Enquire Online

Historical Abuse claims

31/07/13

Gareth Thomas 2

Over 13 years has passed since the publication of the "Lost in Care" report following the lengthy inquiry by the late Sir Ronald Waterhouse into systematic abuse within various care homes in North Wales. 

A great many additional victims have since come to light. A major new police investigation is under way and a new inquiry, the Macur Review has commenced work.

This comes at a time of intense media attention amid allegations of abuse, sometimes going back very many years against a number of celebrity figures.

It seems an appropriate time, therefore, to remind ourselves of the approach adopted by the civil courts in relation to claims brought by the victims of historic sex abuse, and this article is a brief summary.

The position in relation to criminal proceedings is that (subject to any statutory provision to the contrary) a criminal prosecution for an indictable offence can be commenced any time after the commission of the offence. Although abuse of process can be argued as a reason for staying or dismissing a prosecution the Courts have shown an unwillingness to do so even in relation to very old
allegations.

What is the approach of the civil courts to claims for compensation brought by victims of sexual abuse?


Vicarious Liability

A feature of many of these cases is that the abuse occurred whilst the victims were in the care of another party.  Abuse
victims will often need to bring claims against the employer of the perpetrator.  The decision of the House of Lords in Lister v Hesley Hall [2001] UK HL 22 was a turning point in the judicial approach to the imposition of vicarious liability on employers. 

This was a case in which  the  House of Lords held that abuse carried out by a care assistant at a residential home was so closely connected with his employment so as to warrant the imposition of vicarious liability upon his employer. With out doubt this will be argued in relation to claims against the BBC and other broadcasters in respect of acts done by performing artists even if they were technically self-employed. 

This more liberal position has been consistently followed and remains good law and is of great assistance to claimants seeking redress for historic abuse.

 

Limitation

A far more contentious issue in these cases is that of limitation.  It is not at all uncommon for the incidents complained of to have occurred 30 or 40 years ago.  The position in relation to intentional assaults was somewhat anomalous in that on the authority of Stubbings v Webb [1993] AC 498, claims of this sort were subject to a non-extendable 6 year period of limitation. 

Stubbings was overturned by the House of Lords in the important decision of A v Hoare & Others [2008] UK HL 6.  The Court
held that it did have a discretion under section 33 of the Limitation Act 1980 to disapply the primary limitation period in relation to claims arising from allegations of intentional assault.

The discretion is unfettered.  Clearly, it is a question of establishing a balance between the prejudice caused to the defendant by disapplying the limitation period with that of the prejudice to the claimant if the limitation period is not applied.

The fact that allegations are old is undoubtedly one of the factors which has to be taken into account when determining whether the defendant will have a reasonable opportunity to investigate the allegations and have a fair trial of the issues.  However, it is not determinative even in relation to quite old allegations.

 

The Cart before the horse

In Raggett v Society of Jesus [2010] EWCA 1002, the Court of Appeal affirmed a decision of Swift J to exercise the section 33 discretion in favour of the Claimant in a case involving abuse which took place as long ago as the 1970s.

This was a case in which the issues of limitation and liability were tried together. The Judge found that the abuse had taken place and accepted the Claimant's evidence.

The Claimant had argued that the inhibiting psychological effect of the abuse meant that his date of knowledge was not until 2005. Applying the section 14 test for date of knowledge Swift J found that the Claimant must be taken to have known the nature of those acts when committed.

However the Court was satisfied that it would be equitable to allow the action to proceed under the provisions of s33 of the Limitation Act 1980. The Court acknowledged that substantial delay is not at all uncommon in cases of this sort where victims have suppressed their experiences.  The latter is a factor which can and ought to be taken into account by the Court when considering "all the circumstances under section 33 of the Act".

One of the main grounds of the appeal was that the Judge should have determined the issue under s33 before determining liability and had put the cart before the horse.

The Court of Appeal in dismissing the appeal held that the Court was entitled to take a broad view and there should be no formulaic approach.

Similar issues arose in AB and others v Nugent Care 2009 EWCA 827  and the correct approach was set out by Lord Clarke MR :

 "... we think there are now likely to be many cases in which a judge will consider that it is not feasible to decide the issues simply by reference to the pleadings, and written statements of the witnesses...he or she may conclude that it is desirable that oral evidence
should be heard because the strength of the Claimant's evidence seems to us to be relevant to the way in which the discretion should be exercised....thus if the Claimant's evidence is beset by inconsistencies the court may conclude that the delay is likely to prejudice the Defendant....On the other hand if the Claimant's evidence is compelling and cogent that the abuse occurred, and it is said that it was the abuse that inhibited him from commencing the proceedings, that is surely a compelling point in favour of the Claiman
t"


The judicial approach to the exercise of the discretion depends on the circumstances of each case and there are unfavourable decisions including T & D v Harrow LBC [2008] 3094.

 

However, what emerges from the cases is that Courts do now readily accept that the psychological damage caused by sustained sexual abuse can cause victims to suppress their experiences and decline to make disclosure and this is a relevant factor when exercising the discretion under 33 of the Act.


Gareth Thomas

This publication is intended to provide general guidance only. It is not intended to constitute a definitive or complete statement of the law on any subject and it is no substitute for legal or professional advice in any case.   Any views or opinions expressed in this article are those of the author only.