“Needless complexity in the law costs money. The law on limitation periods, which is largely contained in theLimitation Act 1980 , is uneven, uncertain and unnecessarily complex. [Examples are then given] … Concern has also been expressed at the existence of situations where limitation periods can be less favourable from the plaintiff’s point of view for intentionally inflicted injury than for negligence. … We believe … that the law in this area is in need of a comprehensive review which gives an opportunity to simplify, rationalise and update it…”
“(1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person. (2) None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) … below. (4) … [T]he period applicable is three years from – (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured.”
“It seems to me that in this context the phrase “breach of duty” is comprehensive enough to cover the case of trespass to the person which is certainly a breach of duty as used in a wide sense.”
“Provided that, in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six there were substituted a reference to three years.”
“In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of ‘trespass to the person’ or the rest. It used words of general import; and it is those words we have to construe, without reference to the words of the Committee.”
“Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character.”
“Parliament having given its blessing to W.T. Lamb & Sons v Rider … it is now too late for your Lordships to hold that its reasoning is erroneous.”
“We consider that the period of limitation we have recommended should apply to all actions for personal injuries, whether the defendant is a public authority or not. We do not think it is necessary for us to define ‘personal injuries,’ although this may possibly be necessary if legislative effect is given to our recommendations. We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution, or defamation of character, but we do include such actions as claims for negligence against doctors.”
“I have the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury.”
“However this right [ie the right of access] is not absolute. It may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.”
“54. There has been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims, and it is possible that the rules on limitation actions applying in Member States of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future. However, since the very essence of the applicants’ right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the Court to substitute its own view for that of the State authorities as to what would be the most appropriate policy in this regard.”
“3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. (2) This section applies to primary and subordinate legislation whenever enacted. …. 4(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.”
“Two members of the court, Millett LJ and Sir Ralph Gibson, referred to the anomaly of there being different periods of limitation as between a perpetrator of abuse and someone in not preventing it and of the potential extension of the limitation period for the latter instead of, as the Tucker Committee had recommended, a reduction of the period in such cases. They invited the Law Commission to consider the anomaly. It has done so, recommending that claims for personal injuries, including those of child abuse, whether in trespass to the person or in negligence, should be subject to the same core regime of an extendable three years limitation period with discretion to disapply. … For what it is worth, we warmly commend such a proposal. Early statutory implementation of it would obviate much arid and highly wasteful litigation, turning on a distinction of no apparent principle or other merit.”
“Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.”
“A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.”
“In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a ‘right’ as any other statutory or contractual provision against a future suit.”
“Despite the use of the phraseology ‘an action shall not be brought’, it is trite law that technically a Limitation Act does not prevent the commencement of an action by the plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is indisputably statute-barred, by taking out a summons to have it dismissed as vexatious.”
“It is important to note that Mr Rowe's cause of action in this case is alleged to have arisen before the Human Rights Act came into force on2nd October 2000 . Although no retrospectivity point has been taken on behalf of the appellant, it is my opinion that, on the present state of the authorities, section 3 of the Human Rights Act does not in general apply retrospectively to a cause of action which arose before the Human Rights Act came into force, so as to take away from a defendant public authority the limitation defence, which would otherwise have been available to it before the Human Rights Act came into force :- see Secretary of State for the Home Department v Wainwright[2002] QB 1334 , 1352 and the decision of the House of Lords, in particular the speech of Lord Nicholls, in Wilson v First County Trust Ltd(No 2)[2003] 3 WLR 568 , 576 at para 20. Section 3 of the Human Rights Act is not, therefore, in my judgment available to the respondent in this case.”
“Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both.”
“The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child’s level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims.”
“A teacher must exercise due skill and care to respond appropriately to the manifest problems of [a child with learning difficulties], including informing the head teacher or others about the child’s problems and carrying out any instructions he is given. ... I can see no escape from the conclusion that teachers do indeed owe [duties to all their pupils in respect of the way they discharge their teaching responsibilities].”
“The allegation of negligence is directed not at the risks of physical dangers which might occur through something dangerous in the premises, but at something done in the course of the educational activities of the school. .... [W]hile the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential financial loss and expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. ”
“The sexual abuse took the form of mutual masturbation, oral sex and sometimes buggery. The sexual abuse was preceded by ‘grooming’, being conduct on the part of the warden to establish control over the appellants. It involved unwarranted gifts, trips alone with the boys, undeserved leniency, allowing the watching of violent and x-rated videos, and so forth.”
“The matters must be looked at broadly ... by asking: what was the job on which [the servant] was engaged for his employer?”
“If this approach to the nature of employment is adopted, it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the warden and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers while the warden was also busy caring for the children.”
“But a master ... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them.”
“It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. The particular acts which he carried out upon the boys have to be viewed not in isolation but in the context and the circumstances in which they occurred. Given that he had a general authority in the management of the house and in the care and supervision of the boys in it, the employers should be liable for the way in which he behaved towards them in his capacity as warden of the house.”
“59. ... Whether or not some act comes within the scope of the servant’s employment depends upon an identification of what duty the servant was employed by his employer to perform. ... If the act of the servant which gives rise to the servant’s liability to the plaintiff amounted to a failure by the servant to perform that duty, the act comes within ‘the scope of his employment’ and the employer is vicariously liable. If, on the other hand, the servant’s employment merely gave the servant the opportunity to do what he did without more, there will be no vicarious liability, hence the use by Salmond and in the Scottish and some other authorities of the word ‘connection’ to indicate something which is not a casual coincidence but has the requisite relationship to the employment of the tortfeaser (servant) by his employer. 60. My Lords, the correct approach to answering the question whether the tortious act of the servant falls within or without the scope of the servant’s employment for the purposes of the principle of vicarious liability is to ask what was the duty of the servant towards the plaintiff which was broken by the servant and what was the contractual duty of the servant towards his employer. The second limb of the classic Salmond test is a convenient rule of thumb which provides the answer in very many cases but does not represent the fundamental criterion which is the comparison of the duties respectively owed by the servant to the plaintiff and to his employer.”
“83. The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. 84. I would hold the school vicariously liable for the warden’s intentional assaults, not (as was suggested in argument) for his failure to perform his duty to take care of the boys. That is an artificial approach based on a misreading of Morris v C W Martin & Sons Ltd.The cleaners were vicariously liable for their employee’s conversion of the fur, not for his negligence in failing to look after it. Similarly in Photo Production Ltd v Securicor Transport Ltd the security firm was vicariously liable for the patrolman’s arson, not for his negligence. The law is mature enough to hold an employer liable for deliberate, criminal wrongdoing on the part of an employee without indulging in sophistry of this kind. ”
“[A]part from authority, it is in my view quite plain on principle – qui facit per alium facit per se – that the defendants are liable for what amounted to negligence and conversion by their servant in the course of his employment. It does not appear to me that in the circumstances of this case, there is any relevance in the distinction between the two causes of action. When Morrissey stole the fur, he clearly converted it; equally clearly in my view, the act of stealing the fur was a glaring breach of the duty to take reasonable care to keep it safe – and that is negligence.”
“Nonetheless this line of argument may require further consideration. For example, if the employee was aware of a physical injury sustained by a boy as a result of his conduct it might be said to be part of his duties to report this fact to his employers. If that is so, why should the same not be true of psychological damage caused by his sexual abuse of a boy?”
“However, it was part of both the duty of the carers towards the plaintiffs and of Mr Grain towards his employers to report to them any incident which was relevant to the health and well-being of the plaintiffs: finding 5 in Judge Walker's list. It follows from this and what I have previously said about the nature of the duties owed to the plaintiffs and the principles governing the issue of vicarious liability that the Court of Appeal were mistaken in not attaching more validity to this way of putting the plaintiffs' case. In truth, there were a whole succession of breaches of the duty to care for the plaintiffs by Mr Grain. The fact that the defendants might not have been liable for some of them does not alter the fact that the defendants would have been liable for the others. All it does is to put the former class of acts into the same category as acts done by some third party but of which, or of the consequences of which, Mr Grain was aware. To take one of the judge's hypothetical examples, say, there might have been a groundsman at Axeholme House and he might have been the abusing party; Mr Grain might have discovered what had happened and the distress it had caused to the boy but did nothing about it and did not report the incident to the defendants. The defendants might not be liable for what the groundsman did; he was employed to look after the grounds, not to have anything to do with the boys. But the defendants would be liable for the breach of Mr Grain who was employed to care for the boys and their welfare. The liability of the defendants might not be so grave or extensive as if Mr Grain had been the abuser himself but it would in principle be capable of existing.”
“I would also not base liability on the warden’s failure to report his own wrongdoing to his employer, an approach which I regard as both artificial and unrealistic. Even if such a duty did exist , on which I prefer to express no opinion, I am inclined to think that it would be a duty owed exclusively to the employer and not a duty for breach of which the employer could be vicariously liable. The same reasoning would not, of course, necessarily apply to the duty to report the wrongdoing of fellow employees, but it is not necessary to decide this.”
“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's reasoning in Stubbings v Webb, … 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 with a 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 injuries in respect of deliberate conduct, whether considered in the context of vicarious responsibility or not, are not caught by its provisions. Accordingly, in the absence of some provable allegation of systemic negligence of the first defendant, we are of the view that its employees' deliberate abuse does not fall within section 11 and is, therefore, governed by a non-extendable six years' period of limitation rather than an extendable three years' period. We would accordingly uphold the judge's finding and ruling to that effect…” 108. In C v Middlesbrough County Council[2004] EWCA Civ 1746 this court, as we have seen (see para 36 above), considered that it was bound by this part of the decision in KR v Bryn Alyn. That case had marked similarities to the cases with which we are concerned. A teacher at the claimant’s school had a flat in the school premises to which he invited his favourites, contrary to the school rules. He groomed them by giving them cigarettes and other presents and otherwise performing acts of favouritism towards them. He then performed acts of sexual abuse. 109. The judge found that the school’s head teacher had not been negligent in relation to these matters, and an appeal against that finding was dismissed. What was left was the contention that the council was vicariously liable for the teacher’s actions. Latham LJ, with whom the other members of the court agreed, summarised the effect of the case law leading up to the decision in KR v Bryn Alyn and then said (at para 31): “[Counsel for the appellant] tried valiantly to escape from what seems to me to be the inevitable consequence of this decision. She submitted that the court had not fully considered the nature of the duty which Lord Hobhouse had suggested as the basis for liability. But I confess I found it impossible to see in her argument anything which could enable us to distinguish the Bryn Alyn case or hold that this court's decision was for some other reason not binding on us. In my view the judge was correct in the conclusion that he reached.” 17. Argument (v): The duties of teachers and the developing law: (d) Vicarious liability for unauthorised acts: other recent cases 110. Questions about the principle that underlies the attachment of vicarious liability for unauthorised acts resurfaced from time to time after the decision in Lister. In Dubai Aluminium Co Ltd v Salaam[2002] UKHL 48 ;[2003] 2 AC 366 the House of Lords extended the scope of the principle to duties arising in equity. In this case Lord Nicholls explained why that policy dictated that liability for agents should not be strictly confined to acts done with the employer’s authority, and then went on to say (at paras 23-24): “23. If, then, authority is not the touchstone, what is? Lord Denning MR once said that on this question the cases are baffling: see Morris v C W Martin & Sons Ltd[1966] 1 QB 716 , 724. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment. Lord Millett said as much in Lister v Hesley Hall Ltd[2002] 1 AC 215 , 245. So did Lord Steyn, at pp 223-224 and 230. McLachlin J said, in Bazley v Curry (1999) 174 DLR (4th) 45, 62: 'the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization).' (Emphasis added) To the same effect is Professor Atiyah's monograph Vicarious Liability in the Law of Torts, (1967) p 171: 'The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on'. (Emphasis added) 24. In these formulations the phrases 'may fairly and properly be regarded', 'can be said', and 'can fairly be regarded' betoken a value judgment by the court. The conclusion is a conclusion of law, based on primary facts, rather than a simple question of fact. 25. This 'close connection' test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged… 26. This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable.”
“129. An employer has been held to be vicariously liable for the intentional wrongdoing of his employee in a wide variety of different circumstances. In some of the cases the employer has undertaken a duty towards the plaintiff and then delegated the performance of that duty to his employee: see Morris v C W Martin & Sons Ltd[1966] 1 QB 716 ; Photo Production Ltd v Securicor Transport Ltd[1980] AC 827 ; Lister v Hesley Hall Ltd[2002] 1 AC 21 . … But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing.” 112. In Bernard v Attorney-General of Jamaica[2004] UKPC 47 Lord Steyn said (at paras 18 to 19): “18 In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate question was posed, namely [at 230C]: "... whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable." The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was ‘yes’ because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. … Lister is … important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond's well-known formula, the question whether the act is "a wrongful and unauthorised mode of doing some act authorised by the master" is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st edn, 1996, 443. … The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee. This strand in the reasoning in Lister was perhaps best expressed by Lord Millett who observed (para 83, at 250D): "... Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust." … A year later in Dubai Aluminium Company Limited v Salaam and Others[2003] 2 AC 366 the House of Lords applied the principles in Lister in a very different context. The issue was whether a solicitors' firm was vicariously liable for the fraudulent acts of one of its partners who, together with others, had defrauded the Dubai Aluminium Company. If the firm, which had paid compensation to the company, was vicariously liable, it could properly claim contribution from the other participants in the fraud. The House found vicarious liability established. All the opinions are closely reasoned and important but it is not necessary to review the case generally. A citation from the leading opinion of Lord Nicholls of Birkenhead, reveals the link with Lister. Lord Nicholls stated (para 23, at 377E): "... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment." 19 Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on”. "... whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable." "... Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust." "... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment." See also Majrowski v Guy’s and St Thomas’s NHS Trust[2005] EWCA Civ 251 ;[2005] QB 848 per Auld LJ at paras 27 to 40. 18. Argument (v): Can Stubbings v Webb be distinguished by reliance on a concurrent breach of duty? 113. The law has clearly moved on a long way since Stubbings v Webb was decided. Limitation issues were not even discussed in Lister v Hesley Hall, and we no longer think only of a duty of care to avoid personal injury when we consider what duties exist in the context of a teacher-pupil relationship. 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 benefit of a normal 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. 114. Unconstrained by authority, we would be inclined to follow what appears to be the approach of the majority in Lister v Hesley Hall (see para 99 above) and hold that such a claimant could 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. But 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. And if it were to be suggested that in Bryn Alyn the facts complained of may have been limited to intentional assaults, in C v Middlesbrough Borough Council the facts were similar to those with which we are at present concerned, and this court nevertheless held that it was bound by the decision in Bryn Alyn not to apply the more relaxed limitation regime that is available in “breach of duty” cases. We considered whether we were able to depart from this part of the judgment in Bryn Alyn, but even if we were free to do so we think that 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. 115. Again, if we were free from binding authority, we would have to consider quite carefully the reasoning of Lord Hobhouse in Lister (see para 101 above) to the effect that it is legitimate to include a failure to report among such a teacher’s breaches of duty. It would follow from this reasoning that if the boys’ head of year is under a duty to report to the headteacher that another master was about to involve himself in acts of indecency with a boy, a fortiori in that capacity he was under such a duty if he was about to behave in this way himself. This, of course, is an artificial approach, and its artificiality stems from the way in which as the law now stands we have to segregate those acts of indecency that amount to intentional assaults from acts of indecency that do not involve touching (as when an abuser persuades a boy to strip off his clothes and masturbate in front of him) but are nevertheless probably causative of harm. However, in Bryn Alyn Auld LJ preferred Lord Millett’s approach to this issue in Lister as part of the court’s reasons for denying vicarious liability in this respect, and we are bound by that decision. 19. The application of the law to the three appeals: (i) A v Hoare 116. We will now apply the law to the facts of the three appeals. A more detailed description of the facts is to be found in the Appendix. 117. In A the appellant was subjected to an attempted rape by a serial sexual offender. He was sentenced to life imprisonment. There would have been no point in A suing him before the primary limitation period expired in February 1994 because he had no money. Ten years later, however, he won£7 million on the national lottery, and A issued proceedings against him in December 2004. 118. If Parliament enacted the Law Commission’s proposals, the court would have a discretion to override the primary limitation period. How it would exercise its discretion would of course depend upon all the circumstances of the case and we express no view upon how it would be exercised on the facts of this case. Like the judge, we were not asked to do so. As it is, we are bound by the decision in Stubbings v Webb to hold that the claim is statute barred, and for the reasons we have set out in paras 42 to 65 above the HRA cannot come to A’s assistance because the defendant possessed an accrued right to a limitation defence long before the HRA became law. For these reasons we must dismiss A’s appeal. 20. The application of the law to the three appeals: (ii) H v Suffolk County Council 119. In H the judge found that H had been indecently assaulted by one of his teachers in 1990. The circumstances are fully explained in Part B of the Appendix below. The primary limitation period expired in February 1999. The claimant never disclosed to anyone what had happened to him until shortly after the claim had become statute barred, and these proceedings were commenced in April 2002. 120. At the outset of the trial, the judge struck out his direct claim against the teacher, and there is no appeal against that decision. At the end of the trial he dismissed the action against Suffolk County Council (“the Council”) as the school authority on the ground that it had neither been negligent in recruiting that teacher nor in the way the teacher’s conduct towards the boys was monitored or supervised. Ground one of H’s appeal challenges the second of those conclusions. A consideration of this ground involves a comparatively detailed analysis of the facts which is contained in paragraphs 162 to 186 below. For the reasons there given, we have reached the conclusion that there is no basis upon which we could properly say that the judge was wrong in reaching the conclusions he did. We therefore dismiss the appeal on this ground. 121. Permission to appeal was granted by Brooke LJ on two grounds. The first was that to which we have just referred and the second was that section 2 of the 1980 Act should not be applied to a case of this kind because ofarticle 6 of the Convention . This ground fails for the reasons set out in paras 39 to 68 above. 122. In addition to grounds one and two, at the hearing of the appeal Mr Cooksley sought to distinguish Stubbings v Webb on the basis that it only applied to the individual tortfeasors and not to a local authority. He also associated himself with the various other bases for saying that Stubbings v Webb should not be followed. However, the only ground upon which a formal application for permission to amend the appellant’s notice and for permission to appeal was made was that the judge was wrong to strike out the claims in negligence and that (as it is put in the proposed ground 3) “a deliberate abuser who exposes himself to a situation he is likely to abuse and which he knows he is likely to abuse, and who fails to take steps to prevent abuse by himself acts negligently in so failing”
“34. I formed the view after careful consideration of the claimant’s evidence that even with its internal contradictions and its vagueness it was essentially truthful and that he was indeed sexually abused by the second defendant. 40. In reaching that conclusion, I am not finding more than that during his time at Kerrison the claimant was sexually abused by the second defendant. I am not finding that specific assaults occurred at specific times, because as I have said I believe that the claimant unconsciously exaggerates, but is basically truthful.”
“52. … Mr Bennett had a background of experience in care work, and came with good references. He clearly was an able man and to those who were not the subject of his attentions he was well-regarded: Mr Lindsay had nothing but good memories of him. I see nothing in the references or the recruitment process which in any way suggests that the County Council were at fault in deciding to employ Mr Bennett.”
“It is right to say immediately that in relation to the allegation that the first defendants failed properly to supervise Mr Bennett, or alternatively that they failed to pick up the warning signs which, says counsel for the claimant, should have alerted them to his propensities, that Mr D Welch, the then headmaster of Kerrison, and Mr M Ayres, his line manager at Social Services, were both impressive witnesses, clearly conscientious men who ran what on the whole was a happy and healthy school. There was no suggestion that Kerrison had been the object of other such accusations or that there was any internal cover-up or anything of that sort.” 169. The judge considered each of the aspects of the evidence relied upon on behalf of H as matters which should have alerted the school. They were (1) visits by boys to Mr Bennett’s flat alone, (2) the fact that Mr Bennett alone took three boys on a camping trip to Devon and (3) anxieties raised by Mrs Ashley. We consider each in turn, since they are again relied upon in this appeal. (i) Visits to Mr Bennett’s flat 170. H’s case was that the abuse started on a week’s camping holiday in Devon in late May and early June 1990 to which we will return in a moment. However, the first incident relied upon by Mr Cooksley in support of the appeal took place before the camping holiday. A daily record sheet was kept for each boy and there is an entry for H for13 May 1990 made by a member of staff which states: “Terry out with RJB [ie Mr Bennett] for the afternoon. Returned at tea time and went down the gardens. Evening spent watching a video in RJB’s flat.” 171. It was the case for H that it should be inferred from that entry that he had spent the evening alone in Mr Bennett’s flat and that that was contrary to the instructions given to staff. Mr Ayres said in evidence that it was unacceptable for a boy to be invited into a teacher’s flat alone, although he also said that it was not unacceptable if he was not alone. 172. The judge said this with regard to that entry in paragraph 33 of his judgment: “The second defendant said that an entry in the daily log before the camping holiday indicating that the claimant had watched a video in his flat was false: he had no video equipment and the claimant had never been in his flat. He accepted that he had been warned by the headmaster not to have pupils in his flat alone, but said that the only time that had occurred was when one of the other boys (Mark Dugdale) stood inside the door for a short time.” 173. The judge said in paragraph 37 of his judgment that he did not believe that the log entry in relation to the video was false, although that was not to say that anything untoward occurred on that occasion and there may well have been other boys there at the same time. The judge expressed his conclusion in relation to this point thus in paragraph 55: “I have already discounted the entry about the claimant visiting Mr Bennett’s flat as being a warning sign. It was common knowledge that boys were not to visit staff accommodation alone, and it seems unlikely that the member of staff who filled in the log would have done so knowing that a disciplinary offence had been committed without bringing the matter to Mr Welch’s attention, or at the very least that Mr Welch would not have been alerted to it by reading the log or by someone else seeing the entry in the log.” 174. We can see no sensible basis upon which the judge’s conclusions set out above can properly be reversed. In short he was not persuaded that the entry was sufficient to disclose a disciplinary offence because the entry does not disclose that H was alone watching a video in Mr Bennett’s flat. It seems to us that the judge must have accepted Mr Ayres evidence that his conduct would only be unacceptable if H was in the flat alone with Mr Bennett and we can see no reason why he should not have done so. 175. There was also a suggestion that there was an occasion when a different boy was in Mr Bennett’s room doing his homework in respect of which Mr Bennett was said to have been given a warning. Indeed, Mr Welch said in evidence that he recalled one occasion when a member of staff brought to his attention the fact that a boy had been doing his homework in Mr Bennett’s room. His evidence was that he told Mr Bennett that that was unacceptable and that arrangements were to be made for it to be done somewhere else. As to that, the judge said this in paragraph 56 of his judgment: “Further, I do not see that one incident where a boy did his homework in Mr Bennett’s flat, on a date which is not clear, as a result of which he was given a warning, should have alerted the [Council] to the fact that [Mr Bennett] was or might be attracted to teenage boys.” 176. Again, we do not think that those conclusions can fairly be criticised. It is, of course, very easy to be wise after the event. (ii) The camping holiday 177. Mr Bennett was the only teacher on the camping holiday. In addition to H there were two other boys, Chris Hodges and Colin Lindsay. Two criticisms were advanced of the trip. The first was that more than one member of staff should have gone and the second related to the tent arrangements. The first point was put to Mr Welch, who said that he had discussed the matter with H’s social worker and his adoptive parents, all of whom agreed. 178. The judge’s conclusions on this put are set out in paragraph 57: “It was certainly unusual for one member of staff on his own to take boys away. Mr Welch clearly gave careful consideration to the expedition and, with the consent of the parents concerned, permitted it. As he said, he had to act according to the standards then thought appropriate, which were unwritten. …. Mr Ayres said that he would have had no problem at that time with the camping expedition, but would not have been happy with a member of staff sharing with a boy.”
“I do not think that, on the proper application of the well known test in Bolam and applying the standards for the time about which we are concerned, the defendants were negligent to permit the camping trip to take place. At that time, on the evidence I have heard, there was nothing at all to suggest to Mr Welch or the other staff that Mr Bennett was other than a conscientious and properly behaved member of staff.” 179. In these circumstances we do not think that any fair criticism can be advanced of the judge’s approach or conclusions on the question whether the school should have forbidden a camping trip with only one member of staff. 180. The second criticism of the trip relates to the sleeping arrangements. It was (and is) said that Mr Bennett should not have been permitted to share a tent with a boy. Unfortunately H’s case on this point was not put to Mr Welch. In any event, the judge said that it seemed to him that on the balance of probabilities the school was not told by Mr Bennett in advance that he was sleeping in the same tent as a boy and that there was no evidence that it knew of it later. It is said that the school, in the person of Mr Welch or his delegate should have enquired. Again, however, there is no expert evidence on this question and we see no reason to think that in 1990 it would not have been appropriate to leave Mr Bennett in charge of sleeping arrangements without checking up on him, at any rate in the absence of evidence that he was not in some way to be trusted. 181. However that may be, as we see it, the point is only relevant if it is shown on the balance of probabilities that the abuse would probably not have occurred if the suggested precautions had been taken. It appears that there were two tents but it is far from clear who shared a tent with whom. The judge did not find that H shared a tent with Mr Bennett. H said Colin Lindsay was not on the trip but the judge accepted the evidence of Mr Lindsay that he was. H said in his statement to the police that he shared a tent with ‘John’ and that Mr Bennett had a tent on his own. The judge recorded that Mr Bennett agreed in evidence that he had shared a tent with Chris Hodges and that H had shared a tent with Colin Lindsay. 182. In these circumstances, there seems to us to be no satisfactory basis upon which it could be held that the decision to permit two tents to be used was causative of any abuse. The judge was justified in rejecting this part of H’s case. (iii) Mrs Ashley’s anxieties 183. In about July 1990 Mrs Ashley expressed concern that Mr Bennett might be getting too close to the boys and that there was a possibility that he might be grooming a particular boy. Her concern related to Chris Hodges. There was evidence that Mr Bennett visited Chris Hodges’ parents’ house to help him decorate his room 184. She expressed her concern to Mr Ayres, who spoke to Mr Welch. The judge held that when the school learned of Mrs Ashley’s concern alarm bells should have rung but he also held that they did ring. Mr Ayres subsequently visited the school and had a meeting with Mr Bennett and, the judge held, the deputy headmaster Mr Page. The judge held that at that meeting Mr Bennett was reminded to maintain proper boundaries and Mr Page was told to supervise Mr Bennett carefully. We see no reason to reject those findings of fact. 185. The judge further held that that was not an inappropriate response. He added that he did not see that the Council was negligent in not suspending or disciplining Mr Bennett at that time. He considered both the individual incidents and the evidence in the round and concluded that, judged by the standards of the time, the whole of the concerns about Mr Bennett which were known at the time were not such that the Council was in breach of a duty of care or negligent in not disciplining Mr Bennett. 186. In our judgment, the judge was entitled to reach that conclusion. We cannot properly reverse any of the judge’s findings of fact. He was entitled to make all of them. Moreover, as indicated above, no expert evidence was put before the judge that no school in the position of Kerrison would have acted as the Council did. In all the circumstances, we have reached the clear conclusion that the judge was entitled to hold that the Council was not in breach of its duty of care. It follows that the appeal must be dismissed. Part C X and Y v Wandsworth London Borough Council 1. Introduction 187. This is an appeal by the claimants against a judgment of Judge Cotran on7th October 2005 whereby he dismissed their claims for damages against the London Borough of Wandsworth arising out of the sexual abuse perpetrated on them by a teacher when they were pupils at a secondary school in Wandsworth which was maintained by that authority. The claim of the first claimant, whom we will call X, was issued on13th November 2002 , when he was 29. The claim of the second claimant, whom we will call Y, was issued on23rd June 2003 , when he was 31. The incidents in question occurred between 1984 and 1987, and any claim against the teacher for trespass to the person was statute barred by the time the claims were issued (Stubbings v Webb[1993] AC 498 ). The claims were therefore brought in negligence against the defendant, and it was common ground that if the claims were otherwise viable, the claimants would in any event have been granted permission to proceed with their claims pursuant to the operation ofsection 33 of the Limitation Act 1980 . 188. The teacher was not himself a party to the proceedings – in May 2001 he was convicted of indecent assaults in connection with these matters and sentenced to three years imprisonment – and there was no dispute about the underlying facts of the two cases. 2. The first claimant’s experiences at school 189. X first attended the school in September 1984 when he was 11 years old. Mr Derek Harding was “Head of Year” for Year 7. This was the age-group, consisting of six classes, of children who entered the school at 11. He was then 37 years old and had been a teacher at the school for 14 years. He remained Head of Year for this group as they progressed through the school. The head teacher said that he was highly respected by pupils, parents and teachers. He was viewed as a pillar of the school community, and he was very visible around the school premises. He taught X maths and geography, in addition to undertaking pastoral responsibilities towards all the children in that year. 190. Part of this role involved caring for pupils who were bullied. When X was bullied soon after he joined the school, Mr Harding invited his parents to come and talk to him. He told them he would take good care of him and would arrange to have the bully removed from the form. After this incident Mr Harding developed the habit of inviting X to see him in his office, which was located in the corner of his classroom. During lesson times the only route to the boys’ toilets was through that classroom. Mr Harding would arrange to see X in his office at times when the classroom was empty. At first he would ask him general questions about his home life and his life at school and check that everything was going well. 191. After a number of these meetings, Mr Harding on one occasion asked the boy about his penis, and how things were with it. When X asked him what he meant, Mr Harding responded by pointing to his groin area, and asked how things were down there. The boy felt very uncomfortable, but he was assured that these questions were concerned with his educational welfare. X told him that things were OK down there, and Mr Harding ended the meeting by saying that what he had said to him would be treated as confidential. 192. At the next meeting, he was again asked about things at home and at school, and a similar conversation ensued about the state of his penis. X was only 11 years old, in his first year at senior school, and he was very frightened that if he did not answer these questions he would get into trouble. On this occasion Mr Harding asked him whether he had ever touched his penis, and if he had ever played with it and made it erect. He also asked whether he had ever ejaculated. He had to explain what he meant by this. The conversation ended with Mr Harding saying that he would like to have a look at the boy’s penis to check that everything was OK. Although the boy originally said “no”, he eventually felt constrained to agree that he would do this in the boys’ toilet when next they met. 193. The third of this series of meetings began in the same way, and then Mr Harding gave X a key to the boys’ toilet and told him to go into the first cubicle and take off his trousers and pants. When Mr Harding joined him, he told him to play with his penis and make it erect. Once it was erect Mr Harding touched it and then pulled the boy’s foreskin back and forth, without saying a word. He then left the cubicle, and the boy joined him in his office in due course. Mr Harding then told him that things seemed to be OK, but he would need to continue to check. He told the boy to try to masturbate at home because he would have major problems in later life if he did not. He ended that meeting by saying he would need to see him again and go through the same procedure again because it was for his educational welfare. 194. When X made his original statement to the police on10th July 2000 , he said that the fourth meeting went along the same lines as the third, except that on this occasion he did not get an erection. Mr Harding then stepped forward, placed his open hand under his penis and testicles, and then cupped and squeezed his testicles, thereby causing the boy to have an involuntarily erection. He then stepped back and smiled, and instructed the boy to pull his penis in order to masturbate. After that he said that everything was OK and told the boy to get dressed. When they reassembled in his office he gave him instructions similar to those given on the previous occasion. 195. When he made his statement to the police in July 2000 X believed that all these meetings had occurred before the Easter break in 1985. He spoke of one final meeting in the toilet when he had managed to get an erection, and Mr Harding had left the toilet without touching him. After this the boy steeled himself to say “No” whenever Mr Harding asked to see his penis. 196. His witness statement for the civil proceedings was made in August 2002. It is not easy to understand from para 26 of that statement how many separate incidents in the toilet he was describing after the first. He appeared to describe a fourth occasion when “he had his go at masturbating me”
“The sexual abuse by Harding was likely to have long-term consequences in anybody. It was inflicted over a prolonged period, there was abuse of trust, it was inflicted at a sensitive period in the social and psychosexual development of the victim, and the perpetrator exhibited the victim’s fears about his future, normal development. The social consequences of the abuse were continued long after the sexual abuse itself had finished, in Harding’s attempts to manipulate the victim. Effects of the abuse were compounded by the fact that the abuser was a teacher, and the abuse therefore interfered with the victim’s education to a disastrous extent.”
“Assuming that the Claimant’s account is true, then the main cause of his adult psychiatric problems is the experience of sexual abuse in childhood. The sexual abuse involved a breach of trust and directly jeopardised his education. The sexual abuse occurred at a particularly vulnerable time, as he had just begun to establish relationships with girls, and it is reasonable to assume that sexual abuse by an older man at this time would lead to confusion about sexual identity and consequent low self-esteem. The depth of the Claimant’s shame and embarrassment about the abuse is reflected in the length of time it took him to disclose his experiences. The time course of the emergence of his symptoms is also consistent with causation by the sexual abuse.” 5. The way the claimants’ case was put 214. A number of different allegations were made in the two statements of case, but for the purposes of this appeal it is necessary only to consider one element of the allegations of negligence. In X’s case the history was set out in para 4 of the particulars of claim and the allegations of negligence were framed in the following way in para 6.1(D): “6.1 The Defendant, its servants or agents, were negligent and/or in breach of duty in that they: (D) By their servant/agent Mr Harding acting in the course of his employment or in activities closely connected with his employment: (a) Did not act in the Claimant’s interest when purporting to advise and guide him. It is the Claimant’s case that Mr Harding, whilst purporting to advise and guide the Claimant, groomed and entrapped him; further that this conduct was in breach of Mr Harding’s duty of care to act in the Claimant’s interest when advising and guiding him. (b) Injured and harmed the Claimant by destroying the trust which the Claimant had placed in him and by abusing and harassing the Claimant sexually and emotionally in the manner described in paragraph 4 above. (c) Failed to protect the Claimant from emotional, psychiatric and psychological injury and instead caused him injury by abusing and harassing him. (d) Caused as a result of the abuse the Claimant to be injured so as to be unable to take advantage of the education that was provided to him. (e) Failed to report the fact that he was unable to act in the Claimant’s interest and had abused the Claimant sexually and emotionally.” (a) Did not act in the Claimant’s interest when purporting to advise and guide him. It is the Claimant’s case that Mr Harding, whilst purporting to advise and guide the Claimant, groomed and entrapped him; further that this conduct was in breach of Mr Harding’s duty of care to act in the Claimant’s interest when advising and guiding him. (b) Injured and harmed the Claimant by destroying the trust which the Claimant had placed in him and by abusing and harassing the Claimant sexually and emotionally in the manner described in paragraph 4 above. (c) Failed to protect the Claimant from emotional, psychiatric and psychological injury and instead caused him injury by abusing and harassing him. (d) Caused as a result of the abuse the Claimant to be injured so as to be unable to take advantage of the education that was provided to him. (e) Failed to report the fact that he was unable to act in the Claimant’s interest and had abused the Claimant sexually and emotionally.” 215. Y’s case was advanced in identical terms except that it contained an additional averment to the effect that Mr Harding took advantage of the Claimant’s vulnerability in the knowledge that his parents were separated and that he lived with his mother. 216. No allegation of trespass to the person was made in either case. 217. Ms Gumbel QC, who appeared for the claimants both in this court and in the court below, developed her arguments before the trial judge in a way that extended the width of some of the allegations in the statement of case, particularly under sub-para (e). At the trial she submitted that a teacher in Mr Harding’s position had a duty to take reasonable care of the boys within his group and to report any incident he was aware of that had caused injury or might cause injury to any of these boys. She posed the question “Why should Mr Harding’s duty to report his own harmful activities be a lesser duty than his duty to report activities of other members of staff?”