied solely on section 33 of the 1980 Act, the court’s power to disapply limitation. Thirlwall J was reminded by both counsel that in making a determination on Section 3, the judge should take care not to determine the substantive issues before determining the issue of limitation and in particular the effect of delay on the cogency of the evidence. She referred to two cases, KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85 and AB and Others v Nugent Care Society [2009] EWCA Civ 827.
Thirlwall J then proceeded to set out the evidence. The Claimant had given a clear statement, although some of his recollection clearly came from documents or information given to him by others. His mother’s statement was lengthy, but again it was clear that much of what she said came from information given to her by her other children. Her memory was described by the Claimant’s counsel as “patchy” as she could not remember particular incidents. Thirlwall J said that she seemed to be genuinely baffled and distressed by these proceedings although she did not think that the Defendant was being evasive.
There were social services records from 1978 to 1979 and 1993. These showed the concern of social services about the physical punishment meted out to the Defendant’s children by the father. There were also the Claimant’s medical records and court documents from a family court case in 1993 when the mother had taken out an injunction against the father and was seeking judicial separation. Two of the Claimant’s brothers had given a statement but only one had attended court to give evidence. Statements had also been supplied from the brother and sister who had sued their father, as well as the final judgments in their cases. Finally there was a report from a psychiatrist, Dr Anthony Maden.
The Defendant remained married to her husband, although he had sold their house, taken the proceeds of sale and moved to Eire.
Thirlwall J said that there was no evidence of any injury arising out of the alleged assaults upon the Claimant by his mother. In relation to the father’s assaults, it was accepted that these would cause some physical injury although the main damage was psychological.
Thirlwall J summed up the common issues on each limb of the claim. These were:-
Joint enterprise for assault
- Did the Claimant’s father strike the claimant?
- If yes, was it lawful chastisement or assault?
- If there were assaults, were any of them committed jointly with the Defendant?
- If yes, how often did those joint assaults occur, over what period?
- What damage did the Claimant suffer as a result?
- Quantum of damages
Assault by the mother on the Claimant
- Did she strike him?
- If yes, was it lawful chastisement or assault?
- What, if any, injuries were caused?
- Quantum of damages
Negligence
- Was there a duty of care
- If yes, did the Defendant breach that duty? If yes, when and how?
- Did the Claimant’s father assault him as a result of the negligence?
- If yes, how often and over what period?
- What damage did the Claimant suffer as a result?
- Quantum of damages
Thirlwall J said that the corporal punishment was lawful in schools in England and Wales until the 1980’s. The defence of lawful chastisement was available until Section 58 of the Children Act 2004 came into force. The legislation had been passed in the light of jurisprudence arising out of the Human Rights Act 1998. The prior common law position was summarized in the case of R v Hopley [(1860) 2 F.and F.202 App 206 as well as other cases R v H(1973) 57 Cr App Rep 453 and R v. Mackie (1973) 57 Cr App Rep 453. The reasonableness of the force used during chastisement was judged by the prevailing standards of the time.
Thirlwall J then turned to Section 33 of the Limitation Act 1980. She went over each of the sub sections in turn.
- The length of, and the reasons for, the delay on the part of the Claimant
The period of delay was 10 years from the expiration of the limitation period to receipt of the letter of claim and 13 years from the date upon which the Claimant reached his majority. He had first consulted a solicitor 10 years ago. The psychological evidence showed that he had had significant mental health problems since his teenage years. Thirlwall J would take these into account. She also found that the Claimant’s changed view of his mother was the reason why he was suing her.
- the extent to which having regard to the delay, the evidence adduced or likely to be adduced by the Claimant or the Defendant was or was likely to be less cogent than if the action had been brought within the time limit.
The Claimant’s psychiatrist, Professor Maden was confident that his ability to determine causation and damage was not compromised. However it was plain that the delay had had an adverse effect on the cogency of the factual evidence on both sides in respect of all three limbs of the claim but to differing degrees.
The broad sweep of the father’s conduct was sufficiently well described, and the evidence remained sufficiently cogent on both sides. In relation to the Defendant being a party to the assaults, again the evidence on this issue remained cogent and likewise the evidence as to whether the Defendant assaulted the Claimant herself.
In relation to the issue of whether there was a duty of care, what was clear was that the Defendant simply could not give any detailed or coherent account. The Claimant’s counsel had submitted that whatever the Defendant said, a finding of negligence was inevitable. Thirlwall J did not accept this. Human relationships were complex and the orthodoxy was that children were best brought up by their families.
As to sub paragraphs (e) and (f) of Section 33 Thirlwall J considered that the delay in taking legal advice and failing to act promptly was explained by the reasons for the delay as set out above.
Thirlwall J then turned to the exercise of her discretion. In relation to the claims for assault, she would exercise her discretion in favour of the Claimant, but the position for the issue of negligence was different. The defence depended almost entirely on the evidence of the Defendant, who was genuinely bewildered and quite unable to help beyond generalities. Consequently the quality and quantity of the evidence was simply not sufficient for her to come to any secure conclusions on the question of breach of duty.
Thirlwall J considered the substantive claim of the mother’s joint responsibility for the father’s assaults. She did not accept that the beating of her children was in any way joint. The household was run in the way that the father wanted and the mother did not encourage the abuse. In any event, the father would have beaten the children whether the mother told him to or not. It was also quite impossible to establish whether the occasions on which the father went beyond lawful chastisement were the occasions when the Defendant had reported the Claimant to his father. The principle was laid down in the case of Sabaf SPA v MFI [2002] EWCA Civ 976 that the joint tortfeasor had been so involved in the commission of the tort as to make himself liable for the tort.
As for the assault upon the Claimant by the Defendant, Thirlwall J was quite satisfied that the Defendant did strike her children, but that striking was minor. At most it was lawful chastisement.
Therefore the assault based claims would both fail.
In relation to the negligence claim, Thirlwall J would comment on the issue of whether there was a duty of care.
In Camarthenshire CC v Lewis [1955] AC 549, the Claimant was the wido of the driver of a care who had collided wth a tree and died, having swerved to avoid colliding with a very young child, who had wandered out of a nursery. The House of Lords decided that the local authority had been negligent in failing to secure properly the gates of the nursery school. The Claimant’s counsel had relied on this case, but the question of negligence was there being considered in a wholly circumscribed context. The same was true of the case of Surtees v The Royal Borough of Kingston upon Thames [1992] PIQR P101 where the court said that it should be wary in its approach to holding parents in breach of a duty of care owed to their children.
Thirlwall J said that in order to discharge any such duty, the Defendant would have had to break up the family. In her view the duty contended for should be treated with caution, and it was novel. There were also the comments of Lord Hutton in the case of Barrett v Enfield Borough Council [1999] 3 WLR 79 where he had said that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong. There were very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings were to be brought into family relationships.
It had been conceded by the Defendant’s counsel that the first two limbs in the case of Caparo Industries Plc v Dickman [1990] UKHL 2 (proximity and foreseeability of damage) were satisfied. However it was not just, fair and reasonable to impose a duty. Thirlwall J felt that there was merit in those submissions for the reasons set out above and also:-
- There was in this household a history of violence to the mother as well as the children. If the duty of care contended for here was correct it would be imposed on the most vulnerable of mothers in very difficult situations. Such a common law duty of care would not improve the lives of children within the home.
- It was no easy task for the family courts to make decisions about the care of children. It would be undesirable for the civil courts to have to judge retrospectively, the decisions of a mother about how best to ensure a secure upbringing.
Permission to appeal would be refused.