Point of law - When justice catches up, by Stephen Cirell and John Bennett

27 Mar 08
A Lords ruling has relaxed the strict time limits on damages claims for sexual abuse, allowing many adults who were assaulted as children to go to court. And that has important implications for local authorities

28 March 2008

A Lords ruling has relaxed the strict time limits on damages claims for sexual abuse, allowing many adults who were assaulted as children to go to court. And that has important implications for local authorities

The recent police investigation on Jersey into child abuse at the former Haut de la Garenne children's home has already led to the first criminal charges. The home was closed down in 1986 and it is only now, more than 20 years later, that former residents are coming forward to claim abuse.

While the impact on their lives can only be imagined, a recent House of Lords case does at least open up the possibility in England and Wales of civil damages for those who suffered injury from sexual abuse many years ago.

The Lords have recognised that it is wrong that claims for personal injuries caused by sexual assaults should automatically be time-barred, bearing in mind that such injuries are often caused to children who might not appreciate the significance of the actions they have suffered until many years after the event.

The case therefore has wide significance across the public sector, because local authorities and their insurers might now face claims for abuse going back many years.

This new ruling came about in cases covering six claimants who had each sought to argue that they were entitled to compensation for unrelated acts of sexual abuse suffered years previously: A v Hoare; X and another v Wandsworth London Borough Council; C v Middlesbrough Council; H v Suffolk County Council; Young v Catholic Care (Diocese of Leeds) [2008] UKHL 6. The most publicised of these was the case involving Iorworth Hoare who subsequently won the Lottery, hence the tabloid title, 'the Lotto rapist'.

The claimants' actions against various defendants had all failed before the Court of Appeal, because they were brought outside of the statutory limitation period. The Lords judgment means that the limitation period will now be applied more sympathetically in child abuse cases.

To understand the legal basis of the ruling, it is necessary to understand the concept of the limitation period. Generally speaking, claims for intentional injuries to children must be brought within six years of the date of the age of majority. In the case of abuse of a child, a strict application of the limitation period could clearly lead to injustice, because the child might not have appreciated the impact of the injuries until some years after the event, as has been illustrated by the Jersey case, which is currently unfolding.

The six claimants before the Lords argued that their claims were based on the limitation period that applies to personal injuries caused by 'negligence, nuisance or breach of duty', rather than by direct injury. These must normally be brought within a period of three years from the date of injury or from the 'date of knowledge' of that injury, whichever is later. The claimants argued that a sympathetic treatment of the 'date of knowledge' could mean that the three-year period would run from much later than the actual date of injury.

In an earlier ruling (Stubbings v Webb [1993] AC 498), the Lords had determined that indecent assault did not fall within the term 'negligence, nuisance or breach of duty'. This had caused the claimants to fail before the Court of Appeal. However, the Lords overturned the Stubbings v Webb ruling.

Lord Hoffman stated that when Parliament passed the Limitation Act it must have done so in the knowledge that the term 'negligence, nuisance or breach of duty' had been construed by the courts as applying to claims for intentional injuries and it must therefore have intended the words to bear that same meaning.

Therefore, the concept of 'date of knowledge' was relevant for sexual abuse claims. While this was an objective test, the court should seek to find out what the claimant knew about the injury s/he had suffered, consider any knowledge about the injury that should be imputed to that person and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify instituting proceedings.

The impact of post-traumatic stress or other psychological factors could be taken into consideration if it was equitable to do so.

While the case has brought some much needed justice to the area, it also brings the likelihood of more claims being taken against local authorities. On a practical level, this might cause real problems, as the relevant files on such matters might have been disposed of in accordance with the old legal position.

Local authorities therefore need to check the record retention position urgently, as it was recently reported that there are 'thousands' of cases against them waiting in the wings.

Let's hope that this is an exaggeration.

Stephen Cirell is head of local government and John Bennett is a consultant solicitor with Eversheds. They are co-authors of Best Value Law and Practice, published by Sweet and Maxwell

PFmar2008

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