(Court of Appeal; Lord Clarke of Stone-Cum-Ebony MR, Waller and Maurice Kay LJJ; 29 July 2009)
In the first case four adults were seeking damages for trespass to the body from a Roman Catholic children's home in which all three had spent time as children, on the basis that they had been sexually abused while there. A significant number of staff from the home had subsequently been convicted of sexual abuse of children in their care. In the second case an adult sought damages for trespass to the body from a local authority, claiming that he had been sexually abused as a child, while living in an authority home. The judge held that one of the claims in the first case was time-barred and that the remaining claimants had had the relevant knowledge of significant injury at a relatively early stage; however, he exercised his discretion to extend the limitation period under Limitation Act 1980, s 33 in respect of three of the claims. Two claimants appealed in respect of the date of knowledge; while the defendants, the Roman Catholic organisation and the authority, appealed in respect of the 3 extensions to the limitation period.
The defendants' appeals were dismissed; although the judge had misdirected himself, in that he had wrongly concluded that there had been an earlier finding that the abuse had been proven, he had been entitled to exercise his discretion in the way that he had. Following the House of Lords' decision in A v Hoare the relevance of the question whether the actual claimant could reasonably have been expected to institute proceedings, taking into account his psychological state in consequence of the injury, had been transferred from the enquiry whether the claimant had sufficient knowledge for the purpose of s 14 of the 1980 Act, to the question whether the court should exercise its discretion to extend time under s 33. The relevant date of knowledge was, therefore, now much earlier than it was previously thought to have been. One of the matters to be taken into account under s 33 was 'the reasons... for the delay' on the claimant's part. In relation to vicarious liability, the effect of the House of Lords' decision in Lister v Hesley Hall Ltd was that once abuse by an employee of a children's home had been established, vicarious liability would follow. Previously it had been necessary for the evidence to cover the whole system being operated in the relevant home over a long period and for the court to consider whether there was a relevant breach of duty. Now no such analysis was required. In order to succeed the claimant had to show: (1) that he had been assaulted, that is that the alleged abuse occurred; (2) that the defendant was vicariously responsible for the abuse: (3) that the abuse caused the alleged psychological or psychiatric damage; and (4) quantum. Causation remained, but would usually be possible to establish without medical evidence. There were now likely to be many cases in which a judge would consider that it was not feasible to decide the issues simply by reference to the pleadings, written witness statements and the extent and content of discovery. He or she might well conclude that it was desirable that such oral evidence as was available should be heard because the strength of the claimant's evidence was relevant to the way in which the discretion should be exercised.
In considering the exercise of his or her discretion to extend the time limit under s 33, the judge must consider all the circumstances, including of course any prejudice to the defendant. That involved considering what evidence might have been available to the defendant if a trial had taken place earlier or it had learned of the claim earlier. It was not sufficient for the court simply to hear the evidence of the claimant, and indeed any other evidence now available, and to decide the issue of limitation on the basis of that, without considering whatevidence would or might have been available at an earlier stage. Where a judge determined the s 33 application along with the substantive issues in the case he or she should take care not to determine the substantive issues, including liability, causation and quantum before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. However, when the judge was considering the cogency of the claimant's case, the oral evidence might be extremely valuable because it might throw light both on the prejudice suffered by the defendant and on the extent to which the claimant was reasonably inhibited in commencing proceedings. Thus, if the claimant's case was beset by inconsistencies and the claimant showed himself in evidence to be unreliable, the court might conclude that the delay was likely to prejudice the defendant, because the defendant would be put to the trouble and expense of successfully defending proceedings and then be unable to recover costs against impecunious claimants. On the other hand, if the evidence of the claimant that the abuse occurred was compelling and cogent, and it was said that it was the abuse that inhibited him from commencing proceedings, that was surely a compelling point in favour of the claimant. Where a claimant gave evidence for the purposes of a preliminary issue on limitation, and where the judge exercised the discretion of the court to permit the claim to continue, every effort should be made to make sure that the claimant did not have to give oral evidence again on the issue of liability. This could ordinarily be achieved by ensuring, so far as possible, that the judge who heard the trial was the judge who had determined the preliminary issue of liability. Indeed, it might well be appropriate to decide the preliminary point and then either stop or continue with the trial. The two appeals on date of knowledge were dismissed. It was not correct to suggest that, at the time of, and in the early aftermath of, sexual abuse, there might have been no knowledge of a significant 'injury' as defined in s 38.