LIMITATION PERIODS IN SEXUAL ASSAULT CASES
LIZANNE GUMBEL QC
AND
HENRY WITCOMB
1 Crown Office Row
The
Limitation Problem
1. Personal injury claims arising out of sexual assaults give
rise to particular limitation problems. Proving that a claimant has been
sexually assaulted will be straight-forward in cases where the abuser has been
convicted in a criminal court of assault, rape or buggery. The claimant will be
entitled to rely on the convictions pursuant to section 11 Civil Evidence
Act 1968 and will not need to prove the facts. The problem that arises is
that prosecution of the abuser may occur many years after the assault and after
the primary limitation period for bringing a civil claim has expired.
2. The Law Commission and the Courts have recognised that
sexual abuse claims will frequently require to be brought many years after the
event. As Lord Justice Sedley described in the case of Ablett v Devon County
Council [2001] (unreported)
”Inevitably
there is a problem of limitation in these proceedings. I say “inevitably”
because it is in the nature of abuse of children by adults that it creates
shame, fear and confusion, and these in turn produce silence. Silence is known
to be one of the pernicious fruits of abuse. It means that allegations commonly
surface, if they do, only many years after the abuse has ceased.”
3. In the case of Stubbings v Webb [1993] AC 498 the
House of Lords held that the limitation period for a deliberate assault was 6
years. A deliberate assault was found not to be characterised as “negligence,
nuisance or breach of duty” and to come outside the provisions of sections
11, 14 and 33 Limitation Act 1980. Assaults were therefore found not to
come within the provisions for extension of limitation for a later date of
knowledge or in accordance with the Court’s discretion.
4. In the case of Lister v Hesley Hall Ltd [2001] 2 WLR
1311 the House of Lords found that an employer could be vicariously liable
for assaults committed by his employee provided they were committed in the
course of his employment or closely connected to it. If a teacher or care
worker was employed to look after children, but whilst purporting to care for
the children, he sexually abused them, his employer could be vicariously
liable.
5. The problem is therefore that under the present law claims
for deliberate assaults against abusers must be brought within 6 years of the
assault or within 6 years of the claimant becoming an adult. As discussed
below the House of Lords has now given permission for claimants to challenge
the decision in Stubbings v Webb by way of petition to the House of
Lords. Meanwhile claimants and the courts continue to grapple with the problem
of how to deal with sexual abuse claims brought many years after the event.
Vicarious liability for Deliberate
Assaults
6. In the case of Various claimants v. Bryn Alyn
Community Homes Limited and Another (Connell
J. 26 June 2001) unreported, Connell J found that the claim for deliberate
acts of abuse for which the Defendant was vicariously liable was subject to a
non extendable six year limitation period. The Court of Appeal confirmed this
position in a decision given on 12 February 2003 : KR and
Others v Bryn Alyn Community (Holdings) Limited and Royal and Sun Alliance PLC and
stated:
”In
our view the correct approach is as Lord Millett has expressed it. Whether or
not section 11 is in play, it is to identify the wrongful act, deliberate or
otherwise, in respect of which vicarious responsibility is claimed and to
assess the closeness of its connection to the employment in question. If the
act is sufficiently closely connected with the employment, there is vicarious
responsibility. In such circumstances and bearing in mind Lord Griffiths
reasoning in Stubbings v Webb (para 99 above) there is no justification or
need, for the purpose of establishing vicarious responsibility, to elide the
duty in respect of which the employee’s deliberate act is a breach of duty of
care delegated or “entrusted” to him by the employer. The two are quite
distinct. Where section 11 is under consideration, it follows that claims for
personal injury in respect of deliberate conduct, whether considered in the
context of vicarious responsibility or not, are not caught by its provisions. Accordingly,
in absence of some provable allegation of systemic negligence of the first
defendant, we are of the view that its employee’s deliberate abuse does not
fall within section 11 and is, therefore, governed by a non-extendable six year
period of limitation rather than an extendable three year period.” [emphasis
added]
7. Permission to appeal this decision was refused by the House
of Lords in the Bryn Alyn case. The decision was followed by the Court
of Appeal in the case of C v Middlesborough Council [2004] EWCA
1746. The Court of Appeal in A v Hoare, H v
SuffolkCC and X and Y v Wandsworth Borough Council have expressed doubt
about these cases and the position generally and have granted permission for
the House of Lords to examine the position further.
House of
Lords Consideration of Stubbings v Webb
8. In three cases: (1) A V
Iorworth Hoare; (2) H V Suffolk County Council and Secretary of State for
Constituional Affairs; and (3) X & Y V London Borough of Wandsworth the
Court of Appeal has granted permission to petition the House of Lords. In each
of these cases the claimants suffered psychiatric damage from sexual abuse that
was proved or not in dispute. However in all cases the claims were found to be
limitation barred because of the decision in Stubbings v Webb [1993] AC 498.
9. The Master of the Rolls delivered the
judgment of the Court (the other members being Lord Justice Brooke and Lady
Justice Arden).
In the judgment the Court stated;
“The Court expressed itself willing to grant all the claimants
permission to appeal to the House of Lords, so that the House of Lords, which
would not be constrained by binding case law, could consider how the issues
raised by these appeals could be addressed without the intervention of
Parliament. “
10. The
Court explained that they hoped:
“The House of Lords itself may be able to remedy some of the very
serious deficiencies and incoherencies in the law as it stands today in a way
that we cannot”
11. The Judgment reviews the history of the cases before and
after Stubbings
v Webb and
the Law Commission recommendations. It pointed out that the Law Commission
report was published in 2001 but Parliament has done nothing for 5 years. In
considering the effect of Stubbings v Webb the Court pointed
to the case of S v W and commented:
”It might be thought that in any rational legal system the three year
extendable limitation period should apply to the claim against the abusing
father as well as to the claim against the negligent mother, and that a claimant
who does not possess the relevant knowledge before the expiry of the primary
limitation period should be permitted in an appropriate case to advance a claim
against both such parents and not merely against the less guilty one.”
12. The Court considered the arguments that a
teacher could be in breach of duty as well as committing trespass to the person
in some circumstances. In particular when, in his capacity as teacher, he
groomed a boy for abuse and did not report his abuse. In respect of these
arguments the Court stated;
“On the face of it principle and justice seem to require that when a
teacher, in flagrant breach of the duty he owes a pupil in his charge, grooms
him and encourages him to perform indecent acts in front of him or watch
pornographic videos with him and performs indecent assaults on him and follows
a prolonged policy of favouring him and protecting him from justified
complaints by other teachers, so that the child truants in the short term and
suffers serious psychiatric harm in the long term, in addition to losing the
normal benefit of education, the law should not provide a more relaxed
limitation regime for the less serious breaches of duty and a more stringent
regime for the more serious breaches.
Unrestrained by authority we would be inclined to follow
what appears to be the approach of the majority in Lister v Hesley Hall and
hold that such a claimant should recover damages for breach of duty in respect
of the cumulative effect of all these activities, so that recovery is not
confined to those improper activities that do not constitute intentional
assaults.
[emphasis added]
13. Further the Court considered whether it
could get round the difficulty ,
however it concluded
“ …in our judgment we are not free to take this course. In KR v
Bryn Alyn this court expressly preferred the approach of Lord Millett in the Lister case
as to the non-viability of an alternative claim based on breach of duty……………We
considered whether we were able to depart from that part of the judgment in Bryn
Alyn, but
even if we were free to do so we think it would be very much better to leave it
to the House of Lords to consider this area of the law as a whole, rather than
for different divisions of the Court of Appeal to provide different answers in
relation to what is, after all, only one part of a larger scene.”
14. On the separate point as to whether
activities of a teacher with a pastoral role for pupils in the school was
acting in the course of his activities or was acting in a role closely
connected to his employment when sexually abusing a child in his own home after
school hours the Court of Appeal reversed the finding of the trial judge and
found the teacher’s acts were closely connected to his employment.
15. The result is that the position in respect
of Stubbings v Webb will now be considered by the House of Lords. The
Court of Appeal gave their own view as to how the decision might be reviewed
when they stated:
“Powerful arguments, based on the plain words of section 11(1) can
be advanced along the lines discussed in paras 19,20 and 25 above to the effect
that the Act should be interpreted like any other consolidation Act and/or that
the phrase “breach of duty” should be construed as it was by Lord Justice
Diplock and Lord Denning MR in Letang v Cooper.
16. As
the Court of said in paragraph 129:
“We have already expressed the hope that the House of Lords will
reconsider Stubbings v Webb at an early date.”
The
Decision of the High Court in Australia
17. The Court of Appeal granted permission to the claimants in
the cases above to petition the House of Lords in April 2006. Then on 20 July
2006 the High Court of Australia considered the decision in Stubbings v
Webb in the case of Stingel v Clark [2006] HCA 37. In that case the
claimant alleged that she was raped by the Defendant in 1971. The claimant
claimed she had not suffered post-traumatic stress disorder until 2000 and she
then first realised her psychiatric condition was attributable to the rape. This
was a similar argument to that raised in respect of date of knowledge in the Bryn
Alyn Cases.
18. The Australian legislation in respect of limitation is
drafted in similar terms to the Limitation Act 1980 in England. The
relevant legislation contains provisions similar to sections 11,14 and 33 allowing
an extension of the primary limitation period, but the provision was expressed
to only operate in cases of "negligence, nuisance or breach of duty".
The two issues that arose in the Stingel Case.
(1) Was trespass to the person a "breach of duty"?
(2) If it was, did the later date of knowledge for psychiatric
injury (as opposed to disease) allow the implementation of the extension
provisions of the legislation.
19. The majority of the High Court in Australia found for the claimant
and allowed the action to proceed.
(1) On the first issue, by a majority of 5-2 the Court ruled that for
the purposes of the legislation in Australia "breach of duty" had to
be interpreted to allow it to include actions for trespass to the person. In
doing so they acknowledged that they were deciding contrary to the interpretation
of an almost identical UK provision (conceded to have been the model for the Australian
provision) given by the House of Lords in Stubbings v Webb [1993] AC
498.
(2) In respect of the second issue, whether late onset post-traumatic
stress disorder was covered by the expression "damages in respect of
personal injuries consisting of a disease or disorder contracted by any
person", the Court found that it was covered and the claimant’s condition
fell within the provision.
The Position in
Respect of Date of Knowledge and Discretion
20. In England, at present, a claimant is often precluded from
bringing an action based on assault or vicarious liability for assault because
of the non-extendable 6 year limitation period determined by Stubbings v
Webb. However, in some cases it may be possible to bring a claim in
negligence against an employer or other individual who negligently failed to
prevent the abuse. In this situation claims in negligence are covered by
sections 11,14 and 33 Limitation Act 1980.
21. The decision of the Court of Appeal in Bryn
Alyn reviewed and revised the decision of Mr Justice Connell in
respect of the application of sections 11, 14 and 33 Limitation Act 1980. The
position is now that in the area of sexual abuse of children it is necessary to
examine the date on which the claimant was first able to appreciate the
significance of what had happened to him/her as a child in the sense of when he
appreciated the extent of the psychiatric damage that could be attributed to
the events. The following passage from the judgment of the Court of Appeal
illustrates this point:
”Application
of the section 14(2) meaning of "significance" to child victims of
abuse is often the more difficult because many of them, as in the case of these
claimants, come to it already damaged and vulnerable because of similar
ill-treatment in other settings. For some such behaviour is unpleasant, but
familiar. As Mr. Owen put it in his supplemental submissions, such misconduct
was for many of these claimants "the norm"; it was committed by
persons in authority; and they, the claimants, were powerless to do anything
about it. Some victims of physical abuse may have believed that, to some
extent, they deserved it. And, in cases of serious sexual abuse unaccompanied
by serious physical injury of any permanent or disabling kind, it is not
surprising, submitted Mr. Owen that they did not see the significance of the
conduct in section 14(2) terms, and simply tried to make the best of things.
However
artificial it may seem to pose the question in this context, section
14 requires the court, on a case by case basis, to ask whether such an already
damaged child would reasonably turn his mind to litigation as a solution to his
problems? The same applies to those, as in the case
of many of these claimants who, subsequent to the abuse, progress into
adulthood and a twilight world of drugs, further abuse and violence and, in
some cases, crime. Some would put the abuse to the back of
their minds; some might, as a result or a symptom of an as yet undiagnosed
development of psychiatric illness, block or suppress it. Whether such a
reaction is deliberate or unconscious, whether or not it is a result of some
mental impairment, the question remains whether and when such a person would
have reasonably seen the significance of his injury so as turn his mind his
mind to litigation in the sense required by section 14(1)(a) and (2) to start
the period of limitation running. At this
stage the section 14(1)(b) issue of actual or constructive knowledge of attributability
becomes more of a live issue than it would have been at or shortly after the
abuse, because in some cases it might only be
after the intervention of a psychiatrist that a claimant realises that there
could have been a causal link between the childhood abuse and the psychiatric
problems suffered as an adult, an
argument accepted by the Court of Appeal, but which Lord Griffiths found
difficult to accept, in Stubbings v. Webb”.
22. The Court of Appeal therefore accepted the argument that
had been rejected by Mr Justice Connell that victims of abuse often do not have
the requisite knowledge to start the limitation period running against them
until they can begin to talk about the abuse and can take medical and legal
advice.
23. The Court of Appeal specifically considered a number of
actions by various claimants which did not indicate
a date of knowledge sufficient to precipitate statutory awareness under section
11 and 14 Limitation Act 1980. These included:
(a) The fact that a claimant sought his social services files
from a potential Defendant authority [para 145 of the judgment].
(b) The fact that a claimant has made a statement to the police
about the abuse he has suffered; [para 169, 231, 301 of the judgment]
(c) The fact that the claimant had made a claim to the Criminal
Injuries Compensation Board [para 169, 231 of the judgment]
(d) The fact that a claimant had made a complaint at the time
of the abuse to a social worker and to the police [para 181 of the judgment].
24. In the Bryn Alyn cases where the date of
knowledge was relatively recent but more than 3 years before the issue of
proceedings then the Court of Appeal considered that the period of limitation
may be extended by a further period pursuant to section 33 Limitation Act 1980
[See paragraph 233 of the judgment].
25. In the subsequent decision of the Court of
Appeal in T v Girls and Boys Welfare Society [2004] EWCA 1747 it was
pointed out that when considering an extension of time under section 33 the
Court will take into account the entire period of delay even if the period
since the claimant acquired the relevant knowledge is relatively short.
26. In the T v Girls and Boys
Welfare Society Case the Court of Appeal found as follows:
” By the time the claim was brought, 28 years had passed since the
events that gave rise to the claim, and the service of the claim was the first
notice that B had of those allegations. It was no answer to say that the
prejudice had only been marginally increased by the fact that the claim was
made two years after the limitation period had
expired. Parliament had determined in s.11 and s.14 of the Act where the
balance of prejudice should normally be struck. It followed that s.33 was only
available in special cases and it was for the claimant in any particular case
to establish that his claim was one of those special cases. The mere fact of
being asked to deal with a stale claim was itself prejudice, and the staler the
claim the greater the prejudice. The policy of the law was to permit people and
organisations to arrange their affairs on the basis that there came a time when
they should not be asked to meet such claims. The judge was fully entitled to
conclude that the instant case did not come within the category of those where
an exception could be made under s.33.”
27. The effect of this decision is that once the claimant
is outside the three year period from the date of knowledge (actual or
constructive) then the court will look at the whole period of delay since the
primary period of limitation expired (on the claimant’s 21st birthday) and to consider the date at which the abuse occurred. It has become
vital therefore to consider immediately a claimant instructs a solicitor when
his date of knowledge might have arisen. If the claim is not issued within
three years of this date then an extension of time under section 33 will be
difficult to achieve, particularly if the claim relates to a date many years
earlier.
Conclusion
28. Limitation presents a particular problem in
sexual assault cases. Claims are often brought many years after the events
because the claimant has been unable to discuss the abuse earlier. Frequently
the civil claim is precipitated by criminal proceedings brought many years
after the events and forcing the claimant to give details of the abuse for the
first time. A claim against the abuser himself or anybody vicariously liable
for his actions is at present subject to a six year non-extendable time limit.
The unfairness and illogical position this creates has now been recognised by:
(1) The Law Commission report in
2001
(2) The Court of Appeal in A v
Hoare, H v Suffolk CC and X and Y v
Wandsworth LBC
(3) The High Court in Australia in Stingel
v Clark.
The position is
expected to be soon considered by the House of Lords.
29. Meanwhile claims arising out of sexual assaults that
occurred more than 6 years ago (or more than 6 years from the claimant’s 18th birthday) can only proceed by way of a claim in negligence. If a claim in
negligence can be brought the limitation period will run from the date on which
the claimant could first be expected to “turn his mind to litigation” or first
understood that the abuse had caused the psychiatric damage experienced by the
claimant.
18
August 2006
