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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SF v Quarriers [2015] ScotCS CSOH_82 (25 June 2015)
URL: http://www.bailii.org/scot/cases/ScotCS/2015/[2015]CSOH82.html
Cite as: [2015] ScotCS CSOH_82

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OUTER HOUSE, COURT OF SESSION

[2015] CSOH 82


 

A82/05

OPINION OF LORD BANNATYNE

In the cause

SF

Pursuer;

against

QUARRIERS

Defenders:

Pursuer:  I Mitchell QC, Jamieson;  Kennedys Scotland

Defender:  Moynihan QC, Rolfe Solicitor Advocate;  Simpson & Marwick

25 June 2015


Introduction
[1]        The pursuer who was born on 22 April 1958 raised an action, which was signetted on 17 December 2004, against the defenders in respect of injuries allegedly sustained between 1965 and 1971 while he was a resident in a care home run by the defenders. 


 


Procedural history of the action
[2]        Following being signetted, by interlocutor dated 30 May 2006, the cause was appointed to the procedure roll on the defenders first and second pleas-in-law which were in the following terms: 

“1. The action being time barred it ought to be dismissed.

2. The pursuer’s averments being irrelevant and lacking in specification, the action should be dismissed.” 

 


[3]        A procedure roll debate was heard on 23 June 2006 and the Lord Ordinary thereafter having resumed consideration of the cause on 10 October, 2006 issued the following interlocutor: 

“Refuses the pursuer’s motion for a proof before answer leaving all pleas standing;  allows the parties a preliminary proof of their respective averments on record in respect of the pursuer’s fifth plea-in-law only;  appoints said preliminary proof to proceed on [                      ];  grants diligence for citing witnesses and havers;  reserves, meantime, the question of expenses.” 

 

            The pursuer’s fifth plea-in-law was in the following terms: 

 

“Esto the action is time barred (which is denied), it being equitable in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to bring the action, proof should be allowed.”

 


[4]        Section 19A of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) provides as follows: 

“(1)  Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B 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.

 

(2)  The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement.

 

(3)  In subsection (2) above, the expression “final judgment” means an interlocutor of a court of first instance which, by itself, or taken along with previous interlocutors, disposes of the subject matter of a cause notwithstanding that judgment may not have been pronounced on every question raised or that the expenses found due may not have been modified, taxed or decerned for; but the expression does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above.

 

(4)  An action which would not be entertained but for this section shall not be tried by jury.”

 

[5]        After sundry procedure, including a reclaiming motion challenging, on behalf of the pursuer, the interlocutor of 10 October 2006, which was refused by interlocutor of 18 February 2010, a preliminary proof in respect of the fifth plea-in-law was again allowed in terms of an interlocutor of 7 November 2012. 


[6]        There was further sundry procedure involving the discharge of the said preliminary proof.  Finally by interlocutor dated 31 January 2014 a preliminary proof in respect of the said issue was again allowed. 


[7]        Thus the present matter came before me for a preliminary proof in which the pursuer sought the court to exercise in his favour the said power in terms of section 19A of the 1973 Act. 


[8]        The question for the court is accordingly this:  Is it equitable to allow the pursuer’s claim to proceed?  The onus in relation to this issue rests with the pursuer. 


 


The courts approach to the merits of the claim
[9]        It was a matter of agreement between the parties that the correct approach for the court at a preliminary proof was adopted by Lord Johnstone in B v Murray 2004 SLT 967, namely:  a preliminary proof was not an appropriate forum for ascertaining the truth and reliability of the averments which formed the basis of the pursuer’s substantive case.  Rather it was parties agreed position that I should proceed on the hypothesis or assumption that the abuse complained of by the pursuer did in fact occur.  The court should make no findings in fact in relation hereto.  In light of the foregoing agreement there was little cross‑examination of the pursuer regarding the events which he spoke to as occurring while a resident in the defenders care.  However, it was also accepted that the court would require to assess the cogency of the pursuer’s evidence. 


 


The pursuer’s substantive case
[10]      As a matter of background it is appropriate at this stage to set out the core elements of the pursuer’s substantive case as set out on averment and spoken to by the pursuer in evidence.  The pursuer complained that while residing in cottage 20, between 1965 and 1971, within the defender’s home he was physically and mentally abused by the house parent in the said house a Miss D.  In particular at night, if he was caught talking in his bedroom, Miss D would call him down and spank him on the bare bottom.  He would then be put in a shed which was dark and left for periods of up to an hour.  The shed was locked.  This happened on numerous occasions.  The spanking was very sore and he was terrified by being locked in the dark.  Miss D was aware that he was particularly scared of the dark. 


[11]      Beyond the foregoing the pursuer also complained of what might be described as emotional abuse, namely:  that on occasions he was made to call Miss D “mummy” and he did not like this as his own mother was alive at the material time. 


[12]      On occasions Miss D made him eat all the food that was served to him even if he did not like it.  He had to finish everything on his plate. 


[13]      He had a problem with bed‑wetting and on occasions Miss D would humiliate the pursuer regarding this in front of other children who were residents in the home.  He in particular referred to an incident which had occurred while he and other children from the home were on holiday at a house in Turnberry. 


[14]      The pursuer’s case against the defenders was founded on the defenders vicarious liability for the actings of Miss D.  The pursuer’s pleadings were that Miss D had breached the following common law duties: 

“to exercise the degree of skill and care to be expected of a reasonably careful parent in looking after children entrusted to her care, such as the pursuer.  In particular it was her duty to take reasonable care for the safety and wellbeing of the children in her care.  It was her duty to take reasonable care to employ a suitable discipline regime which did not involve excessive beatings.  It was her duty to take reasonable care not to use as part of a discipline regime the repeated locking up of children who were afraid of the dark, such as the pursuer, in a dark room for long periods of time.”

 


[15]      So far as loss, injury and damage is concerned the position averred and spoken to in evidence by the pursuer was of long term psychological damage resulting from the treatment he had received at the said time. 


 


The pursuer’s core position on averment and in evidence regarding section 19A


[16]      The pursuer’s position can be summarised as follows: 

            “When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memories of the abuse he had suffered.  The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind.  It was an involuntary process known as dissociative amnesia.”  (see:  article 7 of the condescendence at p21 E to p22 B)


 


Evidence


The pursuer
[17]      The pursuer gave evidence regarding the abuse he had been subjected to by Miss D during his time in Quarriers which evidence was in line with the averments on record.  I do not detail his evidence on these matters as for the purposes of this proof I assumed he had been abused. 


[18]      As to his life after leaving Quarriers he said this:  he was married in October 1980;  he had five children;  he had a number of jobs but was generally in employment;  he described enjoying life and leading what might be described as an ordinary, unremarkable life. 


 


2003
[19]      His position was that until 2003 he had no memory of the abuse (hereinafter referred to as “the bad stuff”).  He then described watching a Frontline Scotland programme about Quarriers.  He then wondered if Quarriers had records about him.  He obtained these (it was accepted at all hands that these were entirely anodyne in nature).  He then went to Epsom on a training course for a job and read the records in his spare time and said the effect was:  “as if opened door”.  He described going up the M25 and intending to kill himself.  He was at this point admitted to Penrith Hospital.  He said he broke down crying and said that he had been abused at Quarriers.  He then described that since that time there had been a big change in his life:  he did not work;  did not go out;  he really did nothing.  He described the abuse playing “like a video”. 


 


Cross‑examination of the pursuer
[20]      He described seeing the bad stuff constantly in Epsom.  In cross‑examination he spoke of being sexually abused by another boy while at Quarriers (he had not mentioned this in examination in chief).  When asked about not having memories pre 2003 he said: 

“It was blocked out – when left Quarriers with father – all things shut out – all bad things.” 


 


The pursuer’s medical records


[21]      The pursuer was taken through his medical records in some detail by senior counsel for the defenders and entries put to him.  He was asked about suicidal thoughts pre 2003:  said one occasion but was not intending to kill himself.  He was asked about suffering from depression in 2002.  He did not remember some of what was put to him in the records.  In particular he said he had no memory about considering killing himself in 2002 by CO poisoning by using his car.  He accepted he had a personality disorder. 


[22]      He denied attempting suicide at age 15 and then said he may have said that to doctors but this was just messing about – not a real attempt (same position as in relation to other attempted suicide referred to in records). 


[23]      He accepted that when asked about the memories by people such as doctors and other medical professionals he would say this:  “blocked out”, “blanked out” – he said that as left Quarriers with father – he had no memories of the journey home – and his memory had been blocked out and it was like “a shutter coming down”. 


[24]      When asked again about records of attempted suicides – he said “don’t think I tried to commit suicide” and said “don’t remember saying that”.  The pursuer, when the issue of “attempted suicides” referred to in the records was raised with him, would not accept he had attempted suicide. 


[25]      When asked about running away from Quarriers the pursuer accepted that on two occasions he had run away and gave some details about both occasions.  He said that these memories had returned to him only after the TV programme in 2003.  His position was that they did not result from abuse, but for other reasons. 


[26]      When asked about his father hitting him, the pursuer maintained despite medical records to the contrary that his father had not hit him.


[27]      When asked about bullying at Quarriers, he said references in the medical records relative to bullying did not relate to Quarriers and then gave this answer in the context of being asked about the issues of references to bullying and running away in the pre 2003 medical records: 

“Memories of Quarriers blanked out – shutters came down and memory blocked out day drove off with father”


 


The answer fitted in with the position senior counsel for the defenders had earlier put to him about the fairly precise way he always described forgetting.  Answers of this type, using these phrases were repeated a number of times in his evidence. 


[28]      Senior counsel for the defenders took the pursuer through the medical records relating to his admission to Penrith Hospital in some detail.  The pursuer maintained his position that he clearly remembered saying to the staff there that he had been abused, although this was not mentioned in the records. 


[29]      When asked what in the records had triggered his memories he answered:  “seeing programme and seeing records was the unlocking of the door”. 


[30]      With respect to the pursuer’s re – examination I will discuss this later in this opinion. 


[31]      The pursuer’s position overall regarding bullying, running away, attempted suicides and being hit by his father was as set out by senior counsel for the defenders and I set this out later in my opinion.  I have attached as an appendix to this opinion, 3 tables detailing the places in the medical records which related:  first to his bullying and running away;  his being hit by his father;  and his attempts to commit suicide pre age of 21. 


[32]      The pursuer in his evidence spoke to his returning to Quarrier’s on a number of occasions between 1971 and 2003 without this causing the memories of the bad stuff to return. 


 


Non expert evidence
[33]      The pursuer’s wife gave evidence which was in fairly short compass:  principally she spoke to the complete change in the pursuer since 2003 and described him since then as being a totally different person.  The only other piece of evidence of any moment which she gave was this:  the pursuer did not say to her why he wanted his Quarriers records.  She was not cross – examined. 


[34]      Mr Gary Thomson, the pursuer’s instructing solicitor, gave evidence about seeking to find four persons who it was understood had been residents in cottage 20 while the pursuer was there.  The results of his enquiries had been:  one was dead;  one remained untraced;  one who on an unsolicited basis had been approached, Mr A had been upset and distressed by the unsolicited approach and a fourth had been discovered and it was hoped would give evidence.  (This was Mr J and he did give evidence under reservation of all issues of competence and relevance.) 


[35]      Mr J gave evidence on behalf of the pursuer.  He was a resident at Quarriers in cottage 20 at the same time as the pursuer.  His evidence as to abuse by Miss D was somewhat different from the pursuer’s:  his position – smacked by her during the day not at night and he remembered being placed in the shed but this was after school and before tea.  He was not cross – examined. 


[36]      Evidence was given by Josephine Bell who was the present after care worker and archivist at Quarriers and was in charge of their records.  She said that records were digitised.  In answer to a question could she find records of persons in cottage 20 she said this:  It would be very difficult, records could only be searched by names of individuals and were not cross-referenced by cottages in which they stayed.  In any event she described the records as not very detailed.  She accepted that software could be updated but did not go beyond that.  She was wary about the idea of unsolicited approaches.  She described it as being very emotional talking about childhood.  She accepted that in relation to a government programme “Time to be Heard” there had been contact with certain former residents. 


[37]      Claire Crawford, a solicitor who had acted for Quarriers gave evidence.  She described how when cases were intimated she sought information from Quarriers archivist and from a Mr Dunbar who worked at Quarriers for a long time who could on occasions point to where she might get information and be able to tell her whether people were alive.  She advised that there were no documents which related to specific cottages. 


[38]      Mr Bill Dunbar, who had been referred to by Miss Crawford gave evidence.  He had worked at Quarriers in various capacities between 1962 and 1997.  When asked whether he could give an insight into what happened in particular cottages:  he said no.  He said each cottage was individual and had its own rules.  He remembered Miss D and could remember her taking a particular interest in a particular child and helping him.  He was not able to assist with names of home assistants, he said they tended to come for short periods and move on.  He had no recollection of the home assistants in cottage 20 named in 7/26 of process.  In cross‑examination he described Miss D as “old school”.  He said at the time corporal punishment was used and involved smacking on the bottom.  With respect to codes relative to punishment at the time he referred to 7/24 of process. 


 


Expert evidence
[39]      The expert evidence given on behalf of the pursuer came from Professor Freeman.  It was evident he was an extremely well qualified expert regarding the issues which arose in the instant case.  He had a wealth of practical experience.  He had been involved in both the Piper Alpha and Lockerbie disasters.  He had regularly prepared expert reports and given expert evidence in court.  He spoke to and maintained his position as set out in his reports 6/5, 6/6 and 6/11 of process.  He described the pursuer as being severely distressed during the course of the interview with him when discussing the abuse.  He described the pursuer as fairly typical of those who had suffered trauma saying about one third of such suffered from amnesia.  The amnesia was a protective factor.  It was important for the purposes of diagnosis of dissociative amnesia, that the memories had come flooding back.  This supported the diagnosis. 


[40]      Professor Freeman dealt at some length with the concept of false memory syndrome.  For reasons which I articulate later in this opinion it is not necessary to set out in detail this evidence as it did not become an issue, due to a change in the views of Dr Janet Boakes (the defenders’ expert). 


[41]      He described the process that had been at work in the pursuer as this:  repression of memory, which was an unconscious process.  Thus he was suffering from dissociative amnesia.  He said the following facts supported this diagnosis: 


[42]      With reference to his second report 6/6 of process he set out in some detail the debate about recovered memory.  Again for reasons I will elaborate upon later in this opinion.  I do not require to set this evidence out in detail. 


[43]      Professor Freeman’s position can be summarised by reference to this section of 6/6 of process: 

“1.13  In the many patients I have seen it does not appear that the forgetting/repression occurs shortly after the traumatic events usually when the individual has attained a place of safety but it is difficult to be certain as most patients cannot say when they could no longer remember.  I have not come across any patient who was able to give an account where they remembered until adulthood and then forgot/repressed their memories.  In my opinion on the balance of probability (the pursuer) no longer had access to his traumatic memories from some point shortly after he left Quarriers homes and certainly well before his 18th birthday. 

 

2.1  In my opinion this is the mechanism that has operated in (the pursuer’s) case.  As documented in my main report there is no evidence that (the pursuer) recovered his memories during therapy or by suggestion, they were triggered by the television programme that he watched and then by receiving his notes.” 


 


            His position regarding Dr Boakes’ evidence can be summarised thus: 

            “3.1  As far as I can determine from Dr Boake’s report there is no scientific evaluation of the nature of (the pursuer’s) memory, of his forgetting or of the recovery of his memories No scientific evidence is presented. 

 

3.2  In my opinion there is a clear difference between simple forgetting, conscious avoidance of memories and dissociation/repression.  In my opinion it is the latter that has operated in (the pursuer’s) case and this is an unconscious, automatic process not under the individual’s control. 

 

3.3  The statement by Dr Boakes that the memories were always there is of course correct, if they were not there (but not accessible) then they could not be remembered.  The fact that Dr Boakes concedes this is important because it indicates that (the pursuer) was not simply making up stories about his past experience.” 


 


[44]      Turning to his cross‑examination, much of this dealt with narrowing down the issue in the case between the experts. 


[45]      Senior counsel for the defenders then took the professor to a number of points relative to dissociative amnesia to seek to highlight points of agreement between the experts.  The degree to which agreement was reached I will detail in the discussion section of this opinion. 


[46]      Dealing with borderline personality disorder Professor Freeman accepted that persons diagnosed with this disorder often exhibited inconsistency in accounts.  The professor in the course of his evidence relied on a number of articles and I will deal with certain of these later in my opinion. 


[47]      Dr Janet Boakes gave evidence on behalf of the defenders.  She again was someone who frequently gave expert evidence and prepared expert reports.  She appeared to me to be like Professor Freeman someone who was well able to opine on the issues before the court.  She in particular had served in a working group which had looked at the issue of recovered memories.  She had prepared two reports 7/4 and 7/18 of process. 


[48]      Again, as with Professor Freeman, senior counsel for the defenders begun by seeking to set out areas of agreement between her and Professor Freeman.  She accepted the following: 


I did not understand this last view to be materially different from that expressed by Professor Freeman who in the course of his evidence appeared to accept this point.  She accepted and relied on certain papers and research done by Geraerts and I will refer to this further at a later stage. 


[49]      She felt that the pursuer’s memory return had not been entirely spontaneous, in that his memories were not immediately triggered by watching the TV programme, rather his memories developed over a period of time (following upon the recovery of his records and his then proceeding to Epsom).  She also felt that the pursuer had been introduced to the idea of dissociative amnesia at an early stage in his treatment with effects, which I will turn to later in my discussion.  These were factors which tended to push her away from a diagnosis of dissociative amnesia.  Overall she said in evidence that her position was summed up by what she said at paragraph 10.13 of her second report which was this: 

“His memory:  The main area of difference between Professor Freeman and myself lies in his memory recovery.  I am very sceptical that if he had been seriously ill treated he would have forgotten it within 4 years, return to the home several times to fit carpets without recalling anything, and thirty years later would be surprised by what was revealed on the Frontline Scotland Programme.  In my view the most convincing explanation is that his experience at Quarriers was not particularly memorable and he did not dwell on it.” 


 


[50]      Her position was that what the pursuer said he had been subjected to in the context of the 1960’s, was not very memorable. 


[51]      She adopted the position put forward by McNally and Geraerts in their 2009 paper which she summarised at paragraph 10.14 as this:

            “McNally and Geraerts 2009 outline some alternative possibilities to explain the apparent forgetting and later recovery of memories.

 

The abuse was not particularly traumatic at the time and has simply not been thought about.  Some people may only realise in adult life that what they experienced was abuse and this new understanding and interpretation may be very upsetting.  It is possible that this accounts for (the pursuer’s) recall after seeing the TV programme.  Against that is the two month period before he started to get his memories and they came in the form of flashbacks rather than memory. 

 

Reminders of the abuse were absent.  Memories of abuse, like other memories, will fade away in the absence of reminders.  If the victim moves away, or the perpetrator either dies or leaves the area, there may be nothing to remind the person of what happened.  This clearly does not explain (the pursuer’s) loss of memory as he was a constant visitor to Quarriers. 

 

People may make a deliberate attempt to forget what happened.  This is not a very effective method and the alternative is to turn ones thoughts away from a distressing memory in an effort at distraction.” 


 


[52]      In discussing forgotten remembering as put forward by Geraerts, her position was that once repression was unblocked that was it. 


[53]      Dr Boakes did not accept dissociative amnesia:  it did not makes sense, it was put forward that it was to protect the mind of the child.  This did not work in the pursuer’s case because until he left Quarriers he remembered abuse, so why when he left did the mind operate to protect him, as he no longer needed protection. 


[54]      She believed that the pursuer’s borderline personality disorder was a relevant issue when considering the reliability of his evidence because of the tendency of people suffering from such a condition to misperceive situations. 


[55]      She referred to the following further points which tended, in her opinion, to undermine the diagnosis put forward by Professor Freeman: 


[56]      She felt that looking to the whole circumstances that there were a large number of possibilities to explain what had been happening to the pursuer regarding memories. 


[57]      In re‑examination she said the following passage in the McNally and Geraerts 2009 paper summed up her views: 

            “The repression interpretation does not withstand empirical scrutiny (McNally, 2003, pp. 186‑228;  McNally, 2004;  Piper, Pope, & Borowiecki, 2000).  More specifically, although repression theorists have adduced data from many studies in support of the claim that trauma victims are often unable to remember horrific experiences (Brown et al., 1998;  Brown, Scheflin, & Whitfield, 1999) these data are subject to interpretations more plausible than the repression one.  In some studies, the memory problems actually refer to everyday forgetfulness that occurs after a trauma, not an inability to remember the trauma itself.  Other examples include mistaking a failure to encode an experience with an inability to recall it, assuming that not thinking about something for a long time implies an inability to remember it, confusing reluctance to disclose a trauma with an inability to recall it, confusing attempts to forget a trauma with the ability actually to do so, and mistaking organic amnesia for psychic repression of trauma. 


 

Moreover, an analysis of studies involving corroborated traumatic events uncovered no convincing evidence that victims had forgotten, let alone repressed, their trauma (Pope, Oliva & Hudson, 1999). Genuinely traumatic events are highly memorable, as dramatically exemplified by PTSD.”  (at p127).


 


Submissions on behalf of the pursuer
[58]      Senior counsel commenced his submissions by setting out what he described as the pursuer’s two core submissions which were these: 

1. The pursuer, through no fault of his own, had forgotten, by a process other than “ordinary forgetting” that the abuse in question had occurred, from a date prior to expiry of the period under section 17 of the 1973 Act until in or about June, 2003, following the recovery of his records and

2. That, although both the pursuer and the defenders suffered prejudice as a result of the delay between the expiry of the triennium and the date of the pursuer raising the action in December, 2004, in the whole circumstances of the case the relative weight of the respective prejudice was such that it was equitable for the court to allow the pursuer to proceed with his action under section 19A, and, accordingly, the court should pronounce an interlocutor in terms of the fifth plea-in-law for the pursuer.  The balance of equity he submitted favoured the pursuer. 


[59]      Senior counsel then proceeded to outline the legal context of his submissions.


[60]      With respect to section 17 of the 1973 Act he said that it represented in Scotland a principle that existed in many jurisdictions, namely:  society has an interest in seeing that there is a cut-off point after which stale claims will not be allowed to be pursued. 


[61]      However, such a rigid role was capable of producing injustice and thus section 19A of the 1973 Act was introduced. 


[62]      The Scottish Provisions were mirrored, although the wording was somewhat different, in section 11 of the Limitation Act 1980 and a similar power to bring an action outwith the triennium in section 33 of the said Act.  Senior counsel then drew my attention to the judgment of McHugh J sitting in the High Court of Australia in the case of Brisbane South Regional Health Authority v Taylor [1996] 186 CLR 541 where certain observations were made with respect to analogous Australian provisions.  The observations of McHugh J were heavily relied upon by Lord Drummond Young in his decision in B v Murray (No 2) 2005 SLT 982.  (see:  in particular at paragraph 21).  When considering the proper approach by the court to section 19A, Lord Drummond Young founded significantly on the public policy issues identified by McHugh J and at paragraph 138 Lord Drummond Young said this: 

“The limitation period is the norm enacted by the legislature;  the discretion under a provision such as section 19A is an exception to that norm.  Consequently the onus is on the pursuers, who seek to invoke the exception to satisfy the court that special circumstances exist.  If they fail to do so, they must lose their legal rights;  that merely gives effect to the legislative policy.”

 


[63]      Senior counsel accepted that these matters were taken up by the House of Lords in AS v Poor Sisters of Nazareth 2007 SC (HL) 688 and in particular Lord Hope of Craighead at paragraph 25 made these observations:

“As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (page 255) it seems more in accord with the legislative policy that the pursuer’s lost right should not be revived and that the defender should have a spent liability reimposed on him.  The burden rests on the party who seeks to obtain the benefit of the remedy.  The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to.  But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.  This is a question of degree for the judge by whom the discretion under section 19A is to be exercised.  I do not think that Lord Drummond Young, who examined all the issues on either side of the argument, was in error in his assessment of the test or of the underlying policy of the statute.”


 


[64]      Senior counsel contended that it was important to properly understand what could be taken from these observations and in particular submitted that the observations should not be taken too prescriptively. 


[65]      In elaboration of the foregoing general assertion he said this:  the rationale was, indeed, that one started from the premise that society had decided, in principle that defenders ought to be protected from stale claims, and accordingly it must follow from that premise that the onus in satisfying the court that special circumstances existed lay upon the pursuer. 


[66]      That was apparent from the circumstance that Lord Hope’s comments dealt explicitly with the overcoming of a burden.  If the burden were not capable of being overcome, section 19A would be deprived of any meaningful content, especially bearing in mind the legislative context in which it was enacted, namely:  the provision of an equitable remedy to pursuers who might find themselves caught by the hard black lettered law of section 17.  In addition, it did not follow:  (1) that, once a defender could demonstrate any degree of prejudice, that that was sufficient to defeat an attempt to invoke section 19A, (2) nor was it the case that the circumstances in which the pursuer came to delay the raising of the action would be irrelevant, even when the defender could demonstrate prejudice and (3) the prejudice to the defender would have to come up to the standard of “the real possibility of significant prejudice”.  This he submitted was underlined by the comment made by Lord Hope, that the court must “give full weight to” the explanation for the delay “and the equitable considerations that it gives rise to”.  Even then, that would “usually”, (but not invariably) determine the issue in the defender’s favour.  As Lord Hope pointed out, it was a question of degree for the judge to consider. 


[67]      Senior counsel sought to emphasise this:  the court should be careful not to slip into an error of this type, namely:  seeing superficial similarities between the instant case and B v Murray (No 2) and AS v Poor Sisters.  What the court should be careful not to do was to hold:  because Lord Drummond Young came down in B v Murray (No 2) against the exercise of the equitable power and was upheld in the House of Lords that the court of necessity in the instant case must come to the same conclusion.  This would not be a proper approach, first because the facts as they affected both parties in the present case were materially different from those in B v Murray (No 2) and secondly, even if the facts were substantially similar, it was inherent in the exercise of any discretion that different judges, looking at identical circumstances may reasonably come to different conclusions.  His position was this:  considered properly, the House of Lords in AS v Poor Sisters did not go beyond the conclusion that Lord Drummond Young’s exercise of his discretion did not fall outwith the range of decisions to which a judge might reasonably have come.  It was his position in summary that B v Murray (No 2) and AS v Poor Sisters were of only limited, if any use, as precedents in relation to the issue before this court;  namely:  the actual exercise of the equitable power in section 19A.  Individual cases depended upon their own individual facts and given that the range of outcomes based on a particular set of facts to which a court might reasonably come might result in either the exercise of, or of the refusal, to exercise the equitable power. 


[68]      Senior counsel also drew my attention to A v Hoare [2008] 1 AC 844.  He in particular drew my attention to the observations of Lady Hale made at paragraph 60 where she stated:

“It may well be more satisfactory to transfer the question into the exercise of discretion under section 33.  Then the injustice to a claimant who may be deprived of his claim, perhaps as the result of the very injuries which gave rise to it, can be balanced against the injustice to a defendant who may be called upon to defend himself a long time after the event where important evidence may no longer be obtainable.  I fully support the more generous approach to the exercise of discretion which is adopted in particular by Lord Hoffman.  The reasons for the delay are highly relevant to that exercise, as of course are the prospects of a fair trial.  A fair trial can be possible long after the event and sometimes the law has no choice.  It is even possible to have a fair trial of criminal charges of historic sex abuse.  Much will depend upon the circumstances of the particular case.  But the policy argument applies just as much to the whole ‘date of knowledge’ provision as it does to the definition of significance with which we are concerned.  With a properly directed discretion one should not need the date of knowledge provision at all.  Nor are the difficulties faced by a defendant, whose breach of a strict statutory duty may have resulted in some insidious industrial disease necessarily less deserving of consideration than the difficulties faced by a defendant whose deliberate and brutal actions towards a vulnerable person in his care may have resulted in immediate physical harm and much later serious psychiatric sequelae.”


 


[69]      In addition senior counsel generally drew my attention in the said case to the speech of Lord Hoffman at paragraphs 49 to 52 and Lord Brown of Eaton-under-Heywood at paragraphs 84 to 87.  Senior counsel went on to refer to one further authority in which against the background of AS v Poor Sisters and A v Hoare the court of appeal gave guidance on the criteria to be considered in the exercise by the court of its equitable power and this was the case of B and Others v Nugent Care Society [2010] 1 WLR 516.  The approach which the court should take was summarised at paragraphs 24 and 25 where this was said: 

“This echoes Smith LJ’s own formulation, which we believe to be consistent with our approach in paragraph 73: 


 

‘It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement.  The length of the delay will be important, not so much for itself as to the effect that it has had.  To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum?  But it will also be important to consider the reasons for the delay.  Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed.  On the other hand the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.’”


 


[70]      From the foregoing authorities senior counsel sought to take the following points: 


The reply on behalf of the defenders
[96]      It was submitted on behalf of the defenders that the evidence in this case had centred on a single averment in article 7 of condescendence, namely: 

“When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered.  The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind.  It was an involuntary process known as dissociative amnesia.” (p21 E to p22 B).


 


[97]      Given how the evidence had developed the defenders advanced two broad submissions: 

(a) Even if the foregoing key averment was proved, it was not equitable to allow the action to proceed given the material prejudice that the defenders had suffered, principally with the death of Miss D on 30 January 1980 shortly after the expiry of the triennium (the primary argument). 

(b) In any event, the pursuer had failed to prove the key averment (the secondary argument). 

 


The defenders primary argument
[98]      In development of this primary argument senior counsel submitted that the present case could not be distinguished from the decision of Lord Drummond Young in B v Murray (No 2). 


[99]      Briefly in that case the evidence had been this:  the three pursuers had led evidence from a psychologist, Dr Tierney, of repression of memory.  They primarily relied on a diagnosis of “disorder of extreme stress not otherwise specified” (DESNOS) but they also relied, as did the present pursuer, on dissociation and amnesia as the second possible reason for delayed disclosure.  Dr Boakes gave evidence for the defenders. 


[100]    Senior counsel contended that the decision of Lord Drummond Young could be broken down into two parts: 


[101]    It was accepted on behalf of the defenders that the first part of Lord Drummond Young’s decision was not a precedent as it was a fact based conclusion.  However, what was advanced was this:  the Lord Ordinary’s second conclusion was a precedent in that it was directly applicable to the instant case and was adverse to the pursuer.  Proof that the pursuer suffered from dissociative amnesia did no more than place the pursuer in an equivalent position to the pursuers in the B v Murray (No 2), each of whom was accepted to be suffering from specific psychological or psychiatric disorders that contributed to the delay in commencement of the proceedings.  Nonetheless the pursuers in B v Murray (No 2) were held not entitled to an extension of time under section 19A because of the prejudice suffered by the defenders.  The defenders primary position flowing from that analysis became this:  a diagnosis of dissociative amnesia was no more sufficient to overcome the prejudice suffered by the pursuer in the present case than the range of psychological and psychiatric disorders from which the pursuers suffered in B v Murray (No 2).  The balance of the equities, on the authority of the B v Murray (No 2) case remained with the defenders. 


[102]    Senior counsel turned to look in some detail at Lord Drummond Young’s decision and to elaborate on his position that the B v Murray (No 2) case was indistinguishable from the instant case, even if the pursuer was suffering from dissociative amnesia.  Senior counsel highlighted the following points: 


[103]    However, despite accepting the above Lord Drummond Young had at paragraph 109 said this: 

“In summary, accordingly, I conclude that (i) all three pursuers suffered personal and psychological problems that would tend to inhibit them from raising court proceedings, both between the ages of 18 and 21 and subsequently;  (ii) all three pursuers did not think that they would be believed if they made complaints about their treatment at Nazareth House, between the ages of 18 and 21 and for at least a substantial number of years thereafter;  (iii) and the pursuers did not consciously realise until 1997 that they could raise legal proceedings against the defenders, although that was the result of lack of thought rather than consideration and rejection of proceedings.  I accept that all of these provide some explanation for the failure to raise proceedings before 1997.  Even when they are taken together with the reluctance of the pursuers to speak about their experiences in Nazareth House, however, I am of the opinion that these factors are heavily outweighed by a number of other matters that are relevant to the exercise of the courts discretion under section 19A.” 

 


[104]    In reaching that conclusion senior counsel submitted that Lord Drummond Young had based his reasoning on the rationale for limitation periods as identified in the judgement of McHugh J in the Australian case of Brisbane South Regional Health Authority v Taylor.  A critical point to be taken from the discussion was this:  the law of limitation reflected the presumption that the quality of justice deteriorated with delay.  The significance of a loss of material evidence was that it transformed presumed prejudice into actual prejudice to the quality of justice and plainly a claim should not be allowed to proceed if the quality of justice had deteriorated.  That was particularly so given, as Lord Drummond Young observed in paragraph 22, the loss of material witnesses was combined by the inevitable deterioration in the quality of evidence that remained available because of the long passage of time. 


[105]    Senior counsel particularly relied on one passage in McHugh J’s judgement: 

“Legislatures enact limitation periods because they make a judgement, inter alia, that the chances of an unfair trial occurring after the limitation period has expired is sufficiently great to require the determination of the plaintiff’s right of action at the end of that period.  When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice.  The defendant has then proved what the legislature merely presumed would be the case.  Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action.  When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period.  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur.  It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it.  This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action”. 

 

[106]    In light of the foregoing senior counsel submitted the relevant question for the court was this:  whether the defenders had suffered prejudice of a significant kind?

[107]    Senior counsel sought to tie in Lord Drummond Young’s observations on prejudice with the prejudice which he submitted had been sustained in the present case and made the following detailed points: 

Lord Drummond Young’s decision in B v Murray (No 2) was upheld in the Inner House and in the House of Lords.  Senior counsel directed my attention to one particular passage in the speech of Lord Hope in the House of Lords: 

“In Carson v Howard Doris Ltd (p 282) Lord Ross said, shortly after the provision was enacted, that the power conferred by the section should be exercised sparingly and with restraint. There is a risk that if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances. But the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor (p 255) it seems more in accord with the legislative policy that the pursuer's lost right should not be revived than that the defender should have a spent liability reimposed on him. The burden rests on the party who seeks to obtain the benefit of the remedy.  The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion under sec 19A is to be exercised”.  (see: paragraph 45). 

 

[108]    Senior counsel before turning to examine the evidence in the instant case relative to the issue of prejudice to the defenders made certain observations with reference to the decision in A v Hoare.  He said this:  translating that decision to the equivalent Scottish provisions, it held that the test under section 17(2) of the 1973 Act is an objective one but the claimant who was subjectively unaware of relevant facts can carry over that subjective lack of knowledge to the section 19A assessment:  (see, in particular, paragraphs 34 and 42 to 45).  In that case it was argued that one of the claimants had, “blocked out his memory”, or put his memories, “in a box with a tightly sealed lid in the attic” (see: paragraph 42).  It was held that the claimant had, “in some sense suppressed” (see:  paragraph 45) relevant knowledge i.e. knowledge that would be relevant in Scotland under section 19A.  Senior counsel submitted that the present pursuer would undoubtedly rely on that decision to argue that the suppression of memory as a result of dissociative amnesia is relevant to section 19A.  That may be so, but it was crucial to note that Hoare was decided before the hearing of AS v Poor Sisters in the House of Lords.  He submitted that it would be apparent from the foregoing summary that each of the three pursuers was able to found on psychological or psychiatric disorders as contributory factors in the delay in commencement of proceedings and therefore Hoare was germane to their cases and relied upon by them.  Hoare was discussed by the House of Lords in AS v Poor Sisters (see:  Lord Hope at paragraphs 26 and 27).  The decision in that case was therefore subsumed within the conclusion of the House of Lords in AS v Poor Sisters and for present purposes the key guidance was that quoted in the speech of Lord Hope above.  Suppression of memory, whether as a result of dissociative amnesia or otherwise, and other grounds in which a claimant may subjectively have lack of knowledge of relevant facts are factors relevant to the section 19A assessment, “But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour” (see Lord Hope above).  The prejudice suffered by the defenders in B v Murray (No 2) was sufficient to outweigh the pursuer’s reasons for delay.  The same he submitted was true in the instant case. 

[109]    Senior counsel submissions regarding the prejudice suffered by the defenders in the instant case fell under a number of heads and can be summarised as follows: 

[110]    So far as the points made by the pursuer in seeking to answer the above prejudice senior counsel said this:  with respect to numerous other witnesses being available that could speak to the issues in dispute in the case and in particular the averred persons who were said to be available and had been resident in cottage 20 at the relevant time and the pursuer had named four children.  One, Mr D A, was confirmed to be dead and Mr D J was not traced by those acting for the pursuer.  Evidence was led by one of the four, Mr J, belatedly.  Mr Gary Thompson gave evidence that a second potential witness, Mr A, had been traced.  With respect to Mr J’s evidence senior counsel sought to make one point in relation to the issue he was presently discussing:  the potential availability of evidence from other children who had been in care was a point raised by the pursuers in the B v Murray (No 2) case to offset the prejudice caused to the defenders by the death of certain significant witnesses.  Accordingly this was not a point in which the instant case could be distinguished from B v Murray (No 2) on the contrary, Lord Drummond Young sympathised with the defenders reluctance to make unsolicited approaches to individuals who were formerly in care (see:  paragraph 123).  Mrs Bell had given evidence of the difficulties in searching Quarriers records to identify those who were in cottage 20 at the relevant time and in re-examination she was wary of unsolicited approaches because of the potential to cause distress.  That potential had been borne out in the present case following upon the approach by the pursuer’s agents to Mr A.  He submitted that had the action been raised timeously the defenders would only have required to have gone to Miss D for a comprehensive answer to the allegations.  Given the obvious and inevitable risk of creating distress, it was quite intolerable to expect the defenders, more than 30 years from the events, to undertake a speculative trawl for witnesses who might be able to assist in the absence of Miss D.  That was all the more intolerable when the underlying premise was contrary to principle anyway.  But the defenders did not need to show prejudice to the extent of a loss of all relevant witnesses;  it was sufficient that they had suffered a loss of material evidence and it was his position that that was undeniable in the present case. 

[111]    Senior counsel in particular drew my attention to the fact that according to the evidence of Mr Dunbar there had not been much communication between house parents and therefore he was unable to name anyone who might assist.  He was aware of the register of house parents who assisted and doubtless it may be said that by using that register the defenders might be able to trace some of the assistants who worked in cottage 20 from 1965 to 1971.  However, even if that were to be so, it would only bring the matter closer to the facts of the case of B v Murray (No 2).  It would bring the case to the point where like in B v Murray (No 2), some but not all of the relevant witnesses were missing.  It was his position that given the highly personal nature of the allegations against Miss D, her absence was sufficient prejudice to the defenders.  Senior counsel then moved on to look at the evidence of Mr J and it was submitted that his evidence was not relevant to the section 19A proof. 

[112]    Senior counsel put forward two detailed submissions in support of the above contention: 

[113]    In conclusion, in terms of this branch of the argument, senior counsel’s position was this:  the present case was a classic case within the guidance given by the House of Lords in AS v Poor Sisters: 

“The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to.  The proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour”. 

 

[114]   Even if dissociative amnesia was to be accepted as the explanation for the delay there was real prejudice to the defenders on the various grounds, put forward and that was determinative.  For these reasons the pursuer’s fifth plea in law should be repelled. 

 

The defender’s secondary argument
[115]    Senior counsel then turned to his secondary argument, namely:  that the pursuer had failed to prove dissociative amnesia. 

[116]    In development of his secondary argument senior counsel commenced by making certain general observations regarding the admissibility of expert evidence:  the proof proceeded with both sides aware of the limit of admissible expert evidence.  Expert evidence could not be led on matters that were within the experience of the judge or the jury:  Lawson v Her Majesty’s Advocate [2009] JC 336 at paragraph 58;  Gage v Her Majesty’s Advocate [2012] SCCR 161;  and Kennedy v Cordia Services [2014] SLT 984 at paragraph 15.  Counsel contended that the reliability of human memory was, at one level at least, a matter of common human experience and therefore not a matter for expert evidence.  However, in this case that point was complicated by the fact that the pursuer relied on the presence of a specific psychiatric disorder, namely:  dissociative amnesia and therefore there was no alternative but to lead evidence from psychiatrists.  However, the building blocks of the diagnosis were familiar jury questions:

Beyond that senior counsel submitted that there was a fourth question which he intended to look at later:  did the events in question cause injury? 

[117]    Senior counsel observed that the first three questions could as readily have been approached without the benefit of expert evidence.  The significance of the expert evidence, on that view, was no more than this:  it confirmed that issues such as:  (a) the inconsistencies in the pursuer’s account of his relationship with his father;  (b) documented references to running away were not incidental details.  They were objective signs of true unreliability. 

[118]    Senior counsel accepted that the first question which he had posed above gave rise to a dilemma in a section 19A proof which was not intended to be the forum for ascertaining the truth of the allegations.  Rather he submitted the evidence had, correctly, focused on the second question;  and it had done so on a tacit assumption:  assuming that the events described by the pursuer did occur, were these events forgotten between 1971 and 2003?  The defenders did not invite the court to make any findings on the first issue.  It would not be appropriate to make such findings in a section 19A proof.  It was submitted that a clear finding could be made on the second issue.  Essentially the second issue focused on the question of whether the key averment had been proved.  Determination of that issue in the defenders favour was sufficient for disposal of the case. 

[119]    Having regard to the proper limits of expert evidence senior counsel’s approach was that there were two issues which arose from the expert evidence:  first consideration had to be given to the diagnosis of dissociative amnesia from the perspective of the psychiatric evidence.  The second was this:  to pick up wider indications of the unreliability of the pursuer evidence.  These two issues, were, of course, not separate because if general considerations indicated that the pursuer was unreliable, that may affect the foundation of the medical diagnosis.  Doctors may assume that a patient had given them a reliable account and on that basis they may arrive at a diagnosis.  However, that diagnosis ought not to be accepted by the court, if the account given was held by the court to be unreliable. 

[120]    Senior counsel’s approach to the evidence of the two expert witnesses was to this general effect:  (1) to concentrate on the areas in which the two doctors agreed and (2) on the basis of the extent of that agreement to submit that the court should not seek to resolve what he characterised as the “memory wars”.  It was his position that the issues requiring to be resolved by the court did not require resolution of that particular issue. 

[121]    He contended that the experts agreed on the following: 

[122]    Senior counsel having outlined the above propositions submitted this:  the court did not need to look beyond the Geraerts’ paper in relation to the expert evidence.  In elaboration of that argument he submitted:  a diagnosis of dissociative amnesia began with the simple proposition that information had been forgotten.  Different scenarios were discussed in evidence, Professor Freeman primarily spoke of his experience with soldiers who were immediately deprived of memory of dramatic events.  The pursuer was not in that category because he was alleged to have suffered delayed onset forgetting beginning at the age of 13, the contention being that “the shutters came down” as he drove away from Quarriers to a place of safety at his father’s home.  He then identified the two reasons, which he submitted justified not moving beyond Geraerts: 

(a) The first was this:  there was evidence of “forgotten remembering” by the pursuer, which called into question whether he truly forgot “the bad things” between 1971 and 2003. 

(b) Secondly, the pursuer exhibited one of the common signs of “forgotten remembering”:  the tendency to deny objective evidence of prior remembering. 

[123]    It was senior counsel’s position regarding forgotten remembering that the pursuer’s key averment was that when he reached a place of safety, “he ceased to have any memory of the abuse he had suffered” until 2003.  However, in relation to two of the allegations (bullying and running away from the children’s home, see:  the closed record at page 7B) there was evidence of prior remembering.  Despite the pursuer’s denial in chief and cross to any memories of the substance of his complaints between 1971 and 2003, there was evidence that the pursuer must have had a memory of at least some of the relevant events between those dates.  This evidence disproved his case that he had ceased to have memory of the “bad things” in that period.   

[124]    Counsel in support of the above contention analysed in some detail the evidence and these submissions are conveniently set out in his written submissions and were as follows: 

“31.      (the pursuer) moved to Cottage 34 just before his 13th birthday in 1971 and in chief he described two incidents of bullying on his 13th birthday when he got in to trouble with Mrs S (the house parent) because he had dirtied two sets of clothing.  Given his age we can safely assume that he was at secondary school when these incidents occurred.

32.       He was specifically asked in cross whether bullying was something that he had forgotten until 2003 and he answered in the affirmative.

33.       There are however references in his medical notes in the period 1971‑2003 showing he remembered such. 

34.       In cross (the pursuer) was first asked about the letter of 19 February 1987 that simply mentions being bullied at school.  This was explained as a reference to an incident when he was 6 (i.e between stays at Quarriers) and was picked up from school by his mother.  He said that it could not have been a reference to him being bullied at Quarriers because he did not have a memory of that then.

35.       He was then taken to the manuscript notes of the interview to which that letter relates.  Those notes refer to being bullied at both primary and secondary school with the added assistance of a contextual reference to trying to run away.  His explanation was that bullying at primary school was a reference to the incident previously described when he was 6 and he then added that he was also bullied at secondary school after he had left Quarriers.  His evidence was that it was not possible that these references were to bullying at Quarriers because the memory was not there, it had been wiped out.  Even the reference to running away did not move him;  the memories were blanked (or blocked) out, the shutters came down after the drive home.

36.       Given the contextual reference to running away it is suggested that these are most likely to be references to a memory of having been bullied during his time at Quarriers.  His poor attempt to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering.  Furthermore, we can plainly see the impact of the contamination of his evidence by the past professional advice that he has received.  He could not explain these entries and hid behind the mantra that he had blocked or blanked his memory.

Running away

37.       Running away provides even clearer evidence of the tendency to which Geraerts referred.

38.       Like sexual abuse, this was a point omitted in chief but it required only a gentle prompt to bring out a lengthy and lucid account of running away twice from Quarriers.  The pursuer’s evidence was that he can even now picture being in the coal bunker and said that this was one of the memories that came back after the BBC programme.

39.       [There are references in his medical records to these events in the period 1971‑2003] and begin with a non-specific reference (tried to run away – while at primary school), progressing to a slightly more specific reference (‘ran away from the home’), finishing with an unambiguous statement (‘ran away from the children’s home’).

40.       In cross (the pursuer) first said that he had no memory of having said that he had run away.  Later, asked to address the 1991 entry (‘the home’), he said that this must be referring to his home with his father.  Questioned on the use of the definite article (the home) he then said that he could not explain that;  he was not talking about Quarriers to the best of his memory.  He again referred to memories being blanked out and suggested some error on the part of the doctors.  Finally, taken to the unambiguous reference to running away from the children’s home he is noted as  having replied:

I do not remember saying that.  If I said that then why did the memories not come back then, and not had a break down at that point instead of 2003.  I would have remembered about Quarriers back then.  I have no memory of saying that to the doctor.

(Can I say) If I am so bad from the age of 13 onwards, you’ve tried to say it comes from my father and mother.  I think it comes from Quarriers.  I was moody, all I wanted was to go home.

41.       The Court is invited to look at the general context of these entries.  It is clear that these entries are referring to his time at Quarriers.  They cannot reasonably be construed as references to running away from his father’s home.

42.       These entries are objective evidence that the pursuer must have had a memory at times between 1971 and 2003 of at least some of the ‘bad things’ of which he now complains to have had no memory until 2003.  Again, his poor attempts to give an alternative explanation for these entries is evidence of the tendency referred to in Geraerts’ to deny objective evidence of prior remembering.

43.       In some of his questions Mr Mitchell QC with respect tried to split hairs;  perhaps (the pursuer) remembered running away but not the reason for it.  On that view, it might be argued that having some memory of running away is not inconsistent with forgetting the ‘bad things’.  That argument would be contrary to the evidence of [the pursuer].  He was asked directly in cross whether he had any memory of running away before the Frontline Scotland programme in March 2003 and he answered in the negative.  The Court should not entertain a theory that is inconsistent with the pursuer’s answer to that question.  The argument presupposes that, contrary to his evidence, the pursuer had some memory and leads inevitably to speculation about the full extent of his memory but no reliable conclusion can be reached because, again, we encounter the insurmountable obstacle that his evidence relating to the state of his memory is now contaminated. 

 

[125]    On the basis of the foregoing evidence senior counsel invited the court to hold that the pursuer had memory of at least some of the events giving rise to the action before 2003 and that that was inconsistent with him suffering from dissociative amnesia. 

[126]    Beyond that he submitted: 

“45.      It is acknowledged on all sides that, in medical terms, the pursuer would be termed a poor historian.  He has very little recall of his medical history.  That can be contrasted with his present clarity in relation to the details of his allegations.  His, ‘utter preoccupation’, means that he can spontaneously recount his allegations.  Despite his current assertion that he had no recall of the abuse until he read his notes in Epsom, one can understand why he was repeatedly asked in chief what had aroused his ‘curiosity’ to ask for his notes from Quarriers the day after the TV programme.  Something must have aroused his curiosity.  It is not without some significance that when asked in re-examination what had prompted him to ask for access to his records in April 2003, he said something along the lines that he remembered that [Miss D] kept records in a cupboard in her study.  That betrays relevant memory of the detail of his time at Quarriers.  To that one can add that by his own admission he had never forgotten [Miss D] and, of course, by the time he approached Quarriers for his records he knew that she was dead.  Taken with the unequivocal evidence of memory of running away prior to 2003, [the pursuer] plainly must have had a greater range of memories before 2003 than he now acknowledges.  A failure to think about events is not to be confused with amnesia.  It need not be concluded that the pursuer has lied.  It suffices to conclude that he is an unreliable witness for the reasons discussed in this submission and, as already submitted, we probably have an unknown psychologist or psychiatrist to thank for the critical problem running through this case. The pursuer is now firmly of the view that his memory was ‘blanked’ or ‘blocked’ and the shutters had come down when he drove down the driveway as he left Quarriers in 1971 but that is no more than an unfounded assertion.  It does not stand up to scrutiny.

46.       Professor Freeman correctly accepted that it is oxymoronic to expect an individual who has forgotten something to be able to say when he or she first forgot it.  The pursuer’s evidence, not only that he forgot the events of which he now complains, but also that he can recall that he forgot it on the drive home from Quarriers (which is when the shutters came down) is simply not tenable”.

 

[127]    There were in addition to the above two matters other factors which senior counsel relied on in contending that the evidence of the pursuer could not be relied upon.  The first of these factors was contamination of the evidence.  In the evidence of the pursuer’s wife, she was asked in chief by senior counsel for the pursuer whether she had ever had a discussion with the pursuer regarding why he had been “like this” since 2003, she responded broadly in the following terms: 

“Why do you feel suicidal?  Just because (pause) I think what happened, the psychiatrist explained it was like what the memories in his mind was put somewhere safe, to keep him safe and that programme was like turning the heat on and all the memories came out.” 

 

He then turned to the evidence of Dr Boakes who had said:  the explanation that the pursuer was given by a psychologist and/or a psychiatrist had contaminated his evidence.  As a consequence neither Professor Freeman nor Dr Boakes could get a clear explanation of:  (a) the state of his memory prior to 2003;  or (b) the precise trigger for his “recall” of the memories in 2003.  In his evidence to the court the pursuer resorted to what counsel described as “mantra like repetition of the statement that ‘the shutters came down’” as he drove away from Quarriers and from that point his memories of the “bad things” were “blank” or “blocked”.  Particularly given the evidence of forgotten remembering one could only conclude that the whole edifice of repression of memory was built on, and derived from, the explanation that some unknown psychiatrist or psychologist had given to the pursuer probably in 2004. 

[128]    The second factor was this:  the implications of the pursuer’s diagnosis as suffering from borderline personality disorder.  Both Professor Freeman and Dr Boakes were agreed on this point.  Borderline personality order would make the pursuer prone to inconsistency in his account of his relationships and senior counsel submitted that that had been seen in the course of the evidence relating to his father.  In summary there was a clear contradiction between what the pursuer said to Professor Freeman (that his father hit him around the ears) and his repeated denials in cross‑examination that he had been hit by his father.  The significance of this point was that it went to the heart of Professor Freeman’s hypothesis that the pursuer was able, subconsciously, to repress his memories of the abuse when he reached a place of safety.  Dr Boakes in her evidence questioned the hypothesis that memories may be forgotten when a person reaches a place of safety but the court need not resolve that debate.  The simple fact was that, standing the contradictions in his evidence, the pursuer had simply failed to prove the premise that his father’s home was a place of safety.  The contradictions on this issue of whether his father hit him were sufficient to reach that conclusion, but these doubts were magnified by the evidence of attempts at suicide between the ages of 13 and 21.  The point was this:  if the pursuer was in a place of safety then why did he attempt suicide? 

[129]    The pursuer’s key averments required proof of two facts: 

(1)  That the pursuer was in a place of safety from the age of 13; 

(2)  He ceased to have any memory of the abuse he had suffered from 1971 until 2003. 

[130]    Proof of these two facts was also critical to Professor Freeman’s theory of dissociative amnesia.  His premise was that subconscious repression of memory may occur as a protective mechanism when some victims of abuse or trauma reach a place of safety.  Of course, even if the pursuer was in a place of safety, that merely provided the environment in which it was claimed that amnesia may occur.  The second question was whether amnesia did occur in the pursuer’s case.  The determination of each of those two facts was uniquely dependent on the reliability of the pursuer’s evidence because only he spoke to each of these matters.  On the first point his reliability was undermined by the complication of his borderline personality disorder.  As for the second, his reliability was undermined by the fact that his evidence was contaminated by professional advice that he had received.  The pursuer’s section 19A argument could and should be rejected on the basis of these two grounds alone.  The court ought not to accept contaminated evidence from the central point of issue in the case and certainly should not accept expert evidence where the factual foundation of the expert’s opinion, namely:  the assumption that the pursuer was in a place of safety from the age of 13 was contrary to the evidence.  The evidence of forgotten remembering provided confirmation of the strength of these two points. 

[131]    Having looked at the unreliability of the pursuer’s evidence with regard to the medical diagnosis of dissociative amnesia senior counsel submitted that the pursuer’s unreliability went beyond this and into his general evidence which he submitted was riddled with indications of unreliability. 

[132]    There were four specific areas within the evidence of the pursuer which highlighted this submission: 

[133]    From these four factors senior counsel submitted as follows in his written submissions: 

“52.      We do not know the truth of these matters but that is not the issue.  It is the fact that there are contradictions between the pursuer’s evidence and those entries that raises questions about his reliability.  We can perhaps set the state of his marriage to the side because the explanation given in evidence may be tenable:  the differing accounts in his medical records may be historical in the sense that they reflect the state of his marriage at the time of the various consultations with doctors.  The three other matters cannot be dismissed so readily.

53.       The case based on dissociative amnesia proceeds on the basis that when he left Quarriers at age 13 and reached, ‘a place of safety (he had returned to live with his father) he ceased to have any memory of the abuse he had suffered’.  That can be broken down in two parts:

(a)        was the pursuer in a place of safety from age 13?

(b)        did he cease to have any memory of the abuse from age 13 until 2003?

54.       It has already been submitted that being hit by his father does not fit with the picture of being in a place of safety from age 13.  (The pursuer) strongly denied in his evidence in Court that he was hit by his father but he had no explanation for the references in [his medical records].  As already observed, any thought that the problem lies in mistaken note-taking can be ignored because we have the unchallenged evidence of Professor Freeman in both chief and cross that the pursuer told him that he was hit by his father.

55.       Of course, Professor Freeman did temper the evidence of hitting by saying that the pursuer told him that there was a distinction between his father and [Miss D], the difference being that what the father did was appropriate for the time.  That is irrelevant.  What is crucial is that his account to Professor Freeman of being hit by his father was flatly contradicted by (the pursuer’s) evidence in Court.

56.       The conclusion that the pursuer has failed to prove the key averment (that he was in a place of safety from age 13) is reinforced by the lack of satisfactory explanation for the multiple references to attempts at suicide from age 15 [as listed in his medical records].  Asked at the end of chief if he had felt suicidal before 2003 he gave an odd answer:  ‘No, not that I can remember’.  At the start of cross, asked about, ‘suicidal thoughts’ before 2003, he mentioned one incident in 1974 aged 16 when he was upset and went in to the bathroom and put a chain around his neck but he said that he did not want to kill himself for any reason.  Later in cross, asked about attempting suicide aged 15, he denied having done so but accepted that he may have told people that he had and he mentioned a second incident, aged 15, at a summer camp in Aberdeen, when he was playing with the cord of venetian blinds, which he again denied was an attempt to commit suicide.  On Day 2 his explanation was this:

‘When I look back I did not attempt to kill myself at 15’.

Why then, in December 2002, was there the reference to ’17 tried to hang self’ in the context of suicidal ideation in 2002?  Finally there is the allegation of sexual abuse.  It has to be recalled that this is no more than an allegation.  It was omitted from his evidence in chief, but he need only to be lightly prompted in cross.  The ability of the pursuer to give a lucid account of this allegation (of sexual abuse) is another example of his obsessive preoccupation with his allegations and is in sharp contrast to the tenor of the rest of his evidence, which was hesitant and largely betrayed a lack of detailed recollection.  He has told us that subsequent to his breakdown he reported the sexual abuse to the police who interviewed the individual in question.  The individual denied it and the police decided to take the matter no further, though the investigation is apparently still ‘open’.  Though he said that this incident was only 0.5% of what ran through his head compared with the 99.5% contribution for the abuse by [Miss D], the peculiarity is that the pursuer contends that he rarely speaks of it because he finds it too upsetting to talk about.  Two points can be taken from this:

(a)        As with the reports of attempts at suicide from an early age, the significance of the alleged sexual abuse has itself been reinterpreted by the pursuer.  Gone is the belief in August 2003 that his depression from an early age may have been attributable to the sexual abuse and now he believes that it is solely due to the abuse by [Miss D].  Reinterpretation of events by a man so far obsessed with this case that doctors in the NHS will not treat him until the case is over is a clear mark of unreliability.  That is reinforced by the denial in cross that there ever was a period when he ruminated on the sexual abuse, which is contrary to the medical entries in June 2004 and January 2005.

(b)        Professor Freeman and Dr Boakes are agreed that, other things being equal, the allegations of sexual abuse are on the minor end of the scale and ought not to have had a material bearing on the pursuer’s mental health.  That said, in cross, Professor Freeman conceded that it was paradoxical that the pursuer was willing to speak about the physical abuse but less willing to speak about the sexual abuse.  That paradox is a further mark of unreliability”.

 

[134]    Next senior counsel in relation to the second branch of his submissions addressed the issue of causation. 

[135]    Senior counsel accepted that establishment of causation formed no part of the preliminary proof.  However, he submitted that the issue did have certain relevance: 

“58.      Both Professor Freeman and Dr Boakes agree that the pursuer’s condition deteriorated after the trip to Epsom.  Professor Freeman argued that because, in his opinion, there was no cause for the deterioration other than recall of his memories, this deterioration confirms that the pursuer must have been suffering from amnesia before that date.  Professor Freeman, with respect, fell in to the trap of the post hoc, ergo propter hoc fallacy.  The paradox concerning the sexual abuse undermines the assumption made about the cause of the deterioration but, in any event, there is reason to doubt even the account of a spontaneous recall of the memories while at Epsom.

(a)        If, as the pursuer maintained in both chief and cross he cried when he was admitted to the hospital in Penrith and told the doctors that he had been abused at Quarriers, why is that not recorded in the medical records?  Why does the Penrith note refer to other stressors in his life at that time?

(b)        Both Professor Freeman and Dr Boakes have struggled to understand what the trigger might have been for his recall of the memories of the abuse.  The Quarrier notes are frankly anodyne.  The best that Professor Freeman could do was to suggest in chief that the notes were an indirect trigger.  His belief was that the pursuer had first read his notes in Epsom.  The pursuer’s evidence was that Pam Barr had read over the notes to him at Quarriers.  In cross Professor Freeman told us that he was unaware of that fact Professor Freeman candidly accepted that this makes the trigger all the more difficult to understand.

(c)        There may be a simple explanation here.  Professor Freeman gave evidence that memories are affected by the context in which they are recalled.  The example that he gave was a trip to Disneyland but in cross he accepted that the Penrith note shows a number of stressors at play on 27 June 2003 that are bound to have coloured the pursuer’s perception of his time at Quarriers.  Far from it being the case that the pursuer was recovering memories forgotten since 1971, the most likely explanation is that in 2003 he found himself, in a dark situation, thinking over memories that he may not have thought about in recent times.  That is consistent with the other evidence of ‘forgotten remembering’ and is not consistent with amnesia.”

 

[136]    Before concluding his submissions in relation to branch two there was one further broad submission made by senior counsel and that related to what he described within his written submissions as the alternative theory.  In terms of this part of his submissions it is conveniently summarised within his written submissions as follows: 

“47.      In re-examination Professor Freeman seemed to modify his theory.  He postulated an explanation for the possibility that the pursuer might have occasionally remembered matters such as running away;  he argued that dissociative amnesia can be continuous or episodic.  The psychological mechanism that may cause periods of amnesia was not explained but we need not pursue that matter.  The fact that there may have been periods of remembering is all that matters.  There is a grave risk that one gets distracted by the pursuer’s whole life story.  The proper focus is on the question whether the pursuer has proven a reason for him having failed to raise proceedings during the triennium, which means before he turned 21.  The period when he was aged between 13 and 21 is the vaguest period in his life and subject to the gravest questions about his reliability on points of detail such as his relationship with his father and the references in his medical records to attempts to commit suicide.  Those will be discussed later in this submission.  Far from providing an answer, the alternative theory accentuates the problem.  It leaves wide open the possibility that the pursuer had memory of the events during the period from age 13-21 and that is fatal to his case.

 

Dr Boakes

48.       The examination in chief of Professor Freeman proceeded on a number of mistaken assumptions regarding Dr Boakes’ evidence.  One has already been commented upon.  A second mistaken premise was that Dr Boakes was open to criticism for not committing herself to any one explanation as an alternative to dissociative amnesia.  Dr Boakes is not open to criticism.  She cited the McNally & Geraerts article in 2009 that postulates a number of alternative explanations.  She told us of some of the relevant possibilities.  In chief her evidence was that she could not be more specific because of the uncertainties in this case.  That is an entirely proper approach to take.  Indeed, given the wide range of inconsistencies and contradictions, it is settling on one conclusion (dissociative amnesia) that is unjustified”.

 

[137]    Senior counsel summarised his position on the second branch of his argument as follows:  one of the propositions advanced in Geraerts’ article is that more information was needed to sort out the nature of the individual’s recollection of previously forgotten information.  The court now had the benefit of more information in the form of the pursuer’s evidence to the court and during this proof detail emerged of which the experts were unaware at the time they examined him.  He submitted that two conclusions could be drawn: 

 

Discussion
Introduction to discussion
[138]    I would at the outset wish to express my appreciation for the careful and comprehensive submissions of both senior counsel. 

I would intend to consider the questions before me in the order in which senior counsel for the defenders looked at them in the course of his submissions, namely:  to examine first this question:  assuming that the pursuer has proved that after leaving Quarriers at age 13 he ceased to have any memory of the abuse he suffered, due to an involuntary process known as dissociative amnesia, is it equitable to allow the action to proceed? 

[139]    In considering the above question I have adopted the approach of:  McHugh J in Brisbane South Regional Health Authority v Taylor as followed by Lord Drummond Young in B v Murray (No 2) and approved by the House of Lords in the AS v Poor Sisters.

[140]    The proper approach to the above question is encapsulated by Lord Hope in AS v Poor Sisters where after considering the judgment of McHugh J he says this:

“The court must of course give full weight to the explanation for the delay and the equitable considerations that it gives rise to.  But proof that the defenders will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour.  This is a question of degree for the judge by whom the discretion under section 19A is to be exercised.”

 

[141]    It was a matter of agreement between parties that the burden of establishing that the court should exercise its discretion in terms of section 19A to allow the action to proceed falls on the pursuer.  He has, as McHugh J observes in Brisbane South Regional Health Authority v Taylor:  “The positive burden of demonstrating that the justice of the case requires that extension.” 

[142]    The starting point is therefore to examine the pursuer’s explanation for the delay and the equitable considerations it gives rise to.  In accepting, for the purposes of considering this question that the reason for the delay in raising the action was dissociative amnesia it follows that:  first the pursuer’s failure to bring the action timeously was through no fault on his part and secondly the dissociative amnesia was caused by the legal wrong which gives rise to the present proceedings. 

[143]    I accept that as said by Lord Hoffman and Lady Hale in A v Hoare that the reasons for delay are highly relevant in the exercise of the discretion (Lord Hope in AS v Poor Sisters says the same in the passage above quoted).  Whereas here I am assuming that there was no fault on the part of the pursuer in the delay in raising the action and moreover the delay resulted from the legal wrong which is the subject of the action these are factors which should weigh heavily in favour of the pursuer when striking the balance of equities. 

[144]    However, it appeared to be senior counsel for the pursuer’s position that the observations made by Lady Hale and Lord Hoffman in A v Hoare undermined or put a gloss on the observations of Lord Hope as to the approach to the exercise of the discretion as set out above.  I am persuaded that this assertion by senior counsel for the pursuer is wrong.  A v Hoare was cited and considered in AS v Poor Sisters.  Lord Hoffman was one of the Justices sitting in AS v Poor Sisters and he dismissed the appeal for the reasons given by Lord Hope.  Accordingly, Lord Hope’s guidance was given in the light of what had been said earlier in A v Hoare and therefore nothing said in A v Hoare in any way undermines what was said by Lord Hope in AS v Poor Sisters.  I agree with senior counsel for the defenders submission:  the decision is A v Hoare is subsumed within the conclusion of the House of Lords in AS v Poor Sisters.  The key guidance given on the questions before me is that given by Lord Hope. 

[145]    However, accepting that the late raising of the pursuer’s action was not due to his fault did no more than place him in the same position as the pursuers in B v Murray (No 2), where it was accepted by Lord Drummond Young that the failure to raise the action timeously was not due to fault on the part of the pursuers, but rather due to various conditions from which they suffered. 

[146]    For reasons which I will now discuss I am persuaded that the equitable factors in favour of the exercise of the discretion in favour of the pursuer are far outweighed by the significant prejudice to the defenders if the action were to proceed.  I believe, if the case were to proceed, the defenders could not be given a fair trial. 

[147]    I now turn to consider the issue of prejudice in the instant case.  I would observe that I have reviewed and been greatly assisted by the most helpful exposition of the development of judicial opinion on the approach to be adopted by the court in considering the exercise of its discretion in terms of section 19A and the relevant factors to which the court should have regard when considering the exercise of its discretion by Lord Drummond Young in B v Murray (No 2).  The key question in considering prejudice is this:  have the defenders as a result of the delay in raising the proceedings suffered prejudice of a significant kind? 

 

Prejudice to the defenders case by the loss of evidence
[148]    In this case the allegations of abuse are directed against a single person, namely:  Miss D.  It was not a contentious matter that Miss D died at a date that was within the triennium, namely:  on 30 January 1980 (see 7/9 of process).

[149]    I am persuaded that it is difficult to envisage a more highly material loss of evidence to the defenders than the denial to them of the evidence of Miss D.  I accept senior counsel for the defenders submission that the loss of Miss D’s evidence is more grave than the loss of evidence in the AS v Poor Sisters case where some of the alleged abusers were still alive.  It appears to me that where the allegations of abuse are made against a single person and that person’s evidence has been lost to the defenders then it is really impossible for the defenders to have a fair trial.  The defenders are denied the evidence of what would have been their most important witness.  They are not able to properly defend themselves.  They cannot, without Miss D’s evidence, properly cross‑examine the pursuer as to the merits of his claim.  Nor can they properly cross‑examine any witness he may produce in support of his claim such as Mr J. 

[150]    Beyond the above it was clear from the evidence that it would be extremely difficult to find other witnesses who were present in cottage 20 at the material time.  Miss Bell in her evidence made it clear that the defenders records (which were now in a digitised form) were held under the names of individual children and could not be searched by the entry of “cottage 20” and thus identify children who resided in that cottage at the material time.  Thus the defenders in order to seek to identify children who were in cottage 20 at the material time would have to check through all of their records.  That appears to me to be a hugely time consuming and very expensive exercise. 

[151]    Suggestions were made by senior counsel for the pursuer in the course of his cross‑examination of Miss Bell, that new software could perhaps search the records more speedily and identify who was present in the cottage at the material time, however, Miss Bell was unable to give any concluded view on this and no expert evidence was led as to whether such searches could be carried out on these digitised records.

[152]    Even, if such children could be identified, there is clearly an issue as to whether it is appropriate to approach such children, unsolicited and out of the blue, about events which occurred many years ago.  Miss Bell in her evidence was wary of such approaches.  Lord Drummond Young at paragraph 123 in B v Murray (No 2) said this about such approaches:

“Dr Abernathy stated that the defenders were reluctant to make unsolicited approaches to children who had been in care at the material time to discover whether they had any relevant evidence, even if the current whereabouts of such children could be traced.  I find this entirely understandable.  Records are available and in respect to visitations undertaken by the second defenders at Cardonald.  These are in very general terms, however, and the individuals responsible for the visitations are now all dead apart from one who is resident in Australia.”

 

[153]    If any confirmation were needed as to why such reluctance is justified it was provided in this case by what occurred following upon the unsolicited approach by the pursuer’s agents to Mr A which was this:  he was upset and distressed by the approach. 

[154]    Senior counsel for the pursuer sought to advance an argument that such approaches were appropriate, despite what he described as Mr A’s “unfortunate reaction”.  He referred to people who approached the defenders and obtained their records.  There was evidence from Miss Bell that such approaches were made.  That is an approach by the former resident, not an unsolicited approach and is completely different from what senior counsel for the pursuer was suggesting.  He also referred to residents being approached in terms of a Government project.  Again that type of controlled project seems very different from the approach which would have to be made by the defenders. 

[155]    The raising of their childhood with persons who have spent time in a children’s home is clearly a very sensitive issue.  It may raise all sorts of memories for that person.  In such circumstances it appears to me that the defenders are right to be wary about making unsolicited approaches to such persons. 

I am satisfied that it is entirely inappropriate for the defenders to make unsolicited approaches to such persons where the results can very easily be of the type exhibited by Mr A.  

[156]    With respect to seeking to identify other staff members who may have relevant evidence in relation to this matter, it is clear that the only members of staff who could be approached would be those who worked in cottage 20 at the material time.  Mr Dunbar in his evidence made it clear that each cottage was an individual unit and each cottage had its own rules.  Thus those working in other parts of Quarriers at the material time would not be in a position to give any real insight into what may have been happening at cottage 20 at that time. 

[157]    7/26 showed the names of two assistants who worked in cottage 20 at the material time.  However, I accept senior counsel for the defenders argument that even if these two persons could be traced at this distance from the events, this does not make up for the absence of Miss D.  The allegations against Miss D could properly be described as highly personal and for the reasons I have already given the finding of these assistants could not make up for the loss of her evidence.  It is noteworthy that the most serious allegations of abuse made by the pursuer against Miss D appear to have happened in private and at night.  In any event even if they could be found, as submitted by senior counsel for the defenders, this would put the defenders in no better position than the defenders in B v Murray (No 2). 

 

Prejudice caused by lapse of time
[158]    The length of delay is of itself an important factor prejudicing the defenders position.  The triennium expired on 22 April 1979.  The first notification of the claim to the defenders was dated 22 July 2004 and the present action was signetted on 17 December 2004.  The events which are the subject of the action date from more than 40 years ago, namely:  between 1965 and 1971.  Thus these events ended 33 years before the raising of the action.  This action by the date that it was raised was very stale.  This raises the issue of not simply the entire loss of evidence but the decline in the quality of evidence that is available. 

[159]    Lord Drummond Young in B v Murray (No 2), considers the possible prejudice which may arise in a case of such age and makes the following observations at paragraph 24:

“Two further aspects of McHugh J’s opinion call for particular comment in the present case.  The first of these is his comment that important and perhaps decisive, evidence may have disappeared without anyone now ‘knowing’ that it ever existed.  That consideration is particularly important in a case where events occurred more than 20 years before any action was raised, and where the actual disputes are likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved.  The present cases are of that nature;  while a few specific incidents are highlighted in the pursuers pleadings, the major part of their complaints relates to a culture where repeated physical punishment was the norm.  It seems very obvious that many of the details of daily life so long ago will have been forgotten and will be incapable of retrieval.  That inevitably results in a marked deterioration in the quality of justice.”

 

[160]    In my view the above observations are pertinent to the circumstances of this case;  which is even staler than the cases in front of Lord Drummond Young and where again the complaint relates to a culture put in place by Miss D within cottage 20.  I agree with his conclusion that in these circumstances even if witnesses could be obtained:  “details of daily life long ago will have been forgotten and will be incapable of retrieval” and that the result is “a marked deterioration in the quality of justice”.  I am persuaded that given how stale the instant case is and the nature of the case the decline in the quality of justice would be material.  It flows from the above, as observed by Lord Drummond Young, that inevitably this will have a serious effect with respect to the cross‑examination of witnesses. 

[161]    There is a further aspect to the issue of delay and this is described by Lord Drummond Young at paragraph 22 in B v Murray (No 2) as follows:

“The loss of evidence and the decline in its quality are especially important when the delay following the events complained of is measured in decades rather than years.  Cases involving such a delay present one particularly difficult feature.  This is the proper understanding and assessment of events that occurred at a time when social attitudes were markedly different from those that now prevail.  It would be quite unfair to judge events by any standards other than those that prevailed at the time;  the social attitudes of today cannot be the test of matters that occurred 20 or 30 years ago.  Consequently a judge who is called upon to decide a question relating to events of the 1950s, 1960s and 1970s must assess the propriety of what happened against the standards that then prevailed in society.  That is not easy.  It involves historical reconstruction not of events themselves but of the underlying perceptions and attitudes that underlay those events, which is a much more subtle exercise.  This point is especially well illustrated by the present cases.  The pursuers’ complaints relate in large measure to the administration of corporal punishment.  In the 1960s, and probably also in the 1970s, corporal punishment was the norm in Scottish schools and homes.  Now it has been abolished in schools, and is to be substantially restricted even in the home.  it can scarcely be doubted that these changes in practice reflect changes in the general attitudes that prevail in society.  Nevertheless, the allegations of excessive corporal punishment must be assessed not against the norms that would be considered reasonable today but against the norms that were considered reasonable between 25 and 50 years ago.  No doubt it can be said that anyone who was at school in the 1950s and 1960s will be aware that attitudes to corporal punishment were different, and will indeed probably have had direct experience of those different attitudes.  It may also be possible to point to contemporary documents that indicate the sort of standards that were considered acceptable at the time.  What is required for a proper assessment of events, however, is an appreciation of the cultural climate that prevailed in schools and homes at that time.  This is relevant not merely to determining whether there was an excess of corporal punishment in any particular case.  it is also relevant, if there was such an excess, to determining how serious the resulting injury is likely to have been, and what is reasonable compensation must be measured against the standards of the time when the individual pursuers were in the care of the defenders, not the standards of today.  a beating that today seems clearly excessive might have seemed only slightly above the norm  at that time, and the compensation for it would have to be reduced accordingly.  Moreover, it must be borne in mind that the most serious injuries complained of by the pursuers are psychological in nature.  What they seek compensation for is not so much the pain and suffering caused by any particular beating but the cumulative psychological effects of repeated physical punishment.  Once again, the relevant standard is the social and educational norms of the 1960s and 1970s, not to those of today.  When physical punishment was widespread the effect of any individual instance was clearly less than be the case today.  All of these matters make the judge’s task, at a range of between 25 and 45 years, peculiarly difficult.”

 

[162]    Senior counsel for the pursuer’s position with respect to this factor was that it was not relied upon by the defenders.  I do not believe that he is correct in saying this.  The defenders’ submission on delay were made in the context of what Lord Drummond Young had opined in B v Murray (No 2).  In their written submissions they relied on this at page 9:

“The passage of time is itself significant.  The events in question ended in 1971, more than 33 years before the action commenced in December 2004 and more than 43 years before the preliminary proof.”

 

[163]    Against that background I believe I am entitled to have regard to the issue of social mores and the changes in these since these events occurred.  Senior counsel for the pursuer’s position was that in this case the change in social mores was not in any case relevant given the nature of the abuse.  I am not persuaded by this argument.  The abuse founded upon by the pursuer includes:  being required to call Miss D “mummy”, “being forced to eat all his food” and the way Miss D dealt with bedwetting.  On all these matters, social mores I am sure, have changed markedly over the last 40 years.  Equally in relation to excessive physical chastisement, what he complains of in terms of degree is not very different from what the complainers in the B v Murray (No 2) case alleged (see:  paragraphs 5- 15).  Accordingly, I am satisfied that the delay in bringing this action causes further prejudice in that it would be difficult to reconstruct the social attitudes of the 1960s and this again leads to a serious decline in the quality of justice. 

 

Prejudice caused by changes in the law
[164]    In relation to the effect of the decision in Lister and others v Hesley Hall Ltd senior counsel for the pursuer’s first argument was that because the pursuer’s case involved physical and not sexual abuse Lister and others v Hesley Hall Ltd had not altered the law, it only having altered the law in relation to vicarious liability in the sphere of sexual assault. 

[165]    I do not believe that the above is a correct understanding of the law.  In Lister and others v Hesley Hall the House of Lords were looking at what was known as the Salmond test which with respect to vicarious liability drew a distinction between unauthorised conduct on the part of an employee and an unauthorised mode of carrying out work. 

[166]    The perceived difficulty with that test was said by the House of Lords to be highlighted in the judgment of Butler‑Sloss LJ at page 591 in Trotman v NY County Council at paragraph 18:

“Having looked at some of the relevant decisions on each side of the line, it is useful to stand back and ask:  applying general principles, in which category in the Salmond test would one expect these facts to fall?  A deputy headmaster of a special school, charged with the responsibility of caring for a handicapped teenager on a foreign holiday, sexually assaults him.  Is that in principal an improper mode of carrying out an authorised act on behalf of the employer, the council, or an independent act outside the course of his employment?  His position of caring for the plaintiff by sharing a bedroom with him gave him the opportunity to carry out the sexual assaults.  But availing himself of that opportunity seems to me to be far removed from an unauthorised mode of carrying out a teachers duties on behalf of his employer.  Rather it is a negation of the duty of the council to look after children for whom it was responsible.  Acts of physical assault may not be so easy to categorise, since they may range, for instance, from a brutal and unprovoked assault by a teacher to a forceful attempt to defend another pupil or the teacher himself.  But in the field of serious sexual misconduct, I find it difficult to visualise circumstances in which an act of the teacher can be an unauthorised mode of carrying out an authorised act, although I would not wish to close the door on the possibility.”

 

[167]    It is evident from the above passage that the Salmond test was equally applicable to sexual and physical assaults and that at least at the end of the spectrum relating to physical assaults by an employee on a child that was generally believed to fall within the category of unauthorised conduct for which there was no vicarious liability.  The principal allegation made by the pursuer against Miss D is of repeated physical assaults and he is submitting that these amounted to criminal acts in the same way as if he had been sexually abused by a member of the staff while at Quarriers. 

[168]    It appears to me that Lord Drummond Young’s observations at paragraph 118 in B v Murray (No 2) first when considering the state of the law prior to Lister and then his observations as to the change in the law following upon Lister accurately reflect the law before and after Lister.  He observed as follows:

“Lister can perhaps be regarded as an example of a more liberal approach to vicarious liability that has developed over the last 10 or 15 years;  the speeches in the House of Lords seem to support such a view.  Sheriff A G McCulloch, who when still in practice as a solicitor had acted as Edinburgh agent for the pursuer, was asked in cross‑examination about this matter.  He was a very experienced personal injuries lawyer, and his views are accordingly worthy of note.  He accepted that the question of vicarious liability had been clarified by the decision in Lister.  He further accepted that in the 1980s the attitude of the legal profession to the present claims might have been different, although he stated that he would like to think that the pursuers would not have been turned away without a remedy.  He did accept that these cases involved to some extent pushing out the boundaries of the law. 

 

I think it is clear that, if the present cases had been brought within the statutory time limits, that is to say, by at the latest 9 January, 1990, it would have been difficulty if not impossible for the pursuer to establish vicarious liability on the part of the defenders for the criminal actings of individual nuns.  It is perhaps significant that the members of the House of Lords attach particular importance to two Canadian cases decided in 1999.  That illustrates how recent developments in this area of the law have been.  I accordingly conclude that there is significant prejudice to the defenders as a result of changes in the law since the statutory limitations periods expired.”

 

[169]    I am persuaded that if the instant case had been brought within the statutory time limits and thus prior to the decision in Lister, the pursuer’s case founded principally, as I have said, on the alleged criminal assaults on him by Miss D it would have been difficult if not impossible for him to be successful, in that it would have been difficult if not impossible to establish vicarious liability for the acting’s of Miss D against the defenders.  Senior counsel put forward a second argument on this issue and it was this:   even if the conduct was excluded pre-Lister, a change in the common law was different from a change in the law by means of statute.  I am not persuaded by this argument.  In the context of prejudice to the defenders the point is this:  if the pursuer’s action had been brought within the triennium the matter would have been dealt with as the law was understood pre-Lister.  On the other hand if the action was allowed to proceed now it would be dealt with as the law now is understood post‑Lister.  Under the law pre‑Lister as I have above said the pursuer’s most serious allegations, namely:  the physical assaults would not have resulted in the establishing of vicarious liability on the part of the defenders or it would have at least been very difficult to establish vicarious liability on the part of the defenders.  In terms of the law post‑Lister there is no question that the defenders would be vicariously liable for such actings by Miss D.  Thus the defenders have been significantly prejudiced by the change in the law and it is irrelevant how that change in law has been brought about. 

[170]    For all of the above reasons I am clear that the defenders position has been significantly prejudiced by the change in the law affected by Lister, which changes have occurred since the expiry of the triennium period.  

 

Prejudice to defenders by the cost of the litigation and the irrecoverability of expenses
[171]    A further factor which requires to be considered is the likely level of award to be made to the pursuer if he were to be successful.  This was held to be a relevant factor for consideration by the court in the exercise of its discretion in provisions similar to section 19A in Adams v Bracknell Forrest Burgh Council 2004 UKHL 29 at paragraph 33. 

[172]    A further factor which is of relevance is the expenses incurred and likely to be incurred by the delay in the defending of the action see:  Forsyth v A F Stoddard & Co Ltd 1985 SLT 51 at paragraph 29 and Lannigan v GCC 2004 GWD 26-562 at paragraph 39.

[173]    As to the likely level of award in this case the pursuer only concludes for £50,000.  As to what the pursuer would eventually recover there are clearly other factors at play in his condition beyond what is said to result from his alleged abuse at Quarriers.  The pursuer admits on record his long history of psychiatric and psychological problems and he has been seen by psychiatric services from the 1970s.  He has a personality disorder.  He suffers from a depressive condition.  There have been various other difficulties in his life.  Against that whole background, any award made, may not be a particularly large one. 

[174]    Turning to the issue of expenses there has already been a five judge appeal in this case in which the defenders were successful.  Further there was a procedure roll in which the defenders were successful.  In addition the matter has had to call for procedural hearings before this court on a large number of occasions.  The preliminary proof before me lasted for eight days.  Further investigation of this case as in all cases of historical abuse would be difficult and costly.  The pursuer is legally aided and the result of this would be that any award of expenses in favour of the defenders would in practical terms not be recoverable. 

[175]    Taking all those circumstances into account I believe the costs would be disproportionate to any award likely to be made to the pursuer.  I believe this factor is a minor one, however, it is a factor I am entitled to take account of in the overall balancing exercise.   

[176]    In this case I am satisfied that the prejudice caused by:   the loss of evidence;  the lapse of time;  and the change in the law brought about by the decision in Lister each on its own results in significant prejudice to the defenders.  Taken together they clearly, I am persuaded, amount to significant prejudice to the defenders.  In addition there is a further, if less significant factor, of the irrecoverable costs.  Having regard to that level of prejudice I conclude that the defenders could not receive a fair trial.  I do not believe it would be fair and just to require the defenders to meet the claim on the merits standing the material prejudice I have set out.  I believe as I stated at the outset that the factors in favour of the exercise of discretion are far outweighed by this prejudice. 

 

Second issue
[177]    My above decision is sufficient to decide the matter before me, however, having regard to the submissions made before me I believe it appropriate to consider the second broad issue in the case:  Did the pursuer:  (1) establish he was suffering from dissociative amnesia?  And (2) establish the key averment at article 7 of condescendence? 

[178]    The first question for the court in considering the above questions is:  assuming that the abuse happened, was it forgotten?

[179]    It is convenient at this stage to set out certain evidence in relation to which there was no dispute between the experts: 

First on the evidence there was no dispute that: 

(a)        the pursuer suffers from a borderline personality disorder and was first diagnosed with that condition in 1978

(b)        he also suffers from persistent depressive disorder and with greater or less frequency, suffered from periods of depression for many years before 2003.

[180]    Beyond that, I would observe, that in order to decide the questions regarding the key averment it has not been necessary to consider and come to a view upon what the literature and the two medical experts described as the memory wars.  On a reading of the pleadings and in the early stages of the proof it appeared that the issue of false memory syndrome was a live one.  However, by the stage of submission it was clear that this syndrome did not form an issue.  It became clear on hearing the evidence that both experts held the view that not all recovered memories were false.  Dr Boakes, had changed her view between the preparation of her first and second reports, it having originally been her position that all such recovered memories were false.  She had altered her view in light of developing research in the area.  

[181]    There seemed, as submitted by senior counsel for the defenders, to be a coming together of the two experts views around the opinions expressed in two papers in which one of the authors was Elke Geraerts.  These papers were:  Recovered memories of childhood sexual abuse;  current findings and their legal implications (see:  appendix to 6/5 of process) and Geraerts E et al 2007 on The reality of recovered memories, Corroborating Continuous and Discontinuous Memories of Childhood Sexual Abuse. 

[182]    In her evidence Dr Boakes relied on this second paper.  It was referred to at paragraph 8.12 of her report 7/18 of process. 

[183]    With respect to Professor Freeman he cited the first of these papers in his report 6/5 of process.  He accepted in his evidence that both he and Dr Boakes were using Geraerts’ papers.  He agreed with what Dr Boakes said at paragraph 8.12 of her second report about Geraerts’ 2007 paper and agreed with the research and opinions contained therein.  Beyond these first two papers was a third paper involving Geraerts.  This was McNally & Geraerts 2009:  A New Solution to the Recovered Memory Debate (7/27 of process).  Dr Boakes relied on this paper.  She described Professor McNally as the foremost authority in this area and said that the significance of the paper was that it put forward a non-polarised view and took a look at how some recovered memories could be true.  Professor Freeman found McNally and Geraerts’ paper supportive of dissociative amnesia  He agreed that Professor McNally was highly respected and that the paper by McNally and Geraerts had a degree of standing and was based on a respected body of opinion.  He said that what the authors had described as repression of memory he called dissociative amnesia.  He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia.  On reviewing his evidence I could not find any point at which Professor Freeman expressed disagreement to any material context with the views put forward in the first two papers by Geraerts.  With respect to the third paper involving McNally and Geraerts he found some support for his views on dissociative amnesia.  He accepted that the McNally and Geraerts’ paper showed there was a responsible debate surrounding dissociative amnesia. 

[184]    On reviewing his evidence Professor Freeman in particular, as I understood it, accepted that the first three of the four propositions which in the course of his submission, senior counsel for the defenders sought to take from the first Geraerts’ paper were correct.

[185]    Against that background of agreement between the two experts I turn to consider the questions which I set out at the start of this section of my discussion. 

[186]    Given the measure of agreement between the experts as above noted it appears to me that the appropriate starting point is to consider the issue of forgotten remembering. 

[187]    There were two broad categories of what senior counsel for the defenders contended was forgotten remembering:  (a) bullying and (b) running away by the pursuer from Quarriers. 

[188]    With respect to these matters their context was notes in the pursuer’s medical records which referred to him speaking of bullying and running away.  The pursuer sought to explain these entries while maintaining his position of not remembering any of the bad stuff until 2003.  Senior counsel for the pursuer accepted in his submissions that the explanations given by the pursuer relative to these matters were not entirely convincing.  I am clearly of the view that the explanations given by the pursuer were entirely unconvincing in relation to these issues.  I accepted all of the submissions made by senior counsel for the defenders in relation to whether the pursuer’s explanations were convincing.  For all these reasons I hold that they were not convincing.  The most telling factor in in so holding was this:  his explanations when looked at could not be fitted to any extent with what was said within the contemporaneous records. 

[189]    As senior counsel for the pursuer submitted, merely because I have not accepted the pursuer’s explanations as convincing that does not mean that these are examples of forgotten memory.  It was his position that the matters relied on by senior counsel for the defenders were not properly understood elements of “the bad stuff”.

[190]    With respect to running away I am persuaded that on the evidence this was as a result of the bad stuff and should properly be understood as an element of the bad stuff and therefore of forgotten remembering. 

[191]    The pursuer’s position was that he ran away from Quarriers twice and that this was one of the memories which came back to him in 2003.  Senior counsel for the pursuer, sought to suggest that this was not part of the bad stuff and may have been as a result of general disaffection with life in Quarriers.  I am not persuaded by this submission.  First the pursuer said it was one of the memories which came back in 2003, which by definition, shows that it was part of the bad stuff.  If it was not part of the bad stuff why had he remembered it, according to him, only in 2003?

[192]    Secondly, in evidence he said that on two occasions he had run away.  It was noteworthy that on record at article 4 of Condescendence at page 7 letter B at the end of a section dealing with abuse which the pursuer alleged happened at Quarriers there is the following averment: “The pursuer ran away on two occasions”.

[193]    The above averment I believe must refer to the two incidents to which the pursuer spoke in evidence.  There is I believe no explanation for the foregoing averment being made on behalf of the pursuer at this point within the narration of his case unless it had been said to the pursuer’s agents by the pursuer that those incidents of running away flowed from the bad stuff that had been done to him by Miss D. 

[194]    I conclude that the entries relied upon by the defenders in relation to running away are examples of forgotten remembering.  It seems to me that this is a significant example of forgotten remembering. 

[195]    Equally with respect to the bullying I am persuaded that this is another example of forgotten remembering.  Again senior counsel for the pursuer sought to explain this in broadly the same way as he had sought to explain the running away, namely:  that it did not form part of the bad stuff.  Again I do not accept this explanation.  Once more the pursuer accepted in evidence that this was something he had forgotten about until 2003 and therefore by definition it forms part of the bad stuff which he had forgotten due to dissociative amnesia. 

[196]    Senior counsel for the pursuer further in response to these points regarding forgotten remembering argued this:  he pointed to the very extensive records relating to the pursuer which contained no reference to the bad stuff and on a single occasion contained in 7/2 of process at page 194 this entry “denies any abuse”.  It was his position that if the pursuer had at any stage prior to 2003 remembered any of the bad stuff then given these extensive records there would be some reference therein to the bad stuff.  I have considered that submission and I do not believe that it answers the above points regarding bullying and running away.  These specific references in his records I believe do show, despite the lack of mention elsewhere of the bad stuff, memory of elements of the bad stuff by the pursuer prior to 2003.

[197]    In summary I believe that the objective evidence shows that the pursuer had some memory of certain of the bad stuff pre‑2003.  I conclude that this being the case, that such evidence is inconsistent with his suffering from dissociative amnesia until 2003. 

[198]    It is perhaps convenient at this point to deal with what senior counsel for the defenders described as Professor Freeman’s alternative theory:  this was to the effect that dissociative memory could be continuous or episodic and this could explain the pursuer’s memories pre 2003 relative to these matters.  However, this does not assist the pursuer for the reason advanced by senior counsel for the defenders, namely:  for the purposes of considering the issues before the court it is sufficient that he has at some point pre 2003 remembered some element of the bad stuff.

[199]    Another matter which strongly tended to undermine the pursuer’s position that he had no memory of the bad stuff pre-2003 was this:  the lack of explanation as to what following the TV programme aroused the pursuer’s interest to recover his records from Quarriers?  When asked in evidence in chief about this he simply said that after he saw the programme – went for records.  He was again asked about this at the start of re‑examination and said that he “wanted to see if Quarriers had records relative to me” then asked “what made him curious?” and answered:  “don’t know it was after programme – wondered if any records – can’t explain”.  The matter was returned to by senior counsel for the pursuer at the end of re‑examination and when asked about what about the Frontline Scotland programme motivated him to go to see the records the pursuer answered: 

“I can’t say why- wondered if they had any records”.

 

Senior counsel for the pursuer then asked: 

“Was there a specific focus to your curiosity?”

 

The pursuer answered:

“If said no records I wouldn’t have enquired further.”

 

Senior counsel for the pursuer did not leave the issue but rather asked a further question:

“Why did this specific programme make you curious?”

 

The pursuer answered:

“No records given to father when left.  Remembered Miss D kept records in a cupboard – curiosity – nothing specific – just curiosity.”

 

Once more senior counsel for the pursuer pursued the matter and asked:

“Why want to find out what happened to Quarriers?”

 

The pursuer answered:

“Not what happened curious to know if had records.”

 

The pursuer continued by saying that it was when he went down to Epsom following upon his having received the records that the bad stuff came back to him. 

[200]    I believe that the pursuer’s answers regarding this matter completely lacked plausibility.  There must have been something which aroused his curiosity and made him seek his records.  His position that he just wanted to see if Quarriers had records relative to him made no sense.  Why did he want to know if they had any records relative to him?  There is according to his evidence no trigger for this request.  There is not said to have been anything about the programme which he watched on television which appears to have been a trigger.  Senior counsel for the pursuer, as I have set out above, repeatedly in re‑examination sought from the pursuer an explanation for his actings, however, he could obtain none.  The repeated questioning by his senior counsel relative to this point, it seemed to me, emphasised the importance of this section of the evidence and the oddity of the pursuer’s position which again was very repetitive and had a mantra like feel to it   It appears to me that the common sense and obvious explanation for his seeking his records is that he had some memories of the bad stuff at that time, namely:  before he had the records and went down to Epsom when he said these memories returned.  In my view this conclusion is reinforced by the pursuer’s evidence which was to the effect that there was nothing in particular in what was shown in the programme that triggered his application for the records.  Accordingly I believe it must have been memories on his part which already existed of the bad stuff which caused him to then apply for the records.

[201]    I believe that the above evidence is strongly indicative of the pursuer having memories to some extent pre‑2003 of some element of the bad stuff.  His evidence of going to Quarriers to get his records is inexplicable unless he had some such memories. 

[202]    For all the above reasons I am persuaded that the pursuer had memories of the bad stuff pre 2003. 

[203]    I now turn to the issue of the pursuer’s explanation as to when he forgot.  Throughout his evidence the pursuer maintained that he could remember when he forgot and referred to his memories of the bad stuff being “blanked” or “blocked” and the shutters coming down when he was being driven away by his father from Quarriers. 

[204]    Senior counsel for the defenders referred to Professor Freeman accepting that it was oxymoronic to expect an individual who says he has forgotten something, nevertheless, to remember when he forgot it.  It was, however, the position that the pursuer insisted he remembered when he had forgotten.  That assertion makes no sense and cannot possibly be correct.  This piece of evidence I am persuaded fundamentally undermines the acceptability of the pursuer’s evidence.

[205]    Moving on, I turn to the issue of the pursuer’s general reliability and that was addressed under three heads by senior counsel for the defenders:

[206]    The pursuer’s case on dissociative amnesia proceeded on the basis that when he left Quarriers and returned to his father he was in a place of safety. 

[207]    Both, within the medical records and in the evidence of Professor Freeman there was reference to the pursuer having been hit by his father.  This was denied by the pursuer in evidence. 

[208]    There are two separate aspects to this evidence.  First, was returning to his father a place of safety for the pursuer.  Senior counsel for the defenders submitted it could not be regarded as such given this evidence.  On the other hand senior counsel for the pursuer’s position was that there was a difference in scale between what was normal chastisement by the father and the abuse by Miss D and that the pursuer could have perceived his father’s home as a place of safety and perception was according to what Professor Freeman had said in evidence was what was important.  On balance I prefer senior counsel for the defenders’ position regarding this, the pursuer’s evidence regarding whether his father had hit him was contradictory.  On top of this were the references to his attempted suicide following his return to his father.  On the basis of this I could not hold myself satisfied that the pursuer regarded his father’s home as a place of safety. 

[209]    The second aspect of this evidence is this:  how does this evidence affect the pursuer’s reliability.  I am in no doubt that this evidence undermines the pursuer’s reliability.  The pursuer’s evidence on this aspect is clearly unreliable.  The entries in the records were not challenged.  The pursuer’s explanations for these entries were again implausible.  His evidence was contradictory. 

[210]    With reference to the suicide attempts I have set out above how I believe these interrelate with the father’s behaviour towards him and cause me to find that it was not established that he regarded the father’s home as a place of safety.  With respect to the reliability of the pursuer’s evidence his position on these matters (which was not to accept what the records said regarding the suicide attempts) once more appeared unreliable.  His explanations regarding the records on this issue did not seem plausible.  His evidence was contradictory. 

[211]    Finally on the issue of general reliability there was the evidence of alleged sex abuse.  With respect to this I agree with the submission made by senior counsel for the defenders that there was a radical reinterpretation of matters by the pursuer which again points to his unreliability.  I also agreed with senior counsel for the defenders secondary submission on this aspect of the evidence relative to the paradox as to what the pursuer was prepared to speak about in evidence and this again was a marker of unreliability. 

[212]    There was I believe a further clear marker of unreliability in the pursuer’s evidence which was this:  one of the major reasons put forward by senior counsel for the pursuer as to why I should accept the evidence of the pursuer was that the memories of the bad stuff came flooding back to him when he was in Epsom and that there was no other explanation for his breakdown which followed on from his period in Epsom. 

[213]    I believe it is worth examining this contention in a little detail. 

[214]    First I would observe that it is very striking that there is a complete lack of reference to abuse at Quarriers when the pursuer is admitted to the hospital in Penrith (following what he says was the flooding back of these memories in Epsom).  If the cause of his breakdown was the flooding back of the memories of the bad stuff one would have expected that there would have been reference in the medical records at that time of this.  There is none (see:  7/1 of process at pages 113 to 119). 

[215]    Beyond the above the notes give a number of other possible reasons for his breakdown:

[216]    This catalogue of stressors when taken together I conclude provide an obvious possible explanation for why the pursuer, a man with a pre-existing history of mental health difficulties, had a breakdown at that time.  Thus there is a clear alternative explanation why the pursuer had a breakdown at this time and thus I reject senior counsel for the pursuer’s submission in relation to this.

[217]    The pursuer’s position in evidence was, as I understood it, that he had been abused at Quarriers and the medical staff were advised of this.  However, there is no reference to this, so far as I can identify in the hospital records at Penrith.  The only reference to Quarriers is this:

“Spent most of childhood in care

‘unhappy’”

 

I believe that the records of his admission at Penrith strongly undermine the reliability of the pursuer’s evidence that there was a flooding back of memories at Epsom. 

[218]    In summary I broadly agree with the submissions of senior counsel for the defenders regarding the pursuer’s reliability based on the Penrith records. 

[219]    Beyond the above there is the issue of the pursuer’s borderline personality disorder, it was agreed by the experts, that this would make the pursuer prone to inconsistency and this was shown clearly in the sections of the evidence relied on by senior counsel for the defenders and particularly with reference to whether his father had hit him. 

[220]    There is then the issue of the tainting of the pursuer’s evidence by what he had been told at one stage by his psychiatrist or psychologist about the mechanism as to how his memories had been suppressed.  It is, I believe, not easy to be clear as to the extent to which the pursuer’s position has been tainted by this information.  However, I am persuaded it is another factor which tends towards showing that the pursuer is unreliable. 

[221]    In summary I conclude:  that for the foregoing reasons the pursuer is an unreliable witness.  His evidence was littered with unreliable evidence.  I believe Mr Moynihan was correct when he said this:

“The pursuer is so unreliable a witness that no positive conclusion can be reached in his favour.”

 

            For the foregoing reasons I conclude: 

[222]    It follows from the above, I am persuaded that I cannot conclude the pursuer suffered from dissociative amnesia until 2003. 

[223]    I conclude that the proceedings were not delayed until December 2004 because the pursuer suffered from dissociative amnesia.  

[224]    There was considerable discussion in the submissions of senior counsel for the pursuer, as to which expert I should prefer.  I do not believe that I am required to opine on that matter.  I believe for the purpose of deciding this second issue I was able to do so on the basis of the measure of the agreement between the experts to which I have earlier referred.  I was able to deal with the issue on the basis of looking at the factual evidence from which Professor Freeman’s opinion was based without entering into the wider reaches of the academic debate about the theory of repression of memory and dissociative amnesia about which there was a dispute between Professor Freeman and Dr Boakes. 

[225]    There was one final issue raised which arose from the objection made by senior counsel for the defenders to the relevancy and competency of the evidence of Mr J.  For the reasons advanced by senior counsel for the defenders I do not find it of any relevance with respect to the matters before me. 

 

Decision
[226]    For the foregoing reasons I am not prepared to exercise the discretion in terms of section 19A in favour of the pursuer and accordingly refuse to allow the pursuer to bring the present action.  I have not been addressed on the issue of expenses and I reserve all questions of expenses. 


Table 1:  bullying and running away

Date

Information

Production

Digital

19 February 1987

“He was [unhappy] at school and was bullied”

 

7/2/207 @ 208

865

19 February 1987[1]

“School – Bullied at 10 tried to run away

 

“ [i.e. Bullied] at 20 couldn’t stand up for self”

 

7/1/230 @ 231

641

17 September 1991

“Didn’t like school – doesn’t know why Ran away from home – Denies any abuse”

 

7/1/192 @ 194

604

10 December 1993

“He was bullied at school and would run away from the children’s home”

7/2/153

809

 

Table 2:  references to being hit by his father

 

Date

 

Information

Production

Digital

19 February 1987

 

He says they [his parents] never showed him any love and there was a lot of violence at home

 

7/2/207

864

 

[Manuscript notes relating to that letter] “Never showed love hit a lot god a belt taken to him”

 

7/1/230 @ 232

642

31 March 1992

 

“Not a happy childhood. In + out of homes. F hit him a lot – from [about] age of 4”

 

7/1/196 @ 197

607

19 April 1993

 

“Lived with dad from 13 yrs (arrow) used to hit him used to drink heavily at weekends Never calls him dad”

 

7/1/203 @ 167

614

12 August 1993

 

Believes compulsive eating stems from when he returned to live with his father aged 1. He started eating excessively as his father was violent towards him and he was afraid of being alone in the house

 

7/2/166 @ 167

823

2 July 2003

 

In box “Father” – “went back to live with him at 13, hit him all the time”.

In box “Childhood” – Describes this [as] being very unhappy Father hit him regularly first memory aged 4”.

 

7/1/233 @ 236

647

 

Table 3:  references to attempts to commit suicide pre-21

 

Date

 

Information

Production

Digital

20 October 1978

 

4 suicide attempts in the past three months

 

7/2/216

873

17 September 1991[2]

 

“As a teenager tried to hang himself x2” but denies any suicide intent then or now

 

7/1/192

602

27 June 2003

 

Penrith- “first tried to hang himself aged 15 yrs. But not further suicide attempts since until now”

 

7/1/112 @ 113 and see also 115

522 & 525

17 December 2002

 

In context of recent plan to take his car and think about carbon monoxide poisoning – “Last time – 17 tried to hang himself”[3]

 

7/1/209

619

17 December 2004

 

Summons – He first attempted suicide at age 15 and then again at age 16.

 

1 of Process

8

24 August 2005

GP records – attempted suicide from age 15

 

6/2/2 & 19

16 & 33

 


[1] Date taken from corresponding letter: 7/2/207 (864)

[2] See 7/2/185 (841) – these notes written by Dr Hickey

[3] Letter relating to this consultation is 7/2/107 (763) – does not mention incident at age 17

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