David Marshall, Partner
Law Society Gazette - 13 March 2008
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In A v Hoare and related cases [2008] UKHL 6, the House of Lords departed from its previous decision in Stubbings v Webb [1993] AC 498, following the rarely used procedure under the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 which allows the Lords to over-rule their previous decisions.
All of the cases involved allegations of sexual abuse and the issue was the time limit that should apply to such claims. As such, the decision directly affects a limited number of personal injury claims. But the decision is of great public importance in assisting in the acknowledgement of the need for redress for the victims of institutionalised sexual abuse. And their Lordships also addressed the meaning of ‘significant injury’ and ‘date of knowledge’ in section 14 and the exercise of the residual discretion under section 33 of the Limitation Act 1980 which will have much wider implications for personal injury cases generally.
The usual limitation period in personal injury claims under section 11 of the Limitation Act 1980 is three years from either the date when the cause of action accrued or the ‘date of knowledge’ as defined in section 14, whichever is the later. In addition, section 33 gives the court the discretion to extend the period when it appears that it would be equitable to do so. However, under section 11 these provisions are expressed to relate to claims for damages for personal injuries arising from negligence, nuisance or breach of duty. In Stubbings the Lords had held that this section precluded claims arising from deliberate assault which were therefore subject to the general 6 year limitation problem. The problem created by this was that the ‘date of knowledge’ provision of section 14 and the ‘equitable discretion’ of section 33 did not apply, meaning that chid victims of abuse had to bring their claims by the age of 24 or be statute barred. As has become increasingly recognised, the victims of abuse often ‘bury’ the experience for many years, particularly during early adulthood, and are psychologically incapable of instructing lawyers and commencing proceedings. They are, however, otherwise capable of managing their affairs so are not ‘patients’ for whom the limitation period is suspended.
As Lord Hoffman said, however, the Lords will only over-rule a previous decision where that decision was “thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy.” In practice, victims after Stubbings sought to bring alternative claims fashioned in negligence rather than the assault claim. This led to claims being formulated with convoluted arguments of duty of care which skirted around the real issue, that of abuse by an employee. This was described by Auld LJ in KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 as “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.” However, in most cases, even if there had been no limitation problem, a claim against the perpetrator might have been a theoretical rather than a practical solution, as most would not have had the means to satisfy a judgment. But the issue became more problematic when the concept of vicarious liability was extended by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215 where it was held that sexual abuse was not necessarily outside the ‘scope of employment’ so employers could in principle be vicariously liable for it.
The starkest example of a serious public policy issuing which flowed from the decision in Stubbings was highlighted in the case of S v W (Child Abuse: Damages) [1995] 1 FLR 862. Here the abuse victim had sued her father and mother for sexual abuse by the father 10 years after the last act of abuse. The claim against the father was struck out as being statute barred under Stubbings. The claim against the mother was for negligence in failing to prevent the abuse and was allowed to proceed under the section 33 discretion which was described by the Court of Appeal as “illogical and surprising”.
The Law Commission looked into this issue in its wide-ranging review of limitation (Report on the Limitation of Actions (2001) (Law Com No 270)). The Stubbings decision was said to be anomalous, but, as in many other cases, the government has taken no steps to implement the Law Commission’s recommendations over the last 7 years.
The decision that Stubbings has been wrongly decided involved detailed analysis of the reasons for precise wording of the various Limitation Acts from 1954 onwards. In summary, their Lordships took the view that it could not have been Parliament’s intention to deprive the victims of intentional abuse from the protections afforded to other personal injury victims.
Having decided that ‘date of knowledge’ and ‘equitable discretion’ should apply to this category of case, their Lordships then went on to look at how this should be interpreted. Section 14 includes both subjective and objective elements which often cause difficulty in interpretations. Here in one of the appeals the Lords were asked to consider how to deal with the reasonable behaviour of a claimant who was well below average intelligence. Previously, the equitable discretion under section 33 had been interpreted quite restrictively, so every effort was made by claimants to try to fall within section 14. However, Lord Hoffman said that in his view “Judges should not have to grapple with the notion of the reasonable unintelligent person. 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.” And if the reasonable (and intelligent) person would have had knowledge, but the actual claimant failed to issue within the 3 years, then the actual claimant (including the psychological effect of the injury on him) comes back into the picture when the court considers whether to exercise its discretion under section 33. As Lord Hoffman says this re-interpretation of section 33 as conferring a broad discretion should reduce the artificiality of section 14 arguments about ‘knowledge’ and allow justice to be done, particularly in abuse cases. In considering the reasons for delay a Judge must give “due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.”
Their Lordships all agreed with Lord Hoffman (although Lady Hale differed on ‘significance’ under section 14, saying that she “found this more difficult than your Lordships have”). However, she also specifically addressed the particular issue in the case of ‘A’ which involved a claim against the ‘lottery rapist’ (the rapist had been sentenced to imprisonment for the crime perpetrated against the claimant, and then won the lottery whilst in jail). There has been criticism that this decision allows claimants to wait for years before proceeding once the potential defendant has assets to meet a judgment. However, Lady Hale points out that to decide otherwise would potentially mean many cases brought against impecunious defendants purely in the hope that one day they might be able to meet it which would be against the public interest. It seems likely in any event that a case such as that against the ‘lottery rapist’ is fairly unusual – the wider implications of the judgment will be to give access to justice to abuse victims who have suffered from the worst breach of trust in childhood and who, before this decision, had also been failed by the justice system.
For further information email David Marshall or call 020 7940 4000.
