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Sexual Abuse and Claims in Tort: Limitation Periods After A v Hoare (and Other Appeals) [2008] and AB and Others v Nugent Care Society; GR v Wirral MBC [2009]

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Abstract

The claimants brought civil suits against child care institutions and authorities for the sexual abuse to which they were subject whilst under the defendants’ responsibility. These cases were not initiated until the claimants were well into adulthood and began recognising the harms they had suffered, and as a result, their claims were time-barred at first instance. However, after A v Hoare (and Other Appeals), in which the House of Lords significantly altered the laws on limitation, their cases were reheard and allowed to proceed. In this respect, AB and Others v Nugent Care Society; GR v Wirral MBC demonstrates the benefits of the ruling in Hoare; but at the same time, this note argues that the Court of Appeal utilises a problematic conceptualisation of the harm of sexual abuse and the case highlights the potential for inconsistency and uncertainty in such delayed claims following the decision in Hoare—which is not the panacea it initially appears to be.

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Notes

  1. See for example, Campbell et al. (2008); and the BBC report of the latest call for change from the NSPCC: http://news.bbc.co.uk/1/hi/health/8607246.stm (accessed 10 April 2010).

  2. AB and Others v Nugent Care Society; GR v Wirral MBC [2009] EWCA Civ 827.

  3. AB and Others v Nugent Care Society [2006] EWHC 2986.

  4. Stubbings v Webb [1993] AC 498.

  5. Stubbings and Others vUK [1997] 1 FLR 105.

  6. A v Hoare(and Other Appeals) [2008] UKHL 6.

  7. AB and Others v Nugent Care Society [2008] EWCA Civ 795.

  8. Supra n 6.

  9. See particularly Lord Carswell, supra n 6 at [70].

  10. The claimants in Nugent Care Society were some of 50 claimants in a group action against the defendant institution for sexual abuse suffered in the 1970s and 1980s at two childcare homes they owned. The claims detailed below were heard in the final appeal to the Court of Appeal, although the claimants selected varied as the case proceeded through the courts.

  11. Since Lister v Hesley Hall [2001] UKHL 22 it is clear that employers can be held vicariously liable for intentional torts committed by their employees.

  12. Therefore Lister’s impact on sexual abuse claims was significantly reduced; see KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85; O v Liverpool City Council [2003] CLY 2975.

  13. He gave particular weight to the fact that the long delays had made the evidence less cogent—a likely effect, he said, in systemic negligence actions; supra n 3 at [33], [51].

  14. AB and Others v Nugent Care Society [2009] EWHC 481.

  15. GR v Wirral MBC Liverpool County Court, 15 December 2008, MA3 13631.

  16. Supra n 2, per Lord Clarke MR at [5].

  17. JPM’s case was remitted to the Queen’s Bench Division, which resulted in a successful claim and a damage award of £45,500; AB and Others v Nugent Care Society [2010] EWHC 1005. His case was heard alongside two others from the group of claimants: Irwin J exercised his discretion under s 33 to allow JA’s case to proceed despite the fact it was brought out of time and found in favour of the claimant; RM’s case was time-barred as Irwin J refused to exercise his discretion, considering in particular the conflicts in the claimant’s accounts and a significant loss of evidence over time which, he concluded, gave rise to a real possibility of injustice if the case was allowed to proceed.

  18. Supra n 2, per Lord Clarke MR at [15].

  19. A “significant injury” is one where the claimant would reasonably consider it sufficiently serious to justify instituting proceedings for damages (s 14(2) of the Limitation Act 1980). The test for significance is applied to what the claimant actually knows of their injury plus any constructive knowledge—that is, knowledge which the claimant could reasonably have been expected to obtain (s 14(3)).

  20. Supra n 2, quoted by Lord Clarke MR at [86]–[87].

  21. Ibid at [73].

  22. See Raggett v Society of Jesus Trust 1929 for Roman Catholic Purposes [2009] EWHC 909 and Albonetti v Wirral [2008] EWCA Civ 783 for other examples of the courts’ application of the ‘objective’ test rendering a sexual abuse claim out of time.

  23. Supra n 6 at [35]; cited in Nugent Care Society; Wirral, supra n 2, per Lord Clarke MR at [9].

  24. Ibid.

  25. Supra n 6 at [58].

  26. Ibid at [57].

  27. Ibid at [44].

  28. See the discussions of the Court of Appeal in Stubbings v Webb [1991] QB 197, per Bingham LJ at 208; and in Bryn Alyn, supra n 12, per Auld LJ at [39]–[41].

  29. Supra n 6 at [43], with reference to Stubbings, supra n 4, per Lord Griffiths at 506.

  30. Supra n 22 at [24].

  31. Supra n 2 at [105], quoting Irwin J, supra n 14 at [104].

  32. Supra n 2 at [108].

  33. Ibid at [106].

  34. Supra n 2 at [12], with reference to Bryn Alyn, supra n 12, per Auld LJ at [74].

  35. Ibid at [18], quoting Lord Brown in Hoare, supra n 6 at [84], with reference to Horton v Sadler [2006] UKHL 27.

  36. Supra n 6 at [45]; see also Adams v Bracknell Forest Borough Council [2004] UKHL 29, per Lord Hoffmann at [43].

  37. R v J [2005] 1 All ER 1.

  38. Ibid at [78].

  39. Ibid at [80]; supra n 6 at [54], respectively.

  40. Hoare, supra n 6 at [54].

  41. Supra n 2 at [20] (my emphasis).

  42. Ibid at [80].

  43. Ibid at [43], quoting Irwin J, supra n 14 at [54]–[56].

  44. Supra n 3 at [24].

  45. E.g. Bryn Alyn, supra n 12; cf. Catholic Care (Diocese of Leeds) v Young [2006] EWCA Civ 1534; and particularly the split opinions in Hoare, supra n 6, as to whether there is a difference between what the claimant could reasonably have been expected to know and what the claimant could reasonably have been expected to have done, Lord Hoffmann at [38] argues there is a difference, whereas Baroness Hale at [58] confessed she could see no “convincing distinction”.

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  1. Durham Law School, Durham University, 50 North Bailey, Durham, DH1 3ET, UK

    Nicola Godden

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Godden, N. Sexual Abuse and Claims in Tort: Limitation Periods After A v Hoare (and Other Appeals) [2008] and AB and Others v Nugent Care Society; GR v Wirral MBC [2009]. Fem Leg Stud 18, 179–190 (2010). https://doi.org/10.1007/s10691-010-9154-1

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