By Peter Garsden, Solicitor and Partner of Simpson Millar LLP, and Vice President of ACAL
(Association of Child Abuse Lawyers)
The law of Limitation must be unfair if it allows an abusive stepfather to escape liability for damages at Civil Law yet punishes a mother who turned a blind eye yet knew that her daughter was being abused.
These were the facts in the case of Seymour v Williams described by His Honour Douglas Brown J in A B & Others v Liverpool City Council and Others as a “Lewis Carroll Story”.
So unfair is the law, that it led the European Court of Human Rights in Stubbins v Webb to recommend to the UK Government that changes should be made. This in turn led to the Law Commission producing a report in 2001, which recommended changes in the law of Limitation, in respect of Intentional Assault (6 years unextendable), so as to bring it into line with Negligence (3 years extendable) – see below for more detail.
The unfairness of the law was most forcibly highlighted in the case of C v Middlesbrough County Council, which came before the Court of Appeal just before the end of 2004. Despite the Law Commission having produced a draft bill, and 4 years having passed, the Government have still not changed the law.
The Association of Child Abuse Lawyers are waging a campaign by political lobbying and media pressure to force the Government to implement the recommended legislation.
The cases of Seymour v Williams and Stubbins v Webb are similar in that they both concern abuse by stepfathers upon daughters many years before the case came to trial. In common with many other child abuse victims, the daughter was unable to bring herself to issue legal proceedings until many years after the event, owing to the typical features of fear, intimidation at the time of the abuse, repressed memory and dissociation. In common with most cases ACAL members deal with, the abuse is shelved at the back of the mind until the survivor is either triggered into remembering the past abuse or leaves the family setting and has the courage to take civil action.
In Stubbins v Webb there was no negligent mother who turned a blind eye. In that case the daughter had to pretend that the intentional assault committed by her stepfather and brother was actually an exaggerated form of negligence. Unfortunately the Court did not agree and she lost. She was outside the 6 year time limit prescribed by the law for intentional assault and was unable to seek access to justice.
In Seymour v Williams, the abusive stepfather escaped liability because the Claimant was more than 24 (age of majority plus 6 years) when she started her proceedings, whereas her mother was found liable in negligence because she was able to bring herself within the exceptions to the rules pertaining to date of knowledge and Section 33 discretion under the Limitation Act 1980, even though she was out of time when she started the Proceedings beyond the Limitation Act deadline (21 – age of majority plus 3 years).
Inevitably there are many abusive persons of means within the country who should be made to pay for their behaviour at Civil Law, but who escape liability. If the victim was intimidated into silence by the manipulative behaviour of the abuser in infancy, the unfairness of the law which prevents access to justice later in life becomes more apparent. The argument is politically appealing in a run up to a general election.
Bryn Alyn and Vicarious Liability
The way in which the law of Limitation can affect arguments on Vicarious Liability is not at first obvious, until one examines the Bryn Alyn 8 decision in more detail. Lord Millett, in Lister v Hesley Hall Ltd. held that Vicarious Liability for acts of abuse, which could be classified as unauthorised methods of carrying out acts permitted under the contract of employment, were restricted to allegations of intentional assault. If followed, this view would be harmful to many historical child abuse compensation claims. The vast majority of cases cannot be brought in Intentional Assault, because they are out of time, in that the Claimant is typically between the ages of 30 and 40 years. If the Claimant is thus unable to prove Common Law Negligence by showing, for example, that the organisation, which employed the abuser, turned a blind eye to obvious signs that abuse was carrying on, or ignored complaints over a period of time, then the case may be unsuccessful.
If the Defendant can show that the home was well run and that all complaints were treated seriously, he may fail in an action brought in Negligence and be too late to rely upon Intentional Assault. Unfortunately, the minority Judgment from Lord Millett from Lister was followed in the Bryn Alyn Court of Appeal case of K R & Others v Bryn Alyn Community Homes Ltd. Even worse, the Court of Appeal recommended that Limitation should be tried as a preliminary issue “wherever the judge considers it feasible to do so”. Defendants throughout the country have latched onto this section of Judgment and are now repeatedly making applications to the Court.
The Law Commission Report
If one reads this report, one can see that submissions were made about child abuse cases by not only Lee Moore, our recently retired President, but also Richard Scorer of Pannone & Partners. The Commission recognised that child abuse claimants needed special treatment. They understood that most survivors were unable to bring Proceedings at the time and typically waited many years before they had the courage to bring civil actions, largely because of their state of mind, repressed memory, dissociation etc. The full report can be read on the Internet at http://www.lawcom.gov.uk/239.htm#lcr270 and by following a link from the members’ area of the ACAL website – www.childabuselawyers.com.
The recommendations made are as follows:
1. Abolish the 6-year rule relating to assault and replace it with the same rule presently pertaining to negligence, namely 3 years from the date of majority, i.e. before the age of 21.
2. Preserve the date of knowledge exception. It is simplified into requirements that he or she knows the injury suffered, that it was attributable to the conduct of the Defendants, the identity of the Defendant and that it is significant. This is referred to as the “discoverability” test.
3. They recommend a widening of the definition of “disability” or “incapacity”, the effect of which is to suspend the Limitation period during the currency of the disability of incapacity. Rather than focus on mental disability under the Mental Health Act, disability is recommended to include the inability, due to mental disability, to make a decision on the matter in question. The effects of child abuse, such as Dissociative Amnesia, clearly fall within the above definition.
C v Middlesbrough Council
The Claimant, who was 32 at the time of trial, was placed as a child in a local authority run school. Shortly before leaving, he was sexually abused by one of his teachers and complained to his Social Worker. Some 14 years later, he claimed damages for the abuse. In evidence, the Court came to the conclusion that although the school knew that some of the boys made visits to the teachers’ room, and that the teacher had visited a number of boys at their homes, the school had made reasonable investigations at the time. The evidence only showed the teacher to be an abuser in hindsight. In other words, their Claim in Negligence failed, even though the abuser went on to be convicted in Ireland of offences which had occurred before being employed at the school.
Because Vicarious Liability only assisted allegations of deliberate abuse under the tort of Assault, and the action in Negligence failed, the claim was out of time under Section 2 of the Limitation Act 1980, which is non-extendable, and the claim failed.
Liz Anne Gumbel QC acted for the Claimant and is trying to persuade the Legal Services Commission to fund an Appeal to the House of Lords. She is not having much success.
If one reads the Judgment, which is also accessible from the members’ area of the ACAL website, it is difficult to understand why the Claim in Negligence failed. The Court of Appeal, however, has certified that there is an important point of law to try.
There is no doubt that if the Law Commission recommendations were implemented and the draft bill enacted, Messrs. Seymour, Stubbins and “C” would have succeeded in their cases, assuming that they could bring themselves within the proposed exceptions to the law of Limitation. They would have all been able to bring their claims within the tort of Intentional Assault. Seymour and Stubbins would have succeeded against their stepfather, whereas “C” would more than likely have been able to obtain damages from the teachers’ employers, which was rather important since the teacher died in prison in 1999, even though he had been a man of means.
The only way we can put pressure on the Government to change the law is to lobby our local MPs. I have attached to this article a copy of a letter that I have sent to my MP for home and my MP for work, both of whom have shown an interest and written to the Department of Constitutional Affairs. If everyone who reads this article writes a similar letter to his/her MP, then there is a possibility that the Government will wake up and change the law so as to give access to justice for some of the most vulnerable members of our society.
Letter to my M.P.
Patsy Calton MP (Cheadle)House of CommonsLondonSW1A 0AA Date: 24 January 2005
Our Ref: PG/ACAL/MD
Re: Child Abuse Compensation Claims
As Vice-President of ACAL (Association of Child Abuse Lawyers) I owe a duty to the claimants to ensure that as little injustice is done to them as possible, particularly as they are some of the most vulnerable members of our society. As you are my local MP I am appealing to you to put pressure on the Government in the right quarter to change the law because it is presently unfair. The area which desperately needs reform is “Limitation” or put another way the law which allows claimants to take proceedings within a certain period of time of the event in question.
The injustice was highlighted recently by the case of C v Middlesbrough County Council, which came before the Court of Appeal on 21 December 2004. A very strong case, which was worth £100,000 to a badly damaged claimant failed because of an unfairness in the law of limitation. I enclose a copy of the Judgment for your information. It was not my case, but was dealt with by one of the Barristers closely associated with ACAL namely Elizabeth-Anne Gumbel QC.
The injustice of the law is best illustrated by the case of Seymour v Williams, a 1995 case where a girl attempted to sue her stepfather because he had abused her, and her mother for turning a blind eye, and being negligent. Because of the state of the law she failed against her abusive father, but succeeded against her mother. Put simply the law of limitation is as follows:-
Trespass to the person (assault)
6 years from the date of the event, or the date of majority i.e. time runs out for an infant by the age of 24
3 years from the event or the date of majority, but extendable to a much later date in certain circumstances, particularly where the claimant does not know that they have a right to bring proceedings for psychological reasons such as repressed memory
The European Court has suggested that the UK Government changes its law so as to give claimants access to justice under Section 6 Human Rights Act 1998.
The Law Commission published a report as long ago as 2001. If one looks on their site one can see that not only has a report been prepared recommending a change in the law, but also a draft bill prepared. If you follow this link http://www.lawcom.gov.uk/239.htm#lcr270 you will find the report. If the Law Commission recommendation had been accepted, and the law changed then the claimant in the C v Middlesbrough case may have succeeded.
I am writing to you in the hope that you will put pressure on the correct department (I do not know who to approach, and no doubt you will help me) so as to push this long overdue reform of the law through.
I look forward to hearing from you in anticipation of your assistance. If you would like to contact me to discuss the finer points in more detail do not hesitate to do so.