AB & Ors v The Nugent Care Society (Formerly Catholic Social Services (Liverpool)) [2006] EWHC 2986 (QB)

Case No 1997 A NO: 03700[2006] EWHC 2986 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY
The Courts of Justice
Crown Square
Venue Manchester M3 3FLDate 23 rd November 2006
Before
THE HON MR. JUSTICE HOLLAND
Between
A. B. and OthersClaimantsThe Nugent Care SocietyDefendants
Mr. Richard Maxwell QC and Miss Aswini Weereratne (instructed by Abney, Garsden McDonald) for ClaimantsMr. Edward Faulks QC and Mr. Nicholas Fewtrell (instructed by Hill Dickinson) for DefendantsHearing Hearing dates: 7 th November to 17 th November 2006
Judgment

Mr. Justice Holland:

[1]From about 1994 onwards the Cheshire Police conducted extensive enquiries into allegations by former inmates as to sexual abuse respectively experienced when in various Approved Schools and Childrens’ Homes in and between the late 1960’s and the early 1980’s. Such former inmates when interviewed by the Police were routinely advised to consult solicitors with a view to obtaining compensation. In the event this advice when acted upon led not just to claims made to the Criminal Injuries Compensation Board but also to claims for damages by way of actions against those who had managed such institutions, alleging negligence, alternatively vicarious liability. The resultant numbers in terms of claimants was such as to invite group litigation directions and an early allotment to me as the Judge in charge. Over the intervening period a substantial number of such claims have been resolved by way of settlement or discontinuance but there are outstanding, so I am told, some 60 cases featuring claims against the Nugent Care Society with respect to liability for the conduct of two institutions, St. Aidans and St. Vincents. By way of interlocutory directions, three such cases were selected for trial, essentially as samples with a view to shedding light on the scope, if any, for resolution of the balance. These three cases are now before me.[2]Limitation Not surprisingly, limitation is invoked in each as the initial line of defence. As to this, the Defendants sought an interlocutory direction for resolution by way of a preliminary issue, contending that unless this mode of disposal were adopted they would effectively lose the practical benefit of any findings in their favour – and invoking by way of support Court of Appeal guidance in terms “whenever the Judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery …” KR v. Bryn Alyn (2003) QB 1441 at 1471.[3]In the event I refused this application inasmuch as I did not think it feasible to hold such a preliminary hearing having regard to the nature of the three claims as deployed in the respective individual Statements of Claim. I thought it preferable to hear evidence – and I have had no reason to regret the decision. In the event there has been oral evidence from each of the present Claimants and from the relevant medical witnesses. I have had further oral evidence from Mrs. Barbara Taylor of the Defendants as to the current availability of witnesses and erstwhile contemporaneous documentation. Finally, I have had the opportunity to read the statements of the remaining lay witnesses. With such evidential material I am satisfied that I can now rule upon the limitation defences and that I should do so at this mid point in the trial so as to give the Defendants belated but still worthwhile benefit of any successful invocation of the defence – and so as to avoid unnecessarily prolonging the Claimants' stress.

Limitation Law

[4]The law centres upon the relevant provisions of the Limitation Act 1980. The effect of the early sections can be summarised. By Section 2 the limitation period for an action founded on tort (such as trespass to the person) is six years. By Section 11 an action in negligence in respect of personal injuries shall not be brought after a period of three years from the date on which the cause of action occurred or “the date of knowledge (if later) of the person injured”, see Section 11(4). Given that in each of the three cases now before me the Claimant was under the age of 18 when any cause of action first occurred the respective limitation periods started to run upon the attainment of majority: Section 28.[5]That brings me to the two sections that are central to resolution of the present issues: Sections 14 and 33. So far as material Section 14 provides:
“14(1) Subject to subsection (1A) below, in sections 11 and 12 of this 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) 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) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; 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 (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 help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice.” (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) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant; (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; 7. As for Section 33: “33(1) if it is appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which- (a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action related. (3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to- (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical legal or other expert advice and the nature of any such advice he may have received.” (a) the provisions of section 11 or 11A or 12 of this Act prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11, by section 11A or (as the case may be) by section 12; (c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; (f) the steps, if any, taken by the plaintiff to obtain medical legal or other expert advice and the nature of any such advice he may have received.”
[6]The legislative history leading to the enactment of Section 14 is reviewed in the authorities, typically Adams v. Bracknell Forest B.C. (2005) 1A.C. 76 at 87. It is apparent that it was designed to counter the injustice exposed in Cartledge v. Jopling (1963) A.C. 758, that is, a situation familiarly arising with tortious exposure to asbestos when the cause of action accrues long before the inevitably delayed onset of asbestosis or mesothelioma. The terms of the section are so obviously apt to deal with the relatively sudden onset of significant injury after, say, twenty or more symptom free years post tortious exposure that it is the Court’s experience that in such cases limitation is rarely raised and certainly not to any effect. Turn from ‘asbestos’ cases to ‘sexual abuse’ cases with their often significantly different post tort histories, and reliance upon Section 14 inevitably raises serious issues, factual and forensic. The overall result is a plethora of authorities and the daunting promise of more to come, with outstanding issues currently heading to the House of Lords.[7]Before me leading counsel respectively drew careful attention to such authorities, principally Adams, op. cit., and the unreported Court of Appeal decision of the 14th November 2006, Young v. Catholic Care (Diocese of Leeds) and The Home Office. In the result I was able to distil and circulate an approach to the application of Section 14(1)(a). Some constructive comment was forthcoming. As incorporated the issue became: ‘when did the Claimant first have knowledge that he had suffered significant injury? that is, when should he reasonably have considered that he had suffered an 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?[8]As to my approach to the issue:
‘It is appropriate to take into account: a. Claimant’s actual knowledge; and b. Any further knowledge that he might reasonably have acquired from facts observable or ascertainable by him or from facts ascertainable by him with the help of such medical or other expert advice which it was reasonable for him to seek.’
[9]An important gloss on the terms of the statute was adumbrated by Lord Hoffmann in Adams and adopted in Young by Dyson L.J. at paragraph 34. The practical effect can be expressed:
‘In deciding whether it was reasonable for the Claimant to seek such medical or other appropriate expert advice, if the injury itself would reasonably inhibit him from seeking advice then that is a factor which must be taken into account.’
[10]So much for the approach to Section 14(1)(a); turning to the knowledge as specified in Section 14(1)(b) and (c) that too must have the approach set out in paragraph 8 above subject to the gloss spelled out in paragraph 9.[11]Still focussing on Section 14 the authorities provide some general guidance as to the approach of the first instance Court. Sufficiently helpful to warrant present citation are paragraphs 45, 46, 48 and 49 of Dyson L.Js. leading judgment in Young:
“45. In my judgment, the presence of the word “reasonably” in section 14(2) and the presence of the word “reasonably” and “reasonable” in section 14(3) require the same approach to be adopted in both subsections. Parliament cannot have intended that a substantially objective test be applied in section 14(3), but a substantially subjective test in section 14(2). It makes no sense to say that, in deciding whether a claimant would reasonably consider an injury to be sufficiently serious to justify litigation, the court should take account of the intelligence, personal history and all the personal characteristics of the claimant; but in deciding whether a person would reasonably be sufficiently curious about the causes of his injury to seek expert advice, those factors are to be disregarded. The concept of reasonableness is common to both section 14(2) and 14(3). It should be given the same meaning in both subsections. 46. The Adams approach to reasonableness indicates that if a person who has suffered a particular type of injury would reasonably be inhibited by the injury itself from instituting proceedings, then that is a factor that should be taken into account in deciding whether he or she would reasonably have considered it sufficiently serious to justify proceedings. The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered the degree of injury suffered by the claimant in question and of which he has knowledge. 48. …, the Bryn Alyn test, modified as it must be to take account of the decision in Adams,shows that the section 14(2) requirement is not solely directed to the seriousness of the injury. That is not to say, however, that even in such a case, the quantum of the injury is not highly material in determining whether at any given time the claimant would reasonably have considered it sufficiently serious to justify proceedings. To regard the inhibiting effect of the injury in question as decisive would be to deprive section 14(2) of its proper effect. The subsection is directed to the question of whether litigation is reasonably justified by reason of the seriousness of the injury. The words “sufficiently serious” are of central importance. 49. In my view, it will be a question of fact in every case whether, having regard to (i) the claimant’s knowledge of the seriousness of the injury and (ii) the inhibiting and other consequences of the injury for the claimant, at the date of knowledge he would reasonably have considered the injury to be sufficiently serious to justify his instituting proceedings. I have in mind the observation of Lord Hoffmann in Adams that, in view of section 33, there is no need to construe the knowledge provisions of section 14 narrowly or in favour of claimants. Accordingly, the more serious the claimant knows the injury to be, the less likely the court is to regard the inhibiting and other consequences of the injury to be grounds for concluding that the claimant was justified in not instituting proceedings. But it will always depend on the facts of the particular case.”
[12]I turn finally to guidance as to the approach to Section 33. In Adams, op. cit. at page 91 Lord Hoffmann cited with approval the observations of Sir Murray Stuart-Smith in Robinson v. St. Helens Metropolitan Borough Council (2003) PIQR 128 at 139 in the context of a claim based upon an alleged failure by an education authority to diagnose dyslexia:
“The Limitation Acts are designed to protect defendants from the injustice of having to fight stale claims especially when any witnesses the defendants might have been able to rely on are not available or have no recollection and there are no documents to assist the court in deciding what was done or not done and why. These cases are very time consuming to prepare and try and they inevitably divert resources from the education authority to defending the claim rather than teach. Under section 33 the onus is on the claimant to establish that it would be equitable to allow the claim to proceed having regard to the balance of prejudice. The question of proportionality is now important in the exercise of any discretion, none more so than under section 33. Courts should be slow to exercise their discretion in favour of a clamant in the absence of cogent medical evidence showing a serious effect on the claimant’s health or enjoyment of life and employability. The likely amount of an award is an important factor to consider, especially if, as is usual in these cases, they are likely to take a considerable time to try. A claim that the claimant’s dyslexia was not diagnosed or treated many years before at school, brought long after the expiry of the limitation period, extended as it is until after the claimant’s majority, will inevitably place the defendants in greater difficulty in contesting it, especially in the absence of relevant witnesses and documents. The contesting of such a claim would be both expensive and likely to divert precious resources. Courts should be slow in such cases to find that the balance of prejudice is in favour of the claimant.”
JM[13]I now turn to the first of the three Claimants. Mr. JM was born on the 14th May 1953. On the 1st May 1967 having been convicted of shop-breaking, house-breaking and larceny he was made the subject of a three year approved school order. After a short period at an assessment centre he entered the Defendants' St. Aidans, then run as an approved school, on the 17th May 1967. He remained in this institution until discharge in the 9th November 1968.[14]As to the alleged abuse his case is as follows. Whereas during his first six months at St. Aidans he did not suffer any such and he was similarly not touched during the six months immediately preceding discharge, he was abused during the intervening period. He identifies three abusers:a. James Hepburn. The significant abuse occurred when the Claimant went to work in the Horticultural Department, a separate area conducted as a market garden. From time to time when in the boiler house or a potting shed Hepburn made him engage in acts amounting to gross indecency, alternatively he attempted to bugger him.b. Anthony Milligan. He was in charge of the Horticultural Department. About once a month he made the Claimant engage in acts amounting to gross indecency.c. Terence Barber. On one occasion he perpetrated a minor indecent assault.[15]The subsequent chronology is as follows: 14th May 1971. The Claimant’s 18th birthday. 14th May 1974. The end of the limitation period referable to any cause of action in negligence. 14th May 1977. The end of the limitation period referable to a cause of action in trespass. 1996 (? October). In the course of a consultation with his General Practitioner referable to a drink problem and his resultant conduct towards his wife he speaks, seemingly for the first time, about the fact of having been sexually abused. There is no contemporaneous note to this effect. 27th October 1998. In response to a Police initiative he makes a witness statement recounting his experience of sexual abuse. The statement includes the following:
“I couldn’t tell anyone about the abuse I was suffering … I wanted to tell my parents but couldn’t bring myself to do it … When I left St. Aidans I began drinking alcohol, although I was still a young man. I have been drinking ever since. I believe ‘St. Aidans ruined my life. I have never been able to forget it … I am pleased now that I have had the opportunity to get it all off my chest. I have been asked if I intend to claim compensation for the abuse I have suffered. To tell you the truth, the thought never entered my head. I have not told this to claim compensation, as I have said before, my life has been ruined and I want these people to be brought to justice.”
For their part, the Police officers advised him to consult a solicitor. In the event he gave evidence against Hepburn who was acquitted. 13th November 1998. In the course of a further consultation with his General Practitioner he gives a history of sexual abuse so as to be advised to undergo counselling. March 1999. Having consulted solicitors he makes an ultimately successful CICA claim for compensation for the sexual abuse. 2001. Having changed to his present solicitors he is referred to Miss Helen Roberts, a clinical psychologist for a report, such eventually forthcoming on the 1st August 2001. 8th October 2001. The present proceedings are commenced. 26th November 2003. He is seen by a psychiatrist, Dr. Peter Wood at the behest of the Defendants.[16]I interpose. I was satisfied that, when giving evidence, the Claimant was doing his best to give me a fair and truthful history. Thus, as to the abuse itself, his account has been reasonably consistent and, notwithstanding the acquittal of Hepburn, it has understandably not been challenged before me. As to the subsequent 38 year period (1968 to 2006) his account is of virtual necessity blurred and broad brush but his bona fides are to my mind clear even if his reliability is inevitably more open to question.[17]I turn to his contention that Section 14 affords him relief on the basis of a date of knowledge delayed to a date after 8th October 1998, that is, to less than three years before the commencement of proceedings. As to this, Mr. Maxwell QC cogently contends that actual and constructive knowledge relevant to the matters covered by Section 14(1)(a), (b) and (c), was denied to him until a period that started with his Police statement and concluded with the advice of Miss Roberts. In response, Mr. Faulks QC with equal cogency contends that on proper evaluation of the evidence this Claimant had a date of knowledge for the purpose of Section 14 well before October 1998 so that entitlement to protection under that section has not been proved.[18]As a preliminary to making the necessary judgment on this issue and as foreshadowed in paragraph 6 above, I have found it of value to reflect upon the typical impact of Section 14 upon the forensic and factual circumstances for which it was fashioned in the wake of Cartiedge v. Jopling, op. cit. ‘A’, a labourer, has successive employments with a series of demolition contractors X., Y., and Z. At no time does he have actual knowledge of tortious exposure to asbestos and the ensuing 20 years are symptom free. He then experiences chest symptoms. When it is reasonably necessary to obtain medical advice he seeks such to be told that he has a significant injury, mesothelioma, such probably caused by exposure to asbestos in the course of one of his early employments. Pause there: Section 14(1)(a), 14(2) and 14(3) in conjunction serve to establish a current date of knowledge limited to significant injury. That leaves the appropriate Defendant to be ascertained, whether X., Y. or Z., and the facts giving rise to a cause of action in negligence. This time he is afforded relief by Section 14(1)(b) and (c) operating in conjunction with 14(3) and now serving to establish an obviously proximate date of knowledge.[19]It is easy to apply Section 14 to A’s case because it was that type of case which the draughtsman had in mind – he certainly did not have specifically to mind the limitation problems inherent in historic sexual abuse claims. Nothing daunted, Mr. Maxwell QC seeks to persuade me that, mutatis mutandis, his client’s circumstances command relief similar to that accorded to A. In the event, there are in my judgment differences of substance such as to disentitle Mr. JM to the benefit of Section 14. I consider the matter as follows.[20]Unlike A, this Claimant has had throughout actual knowledge of what was done to him and when and in what circumstances. As it seems to me, it is arguable that such actual knowledge serves to establish a 1968 date of knowledge and a limitation period terminating finally with respect to negligence on his 21st birthday. That however is not the way the matter has been debated before me, at least with respect to ‘significant injury’ – and I readily acknowledge that a finding as set out above could be considered to be robust to the point of injustice. That said, I do emphasise the amount of actual knowledge that this Claimant has had throughout.[21]I turn to ‘significant injury’. With ‘A’ there was, as is typical, no subjective appreciation of injury until the long delayed onset. With this Claimant, the matter is put thus. In the initial years post abuse there would have been, and indeed there was a wholly understandable attempt to get on with life with the fact of abuse put to the back of his mind, and hopefully out of it. Had matters developed as hoped, then as per A, there would have been no subjective appreciation of injury – and indeed no injury sufficiently serious to inspire a long delayed claim in negligence for damages. As to what happened in the event, I turn to the evidence. In his first statement to the Police the Claimant said “I have always had a drinking problem and the memories of the abuse made me drink even more”. In his witness statement he additionally identified that which ensued when he could not put the abuse out of mind:
“51. I believe that St Aidan’s ruined my life. I have never been able to forget it. When I sit and think about it, it is as if I am still there. I am transported back to my school days. I have felt a lot of anger about what happened to me. 52. I started to suffer from nightmares whilst at St Aidan’s. I dreamed of “monster men” being aggressive, and sexually aggressive, towards me. I still suffer from nightmares that are always the same. Until recently my nightmares were about being physically or sexually threatened. Since the death of my mother I have also had dreams about her, which I find to be distressing. 53. I suffer from sudden flashbacks that can come at any time and make me feel anxious and out of control. 54. I started to wet the bed whilst I was at St Aidan’s and this problem continued long into my adult life. 55. I have always had a drinking problem. This started when I left St Aidan’s as a very young man, as I was feeling depressed. Memories of the abuse when the police first visited me about my time in care made me drink even more. I have also used cannabis. At the time I was drinking, I did not connect it to the abuse that I had suffered but it did help to block out the memories of the abuse. Once I had had a drink, I felt like “one of the lads” again.”
Later in the statement, he adds:
“I have suffered depression for many years and I have tried to kill myself several times … At the time I began to suffer depression, I think I did connect it to the abuse I suffered but I also think that I suffered depression as it was linked to me drinking too much.”
[22]In oral evidence this Claimant told me that he thought that the abuse had something to do with his longstanding drink problem: alcohol blocked ‘things’. In this context he volunteered, first, an account of the 1996 General Practitioner consultation in which he had raised the fact of early sexual abuse in the context of his alcohol problem; and second, the assertion that since the consultation with Miss Roberts his depression had gone and he had stopped drinking.[23]Pause here: on his own account we are a long way from the ‘A’ scenario. From an early stage he was appreciative of the serious continuing impact of the abuse, an impact occasioning depression, nightmares, anxiety, enuresis and a resort to alcohol. It is as though A’s history was of longstanding significant chest symptoms seemingly referable to exposure to asbestos.[24]Before finding that his date of knowledge in terms of ‘significant injury’ long pre-dated October 1998 I should refer to the potential impact ‘as a factor’ of inhibitions inevitably associated with complaints about sexual abuse, and any impact of the medical evidence. As to the first such matter I readily accept that this Claimant had inhibitions about seeking medical advice with respect to the impact of the sexual abuse. It is no surprise that such were experienced and Mr. Maxwell QC rightly draws my attention to that part of his statement referable to the initial reaction to the Police enquiries:
“65. The police first approached me in October 1997. DC Higgins had contacted me about an investigation into allegations of abuse at St Aidan’s School. At that time I did not want to talk to anyone about my experiences there. It was too painful. I found it very hard to talk to the police. 66. I did not want my wife to know. I had never told anyone about the abuse I had suffered at that stage. It was so painful that at first I denied knowledge of the abuse that I had suffered. I also felt extremely worried that my abuse would be publicised.”
In the balance of the statement he recounts the subsequent pressure put upon him by his wife, she having been alerted by the fact of police interest and the ultimately cathartic effect of the Police enquiry, such enabling him to seek help from his General Practitioner and to receive help as an incidental consequence of the consultation with Miss Roberts.[25]Turning to the medical evidence as furnished by Miss Roberts and Dr. Wood I discern as relevant to the Section 14 debate:a. As helpfully summarised by Mr. Maxwell QC and Miss Weereratne, per Miss Roberts: the nature of the sexual abuse was particularly traumatising and the initial response included feelings of guilt and responsibility, bed-wetting and nightmares. He attempted to cope by avoiding psychological distress and vulnerability. He became angry, aggressive, suspicious and mistrustful. Intimate relationships were affected and sexual relationships were dysfunctional. He has had significant problems with alcohol and depression. His psychopathology arises primarily from childhood sexual abuse and is severe in the short, medium and long term.b. Per Dr. Wood, there are other factors consistent with the continuing problems (e.g. a conduct disorder such as led to the approved school order and a reaction to being in care) and, given perceived unreliability as a historian there is no good basis upon which to credit severe psychopathology.c. Both agree that this Claimant has never lacked the capacity to complain about the abuse and its consequences but that:
“We agree that many survivors of sexual abuse do not complain for many years and that this is a common feature of sexual abuse which may be due to injunctions to maintain silence, feelings of isolation and the shame experienced by such victims. We agree that it is described in the literature, that male survivors of childhood sexual abuse have particular problems in this regard.”
[26]I am now in a position to make final findings as to knowledge of ‘significant injury’.a. Mr. JM had actual knowledge of the fact of injury occasioned by sexual abuse to the extent discussed above.b. Prior to October 1998 he was reasonably inhibited from obtaining medical advice. That inhibition is common and understandable – I gratefully adopt the joint medical opinion to that effect. That said, the inhibition can only be a factor for my consideration and in this case I do not regard it as decisive. Thus, the extent to which any such inhibition may be decisive must be related to the period post limitation under consideration – the longer the symptoms persist the less weight a court can give to the claimed inhibitory forces. Overall I do not think that such a factor should carry weight up to October 1998 and I am reinforced by the concession that by 1996 circumstances did prompt some mention to the General Practitioner. Further and in any event in this case medical advice could not go to whether the injury was significant (such would be the premise for any consultation) but as to how severe it was and what could be done about it.c. I do not gain much assistance from the medical evidence relevant to this issue. My general preference in areas of conflict is for the opinions of Miss Roberts but I cannot regard them as helpful to the Claimant on the ‘significant injury’ limitation issue. She on one view is saying that he has been correctly identifying a significant injury for a prolonged period, albeit seeking to cope by avoidance and alcohol.[27]Thus it is that I am satisfied that this Claimant had knowledge of significant injury well before October 1998. This is not the end to issues arising under Section 14. Adverting to Section 14(1(b) and (c) Mr. Maxwell QC contends that his client never had knowledge of the facts and matter upon which a case in negligence could be based nor of the identity of those responsible as for breaches of the duty care until advised as to all such by his lawyers so that the date of knowledge viewed in the round came after October 1998. Initially I was troubled by this point, but on reflection I do not attach weight to it. I go back to his own knowledge of what happened in 1968. If there is a case in negligence then its factual foundation has to be his own evidence. Legally unaided and in anticipation of the thrust of Mr. Maxwell’s submissions as to liability, he personally laid the groundwork in the passages cited from his statements capped by what he volunteered in oral evidence:
“I was in care; I should have been cared for; I wasn’t.”
Additionally, given my findings as to subjective appreciation of symptoms and their cause considered in conjunction with the passage of time it becomes difficult to view the prior failure to take advice as to causation as reasonably justified. My final conclusion is therefore that this Claimant has failed to establish a date of knowledge in or after October 1998.[28]This then leaves reliance upon Section 33: is it equitable to allow this action to proceed notwithstanding the provisions of Section 11? I am required to have regard to all the circumstances with particular reference to the following:a. The length of and reasons for the Claimant’s delay. The overall delay was from 1968 to October 2001, a period of 33 years. The delay since the termination of the limitation period in 1974 to October 2001 was 27 years. As to reasons for the delay, there appear to be three: first, the Claimant’s hope that he could cope with the symptoms by avoidance and alcohol; second, the inhibitions on complaint discussed above, and third, the Claimant’s lack of interest in compensation as appeared from his Police statement and his evidence to me.b. The impact on the respective cases. On behalf of the Claimant nothing is identified as hampering his case. The case formulated on his behalf is based upon currently available witnesses and documentary material. No doubt it might have been more cogent nearer the time but that is not a matter of specific contention. By contrast the Defendants do complain strongly about impact on their defence of lost documentation (in particular, Mr. JM’s contemporaneous personal file is no longer to be found) and depletion in terms of oral evidence (the then headmaster, their crucial witness in a case about systems is dead as is the alleged abuser, Milligan; Hepburn, if alive is 74; Barber, if alive is 83; and all have to think back 38 years). Paradoxically the one point that the Defendants clearly can still invoke to good effect is causation: I have yet to hear evidence and submissions but I can be forgiven for finding the prospect of connecting any proven breaches of duty care on the part of the Defendants to prevention of the alleged acts of junior staff members done in secret privacy judicially challenging. In this context Lister v. Hesley Hall Ltd (2002) 1 A.C. 215 offers no help to the Claimant, quite the contrary.c. The conduct of the Defendants: no point arises.d. The duration of the Claimant’s disability. As discussed at length, such extended to at least 2001 and may in some measure still continue.e. The Claimant’s conduct. Nothing significant arises.f. The steps taken by the Claimant to obtain advice – such have already been fully discussed.[29]Weighing up all the forgoing and heeding the guidance endorsed in Adams (se paragraph 12 above) I cannot regard it as equitable to allow this action to proceed. Various factors weigh heavily with me. After 33 years the cogency of evidence bearing upon the newly minted challenge to the Defendants'' 1968 system must be hopelessly impaired. Granted that those representing this Claimant have done a valiant job in fashioning a case out of that which is available but the rhetoric response has to be ‘can I conceivably discern such cogency in the now available evidence as to be able to make a judgment adverse to the Defendants that is fair?’ Again, whilst the history that leads up to this action commands understanding and sympathy it is difficult to regard it as demanding Section 33 relief. I am pleased to hear that prior to 1998 he never thought of monetary compensation but why should that state of affairs invite suspension of limitation to when the thought was put in his mind? JB[30]This Claimant was born on the 12th December 1957. In June 1971 then aged 13, he was convicted before the Bootle Juvenile Court of burglary (with 14 offences taken into consideration) and was made the subject of a supervision order. On the 27th July 1971 he was convicted before the same Court in respect of two cases of burglary. This time 53 cases were taken into consideration and he was committed to the care of the local authority. In the event after initial assessment period he was admitted to St. Aidans, by then a Care Home, seemingly in about August 1971. There he remained until about November 1972.[31]He too complains of abuse suffered whilst an inmate:a. He complains of excessive and arbitrary corporal punishment, principally meted out by the bricklaying instructor, Mr. F.J. Colquitt. Particular mention is made of one occasion when the latter punched him in the stomach with such force that he coughed up blood for some time thereafter and a doctor was called in to examine him.b. He further complains of sexual ‘groping’ on three occasions by a housemaster, Mr. James McEvoy, each such occasion being in contrived privacy.[32]To this simple summary I add the following. McEvoy had engaged in acts amounting to gross indecency with another inmate, Paul Bolger. This Claimant and Bolger started to blackmail him initially successfully demanding tobacco as the price of their silence but then obtaining £10. Thus funded, they absconded. Upon their eventual return Bolger complained about McEvoy’s conduct and there is in existence a memorandum of the 13th July 1972 written by this Claimant setting out events leading up to and following the blackmail. In evidence this Claimant said that he too had complained in brief terms about sexual abuse committed by McEvoy. The latter was suspended for a period and then seemingly reinstated.[33]Turning to the subsequent chronology it is as follows: 12th December 1975. His 18th birthday. c. 1976. He got married. He told his wife something of the physical abuse. 12th December 1978. The end of the limitation period referable to an action in negligence. 12th December 1981. The end of the limitation period referable to an action in trespass. 24th November 1995. At the request of the Police he made a witness statement giving his account of the sexual abuse. The officers advised him to see a solicitor and he did so. Per his present witness statement: “I confirm that prior to being advised to seek advice from a solicitor I was unaware that I could bring a civil action against the perpetrator or the owners of the home itself. When the Police contacted me my initial thought was that I wanted justice and wanted McEvoy to face criminal charges. January 1998. Proceedings are commenced on his behalf claiming damages essentially for negligence in the management of St. Aidan’s. With respect to limitation the date of knowledge is specified as November 1995. January 2001. The prosecution of McEvoy for, inter alia, an offence against this Claimant is stayed as an abuse of process.[34]I interpose: as with Mr. JM I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr. JB has matured remarkably so as to make a notably impressive presentation.[35]Turning to the issues for my resolution the Defendants' have, as before, raised limitation as a defence and this Claimant’s first response lies under Section 14: his date of knowledge arose within the three year period immediately preceding January 1997, so it is contended in his behalf.[36]Dealing with ‘significant injury’ as a component contributing to the identification of the date of knowledge he too claims to have done his best to put the fact of the abuse to the back of his mind, if not out of it, so that it only came to the fore so that significant injury could be identified through the again cathartic experience of making a statement to the Police. That said, the evidence is not wholly at one with this simple contention. Thus, whereas viewed objectively the abuse was not in itself of great seriousness it would seem that in the event it touched a raw nerve. It has been crucial to Mr. JB over the intervening years to disassociate himself from homosexuality and from any possible circumstance that might serve to raise an imputation of homosexual traits. This in its turn has led to neurotic behaviour, anger and occasional aggression. Actual knowledge is obvious inasmuch as the fact of McEvoy’s abuse is persistently on his mind, sufficiently prominent to promote the foregoing reactions. That said, it was only after speaking to the Police that he felt able to consult his General Practitioner and through him to undergo counselling in 1996 and 1997. The report of the counsellor, Miss Whetton of the 20th January 1997 to the CICB merits some repetition:
“The abuse Mr. JB experienced … has had a profound negative effect upon his life. He suffers from flashbacks, disturbed sleep and anxiety, particularly concerning enclosed spaces and public toilets. He continues to feel anger and shame about the abuse which has affected his ability to control his mood and affects his interpersonal relationships … Mr. JB’s anxiety and difficulty controlling his anger have been problematic throughout his life since the abuse took place.”
[37]Turning to medical advice, potential and actual, this Claimant contends that prior to the matter coming into the open with the Police enquiry he had not appreciated that he had psychological problems and in any event was inhibited by shame and sensitivity from taking advice. Since the Police interview he has been seen for the purposes of this litigation by a consultant clinical psychologist, Miss Caroline Lovelock. She saw him on the 2nd June 1996 and reported subsequently having, inter alia, consulted with Miss Whetton. For the Defendants the consultant psychiatrist, Dr. Peter Wood, has similarly reported. With respect to limitation the following passage from their joint report of the 14th November 2005 is of help:
“We agree that the Claimant has never had a psychiatric condition that would have prevented him from complaining, or being aware of what was happening to him. We agree that Mr. JB’s account has indicated that he was aware of the harm caused to him being abused and complained of this before reaching his majority, i.e. at around the time the events are alleged to have taken place. We do not identify Mr. JB as suffering from any psychiatric illness that would have altered his awareness since the alleged abuse took place. We agree that Mr. Brown has identified feelings of guilt and shame and his fear of nakedness and confined spaces as having occurred from the time he was at St. Aidan’s. These are pointers to his awareness of the effect of the alleged abuse at around the time it is said to have taken place. We agree that there are indications that the Claimant has identified telling his wife of some of his abusive experiences in care before they married when he was 21, which would indicate his awareness of his adverse experiences between the ages of 18 and 21. We agree that the Claimant has spoken of consciously attempting to bury his recollections of adverse experiences in his subconscious, however, the evidence he has provided to the Court is to the contrary, for example, at paragraph 65 of his statement he identifies continuing very sharp memories of his experiences. He suggests he has symptoms related to specific circumstances which remind him of his abuse. We agree that there are many psychological reasons why people do not report child abuse to police or take legal action, which do not arise from mental illness. These reasons often relate to the trauma/impact of the abuse on the victim and any negative experiences they have when trying to disclose it as a child.”
In the balance of the joint report Miss Lovelock draws attention to various matters that would militate against reacting to the abuse and its continuing impact (such including, as she believes, long standing P.T.S.D.). The joint report continues:
“Dr. Wood has taken note of the paragraphs above. While these contribute to an understanding why the Claimant did not report his experience of abuse at an earlier time, they do not suggest that he lacked the capacity to complain at any particular time. He could have reported the abuse but elected not to do so for a range of reasons.”
The final relevant contribution is:
“We agree that the Claimant’s composure and way of coping with life would have continued without major disruption if there had not been a police investigation into the alleged abuse in the 1990’s.”
[38]So much for the material bearing upon ‘significant injury’. Mr. Maxwell QC also deploys on this Claimant’s behalf submissions as to the extension of factors contributing to date of knowledge to embrace those covered by Section 14(1)(b) and (c). Inevitably, and without disparaging their cogency they are in substance those advanced on behalf of Mr. JM and I can be forgiven for not developing them further.[39]I turn to my judgment. It is that this Claimant has similarly failed to satisfy me of any entitlement to the protection against limitation as afforded by Section 14. As to ‘significant injury’ this Claimant’s case is moderately stronger than that of Mr. JM but not, as I think, to a material degree. The essence is the same. In stark contrast to the ‘A’ scenario, the history is of acute actual awareness of an injury in its origins, in its history and as continuing. To that injury the chosen tactic, understandable and creditable, had been avoidance, which tactic had served passably for a very long time and which would have continued indefinitely but for the Police investigation. The latter invited a change of tactic in terms of seeking help (albeit that the Police investigation had temporarily worsened the situation by inducing depression, see paragraph 69 of the witness statement) and compensation, but I cannot discern anything that served to stigmatise as ‘significant’ that which was not already obviously such.[40]Thus far I have focussed upon the sexual abuse as a source of significant injury. As to the physical abuse I have difficulty in regarding any such as conceivably ‘significant’ in Section 14(2) terms. However deplorable it is hardly the stuff to launch this litigation.[41]As to the points raised by reference to Section 14(1)(b) and (c) there is no material difference between this Claimant’s case and that of Mr. JM and, mutatis mutandis, my judgment is as before.[42]The issue thus arises as to relief pursuant to Section 33. Are there material differences between this case and that of Mr. JM such as would make it equitable to allow the matter to proceed? The following points arise:a. The delay has been somewhat less: 23 years passed between 1972 and 1995; and some 14 years between the termination of the limitation period and the latter date.b. Leave aside another potentially powerful causation argument, the Defendants undoubtedly suffer from loss of evidential cogency: there is no personal file; documentation relevant to any 1972 investigation into McEvoy’s conduct is no longer available (hence the abuse of process ruling by the criminal court); and Connell the headmaster is dead as is Colquitt.c. As before it is not a case in which a Claimant was only stayed from suing by lack of adequate knowledge – rather it is a case where the thought of suing never arose and would not have done but for prompting by the Police.[43]I cannot justify equitable relief as available through Section 33 and there must be judgment for the Defendants. PL[44]This Claimant was born on the 11th June 1964. On the 29th January 1976 for an offence of theft (from his father) he was made the subject of a care order. Thereafter he spent a long period in care part of which, that is in and between October 1977 and June 1978, was spent as an inmate of St. Aidans.[45]He complains of serious sexual abuse in the course of his period of residence. The abusers were then headmaster, Mr. Terence Hoskins and a housemaster, Mr. Colin Dick. Each forced him repetitively to engage in serious acts of gross indecency, independently and on occasions jointly. All such was supplemented by excessive and arbitrary corporal punishment.[46]I turn to the subsequent chronology: 11th June 1982. His 18th birthday. 11th June 1985. The limitation period referable to an action in negligence terminates 1986. He makes an unsuccessful claim to the C.I.C.B. in respect of a stabbing injury. 11th June 1988. The limitation period referable to action in trespass terminates. 14th December 1994. At the request of the Police he makes a witness statement implicating both abusers. The officers advised him that he could be entitled to criminal injuries compensation. 7th June 1995. Dick pleaded guilty to multiple sexual offences against boys in his care. The offence alleged with respect to this Claimant is left to lie on the file. 2nd April 1996. Hoskin is convicted of like offences including one such against this Claimant. The latter gives evidence at the trial. April 1996. Having deliberately delayed pursuit of compensation until the trial was over, the Claimant consulted solicitors and learned that a claim for damages for negligence could be open to him. January 1997.His claim is commenced.[47]As before, I can pay tribute to determined candour by way of oral evidence. Further, he is able to invoke the fact of the convictions of Hoskin and Dick and there has been no attempt pursuant to the Civil Evidence Act 1968 to gainsay the inferences otherwise to be drawn from such. Of course, when dealing with the prolonged period arising between the abuse and December 1994 his evidence can only be broad brush and is inevitably hampered by the impact of a turbulent, troubled history.[48]Inevitably the Defendants raise a limitation defence and the first response invokes Section 14 spawning similarly cogent submissions from Mr. Maxwell QC referable to Section 14(1)(a), (b) and (c). As to ‘significant injury’ his essential case starts in his witness statement:
“55. The physical injuries I sustained were short term. I do not have physical scarring from the physical abuse I suffered. I do have mental scars that are a lot worse and more difficult to deal with. I think that my suffering has passed on to other people, because I have given other people and prison screws a hard time. I still struggle a lot today with the bad memories I have of my time in St. Aidan’s. 56. I do however feel that I have been mentally scarred by the physical and sexual abuse I think I knew from day one I had been affected, but I did not realise how significant this was until many years later. I started feeling a lot worse after telling the police about the abuse. 57. The abuse has left me with low self-esteem. I still suffer difficulties with relationships and I have a big mistrust of authority. This has led me into a life of crime and imprisonment. ”58. I still suffer nightmares and have very bad memories of the part of my childhood I spent at St. Aidan’s. I get these nightmare often. My mind sometimes goes off to what happened when I am wake too, for example when I am watching television. 59. I have tried to escape my memories by drug abuse and alcohol abuse and I have used these substances to avoid the painful reality. I started drinking and smoking cannabis when I was 16. From about the age of 20 I started using heroin and from about the age of 23 I started using cocaine.”
[49]In his case the medical evidence was supplied by the reports and oral evidence of a clinical psychologist Dr. Helen Liebling. With the aid of psychometric testing she diagnosed chronic post-traumatic stress featuring, inter alia, depression and disassociation. She opines:
“Individuals scoring significantly with depression and disassociation have a difficult time expressing distress to others and may avoid seeking help.”
She draws attention to this Claimant’s contention that before his mother died in 1996 she made him promise to pursue a clam for compensation and adds:
“9.3. It remains my opinion that Mr. PL was too scared as a child to tell anyone what was happening. He was also unaware he was able to take action until he became involved in giving evidence. However, it is my opinion that he found this a difficult process and as stated in the previous report, he only decided to pursue this action to protect other children and to fulfil his promise to his mother to when he was very close. The psychometric assessment carried out clearly supports that Mr. PL finds it a very difficult process to discuss what happened and this is consistent with his reluctance to pursue proceedings until he promised his mother he would do so.”
Further, she notes effects of the abuse at three stages, immediate, short term and long term, tracing a deteriorating situation.[50]Turning to my own judgment, as before I cannot accord any weight to submissions focussed on Section 14(1)(b), and (c). Further, whilst I have had to ponder carefully over the weight to give in this case to the inhibitory effect of the abuse as a factor I cannot find it proved to my satisfaction that there was no knowledge of significant injury prior to January 1994 so as to justify a date of knowledge subsequent to that month. As before, the essential picture is of overwhelming actual knowledge of significant injury with the inhibitions serving to stay any attempt to seek help as an alternative to avoidance, alcohol and drugs.[51]It follows that the case for a date of knowledge within three years of January 1997 is rejected which leaves as an issue equitable relief from the consequences pursuant to Section 33. I can some straight to my exercise of discretion: it is to grant that equitable relief. As to this, the crucial point arises with respect to cogency of evidence. The case advanced on behalf of Mr. PL is to the effect that whilst an inmate the Defendants owed to him a duty of care, that is, the duty inevitably imposed on a body in loco parentis. His further case is that in the event there was such a lack of reasonable care as to cause him regularly to be utilised as an object for sexual relief. Thus far this is the case advanced on behalf of the other two Claimants. What distinguishes his position is that the then headmaster, Hoskin, was prima facie the person through whom the Defendants had primarily to fulfil that duty of care – it was for him, subject to overall supervision of the managers to devise and implement systems to care for the inmates. In the event, in so far as these were any systems they were obviously inadequate to fulfil the duty: they did not serve to prevent Hoskin as deviser and implementer from abusing this Claimant at will along with at least 14 other boys in and between 1974 and 1982, nor did they serve to prevent Hoskin effectively endorsing abuse of this Claimant by Dick. Crucially, there is here no apparent causation issue: the deviser and implementer of the systems knew that they were not serving to stop his abuse nor that by Dick. Equally crucially, the point as to vicarious liability for the acts or omissions of the headmaster has prima face support from Lister v. Hesley Hall, op. cit. Essentially the Defendants through Hoskin failed to devise and implement systems that would serve to prevent sexual abuse by Hoskin, alternatively Hoskin’s complicity in sexual abuse by Dick.[52]Of course, the foregoing is written in anticipation of evidence and submissions on such from Mr. Faulks QC but I am satisfied that I am entitled to discern at this stage such a strong case on liability that it could reasonably result in a finding for this Claimant that could not be condemned as unjust and speculative. That being the case, I think that he is entitled to equitable relief so as to secure from me a direction that the limitation provisions of Section 11 do not apply to his action.[53]This action will accordingly continue.

Generally

[54]In the course of submissions I was rightly reminded of the many other cases of which these three are but samples and of the exceptional amount of work that has gone into investigation and preparation with a view to findings that might serve to relieve the forensic impasse. I fully appreciate, none more so, the importance of a solution but I can only underline the difficulty inherent in looking to the Court for any such when the Court of Appeal’s guidance as endorsed by experience gained in this hearing serves to demand individual consideration for these claims. I will continue to offer such help as is available from the Court but my early impression that the overall solution lies elsewhere stands as strongly as ever. Essentially, any one seeking in or after 1997 to claim damages for sexual abuse experienced in the 1960’s and 1970’s by way of an action in negligence has, not surprisingly, formidable forensic hurdles to surmount, not helped by the absence of any specifically tailored limitation statute. It is only on a case by case basis that limitation findings can be made, as this judgment underlines.[55]Of course I am sorry for Messrs JM and JB. That said, seeking financial compensation was never their concern until suggested by the Police; they have both been helped by the respective medical consultations; and they have had the satisfaction of being heard and believed.[56]Finally, I pay tribute to the exceptional help afforded by counsel and solicitors.

Cited in 2 later judgments