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Historic abuse cases – light at the end of the
tunnel?
30 January 2008
In a landmark judgment handed down today, the House of Lords has
effectively extended the deadline for some abused victims seeking
compensation from their abusers. Five of the six cases
before the House were historic child abuse cases and in each
case, the claimants made allegations of serious sexual abuse
against an employee of the defendant. Browne Jacobson acted for
three of the Respondents in these Appeals.
The old law
A claimant had two causes of action in
these types of abuse claims. He could allege that the defendant
negligently monitored the alleged abuser thus allowing the abuse to
take place, alternatively he could allege that the defendant was
vicariously liable for the abuser's actions. The latter
approach was easier to prove.
So, why didn't claimants always allege
vicarious liability? In Stubbings –v- Webb 1993 the
House of Lords decided that a deliberate sexual assault was caught
by section 2 of the Limitation Act 1980 ('the Act'), this meant
that from a child's 18th birthday they had a
non-extendable six-year limitation period in which to bring a
claim. As soon as a claimant turned 24 his claim for
deliberate assault was statute barred. However, a claim in
negligence alleging that the defendant failed to monitor the
alleged abuser was caught by section 11 of the Act, which attached
a three-year limitation period, a period that could be extended by
virtue of section 14 and section 33 of the Act.
The decision meant that claimants over 24
years old had to plead increasingly inventive breach of duty claims
in order to bring their case within section 11 of the Act.
This increased the costs of claims and the time taken to resolve
them. More importantly, it created a perceived injustice –
why should a claimant aged under 24 only have to prove that abuse
took place, whereas a claimant aged 25 would not only have to prove
the abuse, but prove it took place as a result of organisational
negligence?
The new law
Following today’s decision a claim against a
defendant alleging sexual abuse by its employee is now caught by
section 11 of the Act, however the claim pleaded. This means
that the extendable three-year period will apply to all
cases. Whilst on the face of it this decision appears to
reduce the limitation period, what it actually means is that a
claimant who issues his claim after his 21st birthday
can continue with his claim if:
- He proves that his date of knowledge of a significant injury
was within three years of bringing his claim under section 14 of
the Act (knowledge) or
- He persuades the court to exercise its
discretion under section 33 of the Act to allow his claim to
continue (discretion)
Knowledge
Lord Hoffman made it clear that when
considering whether the claimant had the requisite knowledge, the
courts are to apply an objective test:
"You ask what the claimant knew about the
injury he had suffered, you add any knowledge about the injury
which may be imputed to him under section 14(3) and you then ask
whether a reasonable person with that knowledge would have
considered the injury sufficiently serious to justify his
instituting proceedings for damages against a defendant who did not
dispute liability and was able to satisfy a judgment…once you have
ascertained what the claimant knew and what he should be treated as
having known, the actual claimant drops out of the
picture"
Lord Hoffman dismissed the idea that the
effect of the abuse on the claimant's ability to confront or
address his memories should be taken into account under section 14
of the Act, pointing out that this was instead one of the factors
the court would consider under section 33.
Discretion
Their Lordships were keen to re-affirm that
the courts' discretion under section 33 of the Act is an unfettered
one. Having said that, Lord Brown went on to provide guidance for
the courts to consider. He said that whether or not it will
be possible for there to be a fair trial would depend on a number
of factors, including when the complaint was first made, with what
effect and whether there has been a conviction for the abuse
complained of. He also observed that:
'By no means everyone who brings a late
claim for damages of 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…is in many cases likely to be found quite simply impossible
after a long delay.'
It is a clear sign that the courts are being
reminded to consider the overwhelming prejudice suffered by a
defendant who has to face a claim based on abuse alleged to have
occurred many years ago. Such claims may be so old they are
not capable of reasonable investigation.
Practical consequences
It will take some time for all of these to
become apparent and we will do our best to keep you updated when
they do. However, allegations of abuse against employees
should be simpler for the parties to litigate as there is no longer
a need to allege negligence. This in turn should reduce
costs.
The interpretation of section 14 of the Act
has been clarified and their Lordships have reminded the courts of
the overwhelming prejudice a defendant can face when defending
stale claims. However, it is likely that we will see a sharp
rise in the number of claimants coming forward, especially where a
conviction for abuse has been secured.
For more information please contact Sarah
Erwin-Jones or Dai Durbridge or Steve Ford at Seven Bedford
Row.
The content of this bulletin is provided for
the purposes of general interest and information. It contains only
brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
legal advice and does not provide a substitute for it.