1069 - 1838

Appeal court upholds time bar for historic child abuse

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

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