Local Government - June 2009

Limitation and Sexual abuse

In this article we review two decisions on the limitation period in sexual abuse claims. These are the latest in a number of cases brought following the landmark decision of the House of Lords in A v Hoare (2008).

Raggett v (1) Society of Jesus Trust and (2) Preston Catholic College Governors Queen’s Bench Division (Swift J) 5 May 2009

Summary
The claimant sought damages arising out of sexual abuse allegedly committed on him by a teacher during the 1970’s. Despite proceedings not being brought until over 30 years after the expiry of the limitation period, the Court was satisfied that it would equitable to exercise its discretion to allow the claim to proceed under section 33 of the Limitation Act 1980 (‘the Act’)

An examination of the findings
Raggett and the other post-Hoare decisions may now afford some useful indications as to a potential commonality of approach being taken by the Courts in these cases, most notably on issues of date of knowledge under section 14 of the Act and section 33 discretion.

Facts
The claimant’s case was that during his secondary schooling he was singled out by Father Spencer for acts of sexual abuse that included filming of the claimant in the shower and other inappropriate acts of touching and fondling. The claimant argued he had subconsciously suppressed his memories of the nature and the extent of the abuse which only became apparent to him following an incident in April 2005. He argued that the immediate effects of the abuse were not such that a reasonable person would have known they amounted to a significant injury that was sufficiently serious to justify instituting proceedings. He had not characterised the incidents as “sexual abuse” and had not made any link between the abuse and his ongoing psychological difficulties until April 2005. In the alternative the claimant sought discretion to bring the claim beyond limitation pursuant to section 33.

Decision
The Court accepted the claimant’s contention that he had suppressed his memories of abuse and that it was not until after April 2005 that it became clear the abuse had resulted in significant psychiatric harm. However, the Court referred back to the comments of Lord Hoffman in Hoare confirming that the Act assumes “a practical and relatively unsophisticated approach to the question of knowledge”. Adopting this approach it was held the claimant must be taken to have “known” from the time the acts of abuse were committed both the nature and extent of those acts and the immediate effect they had upon him. The objective test dictated that a reasonable person would have considered this to amount to a significant injury and sufficiently serious to justify instituting proceedings. Accordingly the claim was statute barred at the date of the claimant’s 21st birthday in June 1979, just less than 28 years before proceedings were issued.

When considering section 33 discretion the Court made it clear that the burden of showing that it would be equitable to exercise this discretion lies on the claimant and it is “a heavy burden”. The period of time from the end of the abuse to the commencement of the proceedings was some 33 years. Whilst this was accepted as a very substantial delay, it was clear the claimant had significantly suppressed his memories of the abuse and that he was not aware of the long term psychiatric effects that it had had on him until April 2005. His delay in commencing proceedings was understandable and was not part of any conscious decision.

It was of considerable significance that the claimant’s course of action lay in vicarious liability on the part of the school for the sexual assaults perpetrated by the abuser. This was relevant to whether the delay was likely to render a fair trial impossible as the issue of liability in a case of action in vicarious liability was far more straightforward than in a claim involving allegations of systemic negligence. The claimant’s allegations did not bear the hallmarks of exaggeration and his allegations were supported by a number of his contemporaries. In the face of such evidence the defendant would always have experienced great difficulty in persuading the court that the claimant’s allegations were untrue or exaggerated. The fact the alleged abuser was no longer available as a witness did not amount to insurmountable prejudice to the defendant. Even assuming the abuse would have been denied, the Court considered it was difficult to envisage circumstances in which any such denial would have prevailed over the evidence of the claimant and his witnesses.

Whilst there were undoubtedly going to be difficulties in determining the issue of causation such that a fair trial on this point was more complicated, the Court was of the view that any prejudice on that issue was likely to operate to the detriment of the claimant since he had to bear the burden of proving his loss.

Comment
On the basic facts (a claim proceeding 33 years after the alleged abuse) this is an alarming case for defendants. However, when considered in conjunction with the other decided cases post- Hoare it is arguable that a degree of consistency emerges in the judicial approach.

In TCD v Harrow 2008, the claimant was deemed to have requisite knowledge at the age of 18 in respect of abuse she suffered between the ages of eight and 14. The claimant alleged she had negligently been allowed to live with a known abuser. In light of the deemed date of knowledge proceedings were issued some 30 years out of time and with reference to public policy considerations the Court declined to exercise discretion in favour of the claimant. When looking at the paramount consideration of the need to ensure a fair trial due regard was had to the fact important documents were missing and the defendant was unable to locate relevant witnesses.

In AB & Others v The Nugent Care Society 2009 (the appeal has recently been heard in this matter and judgment is awaited) a number of claims were considered together. A common theme emerged, particularly in relation to section 33 discretion. It was recognised that real significance had to be attached to the fact that in abuse cases the abuse itself has a tendency to inhibit the victims from complaining, reporting or suing and that evidence of a conviction for sexual abuse by the alleged abuser weighs heavily against the defendant in a civil action.

In Albonetti v Wirral MBC 2009 the claimant alleged serious acts of abuse perpetrated by an individual who was allegedly allowed access by the managing staff at a local authority home. Applying the objective test it was concluded that the claimant must have known at all times after it had occurred that the abuse he had suffered amounted to a significant injury. Proceedings were not brought until some 30 years later. Whilst the delay was understandable, the Court did not exercise its discretion to allow the claim to proceed.

Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church 2009 QBD (Jack J) 24 April 2009

Summary
Although the decision in A v Hoare has resulted in a proliferation of claims against local authorities, and much legal argument relating to date of knowledge and section 33 discretion, arguably less attention has been paid to the important issue of vicarious liability.

The recent case of Maga confirms just how important that issue is.

Facts
The claimant was a child with learning difficulties. He was befriended by an assistant priest employed by the defendant. It was effectively accepted that this priest was an abuser and a danger to young boys. Whilst it was also accepted in the course of argument that there could be circumstances in which the Church would be vicariously liability for sexual assaults committed by one of its priests, it was argued here that the assaults on the claimant were not so closely connected with the priest’s “employment” as to render the Church liable. In Maga the priest’s association with the Claimant was founded on his use of the Claimant to wash his car, do cleaning in the presbytery and in other houses and to iron the priest’s clothes.

Decision
Whilst the Judge carefully considered all the recent case law he ultimately came back to the guidelines laid down by the House of Lords in Lister v Hesley Hall (2002) where it was held that the fundamental question to address is whether the employee’s tort was so closely connected with his employment that it would be fair and just to hold the employer vicariously liable for it. There should be “intense focus” on the connection between the nature of the employment and the tort. In Maga the Judge accepted that it was the employee’s position as a priest which gave him the “opportunity” to abuse the claimant but following the Lister guidance that in itself was not sufficient. The priest’s association with the claimant was founded on the use of the claimant to do certain jobs for which he was paid by the priest. That employment of the claimant was not a priestly activity and he did not do anything to draw the claimant into the activities of the Church. Accordingly the assaults carried out by the priest were not so closely connected with his employment by the church that it would be fair and just to hold the Church liable.

Just as the House of Lords did in Lister, Mr Justice Jack attached considerable weight to the decision of the Supreme Court of Canada in Jacobi v Griffiths where it was considered to be of critical importance that the power the employee used to accomplish his criminal purpose was neither conferred by the employer nor was it characteristic of the type of enterprise which the employer offered to the wider community. In Jacobi the defendant’s enterprise was to offer group recreational activities for children to be enjoyed in the presence of volunteers and other members. The abuser’s job was to supervise the volunteer staff and to organise after school recreational activities. The assaults he perpetrated only became possible when the employee managed to subvert the public nature of the activities by isolating his victims from the group. The chain of events leading to the assaults constituted “independent initiatives on the part of the employee for his personal gratification” but the ultimate misconduct was “too remote from the employer’s enterprise to justify no fault liability”.

Limitation was held not to apply on the basis that the claimant did not have capacity. However, for completeness the Judge still dealt with both date of knowledge and section 33 discretion. The claimant was allegedly abused by a priest in the defendant’s employment and it was alleged the defendant was vicariously liable for the assaults. Whilst the delay in bringing proceedings would have been significant (more than 30 years after the alleged abuse) again there was a reasonable explanation and further there was strong evidence that the alleged abuse had actually taken place at the hands of the alleged abuser.

Comment
Whilst only a first instance judgment, the importance of the decision in Maga is perhaps reflected by the Judge’s other findings in the case. Had vicarious liability been established the claimant would have succeeded with his claim as the Judge held the claim was not statute barred for the purpose of the Limitation Act and, even if it had been, he would have exercised his discretion to allow the claimant to proceed with the claim. Accordingly the defendant only managed to avoid liability by successfully arguing the vicarious liability point. It is important to bear in mind that that vicarious liability is a form of strict liability on the part of an employer for actions that it may not have been in any position to prevent. Whilst recent case law may suggest that any unlawful act carried out by an employee during the course of his employment is likely to be deemed so closely connected with the employment as to visit liability on the employer, the decision in Maga is a welcome reminder that the issue must always be considered carefully. Further, in historical abuse claims against local authorities it may in some cases be the strongest line of defence.

What emerges from these cases is the rigid interpretation of the test for a claimant’s date of knowledge, but a more flexible approach to section 33 discretion. In all the cases the claimants have been deemed to have the requisite knowledge for the purposes of section 14 of the Act and this includes the case of Raggett where the abuse was arguably someway removed from those cases involving very significant and intrusive sexual assaults. In terms of section 33 discretion, and specifically whether a fair trial is possible, there appears to be quite a marked distinction between those cases where the allegation is one of vicarious liability and those where the allegation is one of systemic negligence. The former is deemed more straightforward on the basis that in the latter documents and oral evidence relating to contemporaneous practice, procedure and supervisory regimes was is unlikely to be available after a considerable period of delay.

Whilst the burden and showing that it would be equitable to disapply the limitation period rests with the claimant remains a heavy one, in cases involving vicarious liability, particularly where complaints have been made and recorded, and more obviously still if relevant individuals have been convicted of abuse, it will be more difficult for defendants to legitimately argue that a fair trial is not possible. In this scenario the defendants should also look carefully at whether the abuse itself can fairly be deemed the vicarious responsibility of the defendant.

Bob Hetherington, Partner,Weightmans LLP