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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 157
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A82/05
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OPINION OF LADY
SMITH
in the cause
STEPHEN FINDLETON
Pursuer;
against
QUARRIERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
McEachran, QC, Stirling; Drummond Miller, WS
First Defenders: Moynihan, QC,
Dunlop; Simpson & Marwick
10 October 2006
Preliminaries
[1] This
is one of a number of claims at the instance of an adult who, for a period during
his childhood, was resident in a home run by the defenders. He seeks damages in respect of depression and
a post traumatic stress disorder allegedly caused by the treatment he received
there. The case came before me on the
procedure roll along with six other similar actions.
[2] This
action was raised on 17 December 2004.
The pursuer reached the age of majority
on 22 April 1976.
Introduction
[3] Limitation
is raised as an issue by the defenders. They plead that the action is time barred under
section 17 of the Prescription and
Limitation (Scotland)
Act 1973 ("the 1973 Act"). The pursuer pleads that the action is not time
barred but that if it is, the action should be allowed to proceed nonetheless,
under the equitable discretion available in terms of section 19A of the 1973
Act.
[4] The
defenders' motion was for a preliminary proof on the pursuer's application
under section 19A, it being their position that the case was prima facie time barred. The pursuer sought a proof before answer, leaving
all pleas standing.
Background
[5] The
pursuer avers that he was a resident in the home between about 1965 and 1971
during which time he alleges that he was physically and mentally abused by a
member of the defenders' staff. The
physical abuse alleged is that he was beaten but he does not seek damages for
any physical injuries. From the
averments in article 6 of Condescendence, it is plain that he sues only in
respect of depression and post traumatic stress disorder. He avers that he suffered depression "since
his time under the care of the defenders". He adds:
"After leaving
the care of the defenders, the pursuer was able to repress memories of his
treatment at Cottages 20 and 34."
[6] At
pages 10 -11 of the Closed Record, he avers that a BBC Frontline Scotland
programme broadcast in May 2003 which "highlighted the abuse perpetrated on
children by a member of the defenders' staff triggered memories in the pursuer
of the abuse he had suffered" and had the effect of "re-traumatising" him. He indicates that he obtained his records
from the defenders thereafter, in June 2003 and shortly after that, when he had
just moved to Epsom, he attempted to commit suicide and was sectioned under the
relevant mental health legislation for a period. He has, he avers, been receiving out-patient
treatment since then. In response to the
defenders' averments, he admits that he has a long history of psychiatric
problems for which he has been seen by psychiatric services from the 1970's and
has been diagnosed as having a personality disorder. At the end of Article 6, he avers:
"At no time was
any causal connection made between these problems and the abuse he suffered at
the Home. By suppressing the memories of the abuse, no causal connection could
have been made."
[7] In
Article 7 of Condescendence, the pursuer makes averments in response to the
defenders' answer to the effect that the case is time barred. He explains that after leaving the defenders'
home, he lived with his father, then carried out various forms of employment:
he was an Apprentice Instrument Technician following which he was employed
delivering electrical goods, he was an Apprentice Carpet Fitter from 1974 to
1978, was made redundant and then worked on and off as a carpet fitter for the
next ten years following which, in 1988, he secured employment as a carpet
fitter for three years, following which he had various carpet fitting jobs
until he set up his own business as a carpet fitter which operated between 1995
and 1999. He then, it is averred, trained
as a bus driver but continued to work at carpet fitting jobs until 2003, when
he moved to Epsom. It would seem,
accordingly, that there is no question of the pursuer having lacked capacity
during that period. He then avers:
"During this
time, the pursuer suppressed memories of the abuse that he had suffered at the
defenders' Home as a way of coping with the demands of daily life."
and asserts that the present action
was raised within the triennium under reference to section 17 of the Prescription
and Limitation Scotland) Act 1973("the 1973 Act"). He avers that the time period set out in section 17(2)
did not begin until either the date of the television broadcast (which, at page 17
of the Closed Record, is stated as having been 11 July 2004, contrary to what
is averred at page 11 which is that the broadcast was in May 2003) or the
date on which he became aware that he had PTSD and depression. No averment is made, however, of the date on
which the pursuer first became aware that he suffered from PTSD. Regarding his depression, the only averment
about that is that to which I have already referred, namely that the pursuer
has suffered depression since he left the home in 1971. The pursuer continues, however, in Article 7,
with an averment that he did not become aware nor was it reasonably practicable
for him to have become aware of the statutory facts (that is, those specified
in section 17(2)) until, at the earliest, the date of the television
broadcast. He adds:
"The reasonable
man in the same position as the pursuer would not have become aware of the
statutory facts until at the earliest May 2003. Childhood abuse has an inhibiting effect on
the ability of victims to bring the abuse into the public domain. As children, victims of childhood abuse cannot
raise claims. As their lives develop,
victims find it increasingly difficult to confront the abuse. Instead, the vast majority of abuse sufferers,
including the pursuer, suppress the memories of abuse and get on with their
lives. They do not have awareness of the
statutory facts. Accordingly, the action
is not time-barred."
[8] The
essence of the pursuer's case is, accordingly, that he has been aware of
suffering from significant psychological symptoms since 1971 but that he has,
because he has found it difficult to confront what happened to him and wanted
to get on with his daily life, of his own volition, suppressed his memories of
the abuse. That being so, it was not
until 2003 that he became aware of the causal link between his symptoms and the
abuse he allegedly suffered in the home.
Although it is not specifically averred, I infer from that that his
position is that he made no enquiry of anyone as to whether or not it was
possible that there was a link between the abuse and his symptoms, prior to
then.
Limitation:
Submissions
for the Defenders
[9] Counsel for the defenders
submitted that the pursuer's pleadings indicated that he was plainly aware of
problems which he related to being abused in the home, throughout. He had, on his own averments voluntarily
suppressed memories. That was
inconsistent with a lack of knowledge.
It indicated that this was a case of a pursuer who was not incapable of
remembering but chose to ignore. He had,
though, on his own averments, been in regular contact with the psychiatric
services since the 1970's in which case, why was it not reasonably practicable
for him to have become aware of the relevant facts? Reference was made in support of that
submission to Kane v Argyll & Clyde Health Board 1999
S.L.T.823 and the case of MP,
hereinafter referred to. The pursuer was
suing in respect of a continuum of events which had begun when he was a
resident in the home. There was no
question of him suing in respect of any separate or severable injury. In these circumstances, his case failed to
meet the requirements of section 17 of the 1973 Act.
[10] Reference was made to the terms of section 17. It was submitted that it required a pursuer
to show that he was not in fact aware and could not reasonably practicably have
become aware of the relevant facts until a date within three years prior to the
raising of the action. Account also
required to be taken of the provisions of section 22(3). It was not relevant to ask into which
category of case the action fell. Nor
was it relevant to ask whether the pursuer was aware that he had a cause of
action. What was relevant to ask
was: what was the injury in
question? when did the pursuer become
aware of it? when did he become aware
that it was sufficiently serious to justify a claim for damages? when did he become aware that it was
attributable at least in part to an act or omission? when did he become aware that the defender
was a person to whose act or omission the injuries were attributable in whole
or in part? Then, one also had to ask
when would it have been reasonably practicable for the pursuer to become aware
of those facts, bearing in mind that once he was "on notice" of any one of the
material facts, he had to take all reasonably practicable steps to inform himself. The statutory focus was on the nature of the
injury as known to the pursuer.
[11] Reference was made to the cases of Cowan v Toffolo Jackson &
Co Ltd 1998 SLT 1000, Nimmo v British Railways Board 1999 SLT 778, Carnegie v Lord Advocate 2001
SC 802, Agnew v Scott Lithgow 2003 SC 448, B
v Murray 2004 SLT 967 and MP v Sister Zoe O'Neil & Ors 2006 CSOH 93. Two principal submissions
were made on the basis of that review of Scottish authority. One was that the objectivity of the section 17
test was emphasised. The other was that,
even if Carnegie was correct in
holding that it was possible to have two different start dates for the running
of the triennium if separate and distinct injuries though arising from a single
delict were averred (and it was not accepted that Carnegie was correctly decided on that point) this was not such a
case. Attention was drawn to the caveat set out in Agnew regarding the approach to English authorities on
limitation.
[12] Counsel for the defenders, anticipating the argument against
them, also referred to a recent line of English authority regarding the
interpretation and application of sections 11 and 14 of the Limitation Act 1980 ("the 1980 Act"): Stubbings v Webb [1992] 1 QB 197; [1993] AC 498; Dobbie v Medway Health Authority [1994] 1 WLR 1234;
KR v Bryn Alyn [2003] QB 1441;
and Adams v Bracknell Forest Borough Council [2005]
AC 498.
These cases were not, it was said, indicative of the correct
approach under the 1973 Act. In
particular, the approach taken in the Bryn
Alyn case ought not to be followed for that reason and also because it
differed from the approach set out by the House of Lords in Adams where specific disapproval was stated of dictum in the case
of Nash v Eli Lilly & Co [1993] 1 WLR 782 to the effect that
the test under section 14(3) of the 1980 was a "subjective" one. In Bryn
Alyn, the Court of Appeal had followed the approach in Nash. By implication, the House of Lords would not
have agreed with the approach in Bryn
Alyn.
Submissions
for the Pursuer
[13] Counsel for the pursuer
stressed that the context of these cases was that the pursuers were suing in
respect of having been sexually abused in the 1960's and 1970's. There were at least 500 similar actions
pending in the Court of Session. The claims
only came to light in the 1990's. These
cases were in respect of psychological damage and it may be harder for a
pursuer to know if he has suffered such damage or to know to what it is
attributable. Diagnosis accordingly
becomes important. Reliance was placed
on the case of Bryn Alyn which was
said to amount to recent English authority for the triennium not starting to
run until a claimant has a diagnosis or contacts his solicitor. That was because an adult claimant may not
realise that his injuries were significant in the sense of being sufficiently
serious to justify bringing an action until they were told that by a medical
expert.
[14] Under reference to section 17 of the 1973 Act it was said
that there was a difference between actionability and knowledge in law that
there was a good case. It was necessary
to look at not just quantum of injury but also justification. Whilst it was accepted that quantum of injury
was at the nub of the statutory provision, the problem was that these pursuers
had been suppressing memories. They felt
ashamed. In response to being asked,
repeatedly, whether the pursuer's submission was that a claimant, for
section 17 purposes, required to ask himself anything in addition to how
severe his injuries were, and if so, what, no answer was given beyond a
repeated reference to the asserted fact that "these pursuers" as a group, have
been suppressing memories, it was difficult for them to come forward, they had
been silenced by their treatment and that they were unlikely to be aware of
their legal rights. It was accepted that
the section 17 test was an objective one but then counsel added that it
was also a question of whether the individual pursuer would have thought that
his injuries were sufficiently serious to justify litigation.
[15] The pursuer in the present case had, it was said, averred
enough for proof on the applicability of section 17 of the 1973 Act.
[16] What was referred to as the Bryn
Alyn approach ought to be followed.
By that I understood counsel for the pursuers to mean that I ought to
regard the section 17 requirements as having both objective and subjective
elements in the sense that the relevant question was whether a reasonable
person with the pursuer's particular background, namely of child abuse manifesting
itself in psychological injuries, would have thought of suing at an earlier
stage? That is that, ultimately, despite
earlier indications that it was accepted that objectivity lay at the heart of
section 17, the position adopted on his behalf was that a strongly
subjective test ought to be applied.
[17] It was also submitted on behalf of the pursuer that his
psychological injuries were distinct from any physical ones. "These cases" were, it was said, really about
the long term psychological effects on the pursuers. The test was not whether the pursuer knew he
had been injured in the home but whether he knew his injuries were sufficiently
serious to justify suing. "Perhaps", it
was said, in what seemed to be a tentative submission, there were "separate
trienniums". Reference was made to Carnegie v Lord Advocate. Whilst the
case of Dunlop v McGowans 1980 SC (HL) 73 was authority for the proposition that
the obligation to make reparation for an act, neglect or default was a single
and indivisible obligation and that the prescriptive period began when that
obligation to make reparation became enforceable, that being when there was a
concurrence of damnum and iniuriam, it was not in point. It did not concern the obligation to make
reparation for personal injuries and the effects of the limitation.
[18] Regarding the circumstances of the present case, it was
submitted that the pursuer had had a lot of problems, and that he had had
difficulty in untangling matters clearly enough for awareness of the statutory
facts.
Relevant legislation
[19] Section 17 provides:
"Actions in respect of personal injuries
not resulting in death
17.1(1) This
section applies to an action of damages where the damages claimed consist of or
include damages in respect of personal injuries, (being an action to which
section 18 of this Act applies) brought by the person who sustained the
injuries or any other person.
(2)
Subject to subsection (3) below and section 19A of this Act, no action
to which this section applies shall be brought unless it is commenced within a
period of three years after -
(a) the date on which the
injuries were sustained or, where the act
or omission to which the injuries were attributable was a continuing one, that
date or the date on which the act or omission ceased whichever is the later; or
(b) the date (if later than
any date mentioned in paragraph (a)
above) on which the pursuer in the action became, or on which, in the opinion
of the court, it would have been reasonably practicable for him in all the
circumstances to become aware of all the following facts -
(i) that the injuries in
question were sufficiently serious to
justify his bringing an action of damages on the assumption that the person
against whom the action was brought did not dispute liability and was able to
satisfy a decree;
(ii) that the injuries were
attributable in whole or in part to an act or omission; and
(iii) that the defender was a
person to whose act or omission the injuries were attributable in whole or in
part or the employer or principal of such a person.
(3) In the computation of the
period specified in subsection (2) above there shall be disregarded any time
during which the person who sustained the injuries was under legal disability
by reason of nonage or unsoundness of mind.
Interpretation of Part II and supplementary
provisions
"22.- (3) For
the purposes of the said subsection (2)(b) knowledge that any act or omission
was or was not, as a matter of law, actionable, is irrelevant.
(4) An
action which would not be entertained but for the said subsection (2)(b) shall
not be tried by a jury."
Section 19A of the 1973 Act
provides:-
"(1) Where a
person would be entitled, but for any of the provisions of section 17 ....of
this Act, to bring an action, the court may, if it seems to it equitable to do
so, allow him to bring the action notwithstanding that provision".
The pursuers' approach requires
account also to be taken of certain of the provisions of the Limitation Act
1980, sections 11, 14 and 33:
"11(1) This
section applies to any action for damages for negligence......or breach of
duty.....where the damages claimed by the plaintiff for the negligence....or breach
of duty consist of or included damages in respect of personal injuries to the
plaintiff or any other person....
(3) An action to
which this section applies shall not be brought after the expiration of the
period applicable in accordance with subsection (4) ........below.
(4)...the period
applicable is three years from the date on which the cause of action accrued;
or (b) the date of knowledge (if later) of the person injured.
14(1)..in
section 11.....of this Act references to a person's date of knowledge are
references to the date on which he first had knowledge of the following facts -
(a) that the injury in question was significant; and (b) that the injury was
attributable in whole or in part to an act or omission which is alleged to
constitute negligence......or breach of duty; and (c) the identity of the
defendant........and knowledge that any acts or omissions did or did not, as a
matter of law, involve negligence .....or breach of duty is irrelevant.
(2) For the purposes of this section an
injury is significant if the person whose date of knowledge is in question
would reasonably have considered it sufficiently serious to justify his
instituting proceedings for damages against a defendant who did not dispute
liability and was able to satisfy a judgment.
(3) For the purposes of this section a
person's knowledge includes knowledge which he might reasonably have been
expected to acquire - (a) from facts observable or ascertainable by him; or (b)
from facts ascertainable by him with the help of medical or other appropriate
expert advice which it is reasonable for him to seek; but a person shall not be
fixed under this subsection with knowledge of a fact ascertainable only with
the help of expert advice so long as he has taken all reasonable steps to
obtain (and, where appropriate, to act on) that advice."
33(1) If it appears to the court that it would be
equitable to allow an action to proceed having regard to the degree to which -
(a) the provisions of section 11...prejudice the plaintiff ....; and (b) any
decision of the court under this subsection would prejudice the defendant
...........; the court may direct that those provisions shall not apply to the
action..."
Discussion and Conclusions
Limitation:
[20] Rules
to protect defenders from having to meet stale claims have been in existence
for many years. The rules would also
seem to indicate that it is considered to be in the best interests of pursuers
that they prosecute their claims expeditiously.
The law also expects people to make such enquiries and seek such advice
as they can when they have good reason to do so. The ordinary rule is that time starts to run
when an obligation becomes enforceable at common law. Thus time normally starts to run when there
is a concurrence of damnum and iniuriam and if an action is not raised
within the statutory time limit, any obligation to make reparation becomes
unenforceable. The law recognises,
however, that the ordinary rule can operate too harshly so there are statutory
provisions designed to alleviate that hardship (see: section 17(2)(b) of
the 1973 Act) and the court is given a wide unfettered discretion to, in
effect, waive statutory limitation if it seems equitable to do so in an
individual case (see: section 19A of the 1973 Act ). The question that arises in this case at this
stage is whether the pursuer has demonstrated enough to bring himself within
the category of pursuers for whom the hardship of time running from the date
that the obligation became enforceable is alleviated by section 17(2)(b).
Bryn
Alyn and the English cases:
[21] The
pursuer's case was founded on the approach that had been adopted by the Court
of Appeal in the case of Bryn Alyn. I propose, accordingly, to begin by looking
at the English authorities to which I was referred.
[22] The earliest one referred to was Stubbings v Webb where a
plaintiff sought damages for mental illness and psychiatric disturbance allegedly
caused by sexual abuse to which she had, she said, been subjected by her
adoptive father and brother when a child.
She made allegations of rapes having occurred when she was aged 12,
indecent acts and sexual assaults having occurred when she was aged 14 and
physical assaults resulting in nose bleeds having occurred when she was aged
15. She suffered mental illness from her
early 20's. She reached the age of
majority in 1975. She did not become
aware that her mental illness was attributable to the acts complained of until
September 1984 when she consulted a psychiatrist (following on her having
contacted an incest helpline after seeing a television programme on the
subject) . An action was raised in
August 1987, less than three years after the plaintiff acquiring that
knowledge. Potter J allowed the action
to proceed. The Court of Appeal
dismissed an appeal against his decision.
They considered the plaintiff's actual knowledge which was that she knew
of the acts complained of when they occurred.
They then considered the question of whether she knew, at any time
before August 1984, whether the injury on which her action was founded was "significant"
or that it was attributable to the acts of her adoptive father. On the question of the significance of
injury, at p.206, Bingham LJ said:
" ...I do not
underestimate, dismiss or in any way minimise the distress, humiliation and
degradation which conduct of the kind alleged against Mr Webb involved for
a sensitive child. But there is nothing
in the indecent assaults and conduct alleged against him which caused her physical injury. There is nothing which
could ground an indictment for causing actual bodily harm, nothing which could
be particularised under the heading, "Particulars of personal injury." There were, of course, the assaults which the
plaintiff says she suffered from Mr Webb when she was 15, which caused her
nose-bleeds, but in the state of society as it existed in the late 1970's and
early 1980's the plaintiff would not reasonably have considered these assaults
sufficiently serious to justify proceedings even against an acquiescent and
creditworthy defendant. The rarity of
such claims, if indeed, there were any at all, is proof enough of that, given
that domestic violence is not a recent phenomenon.
When one turns
to impairment of the plaintiff's mental condition the position is somewhat
different. The plaintiff did know
.....certainly well before 18 August
1984, that her mental condition was impaired sufficiently seriously
to justify proceedings against an acquiescent and creditworthy defendant. But.....Did the plaintiff know within (three
years of her majority) that this serious impairment of her mental condition was
attributable in whole or in part to the acts of Mr Webb ...?"
[23] The Court of Appeal were satisfied that the plaintiff did not
know and could not reasonably have known that her mental illness was so
attributable. Time had not, accordingly,
in terms of ss.11 and 14 of the 1980 Act started to run prior to 18 August 1984. The earlier injuries were disregarded: they reached the view that although the
plaintiff was aware of them well before three years after majority, they were de minimis (a view which may seem
surprising given the rape allegation - see: Lord Griffith's obiter comments in the case in the
report of the appeal to the House of Lords,
[1993] AC 498 at p.505 - 506).
Although Bingham LJ referred to
what the plaintiff would have reasonably considered as regards the level of
severity of the injuries, it is evident from his reference to society as a
whole that he had in mind that a reasonable citizen would have regarded the
assaults as de minimis and he was
thus applying a largely objective test.
[24] At p. 211. Nolan LJ commented:
" ... the available evidence does not show that she
should reasonably have regarded her physical or mental injuries at that stage
as sufficiently serious to justify the institution of proceedings for damages,
even against hypothetically solvent and unresisting defendants. It has to be borne in mind that until the
last few years proceedings of the present kind were unheard of."
[25] His comments would seem to accord with Bingham LJ's approach of
looking at the question of how severely the injuries in question would have
been regarded by a reasonable person at the relevant time. His focus on the quantum of injury is
reinforced by a passage at 211E:
" ...I consider
that lawyers advising the plaintiff in 1975, or at any time between then and
1978, would have looked for physical or mental injuries more serious than those
shown to have existed at that stage before advising that institution of
proceedings was justified.. A fortiori,
I cannot accept that the plaintiff should have reasonably considered her
injuries sufficiently serious for that purpose, at that stage."
[26] At p. 212, Sir Nicholas Browne- Wilkinson V-C,
having indicated that he agreed with the reasons given by Bingham LJ continued,
in a passage which might be thought to depart from focussing on the quantum of
the injury:
"The question is
whether in 1975 the plaintiff acted reasonably in not then suing...for the
serious wrong alleged to have been done to her.
In my judgment it is important not to consider the question by reference
to the social habits and conventions of 1991.
Over recent years, for the first time civil actions have been brought by
victims of adult rape against their assailants.
As to actions against child - abusers, this is apparently the first case
in which the alleged victim has sought to sue her abusers. In the present climate and state of knowledge
it would in my judgment be very difficult, if not impossible for a plaintiff
coming of age in the late 1980's to establish that she acted 'reasonably' in
not starting proceedings alleging child abuse within three years of attaining
her majority. But we are concerned with
the reasonableness of the plaintiff's behaviour in the period 1975 - 78. At that time civil actions based on sexual
assaults were unknown in this country."
[27] In Dobbie v Medway Health Authority, the plaintiff
raised an action against a health authority which had employed a surgeon who
removed her breast allegedly unnecessarily and without her consent, in
1989. The surgery had taken place in
1973. The plaintiff had suffered severe
psychological illness as a result of the mastectomy. It was not until 1988 that she had become
aware that her breast need not have been removed. It was argued, on her behalf that, shortly
put, time did not start running until the plaintiff knew that something had
gone wrong; prior to that she was distressed and had been led to believe that
what had happened was usual and proper.
At page 1240, in a passage which might be thought to run counter to
the approach in Stubbings, insofar as
subjective awareness of the right to sue may have weighed quite significantly
with the court there, Sir Thomas Bingham MR, as he then was, with regard to the
statutory requirements that must be met before time starts to run, said:
"This condition
is not satisfied where a man knows that he has a disabling cough or shortness
of breath but does not know that his injured condition has anything to do with
his working conditions. It is satisfied
when he knows that his injured condition is capable of being attributed to his
working conditions, even though he has no inkling that his employer may have
been at fault."
[28] At p.1241, under reference to the terminology of sections11 and
14, he said:
"The requirement
that the injury of which a plaintiff has knowledge should be 'significant' is
in my view directed solely to the quantum of the injury and not to the
plaintiff's evaluation of its cause, nature or usualness. Time does not run against a plaintiff, even
if he is aware of the injury, if he would reasonably have considered it
insufficiently serious to justify proceedings against an acquiescent and
credit-worthy defendant, if (in other words) he would reasonably have accepted
it as a fact of life or not worth bothering about. It is otherwise if the injury is reasonably
to be considered as sufficiently serious within the statutory definition: time
then runs (subject to the requirement of attributability) even if the plaintiff
believes the injury to be normal or properly caused."
and at p.1243, under reference to
the particular circumstances of the plaintiff's case, he said:
"The personal
injury on which the plaintiff seeks to found her claim is the removal of her
breast and the psychological and physical harm which followed. She knew of this injury within hours, days or
months of the operation and she at all times reasonably considered it to be
significant. She knew from the beginning
that this personal injury was capable of being attributed to or, more bluntly
was the clear and direct result of, an act or omission of the health
authority. What she did not appreciate
until later was that the health authority's act or omission was (arguably)
negligent or blameworthy. But her want
of that knowledge did not stop time beginning to run."
[29] Hence, any question of sympathy for the plaintiff was seen as
quite irrelevant, as was the fact that she did not, until 1988, realise that
she could sue for what had happened to her.
In what appears to be an important passage, Steyn LJ, as he then was,
said, at page 1248:
"Stripped to its
essentials counsel's argument is simply an attempt to argue that the injured
party must know that he has a possible cause of action. That is not a requirement of section
14(1). Moreover, in 1974, the Law Reform
Committee rejected a proposal that the injured party must have knowledge "that
he has a worthwhile cause of action:"...The present argument is simply a thinly
veiled variant of a possible solution which was rejected by the Law Reform
Committee in 1974 and by Parliament in 1975 and 1980."
[30] I turn next to the case of KR
& others v Bryn Alyn Community
(Holdings) Ltd, a decision of the Court of Appeal in respect of fourteen
consolidated cases. In the case of B v Murray, Lord
Johnston observed that it is not an easy case.
That seems, to me, to be an understatement. I share the difficulty both he and Lord
Glennie in the case of MP experienced
in trying to follow its reasoning when set against the wording of the relevant
English legislation.
[31] The plaintiffs, who were adults, all alleged that they had been
abused as children when resident in care homes run by the defendants. Their claims were principally in respect of
psychiatric injury resulting from the abuse.
The appeal focussed initially on the question of whether the trial judge
had been correct to disapply the time bar under section 33 of the 1980
Act. However, in the course of the
appeal, the plaintiffs were also allowed to advance a cross appeal against the
trial judge's ruling against them under section 14 of the 1980 Act. It is the part of the Court of Appeal's judgment
dealing with that argument which was relied on so heavily on behalf of the
pursuers in the cases before me and has been relied on by pursuers, thus far
unsuccessfully, in other similar cases before this court.
[32] Under reference to the terms of section 14(2) of the 1980
Act, the Court of Appeal , at paragraph 32, refer to a passage in the Court of
Appeal's judgment in the case of Nash v Eli Lilly & Co [1993] 1 WLR 782, 791, for an explanation of
the "test" set by those provisions:
"...it is clear that
the test is partly a subjective test, namely : ' would this plaintiff have
considered the injury sufficiently serious? and partly an objective test,
namely: 'would he have been reasonable if he did not regard it as sufficiently serious?' It seems
to me that the subsection is directed at the nature of the injury as known to
the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he
have been reasonable in considering the injury not sufficiently serious to
justify instituting proceedings for damages?"
[33] At paragraph 40 of the judgment, it is observed that s.14(2)
was designed principally to provide for cases of late diagnosis of physical
diseases, such as asbestosis and it is accepted that at first sight, it does
not fit readily into the circumstances of historic child abuse claims. That much seems unobjectionable. The paragraph goes on:
"The test,
properly interpreted, is likely to be somewhat unrealistic in many child abuse
cases when applied to claims for immediate injury. Such injury is likely to include, in addition
to any physical injury, a mix of emotions and other mental effects, for
example, humiliation, distress, shame, guilt and fear of being disbelieved or
of disclosure. In such cases, depending on the severity of the victim's
condition, it could have been unreasonable and unreal to have expected him, as
he moved from childhood to three years beyond majority, to consider recourse to
the civil courts for damages for something he just wanted to put behind
him. Given the circumstances of the
abuse and his subsequent way of life, making such a claim, or seeking advice
about it, might reasonably never occur to him.
He might have known at the time of the abuse that it was wrong; he might
have harboured resentment, great grievance, or even a desire for revenge,
perhaps even a wish to report it to the police, but not necessarily to litigate
for damages."
[34] The court thus seems to adopt at the outset an approach which
involves considering the central question to be whether or not it was
reasonable to have expected a plaintiff to have raised an action at an earlier
stage in what appears to be a wholly subjective approach. In paragraph 41, it continues:
"Application of
the section 14(2) meaning of "significance" to child victims of abuse is often
the more difficult because many of them, as in the case of these claimants,
come to it already damaged and vulnerable because of similar ill-treatment in
other settings. ...........such misconduct was
for many of these claimants 'the norm'."
[35] Then, critically, at paragraph 42, the court sets out what it
regards as the question that, for the purposes of s.14, requires to be asked:
"....whether such
an already damaged child would reasonably turn his mind to litigation as a
solution to his problems?"
[36] There is then reference to the progress into adulthood "and a
twilight world of drugs, further abuse and violence and, in some cases, crime"
of many such claimants. Much is said
regarding claimants in cases of historic child abuse that is sympathetic in
tone. The interests of defendants that
underpin the laws of limitation, are not mentioned in this part of the judgment
that deals with the application of section 14.
[37] There is extensive reference to Stubbings v Webb and
although there is no clear statement to the effect that the Court of Appeal
rely on it as support for their formulation of the question posed at paragraph
42, they would seem, by implication to do so.
They, accordingly, would appear to have read the decision in Stubbings as supporting their view that
a strongly subjective approach should be adopted in which the core question
does not focus on quantum of injury but on whether or not the particular
plaintiff would have thought of resorting to litigation. They did not expressly consider
section 14(3) of the 1980 Act nor the criticism voiced by Lord Steyn
in Dobbie, to which I have referred,
of what seems to have been the approach that they approved.
[38] I then turn to the case of
Adams v Bracknell, a case in
which the claimant who had always been aware of having difficulties with
reading and writing was diagnosed as dyslexic when aged 27 and within three
years thereafter, raised an action against the local education authority which
had had responsibility for the schools he attended between 1981 and 1988. He alleged that they had been negligent in
their failure to assess him in such a way as to identify dyslexia when he was
at school. He had suffered from
depression, panic and a lack of esteem.
At paragraph 7, Lord Hoffman observes that such an action was "a
new development". However, their
Lordships do not appear to have approached their interpretation of section 14
any differently on account of that.
Their Lordships required to consider the question of whether or not the
claimant had constructive knowledge of the fact that the reading and writing
problems of which he was well aware were attributable to the defendants by a
date which meant the action was time barred.
At paragraph 33, Lord Hoffman states:
"Section 14(3)
uses the word 'reasonable' three times.
The word is generally used in the law to import an objective standard,
as in the 'reasonable man'. But the
degree of objectivity may vary according to the assumptions which are made
about the person whose conduct is in question.
Thus reasonable behaviour on the part of someone who is assumed simply
to be a normal adult will be different from the reasonable behaviour which can
be expected when the person is assumed to be a normal young child or a person
with a more specific set of personal characteristics. The breadth of the appropriate assumptions
and the degree to which they reflect the actual situation and characteristics
of the person in question will depend upon the reasons why the law imports an
objective standard."
[39] At paragraph 44,Lord Hoffman refers to the discussion of the
application of the constructive knowledge provisions in the case of Forbes v Wandsworth HA [1007] QB 402 (a
case where the plaintiff had lost a leg after surgery, had trusted his surgeon
and did not find out until ten years later that there would have been chance of
saving his leg if the surgeon had acted sooner and the Court of Appeal held
that section 14(3) would fail in its purpose unless it was assumed that a
reasonable victim of an injury such as the loss of a leg would display some
curiosity about it) where Evans LJ said, at page 422 :
"Since there is
a wide discretionary power to extend the period in circumstances which
Parliament has defined in section 33, there is no clear requirement to construe
the knowledge provisions in section 14 narrowly or in favour of individual
plaintiffs. I therefore consider that
they should be interpreted neutrally so that in respect of constructive
knowledge under section 14(3) the objective standard applies."
[40] Lord Hoffman found that reasoning persuasive and added his own
observations at paragraph 45:
"Since the 1975
Act, the postponement of the commencement of the limitation period by reference
to the date of knowledge is no longer the sole mechanism for avoiding injustice
to a plaintiff who could not reasonably be expected to have known that he had a
cause of action. It is therefore
possible to interpret section 14(3) with a greater regard to the potential
injustice to defendants if the limitation period should be indefinitely
extended."
[41] Overall, the approach in Adams is to the effect stated by Lord Hoffman at
paragraph 51, namely that the normal expectation will be : " ...that a person suffering from a significant
injury will be curious about its origins."
[42] Thus, the approach taken in Nash
which involved taking account of the character or level of intelligence of the
individual, was disapproved of at paragraph 46. Counsel for the pursuers in the present cases
recognised that that might be a problem for them, given the influence that the Nash approach seemed to have had on the
decision in Bryn Alyn. However, their response was that the Adams disapproval could be
ignored because it voiced disapproval of a different passage from that quoted
in Bryn Alyn. That is correct but it is not the answer
since the passage quoted in Adams is to the same effect as that quoted in
Bryn Alyn.
[43] Applying what Lord Hoffman identified as the correct approach
to the facts of the case before them, he said, at paragraph 49:
"In principle, I
think the judge was right in applying the standard of reasonable behaviour to a
person assumed to be suffering from untreated dyslexia."
and, at paragraph 50 :
"..it would need
some evidential foundation before one could assume that such a person was likely
to be unable to speak about the matter to his doctor." (my emphasis)
[44] Thus, what Lord Hoffman appears to have been looking for was
not evidence that that particular plaintiff would have been unlikely to be able
to talk to his doctor but that the category into which he fell, namely persons
suffering from untreated dyslexia, would have been unable to do so.
[45] Lord Scott of Foscote, at paragraph 73, like Lord Hoffman,
urges that the interests of defendants and the availability of section 33
be not forgotten:
"There may seem
to be an unfairness to claimants in banning them on lapse of time grounds from
bringing actions that they did not know they could bring. But there is also an unfairness to defendants
in allowing actions to be brought after a lapse of time that has seriously
prejudiced their ability to refute the claims made against them and for which
they are in no way responsible. In my opinion,
the approach to section 14(3) constructive knowledge should be mainly
objective. What would a reasonable
person placed in the situation in which the claimant was placed have said or
done? If the result of applying the mainly objective test would seem unfair to
a particular claimant, the issue of fairness, as between the claimant and
defendant, can be considered under section 33."
[46] In all these circumstances, I consider that it is correct to
say that their Lordships in Adams
were minded to adopt a far more objective approach and that they did so to the
extent and in a way that doubt is cast as to the soundness of the approach in Bryn Alyn. That being so, unless, on examination of the
Scottish authorities, some commonality of approach as between them and Bryn Alyn can be identified, I consider
that it would be quite wrong to regard Bryn
Alyn as persuasive. I would add
that, although Adams
concerned knowledge of attributability, logic would seem to indicate that their
Lordships would have applied the same approach to each and every one of the
requisite statutory facts.
The
Scottish Authorities
[47] Turning to the Scottish
authorities, in the case of Cowan v Toffolo Jackson & Co Ltd, the
pursuer averred that he retired through breathlessness in 1986 and raised an
action claiming damages for asbestosis in 1993.
At procedure roll, the pursuer argued that his claim was not time barred
because he was not diagnosed as suffering from an asbestos related disease
until 1991. At p.1002, Lord Nimmo Smith,
having noted that the case was ex facie time
barred and having referred to section 17 of the 1973 Act in a passage
which emphasises the importance of the "reasonably practicable" part of the
section 17(2)(a) test, said:
"....it is for the
pursuer to make sufficient averments of those circumstances such that, if they
are proved, the court may conclude that it was not reasonably practicable for
him to become aware of these facts ................The pleadings appear to be directed to
the question of when the pursuer first had actual knowledge that he was suffering
from an asbestos - related disease on
23 October 1991; but that is not
enough because the pursuer must aver not only when he first became aware of the
relevant facts but also that it was not reasonably practicable for him to have
become aware of them before that....................In my opinion, in order to satisfy the
accepted requirements the pursuer would need to make candid averments about his
medical history between 1987 and October
1991, and the interaction between the advice he received in 1987 and any advice
he received from his general practitioner, as related to his general state of
health during that period."
[48] Lord Nimmo Smith found that there were no such averments and
dismissed the action.
[49] Similar circumstances arose in the case of Nimmo v British Railways
Board 1998 SLT 778 where a
pursuer raised an action of damages for hearing loss in 1997 in circumstances
where he had been aware of having a hearing difficulty from 1977 but had not
been told that it was due to exposure to noise at work until 1996. A doctor had, however, arranged for his noise
exposure at work to be reduced in 1992, by which time his hearing loss was
significant. Lord Eassie noted that the
action was prima facie time barred
since on the pursuer's own averments he had significant hearing loss by 1992
and his employment with the defender had ceased before then. At page 781, he said:
"...the onus is on
the pursuer to aver and, if need be prove, (i) that he was not aware of one or
more of the facts mentioned in the subheads of (paragraph 17(2)(a) of the 1973
Act) and, moreover, (ii) that it was not reasonably practicable for him to become
aware of one or more of those facts.
While one may find in the pursuer's pleadings averments to the effect
that he was not told that his deafness was induced by exposure to noise until
either June or possibly July 1996, there are no averments to the effect that it
was not reasonably practicable for him to acquire that knowledge at any point
before either of those dates."
He found, accordingly, that the
case was time barred under section 17.
[50] I turn then to the case of Carnegie
v Lord Advocate an action in
which the pursuer had claimed damages for physical and psychological
injuries. The physical injuries were due
to assaults which occurred more than three years prior to the raising of the
action. The psychological injury was a sequela which had developed in May
1992. The action was raised in March
1995. After a preliminary proof on time
bar, the defender's plea was repelled.
The defender reclaimed and the pursuer cross appealed in a submission to
the effect that more weight should have been given to his personal
circumstances when the application of section 17 was being
considered. It seems that, in
particular, an argument was advanced that the judge should have taken account
of the pursuer's reluctance to sue on account of fear that he would lose his
job. At paragraph 15, Lord Johnston
considered the meaning and import of the English provisions under reference to
what was said by Geoffrey Lane LJ in the case of McCafferty v Metropolitan
Police District Receiver [1977] 1WLR 1073 and added:
"The Master of
the Rolls, Sir Thomas Bingham (as he then was) said something to the same
effect in Dobbie v Medway Health Authority where, at
p.1241, he refers to the comparable English provisions being directed solely at
the 'quantum of the injury'.
[16] I agree generally with that analysis
....However, I do not consider that subjectivity can be left out of the matter if
there are factors present which weigh upon the gravity of the particular injury
to the particular pursuer. Thus, while a
sturdy rugby player may ignore to all intents and purposes, the effect of a
bruise, to a haemophiliac it would be of the utmost gravity. Equally it may be that a particular injury
which may have a particular bearing on a particular career, such as damage to a
finger to a potential or actual surgeon, may also bear upon the question of
gravity or seriousness. I am, however,
satisfied that it is not appropriate to go beyond these physical
characteristics or personal relevant characteristics in relation to the actual
injury to look at the context of the environment upon which the injury was
sustained and it is certainly not relevant to take into account such factors as
whether or not it was reasonable not to sue for fear of losing one's job."
[51] Lord Glennie discussed the above passage in the MP case, at his paragraph 34 where he
expressed some dubiety as to what Lord Johnston had in mind when he referred to
"personal relevant characteristics in relation to the actual injury." It seems to me that what is clear is that
Lord Johnston, like the Master of the Rolls in Dobbie, was concerned only with quantum of injury, that is only with matters personal to a pursuer
that could properly affect the objective assessment of the level of severity
that he should have attributed to it.
Shortly put, a personal matter only fell to be taken account of if it
weighed upon the gravity of the injury.
[52] In Carnegie it was
held that there was a separate triennium
for the claim for psychological injury. That was on the view that it was a
wholly distinct injury, not a continuation or exacerbation of the physical
injuries which had been sustained outwith the time bar. I find it difficult to reconcile that
approach with the principle that an obligation to make reparation is a single,
indivisible obligation which comes into existence once there is any concurrence of iniuria and damnum, a
principle which would seem to be reflected in the fact that section 17(2)(a)
provides for only one single period of three years, not successive ones. Carnegie
is, however, binding on me and I would have to follow it if the facts of
the present case fell within the category of cases in which the Inner House
found that there could be a separate triennium, namely where there was a wholly
distinct injury which was not simply a continuation of an earlier one. The pursuer in this case does not, however,
aver a wholly distinct injury arising only within the three years prior to the
raising of the action.
[53] I turn then to the case of Agnew
v Scott Lithgow. It was a decision of the
Inner House where a pursuer sought damages for what was, at that time, referred
to as "vibration white finger". He first
had symptoms in 1985 but did not know what caused them (the relevant fact in
question in this case was, accordingly that the pursuer had injuries which were
attributable to an act or omission - section 17(2)(b)(ii) of the 1973
Act); his exposure ceased in 1995 and around
November/December 1995, he heard talk of vibration white finger and of
colleagues with similar symptoms making claims.
He did not, however, seek legal advice until November 1998, following
upon which he discovered that the cause of his condition was his exposure to
vibration at work which had ceased over three years earlier. It was argued on his behalf that several
subjective factors regarding the pursuer ought to have been taken into account: that he had never heard of vibration white
finger during his period of exposure, that he was not particularly intelligent,
that he thought his symptoms were to do with ageing and cold weather, that he
was a man who had had to be persuaded to make even a DSS claim and that he was
generally hesitant about asserting his rights.
[54] At paragraph 23 in the opinion of the court, there is the
following passage which is relevant to the considerations that arise in the
present case:
"There is no
room, in our view, for interpreting the provisions of section 17(2) as allowing
any additional unspecified period for what was described by counsel for the
reclaimer as 'dithering time'. The
language of the section does not support such an approach. It is incumbent on a pursuer to take all
reasonably practicable steps to inform himself of all the material facts as
soon as he is put on notice of the existence of any of these. And the onus is on the pursuer to establish
that he has done so. The question is not
whether he had a reasonable excuse for not taking steps to obtain the material
information but whether it would have been reasonably practicable for him to do
so (Elliot v J & C Finney, Lord Sutherland at p.210). The fact that the pursuer did not like
approaching officialdom or that he was a man who frequently had to be prompted
by his relatives and friends to take action is not conclusive because an
objective test must also be applied. The hypothetical pursuer can, of course,
also rely on the provisions of section 19A of the Act."
[55] That approach is one which seems to be very much in line with
that which was adopted in Adams,
particularly as explained in the speech of Lord Hoffman, to which I have
already referred. The reference to Lord
Sutherland in Elliot, is also
instructive. In the passage referred to,
he commented:
"I do not
consider that the mere fact that he did not feel like asking these questions
can in any way render the acquiring of the information not reasonably
practicable."
[56] It can thus be seen that the Inner House approach is that it is
not a question of asking what excuse for failing to find out is tendered on
behalf of the pursuer. There is a firm
adherence to and focus on the different question of what was and was not
reasonably practicable for a pursuer to be aware of or find out.
[57] I turn then to the case of B
v Murray 2004 SLT 96, the facts of which were similar to the
present case in that it concerned a former care home inmate suing for alleged
ill- treatment whilst she was an inmate.
The action was raised more than three years after the manifestation of
alleged psychological symptoms but it was argued on behalf of the pursuer that
the case was not time barred as she had not become aware of any entitlement to
sue until newspaper articles appeared in the 1990's and she had raised the action
within three years of that awareness.
The Bryn Alyn case was relied
on heavily by the pursuer and it was said that, in any event, a Carnegie type case was open to her since
her psychological injury was wholly separate and distinct. At paragraph 8, Lord Johnston said:
"I confess that
I do not find the case of Bryn easy,
nor am I satisfied that it is going to be as simple to apply as was done in the
case despite the length of the judgment.
What however is conclusive to my mind in the present case is the pursuer
does not make a distinct and separate claim as was done in Carnegie in respect of her psychological problems within three
years of them manifesting themselves.
She makes a claim going right back to a time in the home covering
everything that happened to her and is seeking damages in respect of those
elements. Secondly, and even more
importantly, her own averments disclose that at least some stage during the
home period she came to realise that what was happening to her and her fellow
inmates was wrong and attributable to the nuns who were running the home. It accordingly seems to me that by her own
averments she is contradicted any way that she can invite Bryn to apply to the present case and no amount of proof will alter
that position."
[58] Finally, I would refer to the decision of Lord Glennie in the
case of M P v Sister Zoe O'Neill & Others, which followed a preliminary
proof on time-bar. The pursuer in that
case sought damages for psychological injuries which she alleged were
attributable to her experiences whilst resident in a children's home between
1966 and 1970 or 1965 and 1969. Bryn Alyn was, again, relied on. At paragraphs 35-36, in a passage with which
I am in full agreement, he identifies and discusses the relevant test:
"The question
is: on what date would it have been reasonably practicable in all the
circumstances for such a person to become aware of the statutory facts?
It is important,
at this point, to emphasise that the test is when it would have been
"reasonably practicable" to have become so aware; not when it would have been reasonable
to make the relevant enquiries. Put
another way, if the pursuer is aware of some relevant facts, and it is
reasonably practicable to find out more by asking questions or taking advice,
it is not relevant to ask whether his or her failure to do so is
reasonable. Feelings of inadequacy,
embarrassment, reluctance to come forward, fear of being disbelieved, and the
like, may be entirely understandable and provide a reasonable excuse for not
taking the matter further at a particular time, but they do not touch on the practicability
of finding out, the only relevant issue with which section 17(2)(b) is
concerned. In any discussion about the
subjective/objective test, and what subjective factors can be taken into
account, it is easy to lose sight of this point."
At paragraph 57, Lord Glennie also
said:
" ....I see
nothing in the case of Bryn Alyn
which leads me to conclude that I should depart from the guidance given by Carnegie v Lord Advocate as clarified, it seems to me, by Agnew v Scott Lithgow. The question
to be asked is whether, at some time more than three years before proceedings
were commenced i.e. by mid-May 1977 at latest), the pursuer was aware of the
statutory facts, or, if not, whether it was reasonably practicable for the
pursuer to have become aware of those facts by that time. In making an assessment of the question
whether it was reasonably practicable for her to have become so aware, I must
disregard issues relating to her intelligence or personal characteristics,
except to the extent caused by the alleged abuse, and ascertain whether it was
reasonably practicable for a reasonable person (with such characteristics, if
so caused) placed in the situation in which the pursuer was placed to have
become so aware."
[59] I agree with his formulation of the relevant question and with
his self instruction to disregard issues relating to the intelligence or
personal characteristics of the pursuer.
As regards his proviso, on the basis that Lord Glennie has in mind no
more than the case where a pursuer can point to something cogent caused by the
alleged abuse which makes it impracticable for a pursuer to ascertain the
statutory facts (which, given his earlier discussion and rejection of the Bryn Alyn approach, must be the case) I
would agree with it also. That would be
in line with the approach of their Lordships in Adams. Thus, if
a pursuer was unaware of the cause of a significant symptom because the state
of medical knowledge was such that he could get no clear answer on the question
of attribution, it might be held to have been not reasonably practicable for
him to have found out the cause sooner than he did. If, on the other hand, he did not find out
sooner, because he chose not to ask, he cannot thereby show that it was not
reasonably practicable for him to find out if asking would in fact have
produced a clear answer. The test would
remain one of reasonable practicability, not of whether the pursuer had a
reasonable excuse for not taking action any earlier. And, moreover, the test as regards the first
of the statutory facts would remain not that of whether or not it would have
occurred to a reasonable person in the position of the pursuer to sue but of
what view such person would have taken of the level of severity of his injury.
[60] Separately, I can see that there could be cases where a
personal characteristic of the pursuer other than something caused by the
alleged abuse might be considered relevant to consideration of the question of
whether it was reasonably practicable for him to ascertain the statutory
facts. If, for instance, a pursuer was,
for a period of time, living in a part of the world where he was not able to
get medical advice as to the significance of a symptom, it seems that the view
might properly be taken that it would not have been reasonably practicable for
him to have become aware of the first of the statutory facts during that
period. The facts of the present case
are, however, not of that order. Practicability would, however, remain a key
issue.
[61] It also seems to me that it is important that the provisions of
section 22(3) of the 1973 Act are not lost sight of. In section 22(3), Parliament makes it
plain that it is not intended that a pursuer be saved from the effects of time
running on the ground that he did not realise that he could have sued for what
happened to him.
[62] So what does this analysis of the authorities mean for the
pursuer in the present case? I am
satisfied that it demonstrates that the pursuer's approach is misconceived and
that the defenders have correctly identified this as a case where the pursuer's
averments do not support a relevant case that the hardship of time running is
alleviated for him by the provisions of section 17(2)(b) of the 1973 Act.
[63] The pursuer seeks to advance a claim that goes right back to
immediately after he left the home in 1971.
I accept the defenders' submission that, on the averments, he is suing
in respect of a continuum of events
since then. No severability
considerations such as were considered in Carnegie
arise. He sues for psychological sequelae which arose in 1971
(depression) and at an unspecified date thereafter (PTSD). He refers to repressing and suppressing
memories, that is that, of his own volition, he turned his mind away from what
he alleges happened to him. He also
avers that he has experienced current and intrusive recollections of the abuse
(Article 6). He avers that he has
had regular contact with the psychiatric services since the 1970's but offers
no explanation for not having acquired knowledge of the statutory facts
thereby. The pursuer's averments appear
to me to amount to a clear indication that he did in fact have or it would have
been reasonably practicable for him to have an awareness of all the statutory
facts long before December 2001 but did nothing about them until some time
after the television broadcast referred to.
Despite the reference to July 2004, the thrust of his averments
seems to be that the broadcast was in May 2003.
Choosing to take no action does not meant that it was not reasonably
practicable to do so. I am reminded of
Steyn L.J.'s comments in Dobbie
at page 1248 to the effect that stripped to its essentials the argument
for the claimants was that time did not run until the injured party realised he
could sue. That is, it seems to me, as
far as the pursuer's case goes here.
[64] In the above circumstances, the pursuer is in no position to
advance a case that it would not have been reasonably practicable for him to
become aware of the statutory facts prior to December 2001. He was, on his own averments, aware that he
had significant injuries attributable to what had happened to him in the home,
long before then. They were, on the
pursuer's averments, clearly of sufficient quantum
to meet the requirements of section 17(2)(b)(i). He knew that his symptoms arose from the time
he left the home and he knew who was responsible for his treatment there. In reality, what the pursuer's case amounted
to was an attempt to have treated as relevant that which section 22(3) of
the 1973 Act provides is irrelevant, namely, a pursuer's knowledge as to
whether or not an act or omission was actionable. That was evident from the submissions made
and from the strong reliance on the case of Bryn
Alyn. I had the clear impression
that the pursuer's approach was to ask the question whether an already damaged
person suffering ongoing difficulties would reasonably turn his mind to
litigation but, for the reasons I have already given that question, which lay
at the heart of the approach in Bryn Alyn
is not the correct one to ask for the purposes of section 17 of the 1973
Act. Such a question may well properly
arise in the context of an application under section 19A of the 1973 Act but
that is a different matter.
Further Procedure: Preliminary Proof or Not?
[65] It was submitted for the pursuer that there should be a proof
before answer "at large", rather than a preliminary proof.
Submissions
for the Pursuer
[66] Issues of time bar and s.19A
normally arose where a solicitor had missed a deadline, it was said. Such cases could properly be dealt with by
way of preliminary proof. There was
unlikely to be an overlap of evidence and the proofs were not likely to be
lengthy. Further, preliminary proofs
appeared to have occurred because that was the procedure that parties had
agreed. The present case was different.
[67] Reliance was placed on the case management decision of Toulson
J to allow the cases of William Ablett
& Ors v Devon County Council
& The Home Office unrepd Ct
Appeal 4.12.00 to go to trial without hiving off the
limitation issues that arose because he was not satisfied that to do so would
produce "better or cheaper justice" (para 8) since it would have been
necessary, at a preliminary trial, to go deep into the very issues which would
also form the subject matter of any trial on liability. Ablett,
like the present case, concerned claims at the instance of adults in respect of
abuse alleged to have been suffered in a children's home many years
earlier. Reference was also made to:
Thomson v Newey & Eyre & Ors 2005 SC 373, a case involving a claim
for economic loss and personal injuries arising out of a sequestration where
the Inner House decided to allow a proof before answer at large because of the
extent to which the facts bearing on time bar and the facts bearing on the
merits of the claim were intermingled.
Noble v de Boer 2004 SC 548, a case where the sheriff had allowed a preliminary proof on issues as to the identity
of the employer of the pursuer and the identity of the employer of the
defender. The Inner House observed that
the decision to allow that procedure was competent but, in the circumstances of
that case, unfortunate since it rendered a protracted and expensive litigation
more protracted and more expensive. As a
generality, preliminary proof should, it was said, only be allowed on matters
wholly distinct from the merits of the action.
It was questionable whether a preliminary proof should have been ordered. Particular reliance was placed on this case,
it being submitted that it contained a very strong statement against allowing
preliminary proof if there was going to be any intermingling of the facts.
McCafferty v McCabe 1898 4F 872, a case where a workman claimed damages for
injuries sustained at work. He sought a
jury trial. The defender denied having
employed the pursuer. The pursuer moved
that the issue of his employment be separated out and determined at a
preliminary proof. That motion was refused. The Lord President indicated that there was
no sufficient ground for separating out what was part of the train of facts for
the jury's consideration and Lord McLaren observed that the question of
employment was so involved in the merits of the case that it could not easily
be separated.
[68] It was submitted that in the present case and indeed, in all
seven cases before me, the merits and time bar issues were inextricably
linked. There would be duplication if
the pursuer was successful at preliminary proof. At that proof, there would need to be expert
evidence about his psychiatric injury to explain the delay. There would need to be evidence about his
whole life since leaving the home. The
pursuer ought not to be required to give evidence twice. The pursuers in these actions were very
damaged, vulnerable people and it would be grossly unfair to force them to do
so. As a practicality, there were
hundreds of similar cases pending in the Court of Session. If they were not moved forward quickly, the
court would be dealing with them for many years. It was necessary to look at the "big picture". Whilst inevitably there were limitation
problems in these cases, it was within judicial knowledge that that was because
of the shame, fear, confusion and silence that was engendered by such
abuse. The only answer for these cases
having arisen so late could be that their treatment silenced the
claimants. The English courts had
developed a way of dealing with them, as exemplified by Ablett and this court should follow that example and allow a proof
at large.
Submissions
for Defenders
[69] For the defenders, reference was made to the allowance of
preliminary proof being the normal practice.
The defenders here were being asked to meet claims, including the
present one, arising some 30 or 40 years after the events complained of. Preliminary proof was the appropriate way to
ensure that the pursuers were properly entitled to go forward. There would not be wholesale duplication of
evidence. The pursuers would not, at
preliminary proof, be cross examined as to their experiences in the home nor
would corroborating witnesses need to be led; the matter could be approached,
for time bar purposes, by assuming that whatever they said about what happened
to them was correct, leaving over to the later proof (if the pursuers were
successful on time bar) the question of whether or not they had proved those
averments. A preliminary proof would be
significantly shorter. Conversely, a
proof at large on time bar, merits and quantum, would be of indeterminate
length and scope.
Decision
on Further Procedure
[70] It is competent for
preliminary proof to be granted in respect of a specified plea. Whether or not to do so is a matter of the
exercise of a discretion. It is
generally considered appropriate to do so where evidence requires to be led in
support of a preliminary plea in bar of the action; for example a plea of time
bar. It is often done where a pursuer
seeks to have the court exercise the equitable discretion allowed for by section 19A
of the 1973 Act; indeed, it would be very unusual to leave a section 19A
plea standing and allow a proof before answer.
That is so despite the fact that a section 19A proof will often
involve exploring matters which will also require to be explored at a
subsequent proof on the merits; the
nature of a pursuer's injuries may, for example, be responsible for a pursuer
having delayed in seeking legal advice as in the case of Comber v Greater Glasgow Health Board 1989 SLT 639. It is not correct to
suggest, as did counsel for the pursuers, that preliminary proofs on time bar
are generally confined to cases where solicitors have missed deadlines. Whilst there have been a number of cases
where applications under section 19A of the 1973 in such circumstances,
have proceeded by way of preliminary proof, those are not the only
circumstances where such proofs have been allowed.
[71] If a preliminary proof is allowed in this case, the issue of
whether what the pursuer alleges to have happened to him in the home actually
happened will not require to be determined.
Nor will the issue of whether any post traumatic stress disorder from
which the pursuer suffers was caused by anything that happened to him at that
time. Nor will quantum. I am satisfied that
any preliminary proof is likely to be significantly shorter than a proof at
large. If the defenders are successful,
the action will go no further, unlike the situation in, for instance, the case
of Noble, where the preliminary proof
allowed never had the potential to bring an end to the whole litigation.
[72] I bear in mind also the guidance given by the Inner House in
the case of Clark v
McLean 1994 SC 410, which was referred to by
counsel for the defenders in the course of general submissions that they made
regarding section 19A of the 1973 Act with regard to three of the seven
cases before me. At page 413,
delivering the opinion of the court, Lord Maclean said:
"The onus being
on the pursuer to satisfy the court that the terms of section 19A(1)
should be applied, the court must first determine whether the pursuer's case in
relation to the application of that section is relevant. If the case is relevant, the court must
consider whether or not there is sufficient agreement between the parties on
the material facts for it to decide upon the applicability of the section. If there is not, then as was envisaged in Donald v Rutherford 1984 SLT 70 and given effect to in Comber v Greater Glasgow Health Board 1989 SLT 639, the court should allow a preliminary proof on these facts. If, on the other hand, there is sufficient
agreement on the material facts, then the court must proceed to adjudicate upon
the application of section 19A(1).
In our view, it should seldom be necessary for the court, in an action
for damages for personal injuries involving only two parties, to allow a proof
with all pleas standing, including those relating to time-bar and those
relating to the merits of the action."
[73] It would thus seem that the norm is not that a personal injury
claim involving only two parties will proceed to proof at large without any
time bar pleas first being considered at either a debate, in the event that all
material facts can be agreed, or at a preliminary proof. For such a case to do so would be the
exception and there would, accordingly, have to be something unusual or special
about its circumstances to justify such a procedure.
[74] In essence, the pursuer's case seems to be that this case is
unusual and should be seen as justifying an unusual approach because the
pursuer seeks to claim in respect of having been abused as a child and because
there are so many similar litigations waiting in the wings. It does not seem to me that these cases should
be regarded as being in a separate category which, for what essentially were
put forward as reasons of sympathy, should be allowed to go straight through to
a proof at large. It is not, I consider,
within judicial knowledge that the limitation problems that arise are for the
reasons given by counsel for the pursuers.
Each case requires to be considered on its own facts and circumstances
and a view reached as to the reason for the delay that has occurred. I do not see that it would be fair or just to
assume that the delay has occurred because of shame, fear and confusion that
has arisen because of the nature of the claim.
But even if that was so, I do not see that that should result in the
normal preliminary proof procedure being departed from.
[75] I will, accordingly, refuse the pursuer's motion for a proof
before answer leaving all pleas standing and allow a preliminary proof in
respect of the pursuer's fifth plea in law only.
