The Scottish appeal court has today upheld an earlier decision
to dismiss three historic child abuse cases brought against the
Poor Sisters of Nazareth. The Judgement was handed down by the Lord
President, Scotland's most senior judge, fully endorsing the
earlier decision of Lord Johnston, that the claims were time barred
and the later decision of Lord Drummond Young, who refused to
exercise the court's discretion to allow them to continue out of
time.
The claimants had been resident at Nazareth House, Glasgow from
the mid-1960s until the late 1970s. They each alleged they had been
beaten, humiliated and shown no affection. They suffered injuries
from the assaults and went on to develop post-traumatic stress
disorder.
Section 17(2)(b) of the Prescription and Limitation (Scotland)
Act 1972 provides that an action must be raised within three years
of the date the pursuer became, or it was reasonably practicable
for him to become, aware that his injuries were sufficiently
serious to justify bringing an action. The claimants alleged that
due to the "silencing effect" of child abuse this only occurred
when they read media coverage in 1997. Alternatively, they argued
the court should use its discretion under s19A of the Act to allow
the actions to continue out of time.
Their Lordships' decision contains several points which will be
of useful future application.
S17(2)
They held that it would be "quite unfair" for the appeal court
to reconsider Lord Johnston's decision that the cases were time
barred under section 17(2). Whilst the Lord President acknowledged
the Court had power to do so - the issue was whether it was
appropriate, fair and just as between the parties to do so now. The
claimants had chosen not to appeal Lord Johnston's Interlocutor but
instead proceeded with a preliminary proof on the court's
discretion under section 19A. Their Lordships said it was
inappropriate for the court to use evidence from that proof to
decide whether the claimants had raised their actions within the
statutory three-year period. Their Lordships also held that it
would be inappropriate for a proof to now be allowed on both s17(2)
and s19A or on s17(2) alone, not least because the claimants were
legally aided and there would be no prospect of recovering expenses
and it would be an unattractive prospect for the claimants - viewed
as vulnerable witnesses - having to give evidence again. In arguing
that these actions were not time barred at all in terms of
s17(2)(b), the claimants put a heavy emphasis on the "silencing
effect" of child abuse. It was argued that it was within judicial
knowledge that the victims of child abuse felt shame and
embarrassment, lacked confidence and did not think they would be
believed. This line of attack was based primarily on KR v Bryn Alyn
in the Court of Appeal and was comprehensively dismissed by their
Lordships. They said the question under Section 17(2)(b) is simply
whether the claimant has awareness that he or she has suffered an
injury, "which is sufficiently serious to be above a minimum
threshold in terms of quantum of damages". The threshold is
described as "quite low". Appreciation of the possibility of
bringing a claim was not a fact. The claimants' personal
characteristics are normally irrelevant in the assessment of
quantum, except in some exceptional cases (such as a concert
pianist with an injured finger!) Their Lordships also note that the
English courts have subsequently expressed reservations about Bryn
Alyn. Their Lordships specifically state that they could not accept
there was a special class of abuse victims suffering a "silencing
effect".
S19A - Judicial Discretion
Turning to the question of exercising the judicial discretion to
allow the cases to continue, despite being time barred, their
Lordships fully endorsed the approach taken by Lord Drummond Young
in dismissing the actions.
Lord Drummond Young started by underlining the general approach.
He had commented heavily on the opinion of Mr Justice McHugh in the
Australian case of Brisbane Regional Health Authority v Taylor. He
set out that there were policy reasons for the laws of limitation,
as well as specific factors applicable in these cases. There are
limitation laws because legislators believe that the chance of an
unfair trial occurring any later is sufficiently great to require
termination of the right of action.
Lord Drummond Young had held that the claimants had produced no
general psychological or medical explanation for their delay in
reporting the abuse; indeed, it was not even clear that their
psychological problems could be related to their time in Nazareth
House. The Lord President agreed and noted that the claimants had
made virtually no attempt to criticise the two principal reasons
for dismissal of the cases, namely the prejudice caused by lapse of
time and by the loss of evidence. Lord Drummond Young was correct
to note that either of these matters alone could have been
decisive. Instead, the claimants principally criticised peripheral
factors described as "add-ons". In any event, the appeal court has
held that these criticisms were unfounded. It was relevant for Lord
Drummond Young to note that the defenders are a charity. They, too,
are entitled to a degree of certainty. It was relevant to note that
the defenders were prejudiced by changes in the law, principally
Lister v Hesley Hall, providing for vicarious liability in similar
circumstances. The claimants argued there was still a considerable
amount of documentation and many witnesses who could be traced, but
that argument was rejected: "what matters is whether the loss of
evidence is material, not whether it is total".
There are a further three hundred cases waiting in the wings.
The initial indication from the claimants' solicitors is that this
decision may be an end to the matter. We remain to be
convinced.
Dr. Pamela Abernethy