by Chantal Richard (as appeared in the ACAL Newsletter of 2003)
Over the last several months the Court of Appeal’s decision in Various Claimants v Bryn Alyn Community Holdings Ltd. (1) and Royal and Sun Alliance (2) [2003] EWCA Civ85 [“Bryn Alyn”] has been the subject of much discussion among practitioners of child abuse litigation. At first glance the case appears to be a positive development for claimants on the issue of limitation, yet it is a setback for claimants in terms of the Court’s decision on vicarious liability and “The Lister Point”.
In Bryn Alyn the Court considers ‘The Lister Point’ at paragraphs 97 to108 of its decision. ‘The Lister Point’ references the House of Lords’ groundbreaking ruling in the case of Lister v. Hesley Hall Ltd. [2001] 2 WLR 1311 [“Lister”] where the Lords concluded that an employer could be held vicariously liable for the school warden’s sexual assaults of children in his care.
Since Lister there has been some uncertainty about how widely the ruling could be applied because the Lords left open the issue of the nature of the tort committed by the warden – in other words, was the employer responsible for the warden’s intentional assault of the children at the home or were they responsible for the warden’s breach of duty in failing to protect the children in his care from harm? The characterisation of the tortious conduct of the warden was not particularly important in Lister because limitation was not at issue. However, in cases where child abuse claims are being brought more than six years after the expiry of the limitation period for trespass on the person, the nature of the tort becomes extremely relevant. It is the blurring of the issues of limitation and vicarious liability which have led to some confusion about the application of the Lister ruling.
In cases of intentional sexual assault the limitation period is six years from the time the assault was committed or if the victim was a child, then six years from the time the child reaches the age of majority. The six year limitation period is non-extendable. Thus if a claim for intentional assault is statute barred as against the employee then it will be statute barred as against the employer even if the employer would have been vicariously liable for the employee’s wrongful conduct had the claim been brought within the limitation period. By contrast, the limitation period for acts of negligence is three years but this timeframe may be extended if a court finds under section 14 of the Limitation Act 1980 [“the Act”] that the claimant’s relevant date of knowledge is less than three years before the issuing of his or her claim or if the court is prepared to exercise its discretion under section 33 of the Act to allow the claim to proceed. An employer therefore may be held responsible for the negligent acts of its employee even where the three year limitation period has expired provided that sections 14 or 33 of the Act apply in the circumstances of the case.
In order to clarify the Court’s position in Bryn Alyn, it is worthwhile to review some of the case law on vicarious liability in the context of child abuse cases. The Lister decision overturned an earlier Court of Appeal ruling in Trotman v. North Yorkshire County Council [1999] LGR 584 [“Trotman”]. In Trotman the claimant was a handicapped teenager who was sexually assaulted while on a foreign school holiday in Spain by the deputy headmaster of the special school that he attended. The Court of Appeal denied that the deputy headmaster’s employer could be vicariously liable for the sexual assault because the unauthorised act of assault was outside the deputy headmaster’s scope of employment.
In Lister, the House of Lords concluded that the Court of Appeal in Trotman had applied the doctrine of vicarious liability too narrowly. The House of Lords recognised that in cases where there has been intentional wrongdoing by the employee it can be more difficult to assess whether the employer should be vicariously liable for the wrongful act. In these cases a court has to examine whether the employer should be liable for the intentional wrongdoing in any event because the employee’s wrongful conduct is so connected with acts that the employer has authorised, that they may be properly regarded as being within the scope of his employment. Ultimately in Lister the House of Lords held the school liable for the warden’s conduct because the torts he committed were in the time and on the premises of the employer whilst the warden was also busy caring for the children.
The Lords in Lister were divided on the question of how to characterise the torts committed by the school warden. Lords Steyn, Clyde and Hutton were not clear on the issue but Lord Hobhouse held that the employer was vicariously liable because the warden had breached the duty owed to the children in his care. On the other hand, Lord Millett explicitly rejected the notion that the school was vicariously liable for the warden’s failure to perform his duty but did hold the school responsible for the warden’s intentional assaults.
Due to the lack of clarity on this point in Lister, the nature of the tort committed is the central issue that needed to be determined by the Court of Appeal in Bryn Alyn. In order for three of the fourteen claimants to succeed in their case against the managers of the home, Lord Auld explained at paragraph 103 of the decision: “[t]he question that arises for decision on this appeal is whether a claim against a carer who, in the course of his employment, deliberately abuses a child, is an action in negligence or other breach of duty for personal injuries within section 11?”
Unfortunately the Court of Appeal in Bryn Alyn chose to follow the minority decision of Lord Millett in Lister and concluded that the employee’s deliberate acts of sexual abuse were distinct from any duty of care delegated to him by the employer. Thus, the claims for personal injury arising out of the deliberate acts of abuse were not caught by section 11 of the Limitation Act and were therefore governed by the non-extendable six year period of limitation such that the employer could not be vicariously liable.
It is understood that the three claimants in the Bryn Alyn case are in the process of appealing the issue of liability to the House of Lords. While one hopes that the claimants will be successful on this aspect of their appeal, it may be difficult for them to persuade the House to overlook or distinguish its earlier decision of Stubbings v. Webb [1993] 1 All ER 322. In this case, Lord Griffiths with whom the other Lords agreed, explained that he would not construe breach of duty as including a deliberate assault or rape. Here, a 30 year old claimant brought an action against her stepfather and stepbrother for damages suffered as a result of physical and sexual abuse by the stepfather when she was a child between the ages of 2 and 14 and rape by the stepbrother when she was 12 years old. The House held that her claims were subject to the six year limitation period for trespass on the person which had long since expired and were therefore statute barred.
As in Stubbings v. Webb, the House of Lords on the Bryn Alyn appeal may be again reluctant to characterise the deliberate acts of sexual abuse as amounting to either negligence or breach of duty owed to the claimants in order to overcome what is really a limitation problem. The Court of Appeal expressed its reservations with such an approach at paragraph 107 of its decision and acknowledged that to deploy such an argument would be contrary to the unanimous reasoning of the House of Lords in Stubbings v. Webb.
Although it ruled against them on liability, the Court of Appeal did express its sympathy with the three Bryn Alyn claimants who were caught by the six year non-extendable limitation period. Referring to the anomaly that can arise in some child abuse cases such as Seymour v. Williams [1995] PIQR 470 where a mother was held liable in negligence for failing to protect the plaintiff from abuse by her father even though the plaintiff’s claim against her father for the abuse itself was dismissed for being out of time, the Court in Bryn Alyn commended the Law Commission’s proposal for legal reform in this area. Lord Justice Auld made the following comment at paragraph 100 of the decision about the Law Commission’s proposal to include claims for personal injury in the same regime of an extendable three year limitation period with discretion to disapply: “For what it is worth, we warmly commend such a proposal. Early statutory implementation of it would obviate much arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.’
Even if the Bryn Alyn claimants are successful in convincing the House of Lords that the acts of abuse by staff at the home can be construed as claims for negligence or breach of duty such that the employer would be held vicariously liable, there will be claimants in other cases who will have the same set of factual circumstances and their claims will be rejected on the basis that they are statute barred as against the abusive employee and the employer. It seems then that the most sensible solution to ensure some certainty across the board is to lobby for reform of the relevant sections of the Limitation Act.
Law correct as at 1st September 2003
