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The new limitations on historical assault cases – implications
for the NHS
4 February 2008
On 30 January 2008 the House of Lords published their opinion on
six appeals where the claimants were seeking damages for sexual
abuse. One of the respondents was the abuser himself, Mr Hoare, the
so-called 'lottery rapist'. It is this latter case that has
attracted considerable publicity.
Following his conviction and more than six years after the
attack on the claimant, Mr Hoare won £7m on the lottery. His victim
then sued for compensation for the assault but as the law stood,
such cases had to be brought within six years of an assault (or in
the case of a child, within six years of the claimant's 18th
birthday). The Court of Appeal was sympathetic but reluctantly held
that the claim was too late.
The appeals have enabled the House of Lords to reinterpret the
law and bring the time limit for claims for deliberate assault in
line with negligence claims - subject to a three year time limit
but, crucially, with a discretion to extend this.
The decision is good news for victims of deliberate assaults.
Claimants who have previously been statute barred from bringing a
claim in deliberate assault will now be able to argue for a
discretionary extension of the three year time limit. Claims for
deliberate assault can often be easier to prove than negligence
claims where in addition to the assault, it may be necessary to
prove organisational negligence. This ruling will be of particular
concern to defendants facing abuse claims, but it could also lead
to historical claims being brought against the NHS alleging lack of
consent amounting to a deliberate assault.
There is some good news for defendants. The decision helpfully
clarifies the date when the clock starts ticking for the purposes
of bringing a claim. The courts will apply an objective test – what
did the claimant know or ought to have known about his injury? The
question is whether a reasonable person with that knowledge would
have considered the injury sufficiently serious to justify a
claim.
It remains to be seen whether this decision will "open the
floodgates" for historical assault claims against the NHS. The
House of Lords made it clear that the discretion to extend the
three year time limit would not be exercised in favour of every
late claim, pointing out that in many cases a trial will be unfair
if a long delay makes reasonable investigation impossible. These
comments are a welcome reminder to the courts to consider the
overwhelming prejudice suffered by a defendant who has to face a
claim based on events alleged to have occurred many years ago.
Browne Jacobson acted for three of the respondents in these
Appeals.
If you would like to discuss the outcome of these Appeals and
the implications for clinical negligence claims, please do not
hesitate to contact
Simon Tait or
Amelia
Newbold.
The content of this bulletin is provided for
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brief summaries of aspects of the subject matter and does not
provide comprehensive statements of the law. It does not constitute
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