EL v The Children's Society [2012] EWHC 365 (QB)

Case No HQ10X04140[2012] EWHC 365 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/02/2012
Before
MR JUSTICE HADDON-CAVE
Between
E LClaimantTHE CHILDREN'S SOCIETYDefendant
Mr Justin Levinson (instructed by Verisona Solicitors & Advocates) for ClaimantMr Adam Weitzman (instructed by Berrymans Lace Mawer LLP) for DefendantHearing Hearing dates: 16th & 17th January 2012
JudgmentTHE HON. MR JUSTICE HADDON-CAVE:BACKGROUND
[1]This case concerns a national children’s charity, the Children’s Society, and events which took place at one of its care homes in the 1950s.

The Children’s Society

[2]The Children’s Society was formerly known as The Church of England Society for Waifs and Strays. It was founded in 1891 by Prebendary Edward de Montjoi Rudolf CBE (1852-1933). It provided residential care homes for orphans and children whose parents were unable to care for them. In 1946 it became known as The Church of England Children’s Society. In the 1950s, the Children’s Society operated over 100 residential children’s care homes around the country. The homes usually accommodated between 8 and 20 children. The Children’s Society employed staff at these homes to look after the children.

Francis Pochin House

[3]The Children’s Society (“the Defendant”) ran a home in Southport called Francis Pochin House at No. 65, Roe Lane, Southport, Lancashire (“FPH”). It was a mixed house for boys and girls and could accommodate a total of 15 children. The staff at FPH comprised a residential housemaster and matron, with assistants and domestic help. From March 1949 to January 1952, the housemaster and matron at FPH were Mr and Mrs Williams. From January 1952 to January 1954, the housemaster and matron were Mr and Mrs Lee. On 4th January 1954, Mr and Mrs Bibby were appointed housemaster and matron at FPH. They remained in post until 15th July 1959.

Frank Bibby

[4]Mr and Mrs. Bibby had a son, Frank, who was born on 23rd August 1937. Frank Bibby was 15½ years old when his parents moved to FPH. Frank Bibby lived with his parents at the home until 1955 when, aged 18, he went away on national service with the RAF and then to university. He returned to stay with his parents at FPH during leave and the university holidays. Frank Bibby subsequently took Holy Orders and became a vicar in The Church of England until his retirement.

The Claimant

[5]The Claimant (“EL”) was born on the 11th November 1944. His parents could not afford to raise him or his two elder sisters. All three children were all put into care.[6]The Claimant was taken into the Defendant’s care and placed at FPH on 30th May 1949. He was then aged 4½ years. He remained at FPH until 14th October 1951 when he was transferred to the Edward Rudolf Memorial School in Dulwich for children with learning difficulties which was also run by the Defendant. This was nearer his elder sister (S). He was admitted to the Victoria Home in Margate with tuberculosis on 27th February 1954. He was re-admitted to the Edward Rudolf Memorial School in Dulwich on 20th September 1954. He returned to FPH on 5th January 1956, aged 11 years old. By this time, Mr and Mrs Bibby had taken over as housemaster and matron at FPH. The Claimant remained at FPH for the next three years. On 26th March 1959, however, he was admitted to Winnick Hospital, a psychiatric institution, having become ‘aggressive and disturbed’. He was discharged after three weeks and moved to a hostel for older boys in Doncaster. He joined the merchant navy on 14th December 1959. He came out of the merchant navy in 1967 and joined the Post Office, where he remained for 36 years. He married in 1985.[7]The Claimant’s elder sister (S) had also been taken into the Defendant’s care and placed at FPH in April 1949. She remained at FPH until September 1951 when she was moved to Dulwich. She returned to FPH in October 1952 and remained until January 1957. The Claimant’s younger sister (M) was also at FPH at some stage before being fostered.[8]The Defendant no longer runs children’s homes today, save for one facility which offers respite care to children with disabilities. 2008[9]In mid-2008 the Claimant contacted the Defendant and brought a complaint. He alleged that, whilst he had been in care at FPH, he had been sexually assaulted by Frank Bibby. The complaint was immediately referred to the Defendant’s Head of Safeguarding, Moira Murray. Ms Murray’s role was to see anyone who had formerly been in the care of the organisation and alleged that they had been ill-treated, to take careful notes of the complaint, to trace any relevant care and employment records, and to make a formal written referral to the police of any cases of potential abuse which might have come to light. This procedure was followed to the letter.

Claimant’s account to Ms Murray

[10]Ms Murray met the Claimant and his wife on 2nd July 2009. During this meeting, which lasted five hours, Ms Murray shared with them the care records and took careful note of the Claimant’s account of his time at FPH. The Defendant’s care records confirmed that the Claimant had been in the care of the Defendant from 1947 to 1959 and was at FPH during the periods set out above. The Claimant described a harsh regime at FPH when it was run by Mr and Mrs Williams. He said he had been subjected to physical and mental abuse by them. He said things had improved by the time he returned to FPH and Mr and Mrs Bibby were in charge. He said, however, that he had been “violated” by their son, Frank Bibby, and made to perform oral sex on Frank Bibby, who had then subjected him to penetrative anal sexual intercourse. The Claimant told Ms Murray that he thought this happened in early 1959 when he was about 15 and Frank Bibby was either on leave from National Service or on vacation from university.[11]Ms Murray informed the Claimant that, given what he had disclosed, she would need to refer the matter to the police in keeping with the policy of the Defendant. The Claimant told her he understood and agreed with this procedure. Ms Murray contacted Merseyside Policy on 7th July 2009, and gave details of her interview with the Claimant and the disclosures he had made. She also made inquiries as to the whereabouts of Frank Bibby. She discovered that he was a retired Anglican priest who had been Canon of Manchester Cathedral from 1996 to 2002.[12]Ms Murray gave evidence that she was aware of other allegations of sexual abuse concerned FPH, but these related to Mr Bibby senior when he was housemaster there. In the present action, the Claimant makes no complaints of abuse by Mr Bibby senior.[13]On 14th November 2008 the Claimant attended an interview with DC Martin Bennett of the Merseyside Police in the presence of an independent sexual rights advisor. During the interview, the Claimant said that he had been made to masturbate Frank Bibby on approximately six occasions between March 1958 and March 1959 and been subjected to anal rape on two occasions. He explained that the second time he was anally raped by Frank Bibby he became so disturbed that he was admitted to Winnick Hospital psychiatric ward. He said that the abuse took place in Frank Bibby’s bedroom at the top of the stairs at FPH.

Claimant’s account to his Wife

[14]It transpired that the Claimant had previously told his wife about the abuse but no-one else. In a police interview on 10th April 2010, the Claimant’s wife said that the Claimant had confided in her some years before, that on six or seven occasions Frank Bibby had made the Claimant masturbate him and there had been one occasion on which Frank Bibby had made the Claimant bend over a bed and then proceeded to rape him anally. She said that the Claimant had told her that there was a ‘sick bay’ or medical room at the home and this is where Frank Bibby would take him to abuse him.[15]The Claimant told nobody else about the assaults until he told a doctor in December 2007 who informed his GP and referred him for counselling.

July 2009 – Frank Bibby’s police interview

[16]On the 28th July 2009 the police arrested Frank Bibby on a charge of buggery. He was then aged nearly 72 years old. He was interviewed on that day under caution by DC Bennett and another officer at Southport Police Station. In the course of the police interview, Frank Bibby admitted that he had been involved in masturbation with three boys at the home, one of whom was called ‘Edward or Edmund’. He was adamant, however, that he had not raped the Claimant and denied ever having been involved in anal sex. He said that he had been abused at the age of 10 himself by a former resident who had returned to the children’s home where his parents then worked. He expressed remorse and shame and said that he had spent the last 50 years trying to put things right by his work in the Church.[17]On 4th February 2010, the Claimant issued proceedings against the Defendant and Frank Bibby in respect of the allegations of physical and sexual assault which he had suffered at the hands of Frank Bibby between 1956 and 1959. He made no claim or allegation of abuse in respect of Mr and Mrs Bibby.[18]Frank Bibby committed suicide in July 2010. Frank Bibby’s relatives settled the claim against his estate by the Claimant for £10,000. The Claimant maintained his claim against the Defendant.

THE ISSUES

[19]There are three issues for determination:(1) Limitation: Should the Court exercise its discretion under section 33 of the Limitation Act 1980 to allow the Claimant’s claim to proceed?(2) Extent of abuse: What was the precise nature and extent of the assaults perpetrated by Frank Bibby against the Claimant?(3) Vicarious liability: Is the Defendant vicariously liable for the abuse perpetrated by Frank Bibby against the Claimant?[20]It is convenient to address issue (3) Vicarious liability first, i.e. leaving to one side limitation questions for the moment.

VICAROUS LIABILITY

[21]The Claimant alleged that the Defendant is vicariously liable for the actions of Frank Bibby. This was denied by the Defendant.

The Law on vicarious liability

[22]The doctrine of vicarious liability is a principle of strict liability. It is an example of loss-distributive justice (see Atiyah’s Accidents, Compensation and the Law, 6th ed. (1999) p. 85). It imposes liability for a tort committed by an employee without any requirement for proof of fault by the employer. For this reason, it is necessary to keep the doctrine within clear limits. As Lord Steyn said in Bernard v The AG of Jamaica [2004] UKPC 47 at paragraph [23]: “The principle of vicarious liability is not infinitely extendable”.[23]The operation of the doctrine of vicarious liability has been considered in three recent authorities in the context of sexual abuse:(i) Lister v Hesley Hall Ltd. [2002] 1 AC 215 (HL),(ii) Various Claimants v Catholic Welfare Society and the Institute of the Brothers of the Christian Schools [2010] EWCA Civ 1106 (CA), and(iii) JGE v The English Province of Our Lady of Charity and The Trustees of the Portsmouth Roman Catholic Diocese [2011] EWHC 2871 (MacDuff J.).[24]The principles to be derived from these authorities can be summarised as follows.(1) First, the underlying rationale for making A vicariously liable for the torts of B, where A has employed B for his own ends, is one of ‘inherent risk’. Thus, where A authorises the employee to act in a particular way, either for profit or to further the objectives of A’s enterprise, and A thereby gives B the opportunity to commit an unlawful act connected to, or arising from a risk inherent in, the enterprise, A will be liable for B’s actions if the risk is one which experience shows is inherent in the nature of the business (see Lord Millett in Lister (supra)at paragraph [65]).(2) Second, a two-stage inquiry is required. The first stage is to examine the relationship between the defendant and the tortfeasor. The second stage is to examine the connection between the defendant and the act or omission of the tortfeasor in question. Both are fact-sensitive. The Court is required to make a judgment upon a ‘synthesis’ of the two stages (per Hughes L.J. in Various Claimants (supra)) .(3) Third, as regards the first stage, vicarious liability is not only confined to relationships of employment or paid business relationships. It can exist in other types of relationships, such as between members of unincorporated associations or partnerships (Various Claimants (supra) at paragraphs [38]-[42]; and see Dubai Aluminium v. Salaam [2002] 2 AC 366).(4) Fourth, as regards the second stage, it is now well established that the fact that the tortfeasor may commit the tort outside his authority from the defendant, or directly against the defendant’s instructions, is not necessarily a bar to the existence of vicarious liability. In Lister (supra), the employers of a warden of a residential school for disturbed children were held vicariously liable for his acts of sexual abuse of the children.(5) Fifth, it is not sufficient, however, that the employment by the defendant merely afforded the tortfeasor the opportunity to commit the tort (c.f. Lister and Various Claimants (supra)). The test involves two further highly fact-sensitive questions: (i) Did the employers entrust to the tortfeasor the performance which they, the employers, had undertaken (e.g. the care of the children)? (ii) If so, was there a sufficiently close connection between the torts and the tortfeasor’s employment for it to be fair and just to hold the employers vicariously liable?[25]It should also be noted that, there can be situations of concurrent vicarious liability by two defendants in respect of one tortfeasor where there is dual or shared control of a ‘borrowed employee’ (see Viasystems (Tyneside) Ltd. v. Thermal Transfer (Northern) Ltd [2005] EWCA Civ 1151).

Claimant’s case on vicarious liability

[26]The Claimant’s case on vicarious liability was put on the basis that Mr and Mrs Bibby entrusted the running of the home, when they were out, to their son, Frank Bibby, and also entrusted specific tasks to him, such as putting the children to bed and accompanying them to church.[27]Counsel for the Claimant, Mr Justin Levinson, submitted that(i) Frank Bibby was used by Mr and Mrs Bibby to discharge the Defendant’s care obligations towards the children in the home,(ii) Frank Bibby’s abuse of the Claimant was closely connected with his role at the home, and(iii) notwithstanding the absence of a formal relationship of employment, the circumstances gave rise in law to vicarious liability on the part of the Defendant for Frank Bibby’s torts. He argued that Frank Bibby had become “part of the workforce” at FPH.

Analysis

[28]It should be noted that the suggestion that Frank Bibby had a ‘supervisory role’ at FPH was not one which featured when the Claimant first raised the complaint:(1) The Claimant made no mention in his police interview on 18th November 2008 of Frank Bibby having any supervisory role at FPH. He merely told the police that Frank Bibby had an “air of authority” and abused his status as the son of the housemaster. Frank Bibby was 5-6 years older than him at the time.(2) There is no record of any suggestion by the Claimant during his interview with the forensic psychiatrist, Professor Anthony Maden, on 19th March 2010, of Frank Bibby having any formal role in the house. Professor Maden records the Claimant merely stating that Frank Bibby was away at university and so was only at the home at holiday times.(3) The Claimant’s wife made no mention during her police interview on 10th April 2010, when she detailed her husband’s initial revelations of the abuse to her, of her husband ever suggesting that Frank Bibby had any formal role in the home. She said that he had merely said that he was the son of the ‘manager’and so was in a position of authority.(4) The Claimant’s letter of claim settled by his solicitors, Messrs Verisona, dated 26th August 2009, did not suggest that Frank Bibby was employed by the Defendant. Rather, it put the Claimant’s claim squarely on the basis of his parent’s employment by the Defendant and their failures to take reasonable steps to ensure the Claimant’s safety. Indeed, the letter states their positive understanding that Frank Bibby was not so employed.[29]The first time a suggestion of vicarious liability appears is in the Claimant’s Particulars of Claim dated 21st February 2011. The Claimant pleaded that certain aspects of the day-to-day operation of the home, such as discipline, taking the children to Church and supervision of the children, were delegated by the Defendant and/or Mr and Mrs Bibby to Frank Bibby, who worked in the home from time-to-time and was used by them to ‘discharge their responsibilities to the Claimant’.[30]The Claimant’s witness statement dated 22nd February 2011 expanded on this plea as follows. When Frank Bibby was at the home, he would “assist” his parents with the running of the home. The sort of things that he did to assist were(i) escorting the children to Sunday school,(ii) entertaining the children in the ‘quiet room’ by playing the piano,(iii) detailing children to undertake certain tasks such as cleaning shoes,(iv) making sure the children went to bed on time, cleaned their teeth and got into bed, and(v) making sure that the children had done their homework. The Claimant’s witness statement continued:
“When his parents were out Frank Bibby was in charge. He had full control of the home. He would run the place as I have described above. He would be telling us what to do and so on. He was doing what his parents would have done had they been there.”

Claimant’s recollection

[31]The Claimant gave oral evidence. He said that he could remember his time at FPH “as though it was yesterday”. It was clear, however, that this was not the case. His memory had inevitably faded on many aspects. This was entirely understandable given the passage of some 50 years.[32]His oral evidence painted a somewhat fainter picture as regards Frank Bibby’s role than his witness statement. As to (i) above, the Claimant said that Frank Bibby merely “took it upon himself” on occasions to walk with him and his friend Jack Wills to Church because he and his friend, Jack, were in the choir and Frank Bibby was the organist. As to (ii), he said the home had a ‘quiet room’ which the children used which was furnished with a sofa and chairs, books, a wind-up gramophone and a portrait of the benefactor, Francis Pochin, over the fireplace. It also had a piano which Frank Bibby would sometimes play for them. As to (iii), he said Mr Bibby senior would tell the children to clean their shoes for the next day and when Frank Bibby was home he would also “periodically” remind them to clean their shoes and do other tasks like peeling potatoes. He once told the Claimant and Jack off for letting the boiler go out. As to (iv), he said Mr Bibby senior would put the older boys to bed, making sure they cleaned their teeth, folded their clothes and said their prayers and “on occasions” Frank Bibby did so. As to (v), he said the children usually did their homework together in the ‘quiet room’.[33]The Claimant’s evidence about Frank Bibby being left “in charge” when his parents went out was not particularly clear or compelling. Strikingly, the Claimant has no recollection of there being any other adults at FPH apart from the Bibbys and domestic help who did the cooking, washing and ironing. He had no memory of there being any Assistants or other staff at the home during his time at FPH. The Claimant’s memory had, understandably, faded significantly in this regard (see below).[34]The records from the 1950s retained by the Defendant show that a succession of additional staff were employed at FPH during the five years in which Mr and Mrs Bibby were in charge. They were called called variously “Assistant”, “Junior Assistant”, “Mobile Matron”, “Daily Helper” or “Temp Student Helper. There is also one entry showing a Mr and Mrs Vanzeebroek in “temp charge” for a two week period from 17th November 1958 to 6th December 1958, presumably when Mr and Mrs Bibby were on holiday. The records also show that during the year in question in which the Claimant alleges the abuse took place, i.e. March 1958 to March 1959, nine different house staff were employed at FPHin addition to Mr and Mrs Bibby and the temporary housemaster and matron, Mr and Mrs Vanzeebroek. These nine additional staff were employed serially during the following, partly overlapping, periods:(i) from 1st April to 10th May 1958,(ii) from 12th to 26th April 1958,(iii) from 21st April to 8th May 1958,(iv) from 27th June to 12th July 1958,(v) from 15th July to 29th July 1958,(vi) from 16th August 1958 to 2nd February 1959,(vii) from 12th August 1958 to 31stJanuary 1959,(viii) on 1st March 1959 and(ix) from 2nd to 31st March 1959.[35]There is no evidence in any of the Defendant’s records of Frank Bibby having ever been employed in any capacity at FPH.[36]Counsel for the Claimant, Mr Levinson, submitted that these records showed that FPH was ‘chronically’ understaffed during 1958 to early 1959 and that it should have had a full notional compliment of three additional house staff to assist the Houseparents. A careful examination of the records shows, however, that the numbers of children at FPH fluctuated during this period and so did the staff. During the second half of 1958 until early 1959, FPH had 13 children and two full-time Assistants.[37]The parties made every effort to trace former employees of FPH and the Defendant from this era. Mr and Mrs Bibby and other House Parents have long since passed away. They were, however, able to trace one of the Assistants employed at FPH at this time, Mrs Warrington, and a member of staff from the Defendant’s Headquarters, Mrs Stone (see below).

Mrs Warrington’s evidence

[38]Mrs Barbara Warrington (née Gaukroger) was the Assistant employed at FPH from 12th August 1958 to 31stJanuary 1959. She gave evidence by video link. She is now 85.[39]Mrs Warrington explained how she saw an advert in a magazine and was interviewed by Mr Bibby for the job. She accepted the post, which was paid £155 per annum. She said that she had no direct contract with the Defendant. She lived at FPH and had her own bedroom. She joined about the same time as another Assistant, Moira Hill. Their duties were getting the children up in the morning and ensuring that they washed, dressed and had breakfast. The older children would help with these tasks. The Assistants had to be there on the children’s return from school. They would take the children to Church on Sundays. It was Mr Bibby who gave the instructions. She had little recall of Mrs Bibby. She said that FPH was run on very regimental lines and had an unhappy atmosphere. She said that the children were unhappy and frightened of Mr Bibby. He had a temper and would hit them. She said he was not a pleasant man. She became sufficiently concerned to write to the Defendant in London to draw to Headquarter’s attention what was happening and that she was concerned about the children’s welfare. One morning she was summoned by Mr Bibby to his office. He had the actual letter she had sent to the Defendant. He was angry and said to her “How dare you send a letter of complaint to the Society?”. He told her to get out and leave. She did. She recalls Moira Hill probably left at the same time for the same reason.[40]Mrs Warrington was unable to give any useful evidence regarding Frank Bibby himself. She recalled meeting the Bibby’s son at the home but said he was away at college most of the time she was at FPH. She did not suggest that he had any role in the home.

Evidence from ex-FPH children

[41]The Claimant called two witnesses to give evidence who had been in care at FPH as children during the period the Bibbys were there. I will call them Wayne and Joan.[42]Wayne had been placed at FPH as a boy for two periods, from November 1954 to February 1955 and from September 1956 to March 1959. He was born in 1946. His witness statement described Mr and Mrs Bibby as “unsympathetic” and Frank Bibby as a “loner”. He said Frank’s inclinations towards boys were reasonably understood amongst the children. He said that Frank was kind and supportive and helped him with his homework. He made it clear that Frank was not in any sense employed to do this. Frank did not have any formal role at the home so far as he was aware. He recalled one occasion when Frank escorted him to the police station when the police were investigating an indecent of assault the choirmaster had made on him. He assumed that Frank was standing in for his parents. He said in evidence that Frank was something of an authority figure, “I think because he was a Bibby”. He readily accepted that it was very difficult to recall things with any precision.[43]Joan was born in 1942 and was a resident at FPH from 1948 to 1955, i.e. between the ages of 6 and 13. In her witness statement she described Mrs Bibby as “matronly”, although she did not have much to do with the children, and Mr Bibby was “touchy feely”. She recalled a Master and Matron but said there were never any domestic staff and the children had to help with the cleaning and washing and preparation of the food. She said that during Mr and Mrs Bibby’s time there was no Assistant Matron. She recalled the Bibby’s son, Frank, who lived at home and would assist his parents in running it and give the children instructions and get them organised. She said in evidence that she recalled him walking them to Church in ‘crocodile file’. She said her abiding memory of Frank was him trying to teach her the piano. In a supplementary statement, she said that when Mr and Mrs Bibby went out for the day or in the evening they left Frank ‘in charge’ and he was ‘the only person in charge’. There was little elaboration.[44]Joan’s evidence illustrates the very real difficulty of recalling events which occurred over 50 years ago when she was a child. It is clear from the records and Mrs Warrington’s evidence (see above), that Joan’s evidence about there being no Assistants at FPH during the Bibbys’ time was quite incorrect. There were four listed in the Register during 1955 when she was there with the Bibbys. This casts doubt on the accuracy of her evidence that Frank Bibby was left ‘in charge’ when Mr and Mrs Bibby went out or would have been the ‘only person in charge’ when Mr and Mrs Bibby went out. Further, her evidence was anyway of limited value, since she only overlapped with the Bibbys for one year, during which Frank would have reached 18 and would have been away for much of it on National Service.

The Children’s Society Handbook 1959

[45]The Children’s Society Handbook (1959 edition) set out the organisational structure and features of the Society. It was run by an Executive Committee in London which met every four weeks. 100 people worked at The Children Society’s headquarters at Kennington. The organisation depended on a large number of voluntary workers and permanent staff spread around the country. The voluntary services in the Districts comprised approximately 100 Local Committees of homes and nurseries, 700 Supervisors, over 10,000 Honorary Local Secretaries, Money Raising Committees and various Voluntary Workers. The permanent staff comprised, Houseparents and other staff at the homes and nurseries, Welfare Officers, District Clerical and Lay organisers and Children’s Union representatives. Houseparents included “Housefathers and Housemothers, Matrons of Nurseries, Wardens of Hostels, Reception Centres and Special Homes, Headmasters and Headmistresses of Schools, together with anyone acting in any of these posts”. Appointments of permanent staff were made under the direction of the Executive Committee, subject to a satisfactory probation period and references being taken up by Headquarters. Daily domestic staff were appointed by the local House Committee and their names had to appear on the monthly Staff Returns.

Mrs Stone’s evidence

[46]Mrs Clara Stone joined the Defendant’s Headquarters in 1956. She is now aged 86 and has been unwell. She was, however, able to provide a helpful statement. She became Head of Case Department in 1960, responsible for all admissions to care. She said that The Children Society’s stated aim was “to produce a light and happy family background fostering team spirit and avoiding any rigid institutional atmosphere”. The purpose was to provide homes for children in need of care by the provision of the equivalent of a normal Christian family life. She explained how the homes were intended to be small to enable a family atmosphere to be maintained. There would have been about 8 children in the smallest homes and about 20 children in the largest homes. The staff to child ratio for each home would be decided by the Head of Homes Department. Usually staff in each home would include two House Parents, a Deputy House Parent and one or two Assistant House Parents. Members of the local House Committees would inspect homes on a weekly basis. Generally, a house the size of FPH would have had two House Parents, a Deputy House Parent and two Assistant House Parents. She could not recall a home the size of FPH having only a set of House Parents and no other staff members. From the records, however, FPH had a relatively large number of different employees. She explained that the absence of a Deputy House Matron at FPH may have been due to the size of the home or because the post did not exist at that time. Precisely how each home was run changed over time and it was difficult to recall the composition of a home for any given period.[47]She explained that, whilst there were no formal requirements, staff were expected to have had previous experience in handling children, be of good character and exhibit common sense and a fondness for children. The Children Act 1948 was a catalyst for the training of people who worked with children, but it was a gradual process during the 1950s and 1960s. House Parents were expected to attend the monthly House Committee meetings. Home Advisors visited the homes two or three times a year, staying overnight, and would prepare a report for Headquarters. Contact between children and external unrelated families was encouraged, particularly if a child had no close contact with his or her family.[48]Headquarters’ approval was required for cover of House Parent’s holiday period. If House Parents were intending to take a single day off, it would be highly unusual if the Deputy House Parent did not cover this. She also said that House Parents sometimes had their own children, as well as extended family visiting, and it was natural that all the children would mix together. This was considered as acceptable practice by the Defendant, which trusted the House Parents to monitor the people with whom the children in care came into contact.[49]She confirmed that the records showed that Frank Bibby had never been employed by the Defendant. She said that any arrangement whereby Frank Bibby had control of the home when Mr and Mrs Bibby were out would not have been normal and would not have been a practice approved by the Defendant. The presence of Deputy House Parents and Assistants should have made this unnecessary. She said it would have been “highly unusual” for the Defendant to have recruited the son of House Parents as a carer or quasi-carer, let alone in the same house, and he would anyway have had to have been subjected to the same recruitment procedures and employee checks as other members of staff.

Leave

[50]There were provisions for house staff to take annual leave for holidays and have off-duty hours. Houseparents were entitled to four weeks annual leave. Assistant Houseparents were entitled to three weeks annual leave. Each resident member of staff was entitled to two hours off duty time per day and Sunday afternoon and evenings in turn with the rest of the staff plus one whole day per week. The Handbook continued (page 61):
“Where the staff position in a home or nursery is such that a married person cannot have their off duty hours together, a relief may be engaged locally at £1 per day or 10/- per half day. If there is a difficulty in finding a suitable person, reference to the local W.Y.S., or similar organization is suggested.”
The Handbook also stated that no senior member of staff could be absent from a home or nursery without the agreement of the House Committee. The duties of the local House Committee were to administer the home in accordance with the rules laid down by the Executive Committee and set out in the Handbook and “to supervise and secure the welfare of the children in co-operation with the Houseparents” (page 65).[51]In support of his argument that the Defendant was vicariously liable for Frank Bibby, Counsel for the Claimant, Mr Levinson, relied on the passage from the Handbook quoted above, to suggest that Mr and Mrs Bibby had authority to appoint Frank Bibby to cover for them when they were out. Mr Levinson also pointed to the fact that Mrs Warrington recalled only having been interviewed by Mr Bibby for the position Assistant and no-one else in support of his submission that Mr Bibby had general authority to engage staff.

Conclusions on vicarious liability

[52]In my judgment, however, the Claimant’s case on vicarious liability fails for the following principal reasons.[53]First, I am not satisfied on the evidence that Frank Bibby was ever left “in charge” of FPH, whether formally or informally, when his parents went out. There were two full-time Assistants at FPH for the whole of the second half of 1958, namely Mrs Warrington and Moira Hill. Mrs Warrington, who was in the best position to know, did not suggest Frank Bibby had any role at FPH. Her evidence was simply that he was away at college most of the time (see above). Wayne did not suggest Frank Bibby had any formal role. I found the Claimant’s and Joan’s evidence of little assistance or probative value on this issue because they failed even to recall the fact that there were any Assistants at FPH during their time when the contemporaneous records plainly show that there were. Further, even if FPH did not have its full notional compliment of staff at all times during the year, this did not necessarily mean that Frank Bibby was engaged as a ‘relief’ Houseparent when his parents were out. Nor does it mean that Frank Bibby was given any role in the house which could give rise to vicarious liability for him being visited on the Defendant.[54]Second, whilst it appears that Houseparents had authority to engage “suitable person(s)” as reliefs on a daily rate, I do not accept that Mr and Mrs Bibby’s 22- year-old son was, or would have been regarded as, a “suitable person” to act as a relief Houseparent by the Defendant, or that they would have had authority to engage him in this capacity to cover for them when they were out. Moreover, there is no evidence that Frank Bibby was, in fact, ever “engaged” by his parents to act as their relief at FPH at any stage or on any occasion, or that the Defendant ever countenanced him having such a role. There is certainly no record of him ever having been so engaged.[55]Third, it is accepted by the Claimant that on each of the six to eight occasions when Frank Bibby committed the abuse, Mr and Mrs Bibby were also present in the house. It follows that, even assuming everything in the Claimant’s favour, the Claimant’s case on vicarious liability founders on a fundamental problem: the abuse did not take place when Frank Bibby was “engaged” as a temporary relief for his parents. Counsel for the Claimant, Mr Levinson, sought to escape from this problem by submitting that Frank Bibby became “part of the workforce” at FPH (see above) and that even when he was ‘off duty’ the Defendant was liable for him. In my judgment, however, this submission was far-fetched: the evidence and realities of the case did not begin to support such a notion. Indeed, the circumstances pointed, if anything, to the opposite conclusion. Frank Bibby was at FPH because he happened to be the son of the Houseparents and FPH was his home. He had lived at FPH as a teenager with his parents until 1955. When he went off to do his National Service aged 18 and then to attend university, he naturally returned to stay with his parents at FPH during holidays. He would have got used to living with other children at FPH and at the previous care homes his parents ran. He said in his police interview that his father treated him “like one of the rest” and that the rules applied to him along with everyone else. He said that when his parents took up children’s work “[I] became one of the gang really”. In so far as Frank Bibby used his ‘position’ to commit acts of abuse against the Claimant and several other children at FPH, it was his status as the Houseparent’s son which gave his an “air of authority” (as the Claimant admitted) and nothing else.[56]The evidence does not begin to satisfy the fact-sensitive tests of vicarious liability in Lister and Various Claimants (see above). Indeed, the evidence, if anything, points to a conclusion of positive non-employment of Frank Bibby by the Defendant.[57]For these reasons, in my judgment, on the evidence before the Court, the Defendant cannot be held vicariously liable to the Claimant for the abuse committed by Frank Bibby. It follows, therefore, that the Claimant’s claim is bound to fail in any event and must be dismissed.[58]I turn, however, to state my views on issue (1) the Limitation issue, in case I am wrong on the question of vicarious liability.

LIMITATION

[59]It is now clear that all claims for personal injuries, whether founded in negligence or on the basis of deliberate assault, are subject to the three-year extendable limitation period provided for in Section 11 of the Limitation Act 1980 (see the decision of the House of Lords in A v Hoare [2008] UKHL 6).[60]In the present case, the primary limitation period expired on the Claimant’s 21st birthday, namely on 11th February 1965. The present proceedings were filed on 21st February 2011. The claim has, therefore, been brought 46 years out of time.

Section 33

[61]The Court has power to disapply the limitation period in an appropriate case pursuant to section 33 of the Limitation Act 1980. Section 33 provides as follows: “33. Discretionary exclusion of time limit for actions in respect of personal injuries or death (1) If it 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 relates. …. (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 the 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. (1) If it 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 relates. …. (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 the 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.[62]The exercise of the Court’s discretion under section 33 in relation to cases involving allegations of historic child abuse was considered in KR v Bryn Alyn Community (Holdings) Ltd. [2003] QB 1441 (CA) and A v Hoare [2008] AC 844 (HL) and re-visited recently in B v Nugent Care Society [2010] 1 WLR 516 (CA). The application of section 33 has also recently been considered in a personal injury context by the Court of Appeal in Cain v Francis [2009] QB 754.

Section 33

[63]The principles to be derived from these cases as to the approach to be adopted by the Court when applying section 33 can be summarised as follows:(1) The Court must consider each of the circumstances listed under subsection 33(3)(a) to (f) of the Limitation Act 1980.The list is, however, not exhaustive and the Court must have in mind the opening words of subsection 33(3) which require the Court to “have regard to all the circumstances”.(2) Key considerations are likely to be (i) the reasons or excuse for the delay and (ii) the effect of the delay on the Defendant’s ability to investigate or defend the claim. In determining the reason for the delay, the Court is entitled to take into account the effect of any adverse psychiatric reaction or condition caused by the abuse.(3) The length of the delay, of itself, is not a deciding factor.(4) The Court must consider whether the defendant has suffered any evidential or other forensic prejudice by reason of the delay and whether the defendant will have a fair opportunity to defend himself against the claim.(5) The basic test is whether it is “fair and just in all the circumstances” to expect the defendant to meet this claim on the merits, notwithstanding the delay (per see Smith L.J. in Cain v. Francis (supra) at paragraphs [73]).(6) Each case depends on its own facts.[64]In Cain v Francis, Smith L.J. said at paragraph [73]):
“[73] It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones.”
[65]In Hoare (supra) Lord Brown sounded a note of caution and gave inter alia the following guidance (which was described by other members of the Panel in Hoare (and the Court of Appeal in Nugent (supra) at para. [25]) as particularly useful :
“85. First, as far as future claims may be expected to be brought against employers (or other allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrow factual disputes than hitherto. As Lord Hoffmann suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial. 86. Secondly, though the combined effects of Lister v Hesley Hall Ltd. and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. … By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must include a fair opportunity for the defendant to investigate the allegations-see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.”

Reasons for the delay and factors (a) to (e)

[66]Counsel for the Defendant, Mr Adam Weitzman, rightly takes no point on the Claimant’s reasons for not having come forward earlier with this complaint.[67]As is common and entirely understandable in such cases, those who have suffered abuse at an early age are often too frightened or bemused to say anything and, thereafter, too ashamed to tell anyone what happened to them. Sometimes difficult and painful memories remain bottled up for years. This was true of the Claimant. He did not feel there was any adult at FPH that he could turn to. He did not even tell his wife until years later the full extent of what had occurred. He was only finally able to fully disclose the abuse when asked by a doctor in December 2007.Professor Maden’s opinion was that the Claimant did not complain earlierbecause of “profound feelings of shame” associated with the abuse. Professor Maden observed:
“[EL] is therefore typical of survivors of childhood sexual abuse who commonly put the abuse to the back of the mind and attempt to get on with their lives. Psychological factors can explain the delay in making a complaint.”
[68]Accordingly, the factors in sub-section (a), (d), (e) and (f) fall away. As regards the other factors listed in section 33: in my judgment there was no criticism to be made of the Defendant’s conduct and factor (c) falls away. As regards factor (b), however, it is clear that the delay has had a very significant effect upon both the cogency of the claimant’s evidence and the evidence available to the defendant (see further below).

Other points

[69]Counsel for the Claimant, Mr Levinson sought to place reliance on one of the cases considered by the Court of Appeal in Nugent (supra), the Wirral case as an example of where the Court had been prepared to disapply the limitation period in an abuse case notwithstanding that there was an issue as to vicarious liability. The facts of that case were, however, very different from the present. In the Wirral case, the perpetrator was the husband of the house mistress who had a formal role as an ‘escort officer’ and they were referred to as joint ‘house parents’. Furthermore, as Lord Clarke observed at paragraph [25] in Nugent (supra), vicarious liability was not seriously challenged on proof of these facts. In my view, therefore, Wirral is distinguishable.[70]Mr Levinson also suggested that the claim would have been impossible prior to the decisions of the House of Lords in Lister in 2002 and Hoare in 2008 (supra) and that the delay before 2002 or 2008 was irrelevant. I reject this ingenious argument. Lister returned the law to the position which the courts had adopted prior to Trotman v. North Yorkshire County Council [1999] LGR 584 (CA). The Claimant’s cause of action pre-dated Trotman by decades and so there was no legal bar to him bringing a claim earlier. Hoare reversed Stubbings v. Webb [1993] AC 498 (HL) and extended section 33 to claims for wilful assault. The Claimant’s cause of action pre-dated Stubbings by decades. It was always open to the Claimant, in law, to bring the claim earlier. (1). Effect of delay on ‘vicarious liability’ issue[71]I turn to consider the effect of delay first in the context of the vicarious liability issue. The main considerations seem to me to be as follows.[72]First, the factual inquiry necessarily required to determine the question of vicarious liability for the abuse is much broader than that relating to the relatively narrow question as to the nature and extent of the abuse itself. Whilst it might not be as extensive as the sort of ‘systemic negligence’ inquiry that Lord Hoffmann mentioned at paragraph [52] in Hoare (supra), an inquiry into vicarious liability in this case would inevitably include an investigation as to the systems and organisation in place at FPH and how the house was run in practice by Mr and Mrs Bibby from day-to-day. Vicarious liability is, as recent cases such as Various Claimants (supra) have emphasised, a fact-sensitive matter.[73]Second, apart from Mrs Warrington and Mrs Stone (whose evidence I have set out above), there are no other staff from the Defendant who have been traced who are still alive and who could give detailed evidence of the Society’s practice and procedures, systems and organisation, in place at the time, or as to and manner in which FPH was in practice run in the late 1950s by Mr and Mrs Bibby.[74]Third, crucially Mr and Mrs Bibby themselves are no longer alive and able to give evidence as to how they ran FPH from day-to-day and whether any tasks were delegated to Frank Bibby and, if so, why and on what basis. There are many questions which might usefully have been put to Mr and Mrs Bibby. Did they ever put Frank Bibby in charge of the children when they went out? If so, how often, when and on what basis? What were the Assistants doing? What instructions, if any, did they give Frank regarding his role vis-à-vis the children? Was Frank Bibby ever remunerated? Was he “part of the workforce”? Etc.[75]Fourth, Frank Bibby himself, of course, is also now dead and cannot give evidence about these matters.[76]Fifth, the few witnesses who have given evidence, who were in care at FPH (including the Claimant) were children at the time and are now elderly and the half-century which has passed has inevitably affected their recollections so that detail is lost, events are confabulated and descriptions are partial.[77]Sixth, whilst basic records from FPH have been retained, it is likely that there would have existed more detailed contemporaneous documents and accounts throwing light on FPH in the late 1950s which are now long lost.[78]Seventh, unlike most of the reported cases where the alleged abuser was either directly employed by the defendant organisation, or was someone with a formal status (such as the Catholic priest in JGE supra), the present case involves an allegation of vicarious liability in relation to someone who appears to have had no formal status at all and, accordingly, the factual inquiry is particularly difficult.[79]For these reasons, in my view, the Defendant would be seriously prejudiced by the delay in bringing these proceedings: first, by being unable satisfactorily to investigate the factual contentions advanced by the Claimant and his witnesses in relation to vicarious liability; and second, by being unable properly to test the assertions of fact upon which the allegation of vicarious liability is based.[80]In my judgment, a fair trial of the issue of vicarious responsibility would not have been possible. Accordingly, even if I had not found that the Claimant has failed to prove vicarious liability (see above), I would nevertheless have declined to exercise my discretion to disapply the limitation period in this case in any event. (2). Effect of delay on ‘extent of abuse’ issue[81]I turn to consider, finally, delay in the context of the narrow issue regarding the nature and extent of the assaults perpetrated by Frank Bibby against the Claimant.[82]The case was presented on two alternative hypotheses. The first was Frank Bibby had committed six acts of masturbation with the Claimant whilst he was in care at FPH in 1958 or early 1959. (This was admitted by the Defendant for the purpose of the action). The second was that Frank Bibby had, in addition to the six acts of masturbation, also committed one or more acts of anal rape on the Claimant whilst he was in care at FPH in early 1959. The parties had agreed a figure of £30,000 damages on the first hypothesis and £45,000 damages on the second hypothesis. The Claimant agreed to give credit for the £10,000 already received from Frank Bibby’s estate. It follows that the abuse issue involved the difference in the net recovery between £20,000 and £35,000.[83]The only witnesses to the abuse were the Claimant himself and Frank Bibby.

The Claimant’s evidence

[84]It is right to observe that Claimant’s memory has inevitably faded in many respects over the passage of time. His evidence about the abuse itself contained a number of significant inconsistencies, in particular(i) whether the abuse occurred in the medical bay or Frank Bibby’s bedroom,(ii) whether he had been made to perform oral sex on Frank Bibby, and(iii) whether he had been anally raped on more than one occasion. The Claimant was unable to explain these contradictions in his evidence.[85]I am sure, however, that he was trying his best to recall truthfully and the discrepancies are a function of the understandable difficulty of recollecting painful matters after 50 years with any degree of accuracy.[86]The Claimant has suffered for many years with a somatic disorder. Professor Anthony Maden, a forensic psychiatrist who gave agreed evidence, said that this was caused mainly by the sexual abuse which the Claimant had suffered. Professor Maden said that this was supported by the fact that many of the Claimant’s complaints centered on problems and pain associated with his genital and anal areas and his condition suddenly improved when he was able to talk about the abuse. Professor Maden concluded the Claimant was “a good and credible historian”.[87]Ms Murray also took the view that the Claimant’s account of the abuse was truthful. She has had 12 year’s experience in dealing with these sorts of abuse claims and, in my judgment, is of value to the Court.[88]The Claimant’s account of something out of the ordinary having taken place which disturbed him also tends to be supported by the fact of his sudden admission to Winnick Hospital, a psychiatric institution, having become ‘aggressive and disturbed’. He spoke of his distress at having not been physically examined at the time of his admission to Winnick Hospital.

Frank Bibby’s police interview

[89]In his police interview in 2009, Frank Bibby admitted that acts of masturbation involving the Claimant probably did take place. He was adamant, however, that he had not engaged in anal intercourse with the Claimant or any of the other boys at FPH at any time.[90]As I have mentioned, unfortunately, Frank Bibby committed suicide in 2010, aged 72. He is not longer alive and able to speak as to what precisely occurred at FPH. I do not accept the suggestion that his suicide was, necessarily, a sure sign of guilt to the buggery charge. Nor do I accept the suggestion that his suicide was inevitable, i.e. that he would have taken his own life even if the Claimant had come forward with the allegations years much earlier.

Discretion under s. 33

[91]After careful reflection, and taking all the above matters into account, I have concluded that, with the passage of half a century and in the absence of the accused himself, a fair trial of the abuse issue would not be possible. In my judgment, it would not be appropriate to disapply the limitation period in relation to the abuse issue in the particular circumstances of this case. Accordingly, I would have declined to exercise my discretion under section 33 in this case in any event.[92]In view of my decision on the Vicarious liability issue, however, my conclusions on the Limitation issue remain academic.

Decision

[93]Whilst the Claimant is deserving of every sympathy and understanding for the difficulties and ordeal he experienced in childhood, this claim must be dismissed.[94]I am grateful to both Counsel for their submissions and considerable assistance.

Cited in 2 later judgments