Raggett v The Society of Jesus Trust and Others 2009

FACTS:-

The Claimant was born on the 24^th June 1958 and 50 years old at the time of trial. He was claiming damages for sexual abuse and assaulted allegedly  committed on him by a teacher, Father Spencer at Preston Catholic College in Lancashire where he was a pupil from 1969 to 1976. Father Spencer would ask the Claimant to strip naked and photograph him. This then progressed to indecent assaults, and digital penetration. Father Spencer would visit the Claimant at home and take him out to football matches, where again he would surreptitiously abuse him. As a result of Father Spencer’s attentions, he was called his “pet” or “bum boy.” Eleven witnesses (who were the Claimant’s contemporaries) gave evidence in support of his claim. The First and Second Defendants called evidence from three witnesses, including the headmaster of the school from 1973 to 1975. All three denied being aware of any abuse.

The First Defendants had initially denied that they employed the teacher and did not admit that they ran the college. The Second Defendants were the board of governors, and the claim was initially served on the sole surviving governor. Eventually the First Defendant’s insurers admitted that they were liable to indemnify the Second Defendants. The Second Defendants admitted that they ran the college and that they employed the teacher in question.

Following his education, the Claimant entered the legal profession although he failed part of his Law Society Finals, and only persuaded the Law Society to let him re-sit by obtaining fabricated medical evidence. He then went to work for several different law firms, but his career did not prosper. One firm sacked him purportedly for drunkenness and for failing to market the practice sufficiently. He got married in 1991 but that marriage ended in 1997.

The Claimant then worked for a legal recruitment agency, as a freelance journalist, and as a web editor. He was at present working as a self employed professional services and general business consultant.

The Claimant said that during his time at college, he retained no conscious memory of what had occurred. He made a partial disclosure to a physician in 1996. Everything had changed in April 2005, when he told a priest that he had been sexually abused. The realisation that he had been abused came over him.

The Claimant had received a form of therapy, called Eye Movement Desensitization and Reprocessing (“EMDR”). He had been examined by Dr Shapero and Professor Maden, two psychiatrists. Dr Shapero said that it was necessary to be cautious when dealing with memories which had apparently been “recovered” after EMDR, whilst Professor Maden said that it was unsafe to rely on such memories. He said that most psychiatric and psychological opinion did not accept the validity of “recovered” memories. Dr Shapero said that the Claimant’s psychiatric problems were caused by the abuse, whilst Professor Maden said that they were hereditary and constitutional in nature.

At trial, the judge was asked to decide:-

a)    Did the abuse occur?

b)    If so, what was its nature and extent?

c)    Was the claim issued beyond the primary limitation period?

d)    If so, would it nonetheless be just and equitable to allow the case to proceed?

HELD:-

Justice Swift said that she was satisfied that the abuse had taken place as the Claimant described. However she would not deal with the issue of causation.

In relation to limitation, Swift J considered the provisions of Sections 11 and 14 of the Limitation Act 1980 as well as the words of Lord Hoffman in A v Hoare and Others [2008] UKHL 6 on the issue of what constituted “significant injury” for the purposes of the Act. She also referred to Albonetti v Wirral Metropolitan Borough Council [2008] EWCA Civ 783. In that case, Smith LJ said that allegation of anal rape by more than one man on more than one occasion could not sensibly be regarded as anything other than a significant injury.

The Claimant had said that at the time of the abuse, he had distanced himself from it and forgotten it immediately it occurred. Up until 2005, he had not characterised what had happened as “sexual abuse.” In 1996 he had actually denied to the physician who treated him, that he had been sexually abused. In 1999 he had met Father Spencer for lunch and had invited him to officiate at his wedding.

The psychiatrists, Dr Shapero and Professor Maden had agreed that it was not uncommon for adults to fail to appreciate the nature or extent of the effects of having been sexually abused, although this was rare. Dr Shapero had made a diagnosis of “dissociative amnesia” whereas Professor Maden had said that the Claimant had simply used “distraction” techniques to cut himself off from the abuse.

Swift J did not accept the evidence of Dr Shapero. The episode of disclosure in 2005 did result in the awakening of the memories of certain incidents of abuse and the resulting emotions. She did not accept that the Claimant was merely deploying for the purposes of argument, information of which he had always been aware.

However subsection 14(2) assumed a practical and relatively unsophisticated approach to the question of knowledge. The effects of the abuse, should in Swift J’s view have been recognised by a reasonable person as being sufficiently serious to justify instituting proceedings against a compliant Defendant. Therefore time would run against the Claimant from the date of his majority, and the claim became statute barred in June 1979.

The next issue was whether the court should exercise Section 33 of the Limitation Act 1980 in the Claimant’s favour. Swift J considered the six factors under section 33(3)(a) to (f) and said that the burden lay on the Claimant. The length of the delay was very substantial indeed. However in relation to the reasons for delay, there were good reasons insofar as the Claimant had not fully appreciated the effect of the abuse on him. In relation to the cogency of the evidence, the case against the Defendants was based on vicarious liability for the abuse committed by Father Spencer. This was far more straightforward than a claim based on system negligence, and there was considerable corroborative evidence. Father Spencer was dead, but it was difficult to envisage circumstances in which a denial of the abuse by Father Spencer would have prevailed over the evidence of the Claimant and his witnesses. As to documentation, most of the Second Defendant’s documentation was still in existence and they were not able to point to any specific document which was unavailable. As for unravelling the impact of the abuse on the Claimant after 35 years, this would be difficult but there would have been difficult making the same assessment if the Claimant was 21. If anything, this would act to the detriment of the Claimant not the Defendants.

There had been no obstructive behaviour on the part of the Defendants. There was no issue in relation to the duration of any disability. It appeared that following April 2005, the Claimant took action with reasonable promptitude.

Therefore the provisions of Section 11 of the Limitation Act 1980 would not apply to the Claimant’s action.