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Home > Judgments > 2008 archive

A (Historic Child Abuse) v Wirral Metropolitan Borough Council [2008] EWCA Civ 783

Appeal by local authority against findings that a claimant seeking damages for sexual abuse that occurred in 1970 did not know that he had suffered any significant harm until 2001 and therefore was still within the Limitations Act. Appeal allowed and matter remitted to the judge to consider under discretion of s33 of the Act.

The claimant had been abused while in care for six months prior to his 16th birthday. After leaving care he joined the Army but had a mental breakdown and other problems which were eventually diagnosed in 2001 as PTSD arising from the sexual abuse. He therefore instigated a claim but the defendants argued that the limitation period had run out in 1976 and that any trial would prejudiced. The trial judge, directing himself that the test under s14(2) was both objective and subjective and following Bryn Alyn, concluded the claimant did not know of the significant injuries until much later. Also knowledge of the damage caused by abuse had improved greatly in the intervening period so it was not reasonable for the claimant to acted before he did so.

This appeal hearing was stayed to allow for the Lords judgment in A v Hoare and Young v Catholic Care (Diocese of Leeds). In the light of that judgment, counsel for the claimant conceded that the judge had misapplied s14(2) as the test was now purely objective: in Lord Hoffman’s words “section 14 makes time run from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps”. The claimant’s issues of delay then fell to be considered under the discretion afforded by s33 of the Act.
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Neutral Citation Number: [2008] EWCA Civ 783
Case No: B3/2006/2599
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, MANCHESTER DISTRICT REGISTRY
MR JUSTICE MCKINNON
B1 104048
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 04/07/2008
Before :

LORD JUSTICE MAY
LORD JUSTICE KEENE
and
LADY JUSTICE SMITH
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Between :

A (Historic Child Abuse) (Claimant/Respondent)
 - and - 
Wirral Metropolitan Borough Council  (Defendant/Appellant)

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- - - - - - - - - - - - - - - - - - - - -

Mr Edward Faulks QC and Mr Nicholas Fewtrell (instructed by Messrs Hill Dickinson LLP) for the Defendant/Appellant
Mr Ben Hytner QC and Mr David Knifton (instructed by Messrs Norman Jones) for the Claimant/Respondent

Hearing date : 18 June 2008
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Judgment
 
Lady Justice Smith:

Introduction 
1. This is an appeal against the order of McKinnon J made on 10 May 2006 when he held that A’s claim for damages against Wirral Borough Council for sexual abuse in 1970 was not barred by the provisions of sections 11 and 14 of the Limitation Act 1980.  Although permission to appeal that order was granted by Buxton LJ in December 2006, the appeal was stayed pending the hearing of appeals to the House of Lords in the cases of A v Hoare and Young v Catholic Care (Diocese of Leeds) [2008] UKHL 6 in which judgment was handed down in January 2008.  The decisions of the House in those two appeals were expected to and have had a significant effect on the law relating to limitation in personal injury cases. 

The background facts
2. A, the respondent to the appeal, was born in 1955.  At the age of 15, he was taken into the care of the appellant local authority because of his failure to attend school regularly.  He was placed at a children’s home operated by the appellant and managed on its behalf by a couple, Mr and Mrs Harrison.  The respondent remained at the home for about 6 months.  In proceedings begun in August 2001, he alleges that he was subjected to sexual abuse by a man named Alistair Norman, whom he thought, at the time, was a member of the staff of the home but whom he now accepts was not an employee but a friend of Mr and Mrs Harrison.  He alleges that Mr Norman masturbated him, had anal intercourse with him and also forced him to have oral sex.  Further, on two occasions, Mr Norman permitted his friend or friends to have anal intercourse with him. The respondent left the home shortly before his 16th birthday and joined the army. 

3. In 1984, the respondent emigrated to Australia.  In 1986, he was admitted to a psychiatric hospital following the breakdown of his marriage.  Although a full social history was taken from him at this time, he did not tell the doctors that he had been sexually abused as a child.  The diagnosis of his condition at that time was ‘an adjustment disorder with mixed disturbance of emotions and conduct’.   In 1996, the respondent’s mother died and, for the first time, the respondent felt able to speak about the abuse; he told his partner.  In either 1998 or 1999, the respondent told the Australian police about his history of abuse and in 1999 he made a statement for Merseyside police.  By that time, Mr Norman was dead; he is thought to have died in 1983.  The police advised the respondent to consult a solicitor which he did in August 1999.  They investigated the merits of a potential claim and issued proceedings in the Birkenhead County Court in August 2001.  It was not until the following month, September 2001, that a medical report from Dr Paul Skerritt, an Australian psychiatrist, provided an expert opinion to the effect that the respondent was suffering from post-traumatic stress disorder caused by the historic abuse and that this condition accounted substantially for the psychiatric symptoms from which the respondent had suffered over the years.  Upon the basis of that report, particulars of claim were drafted.  

4. As eventually amended, the alleged basis of liability was that the local authority had failed effectively to manage the premises so as to protect the respondent from harm.  In particular, it was said that Mr Norman was allowed to visit the home and to have unrestricted access to the children in their bedrooms at night.  Mr Norman was also permitted to bring other adult males into the home at night time.  As I understand it, the way the case is put is that Mr and Mrs Harrison negligently permitted these things to happen and the local authority is vicariously liable for their negligence and also for its own negligence in not training its staff and monitoring the running of the home.   

5. The particulars of injury pleaded comprised only the long term effects of post traumatic stress disorder.  No claim was made for the immediate effects of the abuse. 

6. The respondent pre-emptively pleaded reliance on sections 11 and 14 of the Limitation Act 1980 and the relevant provisions of the Act of 1939 as amended.  He claimed that, at the time of the abuse, he did not know that he had suffered a significant injury.  He had no serious physical injury and was unaware that he had suffered or was likely to suffer serious psychiatric harm as a result of the abuse. He claimed that his date of knowledge for the purposes of the Limitation Act 1980 was November 2001, when he received the report of Dr Skerritt.  Perhaps perceiving the difficulty that, by that time he had already commenced proceedings, he pleaded in the alternative that he acquired the necessary knowledge in 1999, when he was first advised to consult a solicitor.

7. It should be noted that the only basis on which the respondent claimed reliance on sections 11 and 14 of the Limitation Act was that he did not know that he had suffered a significant injury.  He did not rely on any other aspect of section 14 (1).   

8. In the alternative, the respondent claimed reliance on section 33 of the Limitation Act and provided particulars of the reasons for his delay in commencing proceedings. He had attempted to block the abuse out of his mind.  He had commenced proceedings promptly on learning of the possibility of claiming damages.  He claimed that his delay had not affected the cogency of the evidence and that a fair trial of the issues was still possible. 

9. The appellant denied liability and, as expected, pleaded a limitation defence, contending that the respondent knew at all times that he had suffered a significant injury.  In effect, its contention was that he should have commenced proceedings within 3 years after he attained his majority, that is by March 1976.  The respondent also pleaded that the delay had caused prejudice.

The hearing before McKinnon J
10. A hearing was held at which limitation issues were to be resolved. The respondent gave evidence.  He put in statements from witnesses who had been employed at the home whose evidence corroborated his account of the way in which Mr Norman had been given free rein within the home at night.  By this time both parties had obtained medical evidence and there was available a joint statement of the medical experts’ views. There was seen to be a substantial area of disagreement as to the effect of any sexual abuse which the respondent could show he had suffered.

11. It is convenient at this stage to summarise the relevant provisions of the Limitation Act 1980.  The combined effect of section 11(3) and (4) is that an action for personal injuries cannot be brought more than three years after the date on which the cause of action accrued or the date of knowledge, if later, of the person injured.  Date of knowledge is defined by section 14, which so far as relevant for present purposes provides:

(1) …in sections 11 and 12 of the Act, references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts –

(a)  that the injury in question was significant; and
((b) (c) and (d) are not relevant).

(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.

(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire ---

(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other  appropriate expert advice which it is reasonable for him to seek;

 but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the held of expert advice so long as he has taken all reasonable steps to obtain and (where appropriate) act on that advice.

12. Mr Hytner QC for the claimant submitted that the claimant had not known in the early days that he had suffered a significant injury.  He knew that he had suffered a serious wrong and had been humiliated and distressed.  But the pain and physical effects had been transitory; they did not amount to a significant injury.  It was not until the claimant learned that the sexual abuse had caused long term psychiatric injury that he knew that he had suffered a significant injury.  Mr Faulks QC for the defendant contended that the nature of the alleged abuse was so severe that, if it occurred, the claimant must have known at the time that he had suffered a significant injury.

13. The judge directed himself by reference to KR and others v Bryn Alyn Community (Holdings) Ltd (in liquidation) and another [2003] QB 1441, where the Court of Appeal held that, in a case of alleged historic sex abuse, the test to be applied in respect of the word ‘significant’ under section 14(2) was a partly subjective and partly objective test which required the court to consider whether it would have reasonably occurred to the claimant, given the circumstances of the abuse and his subsequent way of life, to bring a civil action for damages within three years of his majority. The judge also considered the Court of Appeal judgment in Stubbings v Webb 1992 1 QB 197 where the facts and argument were very similar to those in the present case.  There the Court held that, because of the level of public understanding about the effects of sexual abuse in the 1970s and early 1980s, the claimant would not at that time reasonably have thought that the immediate effects of the injury (which was all she knew about) were sufficiently serious to justify proceedings.  It was not until she learned, much later, that her psychiatric problems were related to the earlier abuse that she knew she had suffered a significant injury.  The judge cited a long passage from the judgment of Bingham LJ, as he then was, which supported and explained this conclusion.  It is important to note that, although the Court of Appeal’s decision in Stubbings was overturned by the House of Lords (which held that the limitation period in a claim for deliberate assault was six years and could not be extended) the validity of Bingham LJ’s reasoning, (based on the assumption that the knowledge provisions of section 14 applied) was not undermined, when applied to a case to which section 14 did apply.

14. Shortly before announcing his conclusion, McKinnon J summarised the test he had to apply. He said that

“the judge had to consider, among other things, the claimant’s individual history and circumstances, the nature, severity and duration of the abuse, the period of time when it occurred and its physical and/or mental effect evident to the claimant within three years of reaching majority.  The judge then had to relate them all to the question whether the claimant, given those and other relevant circumstances, would have considered the injury of which he knew sufficiently serious to institute proceedings against a solvent and compliant defendant”.

15. Having so directed himself, the judge held that, by 1976, the claimant did not have knowledge that the injury in question, which was the immediate effects of the abuse, was significant.  He did not then know that he was suffering from any mental illness.  Although the claimant became aware that he had long term mental illness in about 1986, he did not then know that it was attributable to the past abuse; he did not know that until a date which fell within three years before the commencement of proceedings. 

16. The judge then considered under section 14(3) whether the claimant ought reasonably to have sought expert advice which would have provided him with the knowledge he needed at an earlier date; he held that he ought not.  Thus, his conclusion was that the claimant had not known that his injury was significant and attributable to the abuse until he saw Dr Skerritt in 2001.

The Appeal to this Court   
17. As I said earlier, the appeal to this Court was delayed until the outcome of the Hoare and Young cases was known in January 2008.  Young has had an important effect on the approach which must now be adopted to questions of knowledge under section 14.  The House disapproved the partly subjective test applied in Bryn Alyn. It is now clear that the test of whether a claimant knew at any particular date that he had suffered a significant injury is an objective one.   At paragraph 34, Lord Hoffmann, with whom all other members of House agreed (although Baroness Hale was doubtful) on this point, said:    

“I respectfully think that the notion of the test being partly objective and partly subjective is somewhat confusing. Section 14(2) is a test for what counts as a significant injury. The material to which that test applies is generally “subjective” in the sense that it is applied to what the claimant knows of his injury rather than the injury as it actually was.  Even then, his knowledge may have to be supplemented with imputed “objective” knowledge under section 14(3).  But the test itself is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would “reasonably” have done so. You ask what the claimant knew about the injury he had suffered, you add any knowledge about the injury which may be imputed to him under section 14(3) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.”

18. A little later, Lord Hoffmann cited a short passage from Bryn Alyn in which Auld LJ had said (at paragraph 42):

“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 problem.”

Lord Hoffmann then continued at paragraph 37:

“This approach treats the statute as if it had said that time should run from the date on which it would have been reasonable to expect the claimant to institute proceedings. If it had said that, the question posed in Bryn Alyn would have been correct. But section 14 makes time run from when the claimant has knowledge of certain facts, not from when he could have been expected to take certain steps.  Section 14(2) does no more than define one of the facts by reference to a standard of seriousness.”

19. From this approach it is clear that all subjective factors such as the claimant’s determination to put the abuse out of his mind or his unwillingness to mention it to anyone were matters which went to his explanation for the delay and were to be considered under section 33.

20. In the light of that, the appellant contended and Mr Hytner accepted that the judge’s approach to section 14(2) had been wrong.  No criticism of the judge is intended when I say that that must be so; he had been obliged to apply the partly subjective partly objective test of Bryn Alyn.  Counsel agreed that this Court must now apply the objective test as explained in Young

21. Mr Faulks submitted that the ‘injury in question’ for the purpose of section 14 was the whole injury which the respondent had suffered including any psychiatric harm which later manifested itself. Ex hypothesi it had all been caused by the abuse and a personal injury could not be separated into parts: see Page v Smith [1996] 1 AC 155. I cannot accept that submission. The ‘injury in question’ for the purpose of section 14 must be the injury which the claimant knows about at the material time.  The initial purpose of these provisions was to assist a claimant who did not know at the time that he had suffered any injury at all and only discovers that he has been injured years after the tort was committed.  However, it was plainly also the intention of Parliament to assist a claimant who knew at the time of the tort that he had suffered a trivial (non-significant) injury but only discovered much later that he had in fact suffered a significant injury.  As Bingham LJ explained in Stubbings, during the 1970s or 1980s a claimant might well not have realised that he or she was going to suffer long term psychiatric sequelae as a result of the abuse.  Here, the judge found that it was not until a very late stage (in fact he said 2001) that the claimant knew that his psychiatric problems were or might be related to the abuse.  Accordingly, the ‘injury in question’ to be considered is the immediate effect of the abuse, namely the pain, distress and humiliation which the respondent experienced at the time and remembered.  

22. Mr Faulks submitted that the result of our application of the test must be that the respondent had knowledge that he had a significant injury at the time it was happening and that he had to bring his claim by 1976, three years after his majority.  The acts of anal intercourse, in particular, must have been so painful, humiliating and distressing that the respondent must then have known that he had suffered a significant injury, not merely a significant wrong. 

23. Mr Hytner contended that, even if the fully objective test were applied, the result would still be, as McKinnon J had found, that the respondent did not know in 1976 that he had suffered a significant injury, in the sense required by section 14(2), namely that it would have been worth bringing an action for damages against a defendant who would admit liability and could pay the damages.  He submitted that, although the respondent must have known that he had suffered a great wrong, he would not have known that he had suffered a significant injury. The pain had been transitory and such bleeding as had occurred had stopped by the following morning.  The more serious aspects of what had happened were the distress and humiliation for which damages were not recoverable. 

24. I cannot accept that submission.  In my view, a person who has been raped whether vaginally or anally must know that she or he has suffered not only a grave wrong but also a significant injury.  That was the view expressed obiter by Lord Griffiths in Stubbings v Webb [1993] AC 498 HL at page 506B and I respectfully agree.  He drew a distinction between an allegation of rape and lesser forms of sexual abuse, such as fondling, which might not amount to a significant injury.  Here, the allegation of anal rape by more than one man on more than one occasion cannot in my view sensibly be regarded as anything other than a significant injury. 

25. Much of Mr Hytner’s argument was based on the proposition that in 1976 damages were not available for humiliation or distress. This led him into consideration of what would have happened if the respondent had consulted a solicitor in 1976 with a view to bringing a claim. He submitted that the respondent would have been advised that his claim was not worth bringing. The amount of damages he might recover for the transitory pain would be minimal and there would be nothing more.  Mr Hytner recognised however, that, even if that argument were to be accepted, it could not carry the respondent’s case as far as 1998, three years before the commencement of proceedings because, in more recent years, it has been generally accepted that rape and buggery are serious injuries. On further consideration, Mr Hytner accepted that he could not contend that, once the decision in W v Meah, D v Meah  [1986] 1 All ER 935 had been reported, a solicitor would have advised the respondent that his claim was not worth enough money to warrant pursuing it.  In Meah, Woolf J, awarded the two plaintiffs £6,750 and £10,250 respectively as general damages for rape. The circumstances entailed some aggravating features over and above what the court described as a ‘straightforward’ case of rape; indeed, the court included an unspecified sum as aggravated damages. Also, there had been some continuing psychiatric sequelae.

26. Woolf J derived guidance from the figure which was generally awarded to victims of rape by the Criminal Injuries Compensation Board, which at that time (December 1985) was £2,750.  At that time, unlike today, the assessment of compensation under the scheme for compensating victims of criminal injuries was based on common law damages.    Mr Hytner accepted that, even today, an award of £2,750 could not be said to represent an insignificant injury.  He appeared to accept that an award for anal rape would not be less than that for vaginal rape.  Mr Hytner accepted therefore that by, say, the late 1980s, if the respondent had consulted a solicitor with a view to bringing a claim for the abuse he had suffered, he would have been advised that he had suffered a significant injury.  Mr Hytner urged us to hold that the respondent could not have known until about 1989 or 1990 that he had suffered a significant injury. Such a finding would, he submitted, help his case under section 33 even though it would not mean that he succeeded under sections 11 and 14.

27. However, Mr Faulks submitted that we should take notice of the fact that the Criminal Injuries Compensation Board had been making awards for rape since its inception in the mid-1960s.  The conventional award by December 1985 was £2,750 but it is reasonable for us to assume that the CICB had increased its awards gradually in line with inflation, as was and is the practice with common law damages.  Mr Faulks could not tell us exactly what the conventional award was for rape in the mid-1970s but it seems likely to me that it would have been in the region of £1,500 to £2,000.  Although I do not know what sum would have been awarded by the CICB to compensate a boy victim of anal rape in the 1970s, I doubt that it would have been less than the conventional sum for the rape of a woman.  Even today, an award in the region of £2,000 could not be said to represent an insignificant injury and in the 1970s it was an appreciable sum.  It follows that I cannot accept Mr Hytner’s submission that, if the respondent had consulted a solicitor in the mid-1970s, shortly before the primary limitation period ran out, he would have been advised that he had not suffered a significant injury and that the damages at common law would be so small as not to be worth pursuing. 

28. In any event, I do not accept Mr Hytner’s submission that damages were not awarded for distress and humiliation.  True, those experiences cannot in themselves amount to a personal injury which can sustain a freestanding action but it has always been possible to include a claim for such experiences in a claim for personal injury so long as they are related to the physical or psychiatric injury on which the claim is based.  In a case of rape or buggery, there is a sufficient physical injury on which to found a claim, even where no actual psychiatric harm has been caused.  It has always been possible to claim for the humiliation and distress inherent in rape or buggery.

29. I entirely accept that, if the respondent had consulted a solicitor in the mid- 1970s with a view to bringing a claim against the local authority or even against his abuser personally, he would probably have been advised not to proceed. There would be several reasons why that would be so.  First, people in those days did not readily accept that the abuse of children took place.  The respondent would probably have been advised that it was unlikely that he would be believed.  A further problem would have stood in his way in that, at that time, it was not thought possible for an individual to bring a personal injury claim against a public authority either in tort or for breach of its statutory duties. So although the respondent would probably have been advised not to proceed, that would not have been because he had not suffered a significant injury.

30. In any event, all Mr Hytner’s argument was based on the hypothesis that the respondent would have consulted a solicitor. Mr Hytner did not concede that it would have been reasonable to expect the respondent to consult a solicitor so as to fix him with such knowledge as he would have acquired had he done so. 

31. The first question we have to answer is whether the respondent knew of his own knowledge that he had suffered a significant injury.  Applying the objective test, as we must now do, on the assumption that the respondent’s allegations are true, I have no hesitation in holding that he knew at all times after it had occurred that the abuse amounted to a significant injury.  He would not know of his own knowledge whether it was worth bringing an action but he would at least know enough to make it reasonable to expect him to consult a solicitor.  Had he done so, he would have discovered (from a reasonably competent solicitor) that substantial damages could in theory be awarded for such abuse. I accept that he might well have been advised not to proceed but that would have been for other reasons, not that he had not suffered a significant injury. 

32. For the avoidance of doubt, I wish to make it plain that I am not suggesting that, in every case of abuse, the victim must be taken to have known at the time that he has suffered a significant injury. I quite accept that, where the abuse is of a less obviously intrusive nature, a different conclusion might be reached. 

33. My conclusion on the main point in the appeal is that the appeal against McKinnon J’s conclusion on sections 11 and 14 must be allowed.  The respondent cannot rely on those provisions to postpone the time at which time began to run against him for limitation purposes. Time began to run from the date of his majority and ran out in 1976. 

34. If the other members of this court agree with that conclusion, it will follow that, if the respondent’s action is to proceed, he must persuade the court to exercise its discretion under section 33 and to disapply the limitation provisions. 

35. McKinnon J did not consider section 33 as judges sometimes do, as an alternative to their findings under section 14.  Both counsel have urged us to exercise our discretion and to make a decision under section 33.  I can see that, if we were to do so, it would save both the time and cost of a remission to McKinnon J. 

36. Mr Faulks invited us to decide the section 33 issue because, he said, we were in as good a position as the judge would be.  There was no transcript of proceedings below as the tapes had been lost.  The judge had been asked to provide his notes of evidence for use by this Court but had said that they would not be helpful.  We had the evidence relating to prejudice in statement form and could judge that as well as McKinnon J.  Mr Faulks submitted that there could be only one answer to the section 33 decision; the delay was so long and the prejudice so great that it was now impossible to have a fair trial. 

37. When the parties had made submissions on section 33 before McKinnon J, Mr Hytner had conceded that, if he failed on date of knowledge to the extent contended for by Mr Faulks, he could not hope to persuade the judge to exercise his discretion in the respondent’s favour.  The delay from 1976 was too long.  It seemed to me that that concession had been made in the light of the current understanding of the law relating to date of knowledge.  Now that the law had been clarified in Young, the respondent’s case on section 33 would be put rather differently. Mr Faulks accepted that that was so and agreed that Mr Hytner should not be held to that concession, whether the section 33 issue was to be determined by us or remitted to the judge. 

38. Mr Hytner also urged us to exercise the discretion ourselves. His argument was that one could tell from the judgment that the judge had believed the respondent and had accepted that he had acted reasonably.  We should hold that the reasons for the delay in commencing proceedings were wholly understandable.  The question came down to whether there could be a fair trial.  The evidence advanced by the appellant on prejudice was unconvincing. We should allow the action to proceed.

39. My view is that it is not appropriate for this court in this case to make a first decision on section 33. That is essentially the function of a judge at first instance.  We have not heard the evidence and cannot read the transcript.  The judge has done so and, even though he may not have made extensive notes, he must be in a much better position than we can be. I recognise that sometimes limitation issues are decided without the presentation of oral evidence.  If that happens below, this court might be prepared to exercise the section 33 discretion even though the judge did not.  But that is not the case here.  I would remit this case to McKinnon J to exercise his discretion, after putting from his mind the concession made by Mr Hytner in circumstances which no longer prevail. 

Lord Justice Keene: 
40. I agree.

Lord Justice May: 
41. I agree that the appeal should be allowed for the reasons given by Smith LJ, and that the issue under section 33 of the Limitation Act 1980 should be remitted for determination by the judge.