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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 27
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OPINION OF LORD McEWAN
in the cause
J A
Pursuer;
against
GLASGOW
CITY COUNCIL
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Stirling; Drummond Miller, W.S.
Defenders: Peoples, Q.C., Clarke; Edward Bain
14 February
2008
[1] In
1968 when he was a little boy, 3 years old, the pursuer was in a children's
home in Glasgow which was managed
by the defenders' predecessor. He lived
there until he was sixteen and left in 1981.
Since then he has grown up, had employment, married and had a family.
[2] However,
he was not well treated in the home.
When he was 9 he was sexually abused by a male member of the staff who
has now gone abroad. He was threatened
not to reveal the abuse and when he did so he was physically punished by two
named members of staff. Many years later
investigation into the home took place.
The press and police became involved.
There were prosecutions. The pursuer
has raised the present action because he is suffering from Post Traumatic
Stress Disorder. The defenders plead that
the action is now time-barred absolutely, and that the actual knowledge
provision (Prescription and Limitation (Scotland) Act 1973 sec 17(2)(a))
or the imputed awareness provision (sec 17(2)(b)) do not assist the
pursuer. The defenders further argue
that I should not operate the equitable relief provision (sec 19A) in favour of
the pursuer. It is not necessary to
quote these provisions at length for reasons which will appear later.
[3] I
heard a procedure roll debate over four days from which it is clear that the
law on this subject is not entirely clear.
The decisions at first instance and on appeal do not always speak with
one voice and two of the Scottish cases are presently subject of appeals to the
House of Lords. They will not be heard
until 2008.
[4] I
should list at the outset the cases I was taken to viz: Carnegie v Lord Advocate variously reported 1998 SLT 872, 1999 SLT 521
2000 SLT 806 and 2001 SC 802; Dunlop v
McGowans 1980 SC(HL)73, M v Hendron
2005 SLT 1122 2007 and SLT 467), B v Murray 2004 SLT 967, 2005 SLT 982 and 2007 SLT 605, Shuttleton v Duncan Stewart
& Co 1996 SLT 517 (note), Hill v McAlpine
2004 SLT 736, Kelly v Gilmartin's Exec. 2004 SC 784, M v O'Neill
2006 SLT 823 L, Godfrey v Quarriers Homes [2006] CSOH 160, McCafferty v McCabe (1898) 25 R 872, Woodland
v A.G. 2005 SCLR 163, Ablett v Devon County Council 4 December 2000 (unreported), Fleming v Strathclyde Regional Council 1992 SLT 161, Mackie v Currie 1991 SLT 407, Cartledge
v Jopling [1963] AC 758. Given all that has been said in these cases
about the subject, I doubt that it is wise for me to undertake my own analysis
in depth. What does concern me is the
procedure that has been adopted in the Scottish cases. They seem never ending. I suspect that whatever I do, one side will
reclaim. As much was said at debate. Let me begin by briefly looking at some of
the above.
[5] Carnegie in the Outer House is reported
first in 1998 SLT 874. The case
concerned bullying in the army. Lady
Cosgrove taking a subjective approach allowed a preliminary proof before answer
on the section 17 issues and refused to exercise discretion under section 19A. Per
incuriam the case later underwent a correction of the interlocutor (1999
SLT 521). The preliminary proof was
heard by Lord Osborne (2000 SLT 806). He
took an objective approach, found the claim was not time barred and allowed a
proof before answer. The defender
reclaimed and the pursuer cross appealed.
The Extra Division found that certain evidence should not have been
considered; that the physical injuries were time barred but that the
psychological injuries were separate and distinct, not time barred and the proof
before answer on most of these was retained.
It is the last part of this case which has caused most of the argument
before me. It is self evident that the
many procedures needed in this case caused complications.
[6] B v Murray
concerned alleged bullying of girls in Nazareth House, Cardonald by the nuns in
charge there. The case was pleaded in a
way that clearly linked the physical abuse to the later psychological
damage. The Lord Ordinary (2004 SLT 967)
attached importance to that in refusing to allow inquiry into section 17. He allowed a preliminary proof into section 19A. This proof was heard by Lord Drummond Young
(2005 SLT 982).
[7] In
Godfrey v Quarriers the pursuer alleged abuse in a children's home between
1978 and 1984. In 2005 he sued
for physical and psychological injuries.
He said he had put the bad memories to the back of his mind. The injuries were not severable and he did
have awareness (para. 74). The Lord
Ordinary held the case to be irrelevant and no preliminary proof was allowed on
section 17 or section 19A.
[8] M v Hendron
concerned sadistic abuse at an approved school.
The abuse was in 1964.
Thirty years later the abuser was sent to prison. An action was raised in 2004. By this time the limitation period had
elapsed. Most of the opinion in the
Outer House concerned liability and a preliminary proof was allowed on
that. Further preliminary proofs were
allowed on section 17 and section 19A. On appeal two of the defenders successfully reclaimed
on liability and the action was dismissed.
The Court did, however, consider the "so called" rule in Carnegie and whether a district and
separate claim had been made thus allowing for a separate triennium. It was noted that
in B v Murray such a
distinct claim had not been relevantly averred (para. 163). It was held that no relevant averments had
been made. The pursuer had reported what
had happened to his mother and suppressed the memory of them. He thus had actual knowledge. Further, his claim was based on both the
assaults and psychological consequences.
The Court went on to hold that actual awareness cannot be affected by
suppression of memory (para. 173 and 189). The decision on the section 19A
preliminary proof was upheld only by a majority but was academic in the
result. All three judges were aware of
the problem posed by Carnegie and it
was said that the case would benefit from reconsideration. That, I was told, will happen in 2008
when this area of law will be looked at by the House of Lords.
[9] Kelly v Gilmartin's Executrix was again a case involving abuse at school
occurring over 30 years before any action was taken. A prosecution of the teacher reawakened the
memories and the onset of psychological illness. The Lord Ordinary held that the claim had
prescribed. The Inner House agreed. They expressed no view on Carnegie pointing out that it was a case
on limitation only.
[10] Cartledge v Jopling in a case probably now only of
historical interest. There had been a
full trial of liability and damages before Glyn Jones J. He held all the claims barred. The law at the time was different from today
but it is of interest to note the unanimous reluctance with which the Court
found for the defendants. It is only necessary to add a word about some
of the other cases. Woodland raised
a different point about multiple delicts.
In Fleming the facts were
quite different from what is in issue here.
Mackie concerned section
17. In Hill section 19A was operated to allow a proof before answer. M v
O'Neill was a case where the action
was dismissed after the assistance of a preliminary proof on both section 17
and 19A. The Lord Ordinary has provided
a very full analysis of all of the issues arising under these sections.
[11] Junior counsel for the defenders asked me to sustain his first
and second pleas in law. Given what the
pursuer said about the abuse, by the time he was eighteen he would have
understood the assaults were wrong, were a crime, and an injury to him. They were sufficiently serious to raise an
action. By 1983 he was aware or was
deemed to be aware of these matters. It
was not enough to aver that he had blocked them out. The action was accordingly time barred on 14 January 1986 almost eighteen
years before the date of citation, and the events in question went back about
thirty years. That covered all
consequences including distress later.
Counsel then discussed the "one action" rule and referred to various
passages in Dunlop v McGowans, Mackie v Currie and Shuttleton v Duncan Stewart & Co. The
one exception was the case of Carnegie
which itself had been the subject of adverse criticism. Counsel said that Hill v McAlpine proceeded
on a concession. He looked next at Kelly v Gilmartin and the early stage of B v Murray
where the pursuer knew what had happened was wrong. He said the facts of the present case were
similar to Godfrey v Quarriers Homes (where Carnegie was criticised) and leaving out
an element of damages did not surmount the pursuer's problems.
[12] Counsel spent some time discussing the various issues which
arose in M v Hendron and the comments made therein about Carnegie. There had been a
preliminary proof in B v Murray and the opinion in the reclaiming
motion by implication meant that Carnegie
was wrongly decided.
[13] It was plain from the averments that the psychological damage claimed
resulted from the assaults. To block out
was a thought process and an act of will.
It was a decision, and was not amnesia.
Even assuming that Carnegie
was correctly decided, the averments here did not bring the case within the "so
called" Carnegie rule.
[14] Counsel then argued that the averments in Cond. 5 were
irrelevant. The convictions of other
people were not relevant to this pursuer.
[15] He then said that no preliminary proof should be allowed under
section 17 or 19A of the Act.
There had to be a full explanation for the long time gap and the
delay. (Hendron and B v Murray. It was a very high test. To say he was vulnerable, reluctant and
ashamed was not enough. He did not have
to wait to be told by a solicitor.
[16] Senior counsel following, added some further refinement which I
can summarise thus. It was only Carnegie which allowed the present case
not to be time barred. There had been damnum since 1974 and the pursuer
had reported it. What was said in this
case differed from Carnegie which was
a much criticised case. The averments
were of the assaults and the blocking out was a continuum not something suddenly new. Even if Carnegie
was correct, the present case was different
and must be time barred. There
was no merit in having any preliminary proof.
Though cases differed in detail, it has all been fully looked into in B v Murray. The
claim was too old and too stale. There
had to be some judicial consistency.
[17] In opening junior counsel for the pursuer referred me to her
written submission and asked me to allow a proof before answer on all matters
and not to allow preliminary proofs.
Referring to the Record she argued that there had been no physical
injuries from either the sexual abuse or the assaults or the punishment given
to him for revealing it all. The claim
was simply for psychiatric damage not physical injury. The former harm only arose in 2001. Before that he was not suffering and was
getting on with his life. That was very
clearly averred in the Condescendence Articles 4 and 6. From the response which the defenders had
made and the matters they put in issue, it was quite clear that they knew what
were the facts. Thus they were in no
sense prejudiced.
[18] Whatever the pursuer knew when he was nine years old or
sixteen, when he left, he could not sue for anything as he had no adverse
symptoms. Since there was no damnum before 2001 section 17 of the Act
did not apply. At no relevant time could
he ever have had any direct or implied "statutory" knowledge.
[19] Counsel then took me to the authorities beginning with Carnegie which she looked at in great
detail. The case was binding even if it
did appear to create the possibility of a separate triennium. The starting
point of the present case was 2001 and there was no damnum before that time. A
proper analysis of the other cases showed claims for psychiatric or
psychological damage going back over 40 years but only awareness in the
1990's. That was not this case, where
the facts were quite different. Counsel told
me that B v Murray and M v Hendron
were to be heard later in 2008 by the House of Lords. The only progress in them so far had been a
lengthy preliminary proof on section 19A.
Dunlop v McGowans could be distinguished as it concerned prescription and not
limitation.
[20] Counsel pointed to the difference between the present case and Carnegie. It was not clear in Carnegie what case was being made on the pleadings and
two different types of symptoms were mentioned with a close link ie a continuum. That was absent from the present case.
[21] Miss Stirling then presented an alternative argument on
the basis (not accepted by her) that section 17(2) of the Act was
engaged. On a fair reading of the
pleadings nothing was sustained until 2001 even if a diagnosis was made
later. On the pleadings it could not be
said that the pursuer did not fall within the first alternative in
sub-section (2)(a). This was not a
whole of life claim. It was a later life
claim. Even if section 17(2)(a) did
not apply then (2)(b) did on all of the statutory points. The date was the same, ie 2001 when the
pursuer said he had actual awareness.
Given that, it would be impossible to conclude that he had any earlier
constructive awareness.
[22] Counsel then briefly addressed section 19A. She said there were some disputed factual
issues but the reason for the delay was due to the defenders. There were no proper averments that evidence
was lost. The early complaint by the
pursuer was met with an assault. There
had been trials and convictions. Enough
was averred to apply section 19A although because of her earlier argument
counsel said that ought not to be necessary.
Ignorance of the law is an accepted factor in a section 19A case. It was not said that any important witness had
died.
[23] Counsel ended by urging me not to encourage more than
one proof as was happening in the other reported cases. Here a defence to challenge the only case
made by the pursuer had been stated. It
could not be said that the pursuer was bound to fail. All pleas should be allowed to stand.
[24] What then is to be done in this case. In my opinion on the matters averred on
Record this case is not time barred and a proof before answer should be
allowed. Whatever is said about the
abuse in Article 4 it is clear that no claim is being made for the assaults
which, given his age at the time, are serious enough. The only issue is the psychiatric damage
suffered after about June 2001. In
Article 6 considerable detail and fair notice is given about the effects of
this. The defenders have been able to
answer these averments. The present
action, it is admitted, was raised in August 2003. It follows from what I have said that in my
opinion neither section 17 nor section 19A of the Act are engaged, and
I say no more about them.
[25] As I have already noted much was said in the debate before me
about Carnegie and what Lord Johnston
said in that case about the triennium.
(2001 SC at 813). He held that where
there was a wholly distinct injury arising from the same delict there could be a separate triennium. Carnegie is binding on me and I propose
to follow it. Further in my opinion what
Lord Johnston said is perfectly correct and sound in law. I am not impressed by the various criticisms of
the case which have appeared in subsequent cases including from one judge who
concurred in Carnegie. These criticisms are in my view unfocussed
and amount to no more than a wish for a higher court to look again at the
point. That has not yet happened and in
the meantime the decision stands.
[26] I am confirmed further in my view by two other matters. Firstly the facts of the present case which I
have mentioned fit the principle enunciated by Lord Johnston. Secondly there is already strong Outer House
authority to support it in the case of Shuttleton
v Duncan Stewart & Co a decision
of Lord Prosser which I have not yet referred to. Speaking of asbestosis Lord Prosser had no
difficulty in identifying separate diseases or impairments caused by the same delict and in consequence separate time
bar periods (page 518). That seems to
me, with respect, to be logical and correct.
Cases involving deafness can be another example where the condition
arises years later. The present case is
not bedevilled with any suggestion of separate actions for separate matters
flowing from the one delict. That would fall foul of Dunlop v McGowans.
[27] As I have said I will order proof before answer excepting
therefrom the whole of Article 5.
That does not relate to this pursuer and Miss Stirling made no issue of
it. I shall repel the defenders' first
plea-in-law. I sustain their second only
to the extent of Article 5 and quoad
ultra leave all other pleas standing (although the pursuer's fifth plea is
largely now redundant).
[28] Since preparing this Opinion I became aware of the decision in
the House of Lords in the case of A v
Hoare and related cases. The decision was handed down on 31 January 2008. It is of course based on slightly different
legislation but appears to encourage more cases being allowed to proceed under
the discretionary provisions. I also
note that awards already made in three cases were restored. It is my understanding that in England
many cases proceed to full trial with limitation, or no limitation being
decided at the end. (See Cartledge). It may be costly to do this but it does seem
to be a neater procedure than in Scotland
where many cases have to endure the preliminary proofs and appeals which I have
outlined in the cases cited to me.
