Historic child abuse claims
The Limitation (Childhood Abuse) (Scotland) Bill will return to Holyrood on 22 June 2017 for the third stage of its legislative process.
The Limitation (Childhood Abuse) (Scotland) Bill (“the Bill”) will return to Holyrood on 22 June 2017 for the third stage of its legislative process. This, together with the Scottish Child Abuse Inquiry (the Inquiry) opening its first day of public hearings on 31 May 2017 can leave insurers in no doubt that the prospect of potential claims is gathering momentum.
The Bill, introduced on 16 November 2016, proposes to remove the three year limitation period (referred to as the "time-bar") in relation to historical cases of child abuse, so that anyone whose abuse occurred between 26 September 1964 and the present day and who wishes to raise a civil action for damages for personal injury will not be time-barred from doing so. The three year limitation period would be removed if four conditions are met:
- The damages must be for personal injuries; and
- The pursuer must have been a child (under 18) when the circumstances giving rise to the claim took place or began; and
- The circumstances giving rise to the court action must be abuse – this includes sexual, physical or emotional abuse; and
- The pursuer must be the person who sustained the injuries – not a third party. This precludes claims on behalf of an abuse victim who has subsequently died.
For those whose abuse occurred before 26 September 1964 the law of prescription will continue to apply and there will be no right to raise a civil action for damages for personal injury.
The Bill, however, goes even further in proposing that court actions can be raised for a second time in certain specific circumstances, to include where the court ruled the case was time-barred under section 17 of the Bill or the case was settled based on the reasonable belief that it would have been time-barred under section 17.
The Bill is scheduled to be debated by Members of the Scottish Parliament on 22 June 2017 and, if passed, will receive Royal Assent four weeks thereafter (in the absence of a challenge on legislative competence).
The Inquiry, chaired by Lady Smith, opened on 1 October 2015 and aims to report to Scottish Ministers within four years. The Inquiry is the vehicle by which evidence will be collated on the historic abuse of children in care. The first day of public hearings commenced on 31 May 2017 with evidence thereafter from expert witnesses, Scottish Ministers and members of the Clergy.
The Bill has provoked wide scale concern both from potential defenders and insurers. Removal of the limitation period and permission to re-introduce cases can only serve to open the floodgates for claims. Public bodies, charities and insurers will undoubtedly be disadvantaged by the enactment of the Bill specifically in relation to collation of evidence when the allegations are historic and go back so far ago as 1964.
However, given the general consensus of support proffered at Stage 2 of the parliamentary process, the enactment of the Bill appears more likely than not.
Insurers are well advised to begin preparing for the expected deluge of claims by:-
- Taking steps to review historic policies for local authority and private children’s care homes and institutions between the period 1964 to 1992;
- Collating evidence on the likely numbers of children in the homes and institutions during that period;
- Reviewing their records of abuse claims that were previously settled to identify claims which could potentially be resurrected if they were settled on a discounted basis due to a time-bar argument.
- Discussing with actuaries the likely reserves required.
For further information or assistance on any of these issues please contact: