Limitation – still something of a lottery?
In January of this year the House of Lords gave judgment in the case of six conjoined appeals forever likely to be remembered as the case of the lottery rapist. Though the case's principal importance is for those who prosecute and defend claims of historic sex abuse it may have a wider importance for personal injury litigation generally, perhaps principally for cases concerning clinical negligence and industrial disease.
It must be rare for a case concerning the provisions of a 1980 statute to be spread across the front pages of both broadsheets and tabloids but the circumstances of Mrs A's case were truly exceptional. In 1989 Iorworth Hoare had been convicted of the attempted rape of Mrs A. He was sentenced to life imprisonment. Fifteen years later, while still serving his sentence, he won £7 million on the national lottery. Proceedings were begun in December 2004 but were struck out as being time barred under section 2 of the Limitation Act 1980 following the 1993 decision of the House of Lords in Stubbings v Webb .
The principal point for the House to determine was whether that case was wrongly decided and whether the House should depart from it. In the event the House unanimously (and indeed, as it appeared to those in court, rapidly) decided to overturn their earlier decision and to conclude that cases of intentional torts (trespass) were governed by the same limitation regime as all cases of personal injury, that is that claims must be brought within three years of the cause of action accruing or the "date of knowledge" if later with the court having a discretion to disapply the primary period when it is equitable to do so.
Though Mrs A's case understandably attracted the headlines the real importance of the decision was for the thousands of victims of historic child sex abuse as represented by the other five appellants.
It is proposed to consider the decision firstly in the context of such specific claims but then to consider whether the decision is likely to impact upon other classes of personal injury litigation and, if so, how.
The Stubbings anomaly
In Stubbings v Webb the House had decided that section 11 of the 1980 Act did not apply to cases of intentional torts as such did not fall within the statutory definition. Lord Hoffman, delivering the leading judgment, reviewed the legislative history and concluded that the phrase "breach of duty" was not only apt to but was intended to cover victims of intentional torts. The 1975 Limitation Act was intended to provide for a more "generous" regime and there was no good reason to exclude such victims from it.
This last point needs both emphasis and explanation. At first blush the six year period in section 2 (applicable to tort claims not involving personal injury) might seem more "favourable". It is only if either the knowledge provision in section 14 or the discretion arising under section 33 can successfully be brought into play that a claimant will be "better off".
For some years the Stubbings decision gave rise to no real practical problems. Rapists and abusers would rarely be worth suing. In Trotman v North Yorkshire County Council the Court of Appeal had decided that an employer could not be vicariously liable for sexual assaults committed by his employee. They were inherently outside the scope of his employment.
However three years later in Lister v Hesley Hall Ltd the House of Lords determined that this was not necessarily so and, if there was a sufficiently close connection between the work which the employee was engaged to do and the abuse, then liability could attach. Thus if a teacher or care home assistant was employed to look after the child but abused that position liability would attach to the employer.
A flood of claims followed but a new difficulty in the form of the strict six year time bar emerged. Acts of abuse had often taken place decades before and victims could not (so long as Stubbings was good law) simply assert vicarious liability for intentional abuse if that had occurred more than six years previously.
Such claims could only be brought if "systemic negligence" could be proved. Thus it would have to be demonstrated that the employer should have known of his employee's proclivities, that complaints or warning signs had gone unheeded or that proper safeguards had not been put in place. Claims framed in this way fell within section 11 but were not only likely to prove difficult to substantiate but would also raise particular difficulties in considering both the knowledge provisions of section 14 (considered below) and the proper exercise of discretion under section 33.
The most striking anomaly as pointed out by Lord Hoffman was the decision in S v W . The plaintiff sued both father and mother for sexual abuse by her father. The abuse had ended some 10 years before proceedings were brought. The claim against the father was struck out but that against the mother, for negligently failing to prevent such, was allowed to continue.
The implications of the principal decision
All claims seeking damages for personal injury will now, subject to a few somewhat unusual exceptions , be subject to the same statutory provisions; sections 11, 14 and 33 of the 1980 Act. Where the act of abuse alleged to have caused damage occurred more than three years earlier the claimant will either have to show later knowledge or that it would be equitable to disapply the primary period.
On one view victims might be thought worse off but that will depend upon how the lower courts apply the test as to "relevant knowledge" or, perhaps more important, exercise their section 33 discretion.
Many, if not most, victims of abuse will not bring (and certainly historically have not brought) proceedings for many years after the abuse has ended. Now when they do so, if the abuser was employed in a "caring" role, they will generally be able to rely upon the employee's abusive conduct alone and will not have to show some concurrent fault on the part of the employing organisation. That will not however invariably be the case. Cases of bullying at work will be unlikely to be determined on a straightforward finding of vicarious liability and it is easy to imagine arguments being raised as to whether a particular employee's abusive acts were sufficiently connected to the work he was engaged to do.
It should also be remembered that there are other examples of intentional assaults not involving sexual or physical abuse at home or in care. Cases such as Mattis v Pollock show how the Lister decision impacts upon night clubs and the over-enthusiastic or frankly psychopathic doorman. In all these cases practitioners must now be astute to begin proceedings within three years where possible and to advance detailed arguments as to knowledge / discretion where that has not been done.
The new era - Young's case - the facts
The facts in Kevin Young's case were perhaps so astonishing as to make it an unsuitable case for any consideration of general principles. He had spent the greater part of his childhood in a variety of care homes and alleged he had been frequently abused and asserted negligence on the part of those running such homes. At the age of 17 years (in 1977) he had been sentenced to a "short sharp shock" at Medomsley Detention Centre. Whilst serving that sentence he had been subjected to the most appalling abuse by one of the prison staff; this involved attempted buggery and the use of a ligature. He left custody on his eighteenth birthday and, after a significant period of difficulty, went on to forge a successful business career.
All was to change in the most dramatic way when, shortly before Christmas 1996 and outside York Minster, he quite literally "bumped" into his principal abuser at Medomsley who had now been ordained and was wearing a dog collar. The claimant's world "fell apart". He sought refuge in drink and hard drugs. He was visited by the police in late 1999 but was unable at that time to co-operate. Ultimately he gave evidence in criminal proceedings against his detention centre abuser which resulted in conviction and a long sentence. Some short time earlier his alleged abuser at a Catholic Care home was similarly convicted, though none of the specified offences related to Kevin Young.
The claimant first sought legal advice in late 2001 and proceedings were begun in early 2003. At first instance H.H. Judge Cockroft concluded, following the Court of Appeal decision in the Bryn Alyn case that the claimant did not have relevant knowledge at any time within 3 years of his issuing proceedings but indicated he would not have exercised his discretion under section 33. The Court of Appeal reversed the finding as to knowledge and declined to interfere with the "hypothetical" exercise of discretion.
The claimant first sought legal advice in late 2001 and proceedings were begun in early 2003. At first instance H.H. Judge Cockroft concluded, following the Court of Appeal decision in the Bryn Alyn case that the claimant did not have relevant knowledge at any time within 3 years of his issuing proceedings but indicated he would not have exercised his discretion under section 33. The Court of Appeal reversed the finding as to knowledge and declined to interfere with the “hypothetical” exercise of discretion.
The arguments and the decision
Relevant knowledge and section 14
The principal point for consideration was the meaning to be attached to “significant injury” as defined by section 14(2) of the 1980 Act. Section 14(1)
“references (in section 11) to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts:-
a) that the injury in question was significant; and
b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
c) the identity of the defendant; and
d) not relevant
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”
Section 14 (2) provides:
“ 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”
It should of course be remembered that section 14 (3) “adds” to actual knowledge the concept of constructive knowledge which had recently been fully considered by the House in the dyslexia case of Adams .
Victims of child sex abuse are, and have good reason to be, slow to come forward. There may be many reasons for such reluctance arising not only from the very fact of abuse but perhaps because of the identity of the abuser. It is often only a “trigger” event many years later which prompts disclosure and perhaps proceedings.
It had long been recognised by judges at all levels and by the Law Commission that section 14 was drafted with cases of insidious industrial disease in mind and was wholly unsuited for use in this type of litigation.
As the House noted it was such recognition of the inappropriateness of the statutory test coupled with an understanding of the psychological make up of abuse victims that led the Court of Appeal in Bryn Alyn to, as the House found, “substitute” their own test for that laid down by parliament. Auld LJ in Bryn Alyn had said this:
“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”
Such subjective approach could be said to date back to 1977 and the Court of Appeal decision in the deafness claim of McCafferty when Geoffrey Lane LJ said:
“The test is partly subjective, namely ‘would this plaintiff have considered the injury sufficiently serious?’ and partly objective, namely ‘would he have been reasonable if he did not regard it as sufficiently serious?’”
These two citations well illustrate the arguments underpinning the approach urged on Mr Young’s behalf. The section refers to “the person whose date of knowledge is in question”; that person had, on the evidence, blocked all memories of the abuse from his mind as he sought to build a new life. Thus it was argued that it was wholly unreasonable for such a person reasonably to contemplate proceedings given that he was in denial - he lacked knowledge.
The House unanimously rejected such arguments and concluded that the test as to significance of injury was (in Lord Hoffman’s words):
“external to the claimant and involved no inquiry into what he ought reasonably to have done…the effect of the claimant’s injuries upon what he could reasonably have been expected to do is therefore irrelevant”.
In considering the specific argument that the claimant was in denial Lord Hoffman effectively concluded that though such concept might be of interest to the psychologist the subsection “assumed a practical and relatively unsophisticated approach to the question of knowledge”. The very seriousness of the assaults and the claimant’s immediate reaction thereto meant that he was fixed with knowledge from the earliest of dates (co-incidentally three years from his attaining his majority).
The section 33 discretion
Though the appellant lost on the knowledge argument his appeal succeeded and the case was remitted to the first instance judge for him to reconsider the exercise of his discretion under section 33. The original exercise had been hypothetical only and the Court of Appeal declined to interfere.
It is important to appreciate that the House had two distinct matters in mind in remitting the case. First, following the overturning of Stubbings, the whole basis of the exercise had changed. Prejudice and the impact of delay upon the ability to hold a fair trial had to be considered not against the background of allegations of systemic negligence but rather in the context of a case where the only issue might be whether the abuse had in fact taken place. Where there had been a criminal trial and relevant conviction that was a very different situation.
Secondly the House stressed that the very characteristics (humiliation, shame, guilt, fear of being disbelieved) which they had ruled were immaterial to questions arising under section 14 were highly material to section 33. They had not been given proper weight at the proper point in the courts below.
A number of their Lordships specifically accepted that a less “generous” approach under section 14 called for a corresponding shift to the approach under section 33. Thus Lord Carswell:
“If, as I think to be the case, section 14 should be construed in this manner, which is less favourable to a claimant, there requires to be a more liberal approach to the exercise of discretion than has always been the case”.
Kevin Young’s litigation is not, of course, over. A preliminary issue will have to be retried before questions of liability and perhaps quantum are determined. Thirty years and more have already elapsed but his case, though striking on its particular facts is by no means unusual. Some limited guidance was given as to how the section 33 discretion should be exercised and this is considered below.
Adams and constructive knowledge
If an essentially objective approach is to be adopted under section 14 (2) then the House had already determined that a similar approach was required under section 14(3). That case had concerned a dyslexic claimant suing the local education authority for its failure to diagnose his condition many years earlier. It was found that he lacked actual knowledge (as to attribution rather than significance) but that he should be fixed with constructive knowledge.
The court had to consider a reasonable person, not someone with the claimant’s particular character or intelligence albeit that the fictional person had to be assumed to be someone who had suffered the injury in question. In the context of that particular case it was said that the normal expectation was that someone who had suffered a significant injury would seek professional advice as to the cause. That is not (necessarily) the case in cases of sexual abuse and where questions arise as to knowledge of attribution a different conclusion might perhaps be appropriate.
Bryn Alyn has been expressly overruled. Arguments as to significance of injury will, certainly in the more serious cases of abuse, be effectively impossible to present. There may well, however, be cases where the initial assault (and any accompanying injury) was so minor as not to “count” for section 14 (2) and it is only after some trigger event years later that a full blown psychological condition develops. In such a case it can still be said that time only runs from the date when that condition developed and that any earlier injury was not significant.
There will also be cases where real arguments as to knowledge of attribution arise. Many disturbed adolescents may have had a number of adverse factors in their life and it is only later, perhaps with the assistance of expert therapy, that the principal cause is identified as being a particular act or episode of abuse. Such cases will still initially fall to be considered under section 14.
A possible anomaly remains. In a case such as S v W (above) where the abuse was serious then time will run as against the perpetrator father either from the date of the abuse or from the claimant’s attaining his/ her majority. However if the child had no reason to suspect that the mother knew or colluded then a much later date might be found. The claimant would not know (and would reasonably not know) of the facts giving rise to the cause of action. Such a claimant would be able to sue the (less culpable) parent as of right but would be dependent upon discretion being exercised in their favour to sue the actual abuser.
We will clearly have to wait to see how District and Circuit Judges approach section 33 in this category of case. The concern is clearly that very different approaches will be adopted with very different results and that appellate courts will, as now, be reluctant to interfere with the exercise of discretion.
Some guidance was given particularly by Lord Brown. All the judgments emphasised that the discretion was “unfettered” and any notion that the discretion was for a “residual” or “special” class of case was again laid to rest . It is clear too that the House favoured a “generous” approach with Lady Hale and Lord Carswell particularly stressing such.
Lord Brown pointed out that in future if vicarious liability rather than systemic negligence is the basis of the claim then factual disputes will be narrower and that was “likely to bear significantly upon the possibility of having a fair trial”. Thus where a perpetrator has been convicted a decision favourable to the claimant can presumably be anticipated in most cases .
However, later in his judgment Lord Brown sounded a note of caution and observed that it must not be assumed that the exercise of discretion under section 33 will invariably replicate the Bryn Alyn test so as to allow “those who had not (earlier) reasonably turned their minds to litigation” to proceed.
He said in terms (having pointed to the difficulties of investigating years after the event):
“By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may be, can reasonably expect the court to exercise the section 33 discretion in his favour”.
An unanswered question is the extent to which expert medical evidence will be needed / ordered. Such will still be highly relevant to the reasons for delay and it cannot be assumed proper judicial notice as to the likely effects of abuse will always be taken.
One final point needs be made. There will be many indigent abusers. Few will go on to win the lottery. Should “protective” proceedings be brought? Lord Brown hoped not but a dilemma remains.
The wider picture
It might be tempting to suppose that the case has no real import for other personal injury claimants. It was already generally accepted (though the reminder is welcome) that section 33 is of general application and is not an “exceptional indulgence ”. In most cases where later knowledge was asserted the argument has centred on ignorance of the factual premise or of the (possible) attribution.
Thus, in cases of clinical negligence, a potential claimant generally knows that “something has gone wrong” but he may not know what or why until he has received expert evidence. It must however be appreciated that there will be little scope for arguing that even a relatively modest “side effect” or “complication” should not be regarded as “significant” and a claimant cannot assert (within a section 14 argument) that they were understandably reluctant to sue a trusted consultant or that they lacked the requisite intelligence to appreciate the full import of what had happened. These arguments will be relevant under section 33 only.
In this regard though there are no actual references in A v Hoare to cases such as Dobbie , Forbes and Spargo all were referred to at length in argument and all must be taken to have been approved. Dobbie’s case perhaps merits specific comment. There a claimant, though knowing a breast had been removed (a significant injury), had no reason to suspect that it had wrongly been removed but was fixed with knowledge on the basis she knew of the removal, knew the cause of it and knowledge that such was negligent was irrelevant (given the proviso to section 14) so that time ran not from the date when she learnt the biopsy was clear but from the time of removal.
In the field of clinical negligence courts have been slow to exercise discretion in the claimant’s favour often emphasising the “prejudice” to a professional man in having to deal with a stale claim. A very recent example is the decision in McHugh v Gray . All that can be said is that some greater encouragement to look at the reasons for delay has been given by the House.
In cases of industrial deafness, HAVS and other insidious conditions limitation arguments often feature prominently and a number of their Lordships (particularly Lord Carswell) did specifically refer to this. His analysis of the mesothelioma analogy bears reading. In future cases arguments that the initial disability was perceived as minor only may fall to be more critically scrutinised and arguments based on a particular claimant’s character or lack of intelligence will be consigned to deliberations under section 33. Again however the real argument as to knowledge in such cases generally centres on attribution and the decision does not really impact thereon.
There have been a number of important Court of Appeal decisions on limitation in this type of case in recent months. McCoubrey’s case post-dates the Court of Appeal decision in Young. The Court concluded that a claimant who asserted he had suffered hearing loss consequent upon exposure to a thunderflash explosion experienced on military training had requisite knowledge and that the “seriousness” of the injury was to be determined objectively and by regard to the loss of hearing itself and not its effect on the claimant’s career.
In a second case concerning deafness the Court of Appeal overturned the initial ruling as to knowledge and concluded that a claimant who had gone for a hearing test in the early 1990’s knew then that he had suffered significant injury (the losses were minor only) and that such was capable of being due to conditions at work so that negative advice from a union official as to the prospects of a claim was irrelevant and did not operate to prevent time running.
By contrast in a HAVS case a claimant was ruled to not have actual knowledge until he had been told by a doctor that working conditions (as opposed to the effects of age) might account for his symptoms. It was however further held that from that date it was reasonable for him to begin enquiry. Discretion was exercised in his favour and specific reference made to the value of the claim and the likely costs to the Defendants.
A final thoughtFollowing the House’s decision it seems inevitable that in all categories of litigation attention will focus less upon section 14 and more on section 33. This is not a recipe for consistency but it is a call for both sides to focus upon prejudice and to ensure that pleadings and witness statements fully address each of the relevant factors listed and any other special circumstance.
It is now seven years since the Law Commission proposed that significant changes should be made to the law of limitation and, in the present context, to the definitions of knowledge. In the course of argument reference was made to the fact that such changes were still under consideration but no Bill is yet on the horizon and practitioners will have to continue to grapple with legislation which might be thought unsatisfactory in a number of respects.