A V HOARE, C V MIDDLESBOROUGH COUNCIL, X AND ANOTHER V LONDON BOROUGH OF WANDSWORTH, H V SUFFOLK COUNTY COUNCIL, YOUNG V CATHOLIC CARE AND OTHERS [2008] UKHL 6

FACTS:-

In A v Hoare, the Defendant was convicted in 1989 of an attempted rape on the Claimant, involving a serious and traumatic sexual assault. He was sentenced to life imprisonment but in 2004 won £7 million on the national lottery. His victim began proceedings in 2004, but her claim was struck out as statute barred under section 2 of the Limitation Act 1980 by Master Eyre and the Court of Appeal.

In C v Middlesborough the Claimant claimed to have been subject to sexual abused at various time between 1982 and 1988 at a school managed by the local authority. He commenced proceedings in May 2002. The action proceeded to trial but was struck out for being statute barred. The trial judge found that the abuse had taken place, that the council was vicariously liable and that if the action had come within section 11 of the Limitation Act 1980, he would have exercised his discretion to allow it to proceed. He awarded damages on that basis, but since he held that the action did not come within section 11, it was statute barred. He dismissed allegations of negligence against the council and that ruling was upheld by the Court of Appeal.

In H v Suffolk County Council the Claimant claimed that he was abused whilst resident at a school run by the council between 1989 and 1990. He commenced proceedings in 2002. The trial judge dismissed the claim on the grounds of vicarious liability under section 2 of the Limitation Act 1980 and dismissed the allegations of negligence. Those rulings were affirmed by the Court of Appeal.

In X and Y v Wandsworth London Borough Council the Claimant alleged abuse between 1984 and 1987 by a teacher at a council run school. They commenced proceedings in 2002 and 2003. Damages were agreed in the sum of £57,500 and £70,000 respectively. The judge upheld the limitation defence under section 2 of the Limitation Act 1980 and dismissed the allegations of negligence. The Court of Appeal affirmed that decision.

In Young v Catholic Care (Diocese of Leeds) and the Home Office the Claimant alleged sexual abuse by employees at two separate institutions, first between 1974 and 1976 at a residential Catholic school and in 1977 at Medomsley Detention Centre in County Durham. Proceedings were commenced in 2003. The trial judge said that said that the Claimant’s “date of knowledge” for the purposes of section 11(4)(b) of the Limitation Act 1980 was within three years before the commencement of proceedings. He also said that, if had found the date of knowledge to be earlier than three years before the issue of proceedings, he would not have exercised his discretion under section 33 to allow the action to proceed. The Court of Appeal reversed the finding on section 11(4)(b) (date of knowledge) and did not interfere with the hypothetical finding on section 33 of the 1980 Act.

HELD:-

Lord Hoffman said that these six appeals all raised the question of whether claims for sexual assaults and abuse which took place many years before the commencement of proceedings were barred by the Limitation Act 1980. He went over the provisions of sections 11 to 14 of the 1980 Act. In addition, section 33 gave the court a discretion to extend the period when it appeared that it would be equitable to do so. The chief question in the appeals was whether the Claimants came within section 2 or section 11.

In Stubbings v Webb [1993] AC 498 the House of Lords had unanimously decided that section 11 did not apply to a case of deliberate assault but only to “negligence, nuisance or breach of duty.”

The phrase “negligence, nuisance or breach of duty” made its first appearance in the Law Reform (Limitation of Acts, etc.) Act 1954. The Report of the Committee on the Limitation of Actions 1949 (“the Tucker Committee”) had recommended changes to limitation law, in particular doing away with the distinction that then existed between claims against public authorities and claims against private bodies. At that time, the general limitation period for tort actions (including personal injury) was six years but claims against public authorities had to be brought within one year. The Committee had said that they did not include within the category of “personal injuries” actions for trespass to the person, false imprisonment, malicious prosecution or defamation of character.

The Committee proposed adopting a shorter period for personal injury claims in order to get them into trial quicker. Parliament eventually implemented a three year period for personal injury claims, whether against public authorities or private bodies.  However Parliament did not adopt the simple concept of an action for personal injury, nor the specific exclusions mentioned by the Tucker Committee.

The phrase “negligence, nuisance or breach of duty” had appeared in the Personal Injuries (Emergency Provisions) Act 1939. In the case of Billings v Reed [1945] KB 11 Lord Greene MR had said that the phrase “breach of duty” was comprehensive enough to cover the case of trespass to the person. That was echoed in the Australian case of Kruber v Grzesiak [1963] VR 621 and the reasoning in that case was adopted in Letang v Cooper [1965] 1 QB 232 where the Defendant had committed an unintentional trespass to the person by driving over the Claimant’s legs. That had been the state of the authorities when the Limitation Act 1975 introduced the radical changes into the law of limitation, which were now contained in sections 11 to 14 and 33 of the 1980 Act.

Lord Hoffman said that when the 1954 Act was passed, it could have been argued that the exclusion of intentionally inflicted injuries reflected a moral policy of denying the shorter limitation period to an intentional wrongdoer. However there could be no moral or other ground for denying to a victim of intentional injury the more favourable limitation treatment introduced by the 1975 Act. Therefore Parliament must have intended the words “personal injury” in the 1975 Act to bear the meaning which they had been given in the uniform line of authority in England and Australia.

Lord Hoffman now came to the decision in Stubbings v Webb [1993] AC 498.  His main criticism of the reasoning in this case was that the case was decided as if the 1954 Act had just been passed. The decision in Stubbings appeared to have put more weight upon the report of the Tucker Committee and Hansard than they could properly bear.

Lord Hoffman felt that Stubbings was wrongly decided but this was not a ground for departing from it. That could only be done (according to the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234) in a small number of cases in which previous decisions of the House of Lords were thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy.

Lord Hoffman said that people who commit sexual assaults were seldom worth suing. That situation was radically changed when the House of Lords decided in Lister v Hesley Hall Ltd [2002] 1 AC 215 that sexual abuse was not necessarily outside the scope of an employment. It depended upon whether there was a sufficiently close connection between the work which the employee had been employed to do and the acts of abuse. These exposed the anomalies created by Stubbings. One example was the case of S v W (Child Abuse: Damages) [1995] 1 FLR 862 in which the Claimant sued her parents for sexual abuse by the father. The claim was commenced 10 years after the last act of abuse and so was limitation barred against the father, but the action against the mother for failing to prevent the abuse was subject to sections 11 and 33 of the Limitation Act 1980, and it succeeded.

The matter had been considered by the Law Commission and a review was present to Parliament in 2001. However no legislation had been enacted. In the meantime Claimants were driven to alleging that the abuse was the result of, or accompanied by some other breach of duty which could be brought within section 11. Auld LJ in KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 had said that this was causing “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.”

Therefore Lord Hoffman felt it right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper.

Therefore the case of A v Hoare would be remitted back to a judge of the Queen’s Bench Division to decide whether section 33 should be exercised in the Claimant’s favour.

In the case of C v Middlesborough Lord Hoffman would make the orders which the judge would have made if he had been free to decide that the action came within section 11.

In the case of H v Suffolk County Council, Lord Hoffman would allow the appeal against the ruling on limitation only and remit the case to the judge to decide whether to exercise his discretion under section 33 to allow it to proceed.

In the case of X and Y v Wandsworth London Borough Council Lord Hoffman would allow the appeal and award the Claimants the agreed sums of damages.

Lord Hoffman said that this left the appeal in Young v Catholic Care (Diocese of Leeds) and the Home Office. He considered the construction of Section 14.

Section 14(1) provided that the “date of knowledge was the date upon which the Claimant first had knowledge of various facts, including “that the injury……was significant.”

A significant injury was defined by section 14(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.”

Section 14(3) then provides that the court should take into account not the Claimant’s actual knowledge but also his imputed or constructive knowledge. This was defined as:-

“knowledge which he might reasonably have been expect 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 was reasonable for him to seek….”

Geoffrey Lane LJ had said in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073 had said that the test was partly subjective and partly objective.

Lord Hoffman felt that the notion of the test being partly objective and partly subjective was somewhat confusing. The correct way to approach the test was to ask what the Claimant knew about the injury he had suffered, add any knowledge about the injury which might be imputed to him under section 14(3) and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his institution proceedings against a Defendant who did not dispute liability and was able to satisfy a judgment.

Judges should not have to grapple with the notion of the reasonable unintelligent person. Once the court had ascertained what the Claimant knew and what he should be treated as having known, the actual Claimant dropped out of the picture.

In KR v Bryn Alyn Community (Holdings) Limited [2003] QB 1441 the Court of Appeal had ventured into subjectivity. The Court of Appeal in this case had said that there was some tension between the decision in that case and Adams v Bracknell Forest Borough Council [2005] 1 AC 76.

In this case, the Court of Appeal had concluded that when the Claimant left the detention institution in 1977, he was obviously aware that he had been seriously assaulted. Lord Hoffman agreed with that conclusion. On a true construction of Section 14(2), Lord Hoffman did not think that a date later than 1977 could be justified. Section 14(2) assumed a practical and relatively unsophisticated approach to the question of knowledge.

That did not mean that the law regarded as irrelevant the question of whether the Claimant, taking into account his psychological state, could reasonably have been expected to institute proceedings. However that was dealt with under Section 33(3)(a) of the Limitation Act 1980 and in Lord Hoffman’s view, this was the right place in which to consider it.

The Court of Appeal in KR v Bryn Alyn had said that the Claimant’s reasons for delay were a product of the alleged abused and these matters were more appropriately considered under section 14 of the Limitation Act 1980. Lord Hoffman was of the opposite opinion. The discretion under section 33 was unfettered.

In this case, the judge had followed the KR v Bryn Alyn guidelines by saying that if the Claimant had not succeeded on the date of knowledge, he would not have exercised the discretion in his favour. Lord Hoffman thought that this exercise of discretion was exercised on the wrong basis and the case should be remitted to the judge. When he did so, Lord Hoffman would imagine that the Claimant would rely upon the vicarious liability of the Defendants for the acts of abuse rather than their systemic negligence. Lord Hoffman referred to the observations of Lord Brown on the exercise of discretion.

Lord Walker agreed with Lord Hoffman.

Baroness Hale said that six years let alone three years in a child abuse case was too short a limitation period. She considered the difficulties posed by sections 11 and 14 of the Limitation Act 1980 and expressed some doubts about the interpretation of section 14(2) adopted by the House of Lords. However she did not think that any interpretation could plausibly result in a date of knowledge within the three years immediately preceding the issue of proceedings by Mr Young.

Baroness Hale did agree with the more generous approach to the exercise of discretion which was adopted by Lord Hoffman. A fair trial was possible long after the event and sometimes the law has no choice. It was possible to have a fair trial of criminal charges of historic sex abuse.

Lord Carswell agreed with Lord Hoffman and Lord but added some observations, which would be of assistance to judges who had the task of applying the law in this difficult area.

Section 14(1) was subjective, in that it referred to the knowledge actually possessed by the Claimant, whereas section 14(2) was objective. Section 14(3) then related solely to constructive or imputed knowledge. Once that knowledge was imputed to him, it became part of the corpus of his personal knowledge.

It was incorrect to import the circumstances, character or intelligence of the Claimant into the determination of reasonableness under section 14(2). However such characteristics could and should be taken into account in the exercise of discretion under section 33 to disapply the limitation provisions.

Mr Young was obviously aware when he left the detention centre, that he had been seriously assaulted. He accepted that he had the requisite knowledge of his injuries for the purposes of section 14(1) and that they were serious enough to be significant for the purposes of section 14(2). However Dyson LJ in the Court of Appeal had gone on to say that the Claimant had suppressed his memories and therefore he did not know in the period 1977 to 1980 that the injuries were significant within the meaning of section 14(2). Lord Carswell said that this was the wrong approach to section 14(1) and section 14(2), although those matters were material in the exercise of section 33.

The exercise of discretion under section 33 should be exercised afresh, as the Claimant did not have to rely on systemic negligence. If the respondents were held to be vicariously liable, the quality of the evidence might not be as adversely affected by the lapse of time and the extent of the factual disputes might be reduced, which would tend to lessen the prejudice to a Defendant occasioned by that factor.

Lord Carswell would allow the appeal.

Lord Brown agreed with Lord Hoffman. He considered the history of the Limitation Acts from 1954 to 1980 and said that it was inconceivable that Parliament, when making the Limitation Act 1975 had intended to exclude from it actions for intentional assault.

In relation to section 33 of the Limitation Act 1980, Lord Brown would make three brief comments.

• Insofar as future claims may be expected to be brought against employers on the basis of vicarious liability, they would probably involve altogether narrower factual disputes than hitherto.
• A substantially greater number of allegations (not all of which would be true) were now likely to be made many years after the abuse complained of. The fairness of a trial would depend on a number of factors, not least when the complaint was first made and with what effect. If the accused had been convicted of the abuse, that would be one thing. If however a complaint came out of the blue with no apparent support for it, that would be quite another thing. A fair trial would in many cases likely to be found quite simply impossible after a long delay. The misconstruction of section 14(2) had given an absolute right to proceed, however long out of time to anyone able to say that he would not reasonably have turned his mind to litigation. It was not to be supposed that the exercise of the court’s section 33 discretion would invariably replicate that position.
• Lord Brown considered the issue of section 14(2) and the justifiability of bringing proceedings against a Defendant “able to satisfy a judgment”. How should a court exercise its section 33 discretion in a case such as A v Hoare? Lord Brown felt that it would be most unfortunate if a Claimant were expected to sue a penniless Defendant simply with a view to their possible enforcement.