A VERSUS IOWORTH HOARE, H VERSUS SUFFOLK COUNTY COUNCIL AND THE SECRETARY OF STATE OF CONSTITUTIONAL AFFAIRS, X & Y VERSUS LONDON BOROUGH OF WANDSWORTH [2006] EWCA Civ 395

FACTS:-

These were three conjoined appeals to the Court of Appeal.

In the case of A v Hoare, the Defendant was a serial sexual offender, who had attempted to rape A in 1988. He was sentenced to life imprisonment 17 years prior to the appeal but then won the sum of £7 million on the National Lottery in 2004. On the 22nd December 2004, A then brought an action against him, but the Master and the Judge held that the action was statute barred. A did not say that she was entitled to bring the claim as of right because she acquired the relevant knowledge for the purposes of section 11(1) of the Limitation Act 1980. In order to avoid the time bar A was seeking to persuade the court that they should exercise their discretion under section 33 of the 1980 Act.

In the case of H v Suffolk County Council H was born on the 7th February 1975 and reached the age of 18 on the 7th February 1993. Between the 7th December 1989 and the 29th October 1990, he was a boarder at Kerrison House School (a school for troubled children) in Suffolk. He was indecently assaulted by one of his teachers in 1990. In July 1999, the claimant was interviewed by the police and collapsed both physically and emotionally for a number of days. He was subsequently awarded compensation by the CICA. The Claimant never disclosed to anyone what had happened to him until shortly after the claim had become statute barred. Proceedings were commenced on the 26th April 2002 against Suffolk County Council and the abuser. The Secretary of State for Constitutional Affairs also intervened. He alleged that the local authority was negligent, and also that the local authority was vicariously liable. He also alleged breach of duty against the abuser. At trial both the local authority and the abuser appeared represented by counsel. The claim against the abuser personally was withdrawn at the beginning of the trial and the judge held that there was no breach of a duty of care owed by the local authority to H.

In the case of X and Y v Wandsworth London Borough Council X and Y were contemporaries at the same school, although they did not know each other. Both were subjected to sexual abuse by a teacher who was their head of year. He was later convicted in May 2001.

The abuse in both cases had occurred over a very long period of time and been part of an improper course of conduct by the teacher, who had been specifically assigned to caring for bullied pupils.

In X’s case, there had been the discussion of indecent topics and actual indecent assaults. The abuser managed to obtain the trust of X’s parents. The abuser picked out X for special attention and protected him from the justified complaints of other teachers. As a result X suffered psychiatric injury and damage to his educational progress.

In Y’s case, the grooming and abuse included indecent assaults, together with nudity, presents, trips to Richmond Park, a golf range and Brighton, pornographic magazines and videos. Y suffered psychiatric and consequential financial loss, which resulted from a cumulative course of conduct in breach of the teacher’s duty. At one point Y’s mother suggested that her son see a psychologist but was told by the abusive teacher that this was unnecessary.

Proceedings had been issued on behalf of X on the 13th November 2002 when he was 29 years of age. Y issued proceedings on the 23rd June 2003, when he was 31. The incidents in question had occurred between 1984 and 1987. The six year primary limitation period had expired in 1999. It was common ground that if permitted to do so, the court would have exercised discretion to extend the time for bringing these claims in negligence.

HELD:-

Sir Anthony Clarke MR gave the main judgment.

Stubbings v Webb

All four cases fell foul of the decision of the House of Lords in Stubbings v Webb [1993] AC 498 in which it was held that a claim based on an intentional sexual assault is subject to a non-extendable six year limitation period. This caused concerns amongst the judiciary because in a case two years later, a daughter had been permitted to claim against her mother, who had failed to protect her from abuse by her father, but she was not permitted to sue her father direct.

The Law Commission had called for a comprehensive review on the issue of limitation. It made certain recommendations in its report, Limitation of Acts (2001) Law Com No.270. In 2002 the Lord Chancellor announced that the Government had accepted those recommendations. However at the time of this appeal no legislation had been implemented. Consequently Sir Anthony Clarke expressed the hope that the House of Lords itself might be able to remedy some of the very serious deficiencies and incoherencies in the law.

Sir Anthony Clarke summarised the law. Sections 2 and 5 of the Limitation Act 1980 (the “1980 Act”) provided a limitation period of six years for actions founded on tort and simple contract. Section 11 provided a shorter time limit of three years where the damages claimed for negligence, nuisance or breach of duty consisted of or included damages in respect of personal injuries. Section 14 provided the means of ascertaining the date of knowledge and section 33 gave the court discretion to extend the time limit.

Sir Anthony Clarke also considered the history of the present 1980 Act. In 1949 the Tucker Committee had made certain recommendations to Parliament as to limitation law. In particular the Committee recommended that the special time limit for actions against public authorities (12 months) be abolished. In addition the period of limitation in actions for personal injuries should be two years, with a discretionary extension of up to six years. However the Committee made it clear in their report that “personal injury” was not intended to include actions for trespass to the person.

The Government of the day decided to support a Private Member’s Bill which provided a limitation period of 3 years with no discretion to extend. The result was section 2(1) of the Law Reform (Limitation of Actions etc) Act 1954, which added a proviso to the Limitation Act 1939.

In the case of Letang v Cooper [1965] 1 QB 232 the Court of Appeal had to consider section 2(1) of the Law Reform (Limitation of Actions etc) Act 1954. The provision said that personal injury actions based on negligence, nuisance or breach of duty carried a time limit of three years. The Claimant, who had been run over in an accident sought to frame her claim in trespass to the person in order to try and take advantage of the longer six year period. Lord Denning had said that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. That duty encompassed negligence, nuisance and trespass to the person.

Following the 1939 and 1954 Acts, Parliament enacted the Limitation Act 1963, then the Limitation Act 1975 and finally the Limitation Act 1980, which was a consolidation Act.

In Stubbings v Webb [1993] AC 498 the House of Lords looked at the debate in Parliament that preceded the introduction of section 2(1) of the Law Reform (Limitation of Actions etc) Act 1954. Lord Griffiths said that it was clear that Parliament had enacted section 2(1) with the deliberate intention of giving effect to the Tucker Committee’s advice that the three year time limit should not embrace causes of action such as rape or indecent assault. Consequently section 11(1) of the 1980 Act did not apply to claims arising out of sexual and physical abuse.

Sir Anthony Clarke MR said that the Court of Appeal in the instant case was bound to follow the House of Lords unless bound by some provision of the Human Rights Act 1998. He then turned to the Stubbings versus United Kingdom (1997) 23 EH44 213 where the Claimant had sought to challenge the House of Lords in before the European Court of Human Rights under Article 6. The ECHR had said that Article 6 (the right of access to a court) was not absolute and Contracting States were entitled to impose limitation rules. The provisions of the Limitation Act 1980 were held to be proportionate. However the court did say that there was developing awareness in recent years about the problems caused by child abuse. Potentially limitation rules in Member States might require amendment.

Retrospective Effect of the Human Rights Act 1998

The Human Rights Act 1998 came into force on the 2nd October 2000. All the events in the three instant cases occurred before that date. It was common ground that the Human Rights Act 1998 did not have retrospective effect in the sense that it does not retrospectively confer upon a claimant a cause of action which he would not otherwise have had. The Claimants’ counsel had submitted that section 3(1) of the Human Rights Act enabled the court to construe section 11(1) of the Limitation Act 1980 Act differently from the way in which it was construed by the House of Lords in Stubbings v Webb.

Sir Anthony Clarke rejected that submission and cited the following cases:-

Wilson v First County Trust Limited (No.2) [2003] UKHL 40
Yew Bon Tew v Kenderan Bas Mara [1983] AC 553
Laws v The Society of Lloyd’s [2003] EWCA Civ 1887
Rowe v Kingston-upon-Hull City Council [2003] EWCA Civ 1281

In Wilson the House of Lords had held that it could not have been the intention of Parliament that section 3(1) of the Human Rights Act should have the effect of altering the existing rights and obligations of a party to an agreement (in that case a consumer credit agreement).

In Laws the court applied the principles set out in Yew concerning accrued rights of action, to hold that section 3(1) of the Human Rights Act could not be used to construct section 14(3) of the Lloyd’s Act 1982 in such a way as to alter an accrued right.

In Rowe it was held that section 3 of the Human Rights Act could not take away from a defendant public authority a limitation defence, which would otherwise have been available to it before the Human Rights Act came into force.

The Court of Appeal in the instant case did not accept that a Defendant did not have an accrued right of action to rely on a limitation defence, until it actually took the point in the court of litigation. The right accrued when the time limit expired. Section 3 of the Human Rights Act did not in general apply retrospectively to a cause of action which arose before the Human Rights Act came into force. There were circumstances where it might have retrospective effect, for instance post-Act criminal trials in respect of pre-Act happenings.

The discretion of the European Court of Human Rights

The Claimants had tried to argue that the ECHR could say that a particular statutory provision was in breach of human rights. However the court in Stubbings v United Kingdom had declined to make that statement and had said that the decision of the House of Lords in that case was within the margin of appreciation. However that was not an issue given that the Human Rights Act was not retrospective in this case.

Exclusion for claims against a public authority

In the case of H it was submitted that the decision of Stubbings v Webb did not apply to a public authority, and that it should be confined to primary individual tortfeasors. The Court of Appeal said that this distinction had no logical basis.

Distinguishing Stubbings v Webb

In the cases of X and Y, it was argued that in a case involving a concurrent duty of care, it is legitimate for a claimant to rely on a claim in negligence to circumvent the problems created by the decision in Stubbings v Webb. Also it was argued that if a teacher with supervisory responsibilities would be under a duty to report an abusing colleague, the same teacher would be under a duty to report his own abusive tendencies, and so the school authorities are vicariously liable for such a breach of duty.

Sir Anthony Clarke considered the development of the law in this area. A school was under an affirmative duty to take reasonable care of its pupils and to protect them from risks referable to the school-pupil relationship. In the case of Lister v Hesley Hall Ltd [2001] UKHL 22 the House of Lords had held that a school for troubled children were vicariously liable for the consequences of the abuse perpetrated on the boys by the warden whom it employed.  However the judgement of each law lord had differed in certain respects.

Lord Steyn, with whom Lord Hutton agreed applied the test in Bazley v Curry (1999) 174 DLR 45 a case from the Supreme Court of Canada. The fundamental question was whether an employee’s unauthorised intentional wrong was sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability.

Lord Clyde considered that the essence of the Canadian decision lay in the recognition of the existence of a sufficient connection between the acts of the employees and the employment. The warden was under a general duty to look after and to care for the Claimants. The abuse that he carried out had to be viewed not in isolation but in the context and the circumstances in which they occurred.

Lord Hobhouse however relied on a more closely analytical approach. He had said that whether or not some act comes within the scope of the servant’s employment depends on an identification of what duty the servant was employed by his employer to perform. If the act of the servant gave rise to the servant’s liability to the Claimant amounted to a failure by the servant to perform that duty, the employer is vicariously liable. If, on the other hand the servant’s employment merely gave the servant the opportunity to do what he did without more, there will be no vicarious liability.

Lord Millett declined to hold the school vicariously liable for the warden’s failure to perform his duty to take care of the boys. Instead he held that the school was vicariously liable for his intentional assaults.

Sir Anthony Clarke said that there was nothing in the speeches of the other members of the House of Lords in Lister versus Hesley Hall to show that they shared Lord Millett’s opinion. It was apparently accepted that the school was under a duty to take all reasonable steps to safeguard its pupils in their physical, moral and educational development. The school was liable for the warden’s acts, which were a flagrant breach of that duty. If the majority of the Law Lords had held that the only wrongs committed by the warden were intentional assaults, then the claims would have run into the six year limitation problem, and the Law Lords could not have been unaware of that particular issue.

The House of Lords did not consider it necessary to rule on the issue of whether an employee is under a duty to report his sexual intentions or the consequences of his misdeeds. Lord Steyn, Lord, Hutton and Lord Hobhouse indicated that they might find in favour of such a duty of care. However Lord Clyde and Lord Millett expressed the view that this seemed to be a somewhat artificial basis for the claim.

Seymour v Williams and KR v Bryn Alyn Community

Sir Anthony Clarke referred to the case of Seymour v Williams [1995] PIQR P470 in which the Claimant issued proceedings against her father and mother. She was allowed to sue her mother for negligence in failing to protect her by taking advantage of the discretionary power under section 33 of the Limitation Act 1980. However she could not sue her father, because she was barred by the six year time limit.

In KR v Bryn Alyn Community Limited [2003] EWCA Civ 85 three of the Claimants had tried to rely on the deliberate acts of abuse by employees of Bryn Alyn. The Court of Appeal had discussed the differing approaches of the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 but had held that a claim for personal injury in respect of deliberate conduct, fell outside section 11 of the Limitation 1980 Act and was therefore time barred. Auld LJ had said that the correct approach was that of Lord Millett in Lister v Hesley Hall (see above).

That decision was followed in C v Middlesbrough Council [2004] EWCA Civ 1746.

Other Cases on vicarious liability

Sir Anthony Clarke considered other cases on vicarious liability. These were Dubai Aluminium Co. Ltd versus Salaam [2002] UKHL 48, Bernard v Attorney-General of Jamaica [2004] UKPC and Majrowski v Guy’s and St Thomas’ NHS Trust [2005] EWCA Civ 251.

In Bernard Lord Steyn considered the case of Lister v Hesley Hall and had said that a single ultimate question had been posed, namely whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable.

In Dubai Aluminium Co. Ltd. the House of Lords applied the principle in Lister to a case where a partner in a solicitor’s firm had (with others) defrauded a company.  If the firm was vicariously liable it could claim a contribution. The House of Lords found vicarious liability.

Lord Steyn said in Bernard that considering the judgments in various cases together, there was an emphasis on the proposition that an employer ought to be liable for a tort which could fairly be regarded as a reasonably incidental risk to the type of business he carried on.

Could Stubbings v Webb be distinguished by reliance on a concurrent breach of duty?

Sir Anthony Clarke said that unconstrained by authority, the Court of Appeal would be inclined to follow the approach of the majority in Lister v Hesley Hall so that recovery was not confined to those improper activities that did not constitute intentional assaults. In the case of X and Y the Court considered it to be unsatisfactory that they had to set on one side the intentional assaults. However the Court was not free to take the approach in Hesley Hall because of the clear decision in KR v Bryn Alyn. It would be better to leave the matter to the House of Lords to consider this area of law as a whole.

Again if the Court of Appeal were free from binding authority, they would have to consider quite carefully the reasoning of Lord Hobhouse in Lister to the effect that was legitimate to include a failure to report among an abusive teacher’s breaches of duty.

The Application of the law to the three appeals

In A v. Hoare the Court of Appeal was bound by the operation of Stubbings v Webb to hold the claim statute barred. Her appeal was dismissed.

In H v Suffolk County Council the trial judge had struck out the direct claim against the teacher, and there was no appeal against that decision.

The trial judge had also dismissed the action on the grounds that the school authority in question had neither been negligent in recruiting the teacher nor in the way the teacher’s conduct towards the boys was monitored or supervised.

The alleged abuser had come to the school with good references and was well thought of. However the Claimant alleged that there were several warning signs which allegedly should have alerted the local authority to the teacher’s abuse. These were (1) visits by boys to the abuser’s flat (2) the abuser’s taking three boys on a camping trip (3) anxieties raised by a foster carer who worked at the school. The trial judge had concluded that (1) should not necessarily have rise to any suspicions. In relation to (2) it was certainly unusual for one member of staff to take boys away on his own. However the judge had said that on the proper application of the well known test in Bolam and applying the standards for the time, the decision to allow the camping trip to take place was not negligent. The school did not actually know that the abuser was sharing a tent with a boy.  Nor would it have been inappropriate to leave the abuser in charge of sleeping arrangements. In relation to (3) the school had listened to the foster carer’s concern and taken appropriate action – they had reminded the teacher to maintain proper boundaries.

The Court of Appeal could find no basis on which they could properly say that the judge was wrong in reaching the conclusions he did. No expert evidence had been put before the judge that no school in this position would have acted as the local authority did.

In X and Y v Wandsworth London Borough Council, the Court of Appeal was again bound by authority to find that the Defendant’s vicarious liability for sexual assaults was subject to a non-extendable six year limitation period.

The Court of Appeal was bound by the decision in Bryn Alyn to reject the contention that the school could be vicariously liable for the teacher’s failure to report what he was doing, or was about to do to the boys. All that was left was the contention that that those elements of the teacher’s breach of duty that did not constitute intentional assaults or failure to report what he was doing were sufficient. It would be tempting to allow the appeal on this basis, and remit them back to the court below for assessment, but it would be better to grant permission to appeal to the House of Lords to consider whether it can rescue the law from its incoherent state.

The judge in the court below had rejected the contention that the Defendant should be vicariously liable for his misconduct because the sexual acts themselves took place off the school premises. The Court of Appeal said that this was not sufficient to dismiss an allegation of vicarious liability. The question that had to be asked, was, could the teacher’s actions towards Y be fairly regarded as being performed in the course of his employment by the school? The facts in this case were quite different from the acts of a school grounds man or the acts of a teacher in the school holidays which had no connection with his responsibilities at the school.

Wilkinson v. Downton

Sir Anthony Clarke then considered another case, C v D [2006] EWHC 166 (QB in which the possibility of making a claim along the lines of Wilkinson v Downton [1897] 2 QB 57.

In this case the Claimant claimed that the filming of a child in indecent situations constituted sexual abuse and amounted to a breach of the duties owed by the Defendant in respect of the children’s care, safety and welfare. The judge had held that the abuser in question had been reckless as to whether he caused injury to the child, and as such was liable under the principle in Wilkinson v Downton.

Sir Anthony Clarke commented that it seemed preferable for the law to develop along conventional modern lines rather than through recourse to this obscure tort.