KR & Ors v Bryn Alyn Community (Holdings) Ltd & Anor

This is the judgment of the Court, to which we all have contributed. These are the appeals of fourteen adults all of whom claim to have suffered sexual and/or physical and/or emotional abuse between 1973 and 1991 while children in the care of the first defendant’s children’s homes in North Wales. In a consolidated action tried by Connell J. in early 2001 they claimed damages in negligence against the first defendant, which had gone into liquidation in 1997. The respondent, on its own application, was joined as second defendant in the action to enable it to protect its position as the first defendant’s putative insurer. The claims were primarily for long-term psychiatric or psychological injury.

On 26^th June 2001, Connell J. found the first defendant liable in negligence in respect of all the claims, save that of the appellant, MCK, and part of those of JS and CD. The Judge held that all the successful claims were out of time and not saved by the “date of knowledge” provisions in sections 11 and 14 of the Limitation Act 1980. However, in all those claims, he exercised his discretion under section 33 of the 1980 Act to disapply the period of limitation. He said that he would have done the same in respect of MCK’s claim if she had established a case in negligence. He awarded all the successful claimants damages for pain, suffering and loss of amenities and some of them for loss of earnings and cost of psychotherapy.

Each of the appellants, except KR, now challenges the level and/or make-up of the Judge’s award of damages. MCK appeals against the Judge’s dismissal of her claim and JS and CD appeal against the Judge’s dismissal of part of their respective claims. Each of those three appellants also seek to overcome the Judge’s related ruling, in the light of the House of Lords decision in Lister & Ors. v. Hesley Hall Limited [2001] 2 WLR 1311, that he had no power under section 33 of the 1980 Act to extend the limitation period to tortious conduct in respect of which the first defendant was vicariously responsible but which was not in itself negligent.

The respondent, with the Judge’s permission, cross-appeals the Judge’s decision to disapply the limitation period under section 33 in the case of the thirteen successful claims in negligence and contingently in the case of MCK in the event of her overturning the Judge’s dismissal of her claim in negligence. MCK, in her turn, seeks to rely on section 14 of the 1980 Act in the event of losing her contingent entitlement to proceed under section 33. Connell J. refused the other claimants’ applications for permission to appeal the Judge’s ruling against them on section 14 contingently on this Court upholding the respondent’s cross-appeal on section 33. They did not renew the application in this Court until a late stage in the hearing of the appeal in circumstances that we describe below. The Court then granted permission and, accordingly, all the appellants now cross-appeal the Judge’s ruling against them under section 14.

From about 1969 to 1990 John Allen operated a number of children’s care homes in North Wales which became known, after the name of its first and main home, as “the Bryn Alyn Community”. Throughout that period he controlled the affairs of the Community, assuming the role of chief executive on its transfer to the first defendant, a private company, in 1972. Although the Community ended in financial failure on the liquidation of the company in 1997, it operated successfully for over two decades, employing a large number of staff and in the mid eighties earning significant profits. Allen’s stated aim and that of the Community was to provide an alternative to the strict discipline and training regimes of approved schools for children of both sexes who, for various reasons, were vulnerable and/or unruly and in need of care. He held out the Community as providing a flexible, family type environment, catering for the individual needs of each child.

The vast majority of the Community’s charges were children who had been placed in the care of local authorities. However, it appears that it offered more in the way of care than it was equipped to provide. In particular, many of its staff had had little or no experience of residential care work with children before coming to Bryn Alyn or any formal qualifications for the work. And, as will appear, a number of them, including Allen, sexually and/or violently abused some of the children in their charge.

In 1995 Allen was convicted of six offences of indecent assault against young male residents of the Community between 1972 and 1983, for which he was sentenced to six years imprisonment. He and a number of other employees also became the subject of various allegations of abuse, some of which, in 1997 and 1998, were investigated by the Tribunal of Inquiry chaired by Sir Ronald Waterhouse into allegations of child abuse in a number of residential establishments in North Wales between 1974 and 1997 (1999-2001) HC 201. All but one of the claims the subject of these appeals, that of JS, were first made in 1998 or 1999, in the wake of the publicity given to the allegations investigated by the Tribunal.

The main issues in the trial material to this appeal were:

The conduct on which all the claimants founded their claims, calculated from the date they left Bryn Alyn, had occurred long before they made them. Remembering that in all cases they were still minors when they left, any limitation period (and in particular the three years time limit under section 11 if it applied) did not begin to run until they reached majority. The range of delay to issue of proceedings from the last abusive act and from expiry of the limitation period was respectively from about 24 and 20 years in the case of KR to about 8 years and 3 years in the case of CD. JS was the only claimant agreed between the parties to have been within the six years ordinary time limit in section 2 of the 1980 Act for actions in tort.

Each claimant gave oral evidence in support of his or her own claim. Mostly, there was no or little other confirmatory evidence of the abuse alleged. And, with some exceptions, there were few of the Community’s records contemporary with the alleged abuse on which either side could draw as to the truth of the allegations and, if true, as to the Community’s awareness of them. Many of its records had been destroyed in a warehouse fire in 1996, shortly before the first defendant went into liquidation.

The alleged abuse varied in form and in duration. But one common feature of all the claims, as Connell J. noted, was that all the claimants had suffered serious trauma before coming to the Community and:

“[e]ven if the care offered to them there had been all that it should have been, it is doubtful that any of them would have escaped significant difficulties in coping on a day to day basis with adult life.”

The first defendant played no part in the trial. The respondent, through counsel, contested each claim, advancing no positive case, save in the claim of JS (where there were more contemporaneous records than usual), and, save for a few concessions, required each claimant to prove his or her claim. It was not able to call much evidence of its own. Some witnesses had died; others had gone abroad or were untraceable; some were in prison; and some, no doubt, were too old or ill or were reluctant to co-operate in connection with allegations of such unpleasant matters so long before. It called only four former employees of Bryn Alyn, namely Keith Evans, Peter Steen, John Jeffreys and Dafydd Vevar, and otherwise limited itself to medical evidence, which was mostly agreed. Two of the principal players, John Allen and David Stanley, had in the meantime been convicted of serious sexual offences involving children in the Community. Allen was concerned in seven of the fourteen claims and Stanley in one of them. Although both men were available to give evidence, neither was called.

There was, as we have indicated, difficulty for the respondent arising from the lack of Bryn Alyn records contemporaneous with the alleged abusive conduct. This was no doubt in part due to the passage of time but also to the destruction of many of them in the warehouse fire. Further difficulties of this sort also flowed from the fact that the first defendant was in liquidation. The result was that there was no Bryn Alyn contemporaneous documentation such as daily logs, incident reports and supporting statements, claimant’s reporting files or matron’s reports of injuries.

The Judge had available as background material Chapter 21 of the Report of the Waterhouse Tribunal of Inquiry which dealt with Bryn Alyn. The claimants relied upon parts of the evidence given to the Inquiry between January 1997 and April 1998 and on certain of the Tribunal’s conclusions. The Judge said of this material:

“6… I have reached my conclusions on the evidence, which I have heard, but nothing that I have heard causes me to doubt the appropriateness of the Waterhouse conclusions. The Enquiry did not hear from many of the claimants who gave evidence to me; but their evidence tends to support the accuracy of those conclusions.”

We now turn to the individual issues in the appeal.

In claims for damages for negligence, nuisance or breach of duty, where the damages claimed consist of or include damages in respect of personal injuries, section 11(1) and (4) of the Act provides a special time limit of three years from the accrual of the cause of action or “the date of knowledge (if later) of the person injured”. By section 38 of the Act, “personal injuries” include “any impairment of a person’s physical or mental condition”. The regime for personal injuries claims of this type is, on the face of it, more stringent than the general six-year limitation period provided by section 2 of the Act for all other actions founded on tort. However, the rigour of the shorter period is mitigated, not only by the provision for its extension by reference to the date of knowledge, which is defined in section 14, but also, in the event of a claimant’s failure to bring his action within any such extended period, by section 33, which gives the Court a discretion to disapply the limitation period so as to allow the action to proceed.

The presence of the two provisions, one for extension and the other for disapplication of the limitation period, in personal injury claims has produced the irony that where there are alleged primary and secondary tortfeasors, an employer may be held to account in negligence in respect of his employee’s deliberate assault long after the latter has been able to claim the benefit of his unextendable six years period of limitation. That is because the courts have construed the words in section 11, “negligence, nuisance or breach of duty” as not including deliberate acts of assault – trespass to the person.

In addition, as this case exemplifies, the relationship of the two provisions for relaxation of the three year period in personal injury claims gives rise to particular difficulties in claims in negligence against care homes and the like in respect of their employees’ child abuse, where the claims are brought long after the event in respect of physical and/or mental injury at the time and also of later mental impairment. In such cases, as the Law Commission has pointed out in its Report, Limitation of Actions, July 2001, Law Com No, 270, at paras. 4.23-4.33, there may well be difficulty in disentangling the immediate injury from long-term psychiatric injury diagnosed very much later. Each case must, of course, be considered on its own facts. The immediate physical effects will vary, according to the violence and other circumstances of the abuse, from the mild to the very serious. Whatever the seriousness of the physical injury, it is likely to be accompanied by some harmful effect on the mind, for example, distress, humiliation and/or shame. Such effects, depending on the circumstances of the abuse, will vary in their severity and may or may not, at an early stage, deter or disable the victims from bringing a claim within the limitation period for any immediate or early injury attributable to the abuse. The abuse may also, as Connell J. found here, give rise to, and similarly repress or mask, long-term and more serious psychiatric injury. In such circumstances, we have some sympathy for the difficulties facing the Judge in identifying and distinguishing where necessary between section 14 and section 33 considerations. Unfortunately, his difficulties were exacerbated by the parties’ concentration in the pleadings, evidence and argument on long-term psychiatric injury so as to side-line the immediate physical and mental injuries that all or some of the claimants may have suffered.

The Judge did not deal with limitation as a preliminary issue. In his general rulings at the beginning of his judgment and in his treatment of each claim, he ruled on limitation only after he had considered and dealt with all the other issues, namely liability, causation and quantum. As will appear, this order of treatment appears to have affected his reasoning on the limitation issues, particularly those under section 33.

As we have indicated, the Judge considered two separate limitation arguments which he regarded as confined to claims alleging negligence, namely as to the “date of knowledge” under section 14 and, in the alternative, disapplication under section 33 of the section 11 period of three years. He began by properly characterising the nature of the claims in relation to both issues as primarily one for damages for post-abuse psychiatric injury, consistently with his later treatment of the claims when awarding and assessing damages. He said:

“23.

In every case there are two points on behalf of the Claimants. First it is argued that no claimant acquired the requisite knowledge within s.14 until he or she had been advised by the psychiatrist consulted in connection with this claim that the psychiatric problems suffered by the claimant were significant, and that this injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence. …

24.

Secondly, the claimants submit that in any event the provisions of s. 11 … should not apply in these cases because the court should exercise its discretion under s. 33 … to permit these actions to proceed. …

27.

… it is relevant to bear in mind that the claimants seek general damages primarily for psychiatric injury inflicted upon them, rather than for any physical injuries they may have suffered as a result of the assaults alleged. …”

However, he went on to focus, when dealing with date of knowledge under section 14, on the immediate impact of the alleged abuse, but, when considering disapplication under section 33, on the later psychiatric injury.

Sections 11 and 14 provide, so far as material:

“11 (1) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or included damages in respect of personal injuries to the plaintiff or any other person.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4)…. below.

(4)

….the period applicable is three years from-

(a)

the date on which the cause of action accrued; or

(b)

the date of knowledge (if later) of the person injured.

…. ”

“14(1)… in section.. 11 … of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts- (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and (c) the identity of the defendant; …. and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.”

“(2)

For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.”

Thus, in a personal injuries claim as defined in section 11, time runs from the claimant’s knowledge, where it is later than the accrual of the cause of action, from: the date when he knew :

The Judge found that every claimant’s date of knowledge preceded the three years period before issue of proceedings and that, therefore, all the claims were statute-barred unless he disapplied the limitation period under section 33. He prefaced his consideration of this issue by again identifying the main thrust of the claims as for damages for subsequently discovered psychiatric injury. He referred to the submission of Mr. Robert Owen, QC, counsel for the claimants, that:

“28.

… none of the claimants knew that the injuries suffered whilst living in the community were significant, or that the injuries (and in particular the psychiatric damage) were attributable in whole or in part to the act or omission which is alleged to constitute negligence until so advised by the psychiatrist consulted in connection with the claim.”

And he noted that the advice as to that psychiatric damage was given in every case within three years of the commencement of the proceedings.

However, the Judge went on to reject Mr. Owen’s submission, not by reference to the date of knowledge of psychiatric injury, but by reference to the immediate impact on each claimant of the physical act of abuse. In a general ruling on this issue, he drew on dicta relevant to claims for personal injury where its immediate significance is obvious:

“29.

…. The claimants all allege that they were the victims of assaults, either physical, sexual or both. The test to be applied is as described by Sir Thomas Bingham MR in Dobbie v. Medway [1994] 1 WLR 1234 at page 1240, viz:

‘This test in my judgment is not hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it. In the case of an insidious disease or a delayed result of a surgical mishap, this knowledge may come well after the suffering of the disease or the performance of the surgery. But more usually the claimant knows that he has suffered personal injury as soon or almost as soon as he does so.’

Here each claimant must have known at the time that he or she was the victim of such an assault which caused at the least some distress and more often profound disquiet, pain and resentment. They knew, in ordinary language, that they had been injured in a manner which could not properly be described as trivial, but which was significant. They also knew, as I conclude, that the distress suffered was attributable to the actions upon which they now rely to found their claims. Their situations were similar to that of the victim, Lesley Stubbings in Stubbings v. Webb [1993] 2 WLR 120, who had been raped and persistently sexually abused, but who claimed that she did not realise that she had suffered sufficiently serious injury to justify starting proceedings for damages until she realised that there might be a causal link between psychiatric problems suffered in adult life and her sexual abuse as a child. Lord Griffiths said at page 126D:

‘I have the greatest difficulty in accepting that a woman who knows she has been raped does not know that she has suffered a significant injury.’

30.

In my view, the same applies to a young person who knows that he or she has been assaulted on a regular basis; or who has been buggered, masturbated or fondled in an inappropriate way. Of course the realisation of the extent of the injury may grow with time, as may the injury itself; but in every case I conclude that these unhappy victims had the relevant knowledge before they left the community.”

As we have said, when this Court began to hear this appeal only MCK challenged that ruling, and then only contingently on the success of her appeal as to liability in negligence and on the success of the respondent’s cross appeal on the section 33 point. However, after hearing all the original submissions on appeal, having reserved judgement and having begun to write it, we began to feel unease at the Judge’s concentration, for the purpose of determining the date of knowledge under section 14, on the immediate effects of the abuse which, for the reasons we have given, appeared not to be the injuries for which they sought damages. We considered that the true question for the Judge and for us was, as Croom-Johnson J. put it in Ackbar v. C.F. Green & Co. [1975] 582, at 587, in the slightly different context of whether a claim consisted of or included damages for personal injuries, “what is the action all about.?”, a test approved and applied by Stuart Smith LJ in Howe v. David Brown Tractors (Retail) Ltd. [11991] 4 All E.R. 30, at 36 and Auld LJ in Walkin v. South Manchester Health Authority [1995] 1 W.L.R. 1543, at 1522B-G.

This case was all about long-term, post-traumatic, psychiatric injury. Or so it seemed to us from the conduct of the action below and also from the focus of the arguments on appeal. Each of the pleaded claims particularised the injury in respect of which damages were sought, by reference to a psychiatric report prepared many years after the last alleged abusive conduct and which, true to its intention, dealt with the claimant’s later psychiatric condition and its attribution. The Judge appears to have given the immediate injury caused by and inherent in the abuse some prominence when dealing with limitation under section 14. However, he does not appear to have considered it sufficiently important to examine it closely for the purpose of determining whether it met all the requirements of section 14(2). Nor, in the main, does he appear to have it in mind when assessing quantum.

The main issue for the Judge under section 14 was as to knowledge of “significant” injury, not, in the circumstances, of attributability. It did not seem to us that the Judge, in applying Lord Griffiths’ observation to every claim in the way that he did, can have had sufficient regard to the special and partly subjective meaning of the word “significant” in section 14(2) or to the confining effect of the words “the injury in question” in section 14(1)(a), identifying as one of the facts required for the date of knowledge that a claimant knew “that the injury in question” was significant”. In short, of what knowledge and of what injury was the Judge speaking when he held that all these claimants “had the relevant knowledge before they left the community”?

Because this issue had not been canvassed before us, there being no challenge to the section 14 rulings save as to the absence of one in the case of MCK, we prepared and submitted our judgment to the parties’ representatives, making provisional rulings on this issue and to the extent that it affected our rulings on section 33, on that issue too. We invited the parties, through counsel, to consider pleading the point in relation to each claimant and to making submissions on it in writing or orally.

On the re-opening of the appeal to hear further argument, Mr. Owen maintained with some emphasis that the case as pleaded and presented throughout covered both the physical and psychological effects of the abuse, and declined the Court’s invitation to consider amendment of the claimants’ pleading to make the position clear. However, with the Court’s leave, he amended their notices of appeal to add a complaint challenging the Judge’s ruling against them under section 14, and each of the parties’ counsel have prepared a further skeleton argument and appeared before the Court on a re-opened hearing of the appeal to argue the point. As will appear, that argument engendered a further concern about the Judge’s apparent failure, when assessing quantum of general damages in each case to have regard to the abuse itself and its immediate effects. But for the moment, we confine our remarks to our original concern, the Judge’s treatment of the meaning of “significant” knowledge of “the injury in question” for the purpose of section 14.

For convenience, we repeat the relevant words of section 14(2):

“For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgement.”

The test was explained by Geoffrey Lane LJ in McCafferty v. Metropolitan Police District Receiver [1977] 1 WLR 1073, CA, at 1081G-H, in terms that the Court of Appeal followed in Nash v. Eli Lilly & Co. [1993] 1WLR 782, at 791A-C:

“…It is clear that the test is partly a subjective test, namely: ’would this plaintiff have considered the injury sufficiently serious?’ and partly an objective test, namely: ‘would he have been reasonable if he did not regard it as sufficiently serious?’ It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff’s intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages?”

The possibility of more than one candidate for the date of knowledge, depending on the nature of the injuries relied on, did not arise in McCafferty – a claim for deafness eventually brought on from the claimant’s exposure to gunfire in the test firing of firearms. Nor did it arise in Dobbie v. Medway, from the passage in the judgment of Sir Thomas Bingham MR on which the Judge relied.There, the claimant’s date of knowledge, shortly after the event, was the same for both the physical and psychological injury in respect of which she claimed 15 years later that her breast had been unnecessarily removed. The point did arise as one of two issues in the Court of Appeal in Stubbings v. Webb [1992] QB 197; the other was whether the three years limitation period in section 11 was capable of applying to intentional as well as unintentional acts. The appellant’s claim was for damages for mental illness and psychological disturbance allegedly caused by sexual abuse of her as a child in the sixties. The Court, affirming the decision of the trial judge, found for the claimant on both issues. Only the second, fatally to the claim, was reversed in the House of Lords ([1993] AC 498). As to the first, we repeat and set out a little more of the passage from Lord Griffiths’ speech, at 506A-D, with which the other Law Lords agreed and including the extract from it relied upon by the Judge, obliquely criticising the Court of Appeal’s reasoning:

“…. The plaintiff’s case was that although she knew she had been raped by one defendant and had been persistently sexually abused by the other she did not realise she had suffered sufficiently serious injury to justify starting proceedings for damages until she realised there might be a causal link between psychiatric problems she had suffered in adult life and her sexual abuse as a child. The Court of Appeal after considerable hesitation accepted this argument on behalf of the plaintiff. If it was necessary to decide the point I should not have found it easy to have agreed with the Court of Appeal. Personal injury is defined in section 38 of the Act of 1980 as including ‘any impairment of a person’s physical or mental condition’ and I have the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has suffered a significant injury. The Criminal Injuries Compensation Board … has been making substantial awards to the victims of rape … and since the enlargement of the scheme in 1979 this has included victims within the family setting. Sexual abuse that goes no further than indecent fondling of a child raises a more difficult question, but some of the plaintiff’s allegations are so serious that I should have no difficulty in regarding them as other than significant. However I do not find it necessary to resolve this difficult issue.” [our emphases]

As we have indicated, the Judge appears to have placed considerable reliance on this qualified and obiter passage from Lord Griffiths’ speech. It is unfortunate that his attention was not drawn – and he did not refer - to the judgments in the Court of Appeal. With respect to Lord Griffiths, we believe that those judgments should be revisited, not only as to lesser and “consensual” sexual abuse of the sort that he may have had in mind in his qualification, but also as to more serious sexual mistreatment and to physical abuse crossing the line of reasonable discipline of young children in care homes and the like. All the members of the Court of Appeal stressed the importance of the special, partly subjective meaning given by section 14(2) to the word “significant” in section 14(1) and, in consequence, distinguished between the plaintiff’s knowledge at the time of the abuse and that much later when she was an adult and became aware of the long term psychological problems it had caused.

We summarise the reasoning of Bingham LJ, at 205B-208B, with which Nolan LJ and Sir Nicholas Browne-Wilkinson V-C agreed, at 210F-211G and 212G respectively. On the facts, the impairment of the claimant’s physical condition was not significant in a section 14(2) sense since, although she had suffered distress, humiliation and degradation at the hands of her abusers, their conduct had not caused her physical injury, save for some assaults in about 1972 when she was aged 15 causing her nose to bleed. In the state of society in the late 1970s and early 1980s the claimant would not reasonably have considered those assaults sufficiently serious to justify proceedings even “against an acquiescent and creditworthy defendant”. As to impairment of the claimant’s mental condition, she could have sued for the immediate distress caused by the sexual abuse, but the claimant would not, at that stage, have regarded such distress in the absence of any apparent long-term consequence as sufficiently serious to justify proceedings nor, on the evidence, did she know within three years before issuing proceedings that the serious impairment of her mental condition was attributable to the abuse.

Bingham LJ acknowledged the particular factual circumstances of the case on which the Court was proceeding. Nevertheless, he added the following observation of considerable general importance, at 208B-G, which was echoed by Nolan LJ and Sir Nicholas Browne-Wilkinson V-C. We respectfully consider that Lord Griffiths’ qualified and obiter remark is not an adequate answer to it:

“It was argued for the … [appellants] … that the acts alleged against them were of great seriousness and well known to the plaintiff at the date of commission. She had the knowledge necessary to sue on reaching her majority and should have either sued then or not at all. It was not permissible to divide up the conduct complained of and treat the longer-term consequences as in effect giving rise to a different cause of action. I see considerable force in this submission but on the facts of this case it is in my view unsound.

Sections 11(4)(b) and 14(1)(a) are tailored to meet the case where a plaintiff knows more than three years before bringing his action that he has suffered some injury but not an injury which is, within the meaning of section 14(2), significant. Whether a particular injury would reasonably be regarded as significant by a particular plaintiff, as the person whose date of knowledge is in question, is a very highly judgmental question. The education of public opinion over the last five years or so, both as to the prevalence of child abuse within families and as to its serious long-term consequences, might well mean that almost any plaintiff would now reasonably regard such conduct (if other than very trivial) as significant in the statutory sense. But before the publicity given to the Cleveland inquiry the level of public (and even professional) understanding was much lower and claims by children on reaching their majority against parents and siblings were unknown. Recognition that these acts had caused her serious long-term mental impairment could reasonably be seen by the plaintiff as importing a new order of gravity. To distinguish between the immediate impairment of the plaintiff’s mental condition caused by these acts, apparently minor and transient, and the much more serious long-term impairment of the plaintiff’s mental condition, the attributability of which to the Webbs’ conduct was appreciated later, is not in my judgment to defeat the intention of the legislature but to promote it.”

Thus, although section 11(1) refers to an action where the damages claimed “consist of or include damages in respect of personal injuries”, it is vital on the facts of each case for the court to determine at what date the claimant first knew, or ought to have known, that “the injury in question” whether physical or mental, was “significant” in the sense indicated by the Court of Appeal in Stubbings v. Webb. It has been held that where there is more than one form of such significant injury, a judge should have regard to the date of knowledge of the first, see, for example, Bristow v. Grout, The Times November 3 1986, in which Jupp J. held that the date of knowledge was that of the first of the physical injuries the plaintiff knew to be serious enough for him to institute proceedings, and not to a separate physical injury, albeit arising from the same accident, discovered after settlement of the first claim.

We should emphasise that we are concerned only in this appeal with one action. If, on the facts, there is early section 14(2) knowledge of one form of injury, say of a physical nature, and the claimant sues and recovers damages for it, he will then be barred from bringing a further action outside the three year limit in reliance on later knowledge of some other significant injury arising out of the same facts. That is in part as a result of cause of action estoppel, of which Bristow v. Grout is an example, albeit that there, the bar operated as a result of settlement of an initial claim without action. Although in such a circumstance, there may be a new claim, it is not a new cause of action; see Letang v. Cooper [1965] 1 QB 232, CA, per Diplock LJ at 242-3. It is different if the new claim is made by way of permitted amendment in an existing cause of action.

In any section 14 case, it is important to distinguish between the occurrence of initial damage that may itself amount to a significant injury in a section 14(2) sense and that which, although the claimant could have successfully sued for it, does not. It is not apparent from the Judge’s reasoning in this case that he has done that, either in his general treatment of the provision or in his individual consideration of each claim. We say that for a number of reasons, all of which we should preface by a consideration of how section 14(2) can be made to fit the circumstances of claims like these of child abuse causing immediate physical and mental injury and later long-term psychiatric injury first diagnosed when well into adulthood.

Section 14(2) was designed principally to provide for cases of late diagnosis of physical diseases, such as asbestosis or byssinosis, the deadly development of which may be unknown until their symptoms eventually appear. At first sight, it does not fit so readily the circumstances of abused children who, because of their immaturity and vulnerable position, might never consider or seek advice about suing their abusers, or those responsible for them, for damages. The test, properly interpreted, is likely to be somewhat unrealistic in many child abuse cases when applied to claims for immediate injury. Such injury is likely to include, in addition to any physical injury, a mix of emotions and other mental effects, for example, humiliation, distress, shame, guilt and fear of being disbelieved or of disclosure. In such circumstances, depending on the severity of the victim’s condition and the dates of the abuse, it could have been unreasonable and unreal to have expected him, as he moved from childhood to three years beyond majority, to consider recourse to the civil courts for damages for something he just wanted to put behind him. Given the circumstances of the abuse and his subsequent way of life, making such a claim, or seeking advice about it, might reasonably never occur to him. He might have known at the time of the abuse that it was wrong; he might have harboured resentment, great grievance, or even a desire for revenge, perhaps even a wish to report it to the police, but not necessarily to litigate for damages.

Application of the section 14(2) meaning of “significance” to child victims of abuse is often the more difficult because many of them, as in the case of these claimants, come to it already damaged and vulnerable because of similar ill-treatment in other settings. For some such behaviour is unpleasant, but familiar. As Mr. Owen put it in his supplemental submissions, such misconduct was for many of these claimants “the norm”; it was committed by persons in authority; and they, the claimants, were powerless to do anything about it. Some victims of physical abuse may have believed that, to some extent, they deserved it. And, in cases of serious sexual abuse unaccompanied by serious physical injury of any permanent or disabling kind, it is not surprising, submitted Mr. Owen that they did not see the significance of the conduct in section 14(2) terms, and simply tried to make the best of things.

However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis, to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problems? The same applies to those, as in the case of many of these claimants who, subsequent to the abuse, progress into adulthood and a twilight world of drugs, further abuse and violence and, in some cases, crime. Some would put the abuse to the back of their minds; some might, as a result or a symptom of an as yet undiagnosed development of psychiatric illness, block or suppress it. Whether such a reaction is deliberate or unconscious, whether or not it is a result of some mental impairment, the question remains whether and when such a person would have reasonably seen the significance of his injury so as turn his mind his mind to litigation in the sense required by section 14(1)(a) and (2) to start the period of limitation running. At this stage the section 14(1)(b) issue of actual or constructive knowledge of attributability becomes more of a live issue than it would have been at or shortly after the abuse, because in some cases it might only be after the intervention of a psychiatrist that a claimant realises that there could have been a causal link between the childhood abuse and the psychiatric problems suffered as an adult, an argument accepted by the Court of Appeal, but which Lord Griffiths found difficult to accept, in Stubbings v. Webb.

The posing of such questions may have become less artificial in recent years. As a result of the publicity given to inquiries of the sort conducted by Sir Ronald Waterhouse in 1997 and 1998 and the disturbing increase in the number of criminal prosecutions and civil suits for child abuse, some of it a very long time ago. The momentum of increase in public awareness of such conduct, of which Bingham LJ spoke in 1992 in Stubbings v. Webb is likely to have begun to usher in a generation more sensitive to its seriousness and “significance” in a section 14(2) sense. In that case the Court was concerned with sexual and other physical abuse of a child over a twelve year period from 1959 to 1971 when she was between two and fourteen years old. Sir Nicholas Browne-Wilkinson V-C and Nolan LJ agreed with Bingham LJ that the claimant’s undoubted knowledge on reaching maturity in the early 1970s of what she had been through and its effect on her physical and mental condition at the time did not, on the facts of the case and in the climate of the time, amount to knowledge of significant injury for the purpose of section 14(2). As I have said, Sir Nicholas Browne-Wilkinson V-C and Nolan LJ spoke in similar terms to those of Bingham LJ in the passage from his judgment that we have set out in paragraph 36 above, suggesting that it may not have been until the late 1980s that public awareness had become such that abused children were, before or within three years after majority, more likely, depending on the nature of the abuse and other circumstances, to become aware of the significance, in a section 14(2) sense, of what had happened to them. Nolan LJ said, 211B-D:

“The question posed by the Act … is not whether the plaintiff could have sued successfully in 1975, but whether at that time should reasonably have considered her injuries sufficiently serious to justify proceedings. It may well be argued that even if her physical injuries were relatively minor, the feelings of outrage, humiliation and despair which she must have experienced if her account is true could hardly have failed to result in mental injury. But in my judgment the available evidence does not show that she should reasonably have regarded her physical or mental injuries at that stage as sufficiently serious to justify the institution of proceedings for damages, even against hypothetically solvent and unresisitng defendants. It has to be borne in mind that until the last few years proceedings of the present kind were unheard of.” [our emphasis]]

The Vice-Chancellor said, at 212B-F

“In ordinary terms, I have no doubt that quite apart from any long term psychiatric harm the alleged sexual abuse and rape caused significant injury. The gross interference with the physical privacy and integrity of the plaintiff would justify a substantial award of damages in itself, even if no long-term psychiatric physical damage was caused

But the word ‘significant’ in section 14 does not bear its ordinary meaning. For the purposes of that section, an injury is only ‘significant’ if the plaintiff would ‘reasonably have considered it sufficiently serious to justify [her] instituting proceedings for damages’ against her adoptive father and brother assuming that they would admit liability and be good for the damages. In deciding what … [the plaintiff] would ‘reasonably have considered’ one has to have regard to the circumstances obtaining in 1975, when she attained full age. The question is whether, in 1975, the plaintiff acted reasonably in not then suing … for the serious wrong alleged to have been done to her. In my judgment it is important not to consider the question by reference to the social habits and conventions of 1991. Over recent years, for the first time civil actions have been brought by victims of adult rape against their assailants. As to actions against child-abusers, this is apparently the first case in which the alleged victim has sought to sue her abusers. In the present climate and state of knowledge it would in my judgment be very difficult, if not impossible, for a plaintiff coming of age in the late 1980s to establish that she acted ‘reasonably’ in not starting proceedings alleging child abuse within three years of attaining her majority. But we are concerned with the reasonableness of the plaintiff’s behaviour in the period 1975-78. At that time civil actions based on sexual assaults were unknown in this country….” [our emphasis]

There may be much force in Nolan LJ’s general observation at the end of that passage as to claimants who came of age in the late 80s. However, it should, in our view, be treated with some caution, particularly in cases, where as in most of these appeals, claimants came to the abuse in question already deeply disturbed and acclimatised by previous ill-treatment and poor backgrounds and moved on after it into a similar culture as an adult. To paraphrase Bingham LJ, whether a particular claimant would reasonably have not regarded a particular injury from such abuse when it occurred, as significant for this purpose is still likely to be a “highly judgmental question”. It is a fact-sensitive question that needs to be considered on a case-by-case basis. It is plain that the Judge did not do that. First, it looks as if he construed the word “significant” in section 14(1) without reference to the special meaning given to it in this context by section 14(2). And, second, even if he had its partly subjective meaning in mind, he does not appear to have considered its application on a claim-by-claim basis, in particular as to the nature, condition and circumstances of the individual claimant or to “the injury in question”. A sure sign of his erroneous approach is that he felt able to credit all of the claimants with “the relevant knowledge before they left the community”, namely at a time when all or most of them were still as or more vulnerable than when they had first arrived there and when each of them had still to go out into the world.

Mr. Edward Faulks, QC, on behalf of the respondent, acknowledged that the Judge, in the main, did not examine the section 14 issue individually in relation to each claimant, but dealt with it compendiously, including an implicit finding in each case of some significant physical injury – implicit because of his description in paragraph 27 of his judgment of the claims being “primarily for psychiatric injury … rather than for any physical injuries …”. (see paragraph 20 above) He urged the Court not to go behind the Judge’s general findings fact of knowledge of significant injury, relying, conventionally, on the advantage he had over the Court in having heard and seen the claimants and the medical witnesses.

Given the generality and brevity of the Judge’s treatment of this important issue and the considerable variation in the nature and circumstance of the abuse alleged by each claimant, we do not consider that we can properly take that course. It was for the Judge to determine in the case of each claimant whether, within three years after majority, he or she had significant knowledge within the meaning of section 14(2) and in respect of what injury, whether physical and/or mental. In the case of each claimant, the Judge had to consider, among other things, his or her individual history and circumstances, the nature, severity and duration of the abuse, the period of time when it occurred and its physical and/or mental effects evident to the claimant within three years after reaching majority. He then had to relate them all to the question whether that claimant, given those and any other relevant circumstances, would have considered the injury of which he knew (“the injury in question”) sufficiently serious to institute proceedings against a solvent and compliant defendant.

There are no short-cuts in such an exercise, such as, for example, that adopted by Mr. Faulks of asking each claimant whether they knew at the time that what had happened to them was “wrong”, although, as he submitted to the Court, it may be a step on the way to identifying whether any particular claimant had relevant knowledge. Nor did the Judge’s reliance on Lord Griffiths’ qualified and obiter remark in Stubbings v. Webb for his general conclusion on the matter in paragraphs 29 and 30 of his judgment come close to focusing on the true test of significance in section 14(2) or on the case-sensitive nature of the examination that it called for, namely that each claimant:

“… must have known at the time that he or she was the victim of … [a physical and/or sexual] assault which caused at the least some distress and more often profound disquiet, pain and resentment. They knew, in ordinary language, that they had been injured in a manner which could not properly be described as trivial, but which was significant. They also knew, as I conclude that the distress suffered was attributable to the actions upon which they now rely to found their claims. Their situations were similar to the actions of the victim … in Stubbings v. Webb …”

As we have already indicated, in so expressing himself, the Judge did not have the benefit of the basis upon which the Court of Appeal proceeded in that case, namely that, on the facts and for the reasons all three members of the Court gave, there was no early knowledge of significant injury. In the climate of public knowledge and awareness at the time of the abuse in question, as Bingham LJ put it, at 207G-H:

“… in purely physical terms the impairment of the plaintiff’s condition was minor. … there would have been very little to support an indictment of causing actual bodily harm or to plead as particulars of personal injury.”

In addition, it should be remembered that it is not normally for a defendant to establish when, if at all, a claimant had the relevant knowledge. It is for the claimant to prove how long he was without it. The issue of limitation having been raised, it was for each claimant to satisfy the Court of the date upon which the cause of action accrued and, where relevant, the later date when he first had knowledge of the facts, including as to the significance of the injury within section 14(1) and (2), but possibly not as to constructive knowledge under section 14(3); see Crocker v. British Coal Corporation (1995) 29 BMLR159, per Mance J; and Parry v.Clwyd Health Authority [1997] PIQR P1, per Colman J.

Accordingly, we consider that the Judge erred in law and that it falls to this Court to determine this issue and its knock-on effect on the section 33 issue in each case on the evidence.

Mr. Owen’s main submission was, as it had been at the trial, that none of the claimants acquired knowledge of a significant injury within the meaning of section 14(1)(a) and (2) until much later when each learned that he or she had suffered and/or was suffering from long-term psychiatric or psychological injury. He said that the Judge’s mistake was the same as that of Lord Griffiths in Stubbings v. Webb in giving the word “significant” in this context its ordinary rather than its statutory meaning, and he relied on the approach of the three members of the Court of Appeal in that case. The result, he submitted, was to cause injustice to all the claimants in two respects: first, their claims became wrongly statute-barred unless discretion to disapply the limitation could properly be exercised in their favour under section 33; and, second, the Judge largely confined his assessments of general damages to the long-term psychiatric injury, ignoring all that preceded it.

Mr. Owen submitted that in all the claims the significant injury in question of which the claimant first had knowledge within section 14(1)(a) and (2) was of the long-term psychiatric injury, thereby “extending” and bringing their claims within the limitation period in most of the cases. However, he maintained that that did not disentitle claimants from also claiming in respect of the same causative conduct, the previous abuse outside the extended period, which in itself would have justified an award of damages. He invited the Court to increase the awards made by the Judge to reflect the pain and suffering caused by the abuse itself.

The re-opening of the appeal on the issue of section 14 has caused us to look more closely at the evidence in each of the claims and to consider a further submission of Mr. Owen in relation to it that clearly found favour with the Judge when he came to the section 33 issue. It was that in all or some of the claimant’s cases, part of the immediate injury caused by the abuse was of such a disabling character as to prevent them from acquiring section 14(2) knowledge within three years after their majority. Where such disability could be established, the position, he submitted, would not be so very different from cases of insidious industrial diseases, the developing injury remaining unknown until the appearance of symptoms long after the negligence causing it. Here it could take the form of a slowly developing psychiatric injury or one remaining dormant and only becoming manifest when triggered by some later event or events such as the publicity given to the work of the Waterhouse Tribunal, consequent police enquiries of the claimant or receipt of medical advice.

Mr. Faulks seized on Mr. Owen’s challenge of the Court’s provisional view that the claims, as presented below and to the Court were largely confined to long-term psychiatric injury. He said that Mr. Owen’s correction of the Court’s understanding amounted to a concession as to the indivisibility of damage in these cases, that is, that the claimants’ section 14(2) knowledge on leaving Bryn Alyn of the physical injury they had suffered there served also as knowledge of the psychiatric injury diagnosed long after which triggered their claims. He submitted that it was not, therefore, open to the Court to divide the injuries so as to provide a basis for finding in any individual case a later date of knowledge.

Mr. Faulks also drew on the notion of indivisibility of physical and mental injury in cases such as this. He referred to an increasing disinclination of the courts to distinguish in legal terms between physical and mental injury, citing by way of example: Page v. Smith [1996] AC 155 (as to the test in personal injury claims of foreseeability of personal injury to the plaintiff). He added, by way of commonplace illustration, that in many, if not most, personal injury cases there is both a physical and a mental element and that the full extent of either element may take time to develop and manifest itself. He said that, where that happens the deterioration does not amount to a different injury because it becomes of greater significance with time, a point that, he maintained, the Judge had in mind in paragraph 30 of his judgment in observing that a claimant’s “realisation of the extent of the injury may grow with time, as may the injury itself”. He distinguished such cases from claims in cases of industrial diseases or other complex medical cases where many years may elapse before any symptoms appear.

We take Mr. Faulks’ submission to be directed to cases where a judge has correctly found early knowledge of significant physical and/or mental injury in a section 14 sense, which may or not at that stage have been accompanied by knowledge of significant mental injury giving rise in time to more serious problems. In that context it is an unfortunate, but necessary, consequence of the wording of sections 11 and 14. But Mr. Faulks’ submission does not help him if the Judge wrongly found such early knowledge in the case of any individual claimant. In that event, the later date of knowledge may save the action in respect of the earlier “insignificant” injury for this purpose of limitation as well as in respect of the injury of which the claimant later acquired the relevant knowledge. See Stubbings v. Webb, per Nolan LJ and Sir Nicholas Browne-Wilkinson V-C at 211B-D and 212B-D respectively, set out in paragraphs 42 and 43 above.

The narrow question to which the courts are confined when a section 14 issue arises is as to the knowledge of the claimant at any material time for the purpose of starting the limitation period. If, as provided by section 11, an action for negligence, nuisance or breach of duty “includes” a claim for damages for personal injury which, at the material time, he knew to be “significant” so as to bring it within the limitation period, he may proceed with that claim. He may also proceed with any other claim for damages arising out of the same cause of action – whether previous or subsequent to the injury of which he had significant knowledge, and whether or not for personal injuries. But where an action includes a claim for damages for personal injury which he did not, within the limitation period, know to be significant, that claim will be statute – barred unless the action “includes” another claim for damages for personal injuries of which he first had significant knowledge within the period. Thus, in the same action, section 14, depending on the circumstances, may preserve or bar the recoverability of damages for the later of two injuries however late the date of knowledge of it, or enable recovery for the earlier of two injuries which, but for the claim for the second, would have been statute-barred.

Thus, here, if the Judge correctly found in the case of any claimant that he or she had the requisite knowledge within three years after majority, that knowledge would operate to bar not only the claim for damages for the immediate injuries caused by the abuse, but also the long-term psychiatric injury of which he or she first acquired knowledge much later. If the Judge was wrong in that finding, the operative date of knowledge would be that of the long-term psychiatric abuse which, if within the limitation period, would enable the claim for both the earlier immediate injuries caused by the abuse and the long-term psychiatric injury. It is thus necessary to consider the case of each claimant individually against the general conclusion of the Judge at paragraph 30 of his judgment that “a young person who knows that he or she has been assaulted on a regular basis, who has been buggered, masturbated or fondled in an inappropriate way” has the relevant knowledge and that each of these claimants had it “before they left the community”.

Section 33 provides, so far as material:

“(1)

If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-

(a)

the provisions of section 11 or 12 of this Act prejudice the plaintiff or any person whom he represents; and

(b)

any decision of the court under this subsection would prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates. …..

(3)

In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a)

the length of, and the reasons for, the delay on the part of the plaintiff;

(b)

the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 ….;

(c)

the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

(d)

the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)

the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)

the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. …..

(8)

References in this section to section 11 include references to that section as extended by …. [section 14].”

The Judge’s treatment of this issue was broadly to follow the scheme of section 33(3). He dealt first with paragraph (a), the length of and reasons for the claimants’ delays. He accepted that in all the claims there was an inevitable “degree of prejudice” to the defendants and that it increased with the length of the delay, largely because of the difficulty in testing the accuracy of uncorroborated claims so long after the alleged abuse. He noted the striking similarity of the claimants’ reasons for delay, which he accepted as true and reasonable. In the cases of proved sexual abuse, it was their acute embarrassment and/or a desire to block the abuse from their minds. And, in the cases of physical abuse, it was the traumatising nature of the conduct about which they found it very difficult to talk. He expressed his conclusion under this head by saying:

“33(1)(b) … I am entirely satisfied in every case where sexual abuse has been proved that the main reason for delay on the part of the claimant has been understandable embarrassment. …

33(I)(c)... In the case of physical abuse the situation was similar. The victims were traumatised by the treatment they received, and found this very difficult to talk about. This became easier when they realised they were not alone; and when they realised they might get their day in court. In my view to deprive such claimants of a remedy when their delay has been understandable as explained would be prejudicial and unjust.”

As to paragraph (b), the effect of the delay on the cogency of the evidence, the Judge referred to the difficulty for the defendants in investigating and testing stale allegations and in finding witnesses to refute them, a difficulty aggravated by the probable destruction of a large number of relevant records in the warehouse fire in 1996. However, he found that that difficulty was to some extent mitigated in two respects. The first was the availability of the Waterhouse Report to the parties and to the court. He said about it:

“It is agreed that I am not bound by the conclusions of the Tribunal, although they are relevant for my consideration. When I consider the ability of this court to conduct a fair trial of these allegations so long after the relevant events, that ability is in my view significantly assisted by the Waterhouse report which contains the detail of so much evidence and careful investigation.”

The second mitigating factor, he said, was that there had been “no shortage of evidence” preventing him from forming a fairly detailed and clear picture of life at Bryn Alyn. He referred to the evidence of the fourteen claimants and of three (of the four) care workers, the latter, between them, covering a period from 1974 to 1994, and commented:

“33(ii)(c) … Naturally there have been differences of recollection, but these occur commonly in litigation even when the evidence is fresh, and in my view the evidence placed before me has been sufficiently cogent to enable me to deal in a satisfactory manner with the issues raised on both sides.”

The Judge added that, although John Allen and David Stanley, despite their availability, had not been called to give evidence, he doubted whether their absence had handicapped the conduct of the claims implicating them, an assessment that Mr. Edward Faulks, QC, for the Respondents, accepted.

As to the remaining paragraphs of section 33(3) the Judge found:

The Judge concluded the section 33(3) exercise with the following comments on circumstance (f) and with what also appears to be a general finding as to the exercise of his discretion:

“It is of course, for the claimants to show that it would be equitable to disapply the limitation period in any particular case and the onus on the individual claimant is a heavy one. The second defendants have had to deal with stale claims and have been handicapped by the absence of potentially relevant documents after the warehouse fire. Nonetheless they have been able to defend these claims through Leading and Junior Counsel; they have called, or required to be called, relevant evidence from people working at the community at the relevant times, and they have chosen not to call others involved. Mr. Owen QC … has been consistently critical of the fact that the second defendants have suggested to the court that the evidence of individual claimants may be unreliable or may be exaggerated without putting a direct factual challenge to the claimant in cross-examination. I am not impressed by this criticism, since in my view the second defendants have been faced by the difficulty of meeting stale claims relating to circumstances of which they themselves have no direct knowledge. They are fully entitled to put the claimants to proof. This they have done properly and fairly, but notwithstanding their efforts I have been satisfied in each case that each claimant has some proper complaints arising from abusive conduct which he or she suffered at a time of life when what was needed and expected was constructive help and advice. Instead the claimants were assaulted and abused as I have found. In my view it would be manifestly unjust now to prevent those who prove their claims to the relevant standard from benefiting from those claims because they have lacked the confidence or ability to talk to others at an earlier stage about their very unhappy and embarrassing experiences. I conclude that this injustice far outweighs the prejudice, which these second defendants have suffered through the late presentation of these claims, and I shall exercise my discretion by disapplying the provisions of section 11 in every case. …” [our emphasis]

The Judge added that, where individual points relating to this exercise of discretion arose in any particular claim he would deal with them. As we have already noted, when dealing with each claim he followed the same order of reasoning, dealing with limitation only after expressing his conclusions on liability, causation and quantum. And, in most cases when dealing with limitation, he referred only to the circumstance in paragraph (a) of section 33(3), the reasons for the claimant’s delay in making a claim.

Mr. Faulks, in support of the respondent’s cross-appeal on this issue, submitted that, if and insofar as the exercise of discretion under section 33 arises for consideration in this Court, the Judge erred in the exercise of his discretion in a number of respects. He made two general points. The first was that the Judge appears to have treated the claimants’ reasons for delay as trumping any countervailing prejudice to the defendants. The second was that, in assessing the degree of possible prejudice to the defendants, he failed to distinguish or distinguish sufficiently between the three different issues in which it arose or could have arisen, namely: 1) whether the alleged abuse had occurred; 2) whether the first defendant had been negligent in failing to prevent abuse; and 3) causation and attribution of damage. As to the specified circumstances in section 33(3), Mr. Faulks’ criticisms were as follows.

Mr. Owen put at the forefront of his submissions that, as the respondent had mainly left its challenge on the facts to its counsel’s closing submissions and had called little evidence save as to the medical issues, it is bound by the Judge’s findings as to the facts of the abuse alleged. As to the issue of negligence and the standards of the day, he relied upon details of the unchallenged evidence relating to each of the claims and its cumulative weight to justify the Judge’s findings, where he made them, that, whatever the standards of the day, the first defendant had been negligent. He also referred in this respect to: the general support that the Judge drew on this issue from the Waterhouse Report; the evidence of former care workers at the Community, Keith Evans, Peter Steen and John Jeffreys; and some documents disclosed by the respondent indicating achievable standards of which the first defendant met at different times, but which, on other evidence, were not met in the case of some claimants. Mr. Owen submitted that, against that weight of evidence, no further evidence that might have been available to and called by the respondent could have redressed the balance.

As to the Judge’s conduct of the section 33 exercise, Mr. Owen maintained that he went about it correctly, in particular, not overlooking any possible deficiencies in the evidence due to lapse of time. He defended the Judge’s heavy reliance on the claimants’ reasons for delay in seeking advice about their complaints, contending that it was a highly relevant factor against which there was no specific complaint in the respondent’s grounds of appeal. Why, he asked rhetorically, should a tortfeasor benefit from the proven consequence of his own tort? As to the cogency of the evidence, he relied on the Judge’s own assertion, in the passage from his judgment that we have set out in paragraph 62 above, of the sufficiency of the evidence before him to enable him to try the various issues fairly. He spoke of the absence of any indication from the respondent as to what documents might have been available but for the fire and if the claims had been tried earlier. He acknowledged that the Judge’s reference to the balancing exercise, when he dealt with each individual claim, was exiguous, but relied on his general treatment of the subject at the beginning of the judgment.

The discretion of a judge under section 33 is fettered only to the extent that it provides a non-exhaustive list of circumstances to which he should have regard. However, the matter is not determined simply by assessing comparative scales of hardship; Long v. Tolchard & Sons Ltd. [2001] PIQR P18, CA. The overall question is one of equity, namely, whether it would be “equitable” to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in section 33(3); Nash v. Eli Lilly & Co.[1993] 1 WLR 782, CA, and Whitfield v. North Durham Health Authority [1995] 6 Med LR 32, CA, per Waite LJ, at 39

The width of the discretion is such that an appellate court should not intervene save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible; Coad v.Cornwall and Isles of Scilly Health Authority [1997] 8 Med LR 154, CA, per Ward LJ at 159. That includes the exercise of wrong principles, taking account of irrelevant factors, ignoring relevant factors or the making of a decision that is “palpably” or “plainly” wrong. Farthing v. North East Essex Health Authority [1998] 2 Lloyds LR, Med 37, CA, and Margolis v. Imperial Tobacco Ltd. [2000] MLC 204, CA.If the Court intervenes on any of those grounds, it should treat the matter as at large and exercise its own discretion in accordance with section 33.

The Court of Appeal has not considered the application of section 33 to claims of long-standing psychiatric injury alleged to have resulted from sexual and/or physical abuse in children’s homes. Given the width of the discretion, the extent to which the Court can give general guidance on the exercise is limited. The task for a judge is particularly difficult and various in cases such as this where he has to decide whether he should attempt to determine and evaluate what happened many years before, often on little more than the uncorroborated and uncheckable assertion of a complainant. Where, as in these appeals, there is a history of pre-care abuse supplemented by a post-care lifestyle each, individually or cumulatively, capable of causing or aggravating psychiatric harm, the further difficulty of determining the fact of injury and its extent and causation is formidable. The Judge, in granting the respondent permission to appeal on this issue, did so because he regarded it as in the public interest to enable the Court of Appeal to consider what guidance it could properly give on the matter.

Claims long after the event for damages for sexual and/or physical abuse of children in homes where they have been placed in care are a relatively recent, but growing, phenomenon. Many claimants, before being taken into care, have had troubled backgrounds, including sexual and/or violent abuse, and arrive in the homes in a highly disturbed state. And, often, after leaving them, their lives deteriorate into alcohol and drug abuse and crime. The claimants who bring these appeals are typical of such case histories. Stripping away legal niceties, the question for the Judge under section 33 was whether, given the delays, he could fairly try claims that the first defendant had culpably failed to improve the claimants’ physical and/or mental condition and/or had culpably caused it to worsen.

As Mr. Faulks’ analysis in argument demonstrated, that exercise required the Judge to anticipate a variety of issues to which, if the matter were to proceed to trial, different evidence would go. The nature of the prejudice either way resulting from delay, and the equity in allowing the matter to proceed, may vary according to the issue. As we have said, the Judge here had to consider the exercise of his overall discretion in the light of three main issues: first, whether and to what extent each claimant had been abused while at Bryn Alyn; second, whether such abuse resulted from the First Respondent’s negligent failure to prevent it, an issue that required consideration of the standard of care reasonably expected at the time of the alleged abuse; and third, whether and to what extent the claimant had suffered injury attributable to that abuse.

The evidence before the Judge going variously to those issues consisted of: oral evidence of the claimants of alleged events many years before; second, sparse contemporaneous records of Bryn Alyn and some social services records that shed little light on what happened there; a limited amount of evidence from former care workers at Bryn Alyn; and medical evidence from psychiatrists and psychologists, all of whom correctly deferred to the Judge on the important issues as to what, if any, abuse had taken place and whether it could reasonably have been prevented.

We take the following to be well-established and/or uncontroversial starting points for the exercise of the discretion:

In our view, the Judge’s exercise of his discretion under section 33 was flawed in a number of respects. The extent to which such flaws affect the outcome of the claim in any individual claim depends: first, on whether the Judge correctly found the claim to have been barred under section 14 so as to engage the exercise of his discretion to disapply the limitation period under that provision at all; and second, whether, if he should have found a later date which would still have barred the claim, it would have still been equitable to exercise his discretion in favour of the claimant.

First, under sub-section (33)(a) – length of and reasons for delay - the Judge gave undue weight – almost to the exclusion of any other circumstance – to his conclusion that the claimants’ reasons for delay were a product of the alleged abuse that he had found and that, accordingly, it would be unjust to deprive them of a remedy. To the extent that they were a disabling product of that abuse, they might more appropriately call for consideration under section 14 rather than section 33. His reasoning in this respect also suffered from the flaw, to which we refer again below, of an acceptance of the validity of the claims in advance of determining the issue of limitation.

Second, in his individual treatment of the claims, he did not always discriminate sufficiently between instances of sexual and physical abuse when considering the reasonableness of the time taken by the claimants to seek advice; in the latter instances, the claimants’ arguments had far less force.

Third, he did not discriminate between claims where the delay was very long - in some cases in the region of 20 or more years from the end of the abuse – and where the delay was much less. Clearly, subject to the variables that we have discussed, the longer the delay in any particular case the less justifiable it is likely to be and the more it is likely to prejudice the defendant. In this connection, Mr. Faulks has drawn attention to the House of Lords’ decision in Donovan v. Gwentoys [1990] AC 472. There, the House held that, although section 33(3) did not expressly include delay prior to the expiry of the limitation period as one of the express circumstances to which the court was required to have regard (section 33(3)(b) referring only to the effect on cogency of evidence of delay subsequent to that period), it could nevertheless be a relevant circumstance to which the court should have regard under its general obligation under the provision to have regard to “all the circumstances of the case”. The circumstances of the case there were a claim in negligence for damages for injury caused by a slip at work when a minor, brought some five years after the alleged accident and five and half months out of time. No question of a delayed date of knowledge arose, though the bulk of the delay was taken up by minority. The claimant had only notified her employer shortly before the issue of the writ of the alleged accident, and then only inadequately. And she had an unanswerable claim against her solicitor for negligence in failing to issue the writ in time. As the speeches of Lord Griffiths and Lord Oliver, with which the other Law Lords agreed, indicated, the circumstances were such that the staleness of the claim and the availability of an alternative remedy made it inequitable to require the defendants to meet the claim. Clearly, as Lord Oliver remarked, at 479G-480B, the staleness of a claim, regardless of when the limitation period may have expired, is always likely to be a relevant circumstance. But its weight in the exercise of discretion one way or another under section 33 will depend on all the circumstances of the case of which it forms part, including the length of delay after expiry of the limitation period.

We do not consider it would accord with the broad discretion conferred on the court by section 33 and the fact-sensitive nature of the exercise to suggest some form of tariff for cases such as these. For example, we could not justify in this context a proposition similar to that of Kilner Brown J. in Buck v. English Electric Co. Limited [1977] 1 WLR 806, at 810B-C, drawing on the then pattern of decisions in cases of strike-out for want of prosecution, that where there has been a delay of five or six years there is a rebuttable presumption that the defendant will suffer prejudice. Although such a presumption might be thought to be more readily applicable in section 33 limitation cases, where the onus was on the claimant, than in strikeouts for want of prosecution, where the onus is on the defendant, it would, in our view, impermissibly cut down the wide discretion in such cases. For the same reason, we would not go so far as Mr. Faulks in his suggestion that, except where there has been “a fairly minimal period of delay”, the limitation period should not be disapplied.

Nevertheless, for the reasons we give in the following paragraphs, we consider:

As to sub-section (3)(b), the effect of delay on the cogency of the evidence, this circumstance was, as Parker LJ put it in Hartley, of “paramount importance” in its effect on the defendants’ ability to defend. The Judge paid insufficient regard to the effect on the overall cogency of the evidence in each claim of the length of delay on the full range of issues on which he had to consider. As we have said, these included, not only the fact of the abuse, but also the existence and breach of a duty of care in negligence and the attribution of cause for long-standing psychiatric conditions. The second involved as great as, or greater difficulties than, the first, given the uncertainty of standards that, on Bolam principles, could reasonably have been expected of those employed in children’s homes to guard against child abuse at the material times. The third would have been difficult enough without the delay. With it, the inherent uncertainties and nebulous nature of psychiatric or psychological complaints as an injury and its aetiology were far more difficult to resolve. It is noteworthy that that there was more prejudicial delay to the defendants in most of these claims than in the evidentially less complicated case of Dobbie v. Medway where this Court nevertheless exercised its discretion against the claimant. (see paragraph 92 below).

It should be remembered that the reason for limitation provisions is to protect defendants from the injustice of having to meet stale claims. And a judge, when considering whether to disapply under section 33, particularly where, as here, there is difficulty in testing old and unsupported complaints, should not form a concluded view on their validity for the purpose of determining the existence and extent of potential prejudice to claimants of being deprived of a remedy. Such allegations are so easy to make and so difficult to refute that the danger of injustice is acute. Here, the Judge had to bear in mind the possibility of them being fabricated or exaggerated for financial gain in the wake of publicity about Bryn Alyn and about other care homes where similar conduct had been alleged. Yet his findings, both on the substantive issues and the effect of delay on cogency were based mostly on the strength of the claimants’ evidence alone and without rigorous testing by way of cross-examination derived from instructions or contemporaneous records, or of possible contradictory evidence that might have been available if the claims and the trial had been earlier. It was, as he acknowledged in his opening remarks on the section 33 issue, an inherently difficult task, involving inevitable prejudice to the defendants in attempting to meet uncorroborated claims of this sort so long after the event. It was doubly difficult because, for one reason or another, most of the claimants were not obviously reliable witnesses.

The possible value of contemporaneous evidence, if it had been available in each case, was well illustrated in the claim of JS, the earliest one in time. In that case the respondent was able to produce a witness, Vevar, whose evidence the respondent’s counsel put to good effect to counter the most serious of her allegations. But, apart from her claim, there was little available evidence to enable the respondent effectively to challenge many of the uncorroborated allegations of the claimants. For example, there were no surviving unit logbooks or matron's logs of which Keith Evans spoke in evidence. And, as we have indicated, the respondent was severely limited in the availability of persons whom it could interview and, where appropriate, call as witnesses to refute the allegations.

It may be, as the Judge observed and Mr. Faulks accepted, that the respondent was not prejudiced in not being able to call John Allen or David Stanley, both of whom were available. But the claims against the defendants were in negligence and, whilst Allen and Stanley and their like would probably have been of little assistance in rebutting specific allegations of abuse, more might have been obtained from other former Bryn Alyn employees as to what, at times material to each claim, had been or should have been known of the abuse and what reasonably should and could have been done to prevent it. On those critical issues, the Judge had little or no direct evidence. He was driven to relying upon rumours of John Allen’s activities, rumours that the Waterhouse Tribunal had said, at paragraph 21.47, of its Report, “did not amount to a great deal” and which did not appear to have been taken seriously.

In any event, the Judge appears to have overlooked the fact that the cogency of the claimants’ evidence, to the extent that it favoured their claims, is neutral, as Parker LJ pointed out in Hartley in Birmingham City District Council (supra). He seems to have proceeded on the basis that the stronger the claimants’ case, the more the balance of prejudice favoured them.

We should also say something of the Judge’s reliance on the Waterhouse Report. As we have indicated, he said that, in assessing his ability to try fairly the claims so long after the events to which they related, he had been “significantly assisted” by its detailing of the evidence before it and careful investigation. However, as Mr. Faulks noted in his submissions, the Waterhouse Tribunal’s conclusions were not reached by applying the civil standard of proof and were, in most instances, highly general in nature, and in some instances, tentative. For example, at paragraph 21.57 of the Report, the Tribunal stated:

“Our conclusions are that (John Allen apart) sexual abuse by members of staff of the community was not rife but that it did occur to a significant and disturbing extent.”

See also paragraphs 21.44, 21.45, 21.47, 21.57, 21.73, 21.87, 21.98, 21.105 and 21.130-133

In addition, the Waterhouse Tribunal declared itself unable to make findings in relation to many allegations because of the uncertainty and/or conflict of evidence on them – its own inquiry took place long after many of the matters it was investigating. The Tribunal’s Report and the evidence before it may have been useful background material; cf. Penney, Palmer and Cannon v. East Kent Health Authority [2000] LL R, 41, CA, per Lord Woolf MR at para. 17. But the Judge should have approached its findings with considerable caution when considering the individual allegations in issue in each of these claims. Moreover, the Waterhouse Report had little or no evidential value in relation to issues of systemic negligence in the only three claims where Lister issue arose, namely MCK, JS and CD. Certainly, to the extent that the Judge relied on this material, it does not give him the support that he claimed to draw from it.

As to the sub-section (3)(c) circumstance, the conduct of the defendants after the cause of action arose, the Judge seems to have considered it in the context of possible prejudice to the defendants and to have concluded that there was none for the reasons he gave. In doing so, he appears to have misunderstood the intended relevance of this circumstance, which is the possible prejudice to a claimant from obstructive behaviour on the part of a defendant. There was no such conduct by the defendants here and, if and to the extent that prejudice to them could be a relevant consideration under this paragraph, the Judge appears to have disregarded the obvious disadvantage to them of the intervening insolvency of the first defendant.

As to the sub-section (3)(e) circumstance, the promptness and reasonableness of the claimants’ action after learning of facts, which might give them a claim against the defendants, the Judge’s finding in favour of all claimants’ calls for separate consideration in relation to each claim. Some had proceeded with speed; others took years after making statements to the police before issuing proceedings.

And as to the sub-section (3)(f) circumstance, the steps taken by the claimants to obtain medical, legal or other expert other advice, the relevant period of delay for consideration in the circumstances of these claims must be that from the date of knowledge, where appropriate extended by the claimant’s date of majority. As we have already noted, the Judge’s findings here seem to have been a mix of consideration of this circumstance and a general conclusion on the whole section 33 issue. But with regard to this circumstance, he was clearly of the view that it was reasonable for all the claimants, irrespective of the nature of abuse they claimed to have suffered or the length of their delay before coming forward, to have delayed as long as they did, before seeking advice.

Given the nature of these claims, this circumstance and that in sub-section (3)(a) overlap. Mr. Faulks’ criticism of the Judge’s reasoning in relation to it was much the same for both, namely that he appears to have decided that discretion should always be exercised in favour of the claimants, having regard to the nature of their allegations and to their understandable reluctance to come forward. As we have said, Mr. Faulks may have over-stated the approach of the Judge in this respect. But he, Mr. Faulks, rightly drew attention to the considerable difficulties for bodies such as local authorities and children’s homes in defending stale claims by persons many of whom, for whatever reason, may be highly unreliable. In such cases, as he noted, there is much danger of fabrication and/or exaggeration of evidence which long delay makes it very difficult to identify and refute.

Perhaps Mr. Faulks’ criticism would be better expressed as a reminder of the burden on the claimant, particularly in such difficult cases, to persuade a judge of the equity of disapplication, and of its increasing weight the longer the delay. The heaviness of the burden is well illustrated by the Court of Appeal’s approach in Dobbie v. Medway Health Authority. There, the claimant’s delay after the negligent medical treatment of which she complained and her date of knowledge under section 14 shortly after was about 15 years. Despite that lapse of time, most of the salient facts were not in dispute, most of the evidence was documentary and the case could have been tried without prejudice to the health authority. Nevertheless, Sir Thomas Bingham MR, with whom Beldam and Steyn LJJ agreed, said, at 1244F-G:

“I approach this aspect of the case on the basis that the plaintiff is a grievously injured woman who has suffered much and whose claim, if allowed to proceed, might prove to be very strong. But the delay in this case, after the date of actual knowledge is very lengthy indeed. The plaintiff could have taken advice and issued proceeding years before she did. Sympathetic though anyone reading these papers must be to the plaintiff, it would in my judgment (as in that of the judge) be unfair to require the health authority to face this claim arising out of events which took place so long ago.”

In our view, in the light of the Judge’s ruling that all the claims were statute-barred from an early date, the cumulative effect of the Judge’s defective reasoning in relation to the exercise of his section 33 discretion is such that it was capable of resulting in a plainly wrong decision when applied to each claim. In addition, to the extent that we conclude that claims remain statute-barred, but from a later date of knowledge than that adopted by the Judge, it is necessary in those cases to re-open the exercise of the section 33 discretion in any event. Although, as the House of Lords have indicated in Donovan v. Gwentoys, delay before, as well after, expiry of the limitation period may be relevant to the question of prejudice to a defendant, it is still for consideration in each case what weight should be given to each period of delay when considering discretionary exclusion of the time limit. Accordingly, we have decided to treat the matter as at large and to consider for ourselves in relation to each claim whether, if we conclude that it remains statute-barred, it would be equitable to disapply the bar.

As we have observed, in our conclusion on the section 14 issue, the result of all this could be that some or all of these claims could proceed as a matter of entitlement under section 14 though it would otherwise have been inequitable to disapply the limitation period under section 33. There is no anomaly in this, since section 33 is there to provide a third, but discretionary, line of protection in such cases to a claimant who has already had the benefit of his entitlement to the delay permitted by the primary limitation period and of any extension of it under section 14. It is true, of course, that the section 14 regime may enable a claimant to pursue his claim long after the primary limitation period despite the seriously prejudicial effect of the lapse of time to the defence, but that is a matter of entitlement granted in the light of a claimant’s justifiable ignorance that he has suffered a significant injury attributable to the defendant’s negligent act, not as an exceptional indulgence granted when he has lost that entitlement.

In this respect, psychiatric injury falls to be treated in the same way as a progressive industrial disease the progress of which is slow and secret over decades, only revealing itself and triggering the date of knowledge when it is well advanced, notwithstanding that prosecution of the claim causes well known difficulties for defendants. Some might say that late developing psychiatric difficulties of the sort that feature in these claims are capable of causing greater difficulties, both in identifying the section 14 threshold and in determining what, if any, further “extension” would be equitable by way of disapplication under section 33. But at present they are subject to the same regime as other forms of injury and disease. And the Law Commission, in its recent report, Limitation of Actions, Law Com No 270, has not recommended any special treatment of them (see para. 3.162). It has also specifically rejected the notion of a long-stop provision of the sort provided for latent damage not relating to personal injuries and in claims under the Consumer Protection Act 1987 (see paras. 3.102-107).

Some of these difficulties may be partly mitigated if there is legislation to implement the Law Commission’s recommendation in paragraphs 3.45-50 of its Report for the amendment of section 14 to substitute a more subjective definition of the date of knowledge. As the Law Commission observed in paragraph 3.164 of its Report, that should in turn encourage courts to confine to truly exceptional cases those in which a further “extension” is sought through the medium of disapplication under section 33:

“We have considered whether any restriction should be placed on the use of such a discretion. When the Law Reform Committee first recommended that discretion to disapply the limitation period be introduced in personal injury cases, they intended the discretion to apply only to exceptional cases. However, it has in practice become generally available. It is arguable that under the regime we recommend this will be unnecessary. The core regime will relax the definition of the date of knowledge in favour of the claimant, by incorporating a more subjective definition of constructive knowledge. In addition, the primary limitation period running from the date of knowledge will be the only limitation period applying to personal injury claims. The claimant will therefore have had three years from the date on which he or she should have discovered the relevant fact, whenever that was, to bring proceedings against the defendant. Once the time limit has expired, it should only be in the most exceptional cases that the court will be justified in allowing a claimant a more generous time period within which to bring a claim.”

In the light of the House of Lords’ ruling in Lister v. Hesley Hall Limited [2001] 2 WLR 1311, the first defendant would in the circumstances of these claims be vicariously liable for “the torts”, whether deliberate or negligent, of persons whom it had employed to care for the claimants. In certain of the claims, those of MCK, JS and CD, there is, however, an issue as to what torts were committed by those persons. The claimants assert that all their causes of action are “for damages for negligence, nuisance or breach of duty … where the damages claimed … consist of or include damages in respect of personal injuries” within section 11 of the 1980 Act. That is important to them because it is only if the causes of action are within section 11 that there may be postponement of the period of limitation by reference to the date of knowledge as defined in section 14. Also, it is only in respect of such actions that section 33 may entitle the court to disapply the limitation period.

On the authority of Stubbings v. Webb (where vicarious responsibility was not in issue, but limitation was) and also of Lister (where vicarious responsibility was in issue and limitation was not), the respondent contends that, in so far as the claimants rely on deliberate acts of abuse by certain Bryn Alyn employees, their claims are not within section 11. Accordingly, they maintain that the appropriate period of limitation in such claims is six years, one that is neither postponeable under section 14 nor capable of disapplication under section 33. The Judge upheld that contention in the three claims in respect of which the issue arose. In the case of MCK he held that, since the conduct of John Allen of which she complained was deliberate and there was no negligence by any other member of staff in failing to prevent it, her action must fail. In the case of JS and CD, by a similar process of reasoning, he held that parts of their respective claims were statute-barred. However, in JS’s case, as we have said, it seems to have been overlooked that she had brought her action within six years of the abuse, the general period for actions in tort permitted by section 2 of the 1980 Act.

The House of Lords did not decide in Stubbings v. Webb that deliberate assault was not capable of amounting to negligence, nuisance or breach of duty causing personal injury. It did not need to do so because the factual allegations in that case were confined to deliberate conduct and, as we have said, no question of vicarious responsibility arose. However, it is significant that the House disapproved Diplock LJ’s suggestion in Letang v. Cooper {1965] 1 QB 232, CA, that the words “breach of duty” in section 11 could include trespass to the person. Lord Griffiths, with whom the other Law Lords agreed, held, at 506H-507A, that Parliament had intended to limit section 2(1) of the Law Reform (Limitation of Actions etc.) Act 1954, the statutory predecessor of section 11, to actions for personal injury arising from accidents caused by negligence but not from deliberate conduct such as rape or indecent assault. As an aid to construction, he relied on the Report of the Tucker Committee (Cmd. 7740) together with certain extracts from Hansard, and said, at 508A-D:

“Even without reference to Hansard I should not myself have construed breach of duty as including a deliberate assault. The phrase lying in juxtaposition with negligence and nuisance carries with it the implication of a breach of duty of care not to cause personal injury, rather than an obligation not to infringe any legal right of another person. If I invite a lady to my house one would naturally think of a duty to take care that the house is safe but would one really be thinking of a duty not to rape her? But, however this may be, the terms in which this Bill was introduced to my mind make it clear beyond peradventure that the intention was to give effect to the Tucker recommendation that the limitation period in respect of trespass to the person was not to be reduced to three years but should remain at six years. The language of section 2(1) of the Act of 1954 is in my view apt to give effect to that intention, and cases of deliberate assault such as we are concerned with in this case are not actions for breach of duty within section 2(1) of the Act of 1954.”

Seymour v. Williams [1995] PIQR 470,CA, though concerned with different conduct by two defendants giving rise to the same personal injury, is a logical application of that reasoning. There, the plaintiff issued proceedings against her father and mother, alleging physical and sexual abuse against her father and want of parental care against her mother. The Court of Appeal ruled that the claim against the father, described by Russell LJ as “plainly a claim alleging trespass to the person”, was governed by the six years period of limitation and out of time, but that the claim against the mother, as a claim in negligence, was within section 11 and thus capable of disapplication under section 33. Two members of the Court, Millett LJ and Sir Ralph Gibson, referred to the anomaly of there being different periods of limitation as between a perpetrator of abuse and someone negligent in not preventing it and of the potential extension of the limitation period for the latter instead of, as the Tucker Committee had intended, a reduction of the period in such cases. They invited the Law Commission to consider the anomaly. It has done so, recommending that claims for personal injuries, including those of child abuse, whether in trespass to the person or in negligence, should be subject to the same core regime of an extendable three years limitation period with discretion to disapply; see Law Com 270, paras. 1.5, 3.156, 3.162, 3.169 and Appendix A, Draft Limitation Bill, cls. 1, 2, 12 and 38. 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.

Despite the House of Lords’ rejection in Stubbings v. Webb of the proposition that deliberate conduct could give rise to an action for personal injuries within section 11, Diplock LJ’s central reasoning in Letang v. Cooper that a cause of injury is not a pleader’s label, but simply an allegation of a factual situation the existence of which entitles a person to a remedy, still deserves attention. Thus, it is necessary, when an issue of limitation arises, to consider whether the factual situation alleged fits the section 11 criteria, whether or not it also fits other criteria entitling the bringing of an action. If the alleged factual situation does fit the section 11 criteria, the fact that it may also be characterised as another form of tort, say trespass to the person, does not exclude the shorter, but extendable, limitation in section 11 for breach of duty causing personal injury. For example, in Morris v. C.W. Martin & Sons Limited [1966] 1 QB 716, CA, Salmon LJ considered that an allegation of conversion might overlap with negligence.

Where there is an issue of limitation, the critical question is whether the factual situation alleged is capable of falling within the section 11 criteria at all, a question that the Court of Appeal in Morris v. Martin and the House of Lords in Lister v. Hesley Hall did not need to, and did not, consider. If, as in both those cases, and as the Judge held in the three claims in question here, there is no independent case in negligence against an employer, he may yet be vicariously responsible for some tortious act that is not in itself negligent. That is plain from the speeches in Lister v. Hesley Hall, including the differing approaches of Lord Hobhouse and Lord Millett.

The 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? On the face of it, the position of an abusive carer should be no different from that of an abusive parent or other relative, as in Stubbings v, Webb and Seymour v.Williams. The point could have been, but was not, taken in both those cases that the allegation of deliberate abuse also amounted to one of a breach of a duty of care so as to bring the matter within section 11. However, it is plain from the reasoning in both that, had the point arisen, it would have been most unlikely to succeed.

As we have said, the point of limitation did not arise in Lister v. Hesley Hall and it was thus unnecessary for their Lordships to examine closely the nature of the tort in respect of which vicarious responsibility was in issue. And as vicarious responsibility is, as Lord Steyn put it, at 1316F, “a legal responsibility imposed on an employer, although he is himself free from blame”, the legal nature of an employee’s tort does not depend on any contribution to it by the employer. Their Lordships’ concern was with the closeness of the connection between the employee’s wrongful acts, however characterised as a matter of law, with his job so as to bring his acts within the scope of his employment. More particularly, the House was concerned with the issue of vicarious responsibility for intentional wrongdoing. Thus, Lord Steyn, with whom Lord Hutton agreed, confined himself to the view, at 1320C-D, that the employer was liable for the “torts” of the employee without further analysis of what the torts were. Lord Clyde said nothing as to the nature of the tort committed by the employee. Lords Hobhouse and Millett both considered the nature of the tort in respect of which vicarious responsibility was sought, but took different routes to holding that such responsibility was established in respect of a deliberate, i.e. non-negligent act.

However, Lord Hobhouse, in the following passage, at 1332B-E, through the concept of an employer “entrusting” his duty of care to an employee to protect children in its charge from abuse, appears to have included in that duty his employee’s quite separate and general duty as a citizen not to abuse children, breach of which, if closely connected with his employment, also engages his employer’s vicarious responsibility:

“54.

…The fact that sexual abuse was involved does not distinguish this case from any other involving the care of the young and vulnerable and the duty to protect them from the risk of harm.

55 The classes of persons or institutions that are in this type of special relationship to another human being include schools, prisons, hospitals and even, in relation to their visitors, occupiers of land. They are liable if they themselves fail to perform the duty which they consequently owe. If they entrust the performance of that duty to an employee and that employee fails to perform the duty, they are still liable. The employee, because he has, through his obligations to his employers, adopted the same relationship towards and come under the same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty. The liability of the employers is a vicarious liability because the actual breach of duty is that of the employee. The employee is a tortfeasor. The employers are liable for the employee’s tortious act or omission because it is to him that the employers have entrusted the performance of their duty. The employer’s liability to the plaintiff is also that of a tortfeasor. I use the word “entrusted” in preference to the word “delegated” which is commonly, but perhaps less accurately, used. Vicarious liability is sometimes described as a “strict” liability. The use of the term is misleading unless it is used just to explain that there been no actual fault on the part of the employers. The liability of the employers derives from their voluntary assumption of the relationship towards the plaintiff and the duties that arise from that relationship and their choosing to entrust the performance of those duties to their servant. …”.

Lord Millett, in the following passages at 1343A-F, clearly distinguished between an employee’s deliberate wrong sufficiently closely connected with his employment to engage his employer’s vicarious responsibility and an employee’s delegated or “entrusted” duty of care:

“82 … The school was responsible for the care and welfare of the boys. It entrusted that responsibility to the warden. He was employed to discharge the school’s responsibility to the boys. For this purpose the school entrusted them to his care. He did not merely take advantage of the opportunity which employment at a residential school gave him. He abused the special position in which the school had placed him to enable it to discharge its own responsibilities, with the result that the assaults were committed by the very employee to whom the school had entrusted the care of the boys. It is not necessary to conduct the detailed discussion of the warden’s duties of the kind on which the Supreme Court of Canada embarked in Bazeley v. Curry 174 DLR (4^th) 45 and Jacobi v. Griffiths 174 DLR (4^th) 71. …

…..

84 I would hold the school vicariously liable for the warden’s intentional assaults, not (as was suggested in argument) for his failure to perform his duty to take care of the boys. That is an artificial approach based on a misreading of Morris v. CW Martin & Sons Ltd. The cleaners [in that case] were vicariously liable for their employee’s conversion of the fur, not for his negligence in failing to look after it. Similarly, in Photo Production Ltd v. Securicor Transport Ltd the security firm was vicariously liable for the patrolman’s arson, not for his negligence. The law is mature enough to hold an employer vicariously liable for deliberate, criminal wrongdoing on the part of an employee without indulging in sophistry of this kind”

Before expressing our conclusion as to where Lister leaves us on the issue whether section 11 applies to vicarious responsibility for deliberate abusive conduct as distinct from an employee’s delegated or “entrusted” duty of care to prevent such abuse, we should note that Lord Steyn specifically left open, at 1323E-F, the question in a case of sexual abuse whether it might constitute a claim for personal injuries within section 11:

“29.

Having concluded that vicarious liability has been established on the appellants’ primary case, it is not necessary to express a view on the alternative argument based on the employee’s alleged breach of a duty to report his sexual intentions or the consequences of his misdeeds. Nevertheless, this line of argument may require further consideration. For example, if the employee was aware of a physical injury sustained by a boy as a result of his conduct, it might be said to be part of his duties to report the fact to his employers. If that is so, why should the same not be true of psychological damage caused by his sexual abuse of a boy? In the present case those issues do not need to be decided. Possibly they could arise in other cases, e.g. where otherwise a limitation issue may arise. I express no view on this aspect. ”

It is difficult to conceive in what circumstances, outside the limitation issue here in play, it would be both possible and necessary to deploy such an alternative argument. It could only arise in respect of a tortfeasor’s own wrongdoing, in respect of which his employer would be vicariously responsible regardless of any supposed additional duty to report. And to seek to rely on it, presumably just to overcome a limitation problem would, as Lord Clyde said, at 1324C, “seems to be a somewhat artificial basis for the claim”. It would also run contrary to the firm and unanimous reasoning of the House in Stubbings v. Webb. And, as Lord Millett observed in Lister at 1343 F-G:

“I would also not base liability on the warden’s failure to report his own wrongdoing to his employer, an approach which I regard as both artificial and unrealistic. Even if such a duty did exist, on which I prefer to express no opinion, I am inclined to think that it would be a duty owed exclusively to the employer and not a duty for breach of which the employer could be vicariously liable. …”

In our view, the correct approach is as Lord Millet has expressed it. Whether or not section 11 is in play, it is to identify the wrongful act, deliberate or otherwise, in respect of which vicarious responsibility is claimed and to assess the closeness of its connection to the employment in question. If the act is sufficiently closely connected with the employment, there is vicarious responsibility. In such circumstance, and bearing in mind Lord Griffiths’ reasoning in Stubbings v. Webb (see paragraph 99 above), there is no justification or need, for the purpose of establishing vicarious responsibility, to elide the duty in respect of which the employee’s deliberate act is a breach with a duty of care delegated or “entrusted” to him by the employer. The two are quite distinct. Where section 11 is under consideration, it follows that claims for personal injuries in respect of deliberate conduct, whether considered in the context of vicarious responsibility or not, are not caught by its provisions. Accordingly, in the absence of some provable allegation of systemic negligence of the first defendant, we are of the view that its employees’ deliberate abuse does not fall within section 11 and is, therefore, governed by a non-extendable six years period of limitation rather than an extendable three years period. We would accordingly uphold the Judge’s finding and ruling to that effect in the case of MCK, JS and CD.

Before turning to the individual cases we should make some general points as to the three headings of damages claimed and in issue, namely: general damages for pain, suffering and loss of amenity; loss of earnings and cost of therapy.

Each of the claimants has appealed the award of damages under this head.

All the cases have features in common. In particular, Connell J identified the following at paragraphs 14 and 15 of the judgment.

(i)

the claimants were all children when the abuse occurred;

(ii)

they were very needy children when placed in the care of the first defendant;

(iii)

they were let down badly and their trust was betrayed by individual staff members and also by the child care system operated in the Bryn Alyn Community;

(iv)

the abuse lasted for different periods, but in every case for a significant part of what should have been a special time in the life of the claimants;

(v)

the impact of the abuse has had a long-term effect in every case; and

(vi)

with the possible exception of KR (the one appellant who did not pursue his appeal against quantum), all the appellants had suffered abuse to a greater or lesser extent before entering Bryn Alyn.

All the appellants’ pleaded claims were primarily for damages for long-term psychiatric and/or psychological injury, sometimes characterised as post-traumatic stress disorder, and particularised by reference to psychiatric and/or psychological reports. Those reports in the main dealt with the actual abuse simply as part of the narrative giving rise to the long-term psychiatric damage alleged. There was little, if any, focus in the evidence of the claimants on any immediate short-term effects of the physical or sexual abuse suffered while they were at Bryn Alyn. On the contrary, as the Judge indicated in paragraph 28 of this judgment, Mr. Owen argued that none of the claimants had known that any injuries suffered while at Bryn Alyn were “significant” for the purpose of section 14. There was a similar lack of attention to the immediate effect of the abuse in the initial arguments before this Court. The appellants’ main concern was recovery of adequate damages for the psychiatric or psychological effect on their adult lives and, where applicable, for loss of past and future earnings and cost of therapy. However, as we have said, on the resumed hearing of the appeal Mr. Owen insisted, and without demur from Mr. Faulks, that the claims had throughout included an element for the abuse itself and its immediate effects. He maintained that neither the Judge’s nor our initial awards took account of that element, a failure which, for our part, we acknowledge for the reasons we have given. There is no doubt that awards in cases such as this should take account of the nature, severity and duration of the abuse itself and of its immediate effects, as well as of any long-term psychiatric harm that it may have caused, even though the latter may be the primary motivating and much the more serious injury giving rise to the claim. As Buxton LJ observed in C v. Flintshire County Council, [2001] EWCA Civ 302; [2001] PIQR Q9, at para. 69, where there had been a similar concentration in argument on psychiatric injury at the expense of the actual abuse and its immediate effects, “[f]urther compensation is due for the events themselves”. This is a matter to which we have had regard in reviewing the adequacy of our initial awards.

The Judge looked at the contribution that the Bryn Alyn experience had made to each of the claimant’s long-term psychiatric problems. That involved an exercise in apportionment. This is how he put it at paragraph 15:

“With the possible exception of KR, they had all been through a traumatic series of damaging experiences before being placed in the care of the defendants. Even if the care offered to them there had been all that it should have been, it is doubtful that any of them would have escaped significant difficulties in coping on a day to day basis with adult life. The emphasis varies from case to case but in no case have I felt that it would be doing justice to the defendants to condemn them for the whole of the psychiatric injury suffered to date by any claimant. In several of the cases the evidence drove me to the conclusion that the damage caused by the first defendants formed a significant but small part of the total injury described by the relevant doctors, leading to small awards. In other cases their treatment at Bryn Alyn was the cause of more substantial damage. Hence the variation in quantum from case to case.”

It is clear from that passage, if nowhere else, that the Judge appreciated that the comparison to be made was between how the individual actually turned out and how he or she would have turned out had Bryn Alyn offered a proper standard of care.

Elsewhere in his judgment Connell J stated his intention of following the broad brush approach adopted by Scott Baker J (as he then was) in an earlier tranche of similar cases, approved by this Court in C v. Flintshire County Council. Having referred to a passage in the judgment of Mustill J (as he then was) in Thompson v. Smith Ship Repairers Ltd (1984) 1QB 405, at 443, Scott Baker J stated:

“While I am able to make findings on the issue of causation, there are echoes of the words of Mustill J in Thompson in that there is an impossibility of making a precise apportionment between what the defendant’s negligence has caused and what has been caused by other factors. Inevitably I have taken a broad view and done my best to reach a fair conclusion on the whole of the evidence. It is very much a matter of feel.”

Mr Owen’s first, if somewhat tentative, submission was that the exercise in apportionment should never have been attempted. Here, so it went, in many if not in all cases it is quite impossible to disentangle the various causes that have gone to make up the eventual psychiatric injury. In such a case, it was argued, any identifiable tortfeasor whose wrongdoing has made a significant contribution to the injury may be held responsible for the whole of the damages. In rejecting that submission we take as our starting point paragraph 4-101 of the 18^th edition of Clerk and Lindsell on Torts:

“Where damage is caused as the result of torts committed by two or more tortfeasors, the tortfeasors may be (1) joint tortfeasors, (2) several tortfeasors causing the same damage or (3) several tortfeasors causing different damage. If one of a number of joint tortfeasors, or of several tortfeasors causing the same damage, is sued alone, he is liable for the whole damage, though he did but a small part of it. In the case of several tortfeasors causing different damage, on the other hand, each is liable only for the damage which he has caused.”

Our finishing point is to be found in paragraph 36 of the Judgment of this Court in Sutherland v. Hatton [2002] EWCA Civ 76, which in its material part reads as follows:

“Many stress – related illnesses are likely to have a complex aetiology with several different causes. In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible:”

Mr Owen’s second submission was that, if an apportioned award was appropriate, the approach should have been in accordance with principle and the conclusion supported by reasons. He cited Allen v. British Rail Engineering Ltd [2001] PIQR Q10, CA, at paragraph 20 of the judgment of the Court for the following:

“In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages: (i) The employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to the employee’s disability. (ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the complainant complains; for instance where a passenger is killed as a result of a head on collision between two cars each of which was negligently driven and in one of which he was sitting. (iii) However in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability. (iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct. (v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.”

We, of course, accept those statements of principle and will look to see how they were applied, if at all, in the individual cases. We note also that the fourth statement of principle was picked up by Buxton LJ in C v. Flintshire County Council at paragraph 67 where he said:

“… this is a case where the usual process of attributing responsibility between various causes to a large extent breaks down, because the initial cause of Miss C’s vulnerability is the context in which the defendants have to take particular care. If they did not take that care, in circumstances where it was known and foreseeable what could be the outcome of abuse by persons of trust and in positions of responsibility, then they cannot complain if less weight than otherwise might be the case is given to that original cause. Those considerations therefore entitle – indeed oblige – the judge not to weigh too nicely arguments based on the respective causal effect of the various facts in the history.”

Having said that, it does not escape our notice that Allen’s case does not assist Mr Owen in his first submission and in its result appears to support the broad-brush approach adopted by the Judge. At paragraph 31, referring to the appellant’s attack on the judgment, the Court said:

“Part of that attack consisted in pointing out the difficulties inherent in doing the apportionment exercise which the judge undertook. We accept that there are difficulties but it is important to recognise that the judge was faced with a choice between awarding nothing to the claimant because he had not proved the precise amount of damage attributable to the negligence, doing her best to find out how much of the damage was attributable to the negligence while accepting that the exercise was not perfect and might err at the margins, or holding the defendant liable for the consequences of actions which were not negligent. The first and last of these courses certainly involved substantial injustice to one party or the other. The middle course, which she took, involved a risk to both parties of a minor injustice. We consider she was right to choose the middle course.”

Nonetheless, we accept that it is the duty of a judge, so far as possible, to adopt a principled and logical approach to the difficult question of apportionment. Here it will be necessary to consider how far Connell J did so when we come to look at the individual cases. We note, however, that in accordance with the practice of many judges, including Scott Baker J, the Judge eschewed percentages, or at least resisted the temptation to refer to them in terms. That is not something that we criticise provided always that he had gone through the mental exercise of arriving at a global figure before assessing the proportion for which the first defendant was responsible. We have asked ourselves whether there is any objection to the ‘workings out’ being disclosed. We can think of none and would suggest that the better practice would be for judges to show the steps by which the result, however approximate, has been achieved. To this extent we disagree with the sentiment sometimes expressed that the assessment of compensatory damages is a jury question.

A wrongdoer must take his victim as he finds him. To abuse an already damaged individual may have the result of pushing him over the brink. The possible exponential effect of abuse on children who have already suffered psychiatric damage by reason of previous experiences had been noted by Ward LJ at paragraph 54 of his judgment in C v. Flintshire County Council. That Connell J was alive to the point is apparent from his observations at paragraph 14 of his judgment where he stated:

“I also bear in mind the judgment of Ward LJ in C v. Flintshire v. CC and in particular the whole of paragraph 54, which includes the observation, “the essential element of the damage is the extent to which the injury compounds and multiplies the effect of the pre-existing condition.”

Again when we come to the individual cases it will be necessary to see how far, if at all, he followed his own instruction.

In arriving at a figure for general damages in each case the Judge took into account Judicial Studies Board (JSB) guidelines, assessments made by Potts J in a not dissimilar case and the award upheld by this court in C v. Flintshire County Council. We agree that all three provide useful pointers to the level of general damages in this class of case. So too does the award made by Connell J in the case of KR as an indication of what the judge considered to be appropriate without having to consider any pre-existing disability.

The JSB Guidelines (6^th edition) suggest that in cases of moderately severe psychiatric damage the range for pain, suffering and loss of amenity lies somewhere between £9,500 and £25,000 with most awards coming within the bracket £15,000 to £20,000. For severe post-traumatic stress disorder with long term sequelae the range starts at £30,000 and reaches £50,000, with somewhat lower awards where there is a reasonably optimistic prognosis.

In C v. Flintshire County Council Ward LJ questioned the value of these guidelines in cases of long term child abuse for reasons that he set out at paragraph 54. We quite agree that the guidelines do not directly address the kind of problems that confronted the judge in the case of C or in the instant cases and are certainly not capable of rigid application. Nevertheless, we do consider that they provide some sort of signpost to the general level of damages that a judge ought to be considering in a case of this kind.

In B and Others v. Leicestershire County Council (unreported 2^nd April 1996) Potts J had first of all to tackle the difficult question of assessing general damages in the case of a woman who as a teenager had suffered serious psychiatric damage as a result of having been abused during a two year spell in a children’s home. He rejected evidence that the main contributor to her eventual condition had been ill-treatment suffered whilst still with her family and concluded that she had left the children’s home

“with a damaged identity, extremely poor self-esteem and serious difficulties in emotional control. These consequences of her treatment have continued to the present day and will last into the future.”

In another of the claims in that case,JL, Potts J awarded £80,000 to a woman who had been raped, buggered and assaulted whilst at Ratcliffe Road after directing himself in the following terms:

“Over a period of some three years she was subject to many rapes, one act of buggery and substantial physical, emotional and mental abuse. She was subject to forced regression. Damages must compensate her for this pain and suffering together with the consequential psychiatric harm which she suffered and will continue to suffer in the future.”

In that case also there had been some question as to the contribution made by the previous ill treatment, but the judge was satisfied that the major cause was that described. There is no doubt that the psychiatric harm suffered was very significant, including as it did post-traumatic stress disorder. Moreover the judge seems to have been much influenced by the fact that in Griffiths v. Williams (unreported) 21^st November 1995, CA, this Court declined to interfere with an award of £50,000 by way of compensation for a single act of rape. In neither B nor JL did the Leicestershire County Council appeal. Nevertheless, these were awards of damages made by a judge with vast experience in the field and his views are entitled to considerable respect.

C v. Flintshire County Council is closer to home. As we have remarked, it was an appeal from an award of damages made by Scott Baker J in a related tranche of cases. C had been taken into care at the age of 14. At the first home to which she was sent she was badly bullied by other girls who tied her to a bed, shaved off her eyebrows and poured cold water over her. On another occasion she was threatened with and cut by a Stanley knife. At her next home she was seriously assaulted by the deputy superintendent in front of other members of staff. On a later occasion she was indecently assaulted. In the result, as Scott Baker J found, she lost her trust in people “especially those with whom she had any kind of close relationship”. With regard to the impact of the abuse Scott Baker J said:

“Without putting the finding into percentage terms ... I think the ill-treatment at CH and more particularly, at B has had a significant effect on Miss C’s later life and employment prospects. But other matters also played their part: the writing was already on the wall when she went into care and there were likely to be ongoing problems. She was drinking, staying out late and leading what looked like becoming and later did become a promiscuous life.

She requires compensation for the events that happened in CH and B...not least the use of secure accommodation and the indecent assault by H. Additionally she requires compensation for the contribution it has made to her unhappy life after she left and went out into the world. I do not accept that the effect of the abuse had run its course by the time she had left drama school. Its impact continued to be considerable right up until she had and took the opportunity of therapy following an approach by the Waterhouse Enquiry. She is a great deal better now, but still vulnerable to relapse if for example she faces some unexpected crisis in her life. The prognosis is optimistic but guarded. She has, as Mr Owen has pointed out, suffered both trauma and sexual abuse. I assess the figure for pain, suffering and loss of amenity at £35,000.”

This Court rejected the attack made on the award. In the course of his judgment at paragraph 57 Ward LJ said:

“To award her £35,000 for the significant part that abuse played in twenty years suffering which still leaves her vulnerable to relapse in the years to come, seems to me to be a perfectly proper award. I am wholly satisfied that it is beyond criticism because the judge was, as is conceded, entitled to approach this case with a broad brush, as a jury question, and very much as a matter of feel. Viewed in that light I conclude that it is impossible to say that he was wrong, still less that he was plainly wrong.”

Buxton LJ agreed, stating at paragraph 71:

“Putting all those factors together, it is, in my view impossible to say that the judge was so far wrong in his assessment of the level of the general damages owed by the defendants for all these events that this court should interfere.”

It is worthy of note that both Ward and Buxton LJJ used language suggesting that they considered the award to be at the upper end of the appropriate bracket.

In the claim of Rowlands in this case Connell J awarded £35,000, about which we shall have more to say at a later stage in this judgment.

After leaving Bryn Alyn some of these claimants have turned to a life of crime. That was said to be a consequence of the psychiatric problems encountered as a result of the abuse, but none of the claimants relying on it had evidence on which the Judge could so find. Relying upon a decision of this Court in Clunis v. Camden and Islington Health Authority (1998) 2WLR 902 and following the approach of Scott Baker J in the earlier case, Connell J said at paragraph 11 of his judgment:

“As a matter of public policy the court will not lend its aid to a litigant who relies on his own criminal or immoral act, and I make no award to compensate any claimant in respect of any period of imprisonment or any loss of earnings during such a period. Further in no case has it been proved that any criminal conviction of any claimant was attributable to abuse suffered in the Bryn Alyn Community.”

Notwithstanding anything said by this Court in Clunis an argument may survive that damages are recoverable in respect of tortious acts that have resulted in a law-abiding citizen becoming a criminal. However, there is no appeal with regard to this aspect of the claims either in respect of general damages or under the next head of claim to which we now turn, namely loss of earnings.

In many, but not all, of these cases there is a claim for loss of earnings somewhat loosely referred to in argument as a Smith v. Manchester Corporation award.

The Judge’s approach is set out at paragraph 12 of his judgment.

“Many of the claimants have alleged a loss of earnings in the past and/or a handicap on the labour market in the future which they attribute to the abuse suffered whilst in the Bryn Alyn Community. In a few cases this has led to a detailed claim for loss of earnings (e.g. KR and PS) and their claims are dealt with in the individual Judgments. In the other cases the claims both for past and future loss of earnings are advanced in generalised form without significant detail or particularity. Again I adopt Scott Baker J’s approach. If a claimant proves on the balance of probability that pre trial he has earned less money than he would have earned if he had not been abused whilst in care of the first defendant; then I have made an award in a round sum to reflect this fact; adopting the broad brush approach approved by the Court of Appeal at paragraph 58 of the Judgment of Ward LJ in the case of Amanda Coxon and Flintshire County Council …. In the case of future loss of earnings I too have applied the conventional Smith –and-Manchester Corporation approach.”

We have no quarrel with the Judge’s declared approach but it is necessary to consider whether he applied it in each case. We note, however, that it does not follow that apportionment of loss of earnings must necessarily mirror that in relation to general damages. In this context the ‘push over the edge’ or cumulative effect of the Bryn Alyn abuse may have made the difference between a claimant being able to work and not being able to work.

Again in most, but not all, cases there is a claim for the cost of treatment. Connell J set out his proposed approach at paragraph 13 of the judgment:

“The need for therapy in each case has been considered by the doctors; and there are few disagreements. In general such need as is proved is a consequence of the claimant’s life experiences to date, and not just to abuse at Bryn Alyn. Where the evidence shows this to be the case, I have attempted to strike a fair balance and not to penalise the first defendants for the whole of the anticipated cost of such therapy.”

We consider that this may be somewhat simplistic. The beneficial effects of therapy serve to reduce the respondent’s liability in respect of what would otherwise be continuing symptoms. There is no suggestion that the additional symptoms produced by the abuse at Bryn Alyn can be treated independently from those with a separate cause. It follows that the individual claimant must undergo the whole course of treatment or pass it up altogether. On the Judge’s approach, some part of the treatment would have to be funded by the claimant himself, and that to achieve a result that would benefit the defendant. In our view, once it is established that the Bryn Alyn experience played a significant part in the need for therapy, the whole of the anticipated cost should be recoverable from the defendant unless it can be clearly shown that the treatment is divisible.

We now turn to the individual cases.

This claimant does not appeal any part of the award of damages. But, as in the case of the other claims, he now appeals the Judge’s ruling that his claim was statute barred because he had the requisite knowledge under section 14 when he left Bryn Alyn. And the respondent cross-appeals the Judge’s exercise of discretion under section 33 to disapply the limitation period. And, as we have mentioned, his case provides a useful indicator of the Judge’s overall approach on quantum. He received £35,000 by way of general damages, £10,000 for loss of earnings past and future (to include any handicap in the labour market), and £2,000 towards the cost of psychiatric treatment. There is little help to be derived from the awards for loss of earnings and therapy. But it seems to us that, being unapportioned, the award for general damages must have served the Judge as a benchmark or guide in all the other cases. For that reason it may help to see how, in this instance, he approached the relatively straightforward task of assessing general damages.

In this claim, as in all the others, we have read the Composite Individual Appeal Bundle which includes the relevant extracts from Connell J’s judgment, the pleadings, any witness statements, the psychiatric reports on both sides, transcripts of evidence, closing submissions and skeleton arguments. Having done so we are satisfied that the Judge’s summary of the case and review of the evidence were sufficiently detailed and fair. Our own will be somewhat shorter.

KR was just under 15 years of age when taken into care and placed with the Bryn Alyn Community. That was in July 1973. He remained at Bryn Alyn until August 1975. Up to the making of the care order he had enjoyed a reasonably stable and happy home background. He was not without ability and, at the age of 11, had passed his eleven plus which would have entitled him to attend the local grammar school. Sadly, his parents could not afford the fees. At the alternative school he fell in with a bad crowd of young people and got into trouble. Hence his appearance before the Chester Juvenile Court.

As the Judge found, KR was sexually assaulted by John Allen during his time at Bryn Alyn and physically abused by other members of staff. He was visited during the night by John Allen who attempted to bugger him. He was able to resist. John Allen made a number of other attempts and reinforced his demands with bribes and physical violence. The Judge found that the abuse came about because the staff were used to hitting the children and did not see fit to look into what John Allen was doing despite the existence of clear warning signs.

The Judge went on to find that the abuse resulted in very significant damage. At paragraph 41 of his judgement, he summarised the evidence of Drs Holloway and Halstead as follows:

“… I have read the various reports from these doctors and have oral evidence from each of them. Their conclusions are the same and they are set out in a joint statement dated 27^th February 2001. In summary they agree that Mr KR suffers from a mental illness, namely post traumatic stress disorder, which was caused by his experiences in care within the Bryn Alyn Community. They agree that Mr Rowlands has adjusted to some extent to this disorder, but he continues to have significant symptoms and the disorder has affected and continues to affect his relationships with other people, his choices of employment and his mental state. They agree that the appropriate treatment for this illness is a combination of anti-depressant medication and psychotherapeutic intervention by way of cognitive therapy. There are risks that such intervention might worsen the claimant’s symptoms, but both agree that it is worthwhile as it is likely to help the claimant cope with his disorder in a practical fashion.”

We deal first with the issues on limitation. As to section 14, the Judge included KR in his general ruling that all the claimants had had the relevant knowledge before they left Bryn Alyn. In his case that ruling, if correct, meant that he had had the relevant knowledge by about 1975 when he was aged about 17 and that the three years period began to run from his majority in September 1976. His issue of proceedings in September 1999, at the age of 41, was thus about 24 years after the last of the abuse and 20 years after the expiry of the extended limitation period.

KR gave no evidence as to his date of knowledge, other than to acknowledge in cross-examination that he had known what had happened to him had been wrong, and that the physical abuse, in the form of hitting, had caused him some physical harm in the form of bruising. He made plain that, as to the sexual abuse, there had been no penetration or identifiable physical injury. He mentioned that, much later in 1993, he had sought his social security records, but made clear that he had not by then considered the possible impact on him of the abuse, that is, of the insidious development of long-term psychiatric injury. The Judge’s nearest reference to the issue in his individual treatment of the claim was that “[he had] known of the personal injury suffered since 1975 (although not the full extent of it)” and that it was not until July 1999 when he saw Dr. Holloway that he was able to talk about the abuse and only then that he realised the full impact of it on him. We say “nearest reference” to these section 14 factors because the Judge made them in the context of the following justification for his decision under section 33 to disapply the limitation period:

“42.

In my view it is not surprising that the claimant was unable to talk to anyone about his abusive experiences until July 1999 when he saw Dr. Holloway. Such abuse is both humiliating and debilitating. The claimant became withdrawn and, in the early years after his discharge from Bryn Alyn, angry. During this angry period he committed some crimes as a result of which he was sent to a detention centre and to Borstal. He is not entitled to any compensation for his own criminal conduct; but he has lived with the memory of his two unhappy years at Bryn Alyn over the past 25 years. His day to day life has been adversely affected. He became concerned about his sexuality. He was not able to tell either his wife or his subsequent partner of 7 years about his experiences of abuse. He suffers flashbacks and intense psychological distress when exposed to external cues that resemble an aspect of the traumatic event. He experiences persistent symptoms of increased arousal including sleep difficulties, difficulty in concentrating and an exaggerated startled response. Initially the claimant coped with his difficulties by going away or by getting drunk. He tried not to think about his experiences. He wrote his experiences down. Eventually in July, 1999 he reached the conclusion that the best way to deal with his problems was to face them head on. …. In the circumstances and for the reasons previously explained I deem it equitable to disapply section 11 …”

As we have said, the Judge’s general treatment of the section 14 issue and his blanket application of it to all the claimants was wrong in that he confused their awareness at the time of the physical and other impact on them of the abuse with knowledge of its significance as an injury for the purpose of the time bar test in section 14. Accordingly, we feel bound to regard the issue as at large and to consider for ourselves in the light of the uncontradicted evidence before the Judge whether he could properly be satisfied that KR had the requisite statutory knowledge at any time before 16^th July 1996, the start of the three years period before the issue of the writ.

In our view, given the nature, length and dates of the abuse involved in this claim and the claimant’s and medical evidence on the issue, he cannot have known before that time that the injury he had sustained was significant in the statutory sense. The two years period of sexual and physical abuse, though unpleasant and, in the long term, damaging, was not of such a degree as in the early 1970s or 1980s would have been regarded as significant in that sense by a claimant of his age, experience and circumstances, bearing in mind especially the observations of all three members of the Court of Appeal in Stubbings v. Webb (see paras. 36, 43 and 44 above). Thereafter, regard must also be had to the disabling long-term effect of the abuse which, on the undisputed evidence here, caused him to put it and its effect on him to the back of this mind, thus effectively perpetuating the reasonableness of his failure to appreciate the statutory significance of what had happened to him. The fact that he sought his social security records in 1993 is not, in itself, sufficient in the circumstances to indicate a statutory awareness by that time or at any time before he saw Dr. Holloway in July 1999.

It follows that, in our view, there was no occasion for the Judge to consider the exercise of his discretion under section 33. Much of the Judge’s reasoning on that issue, as we have indicated, would have been more apt in the particular circumstances, to his determination of the date of knowledge for the purpose of section 14. If, contrary to our finding that the date of knowledge was, as the Judge implicitly found, before September 1979, that is, the end of the three years period after majority and nearly twenty years before the issue of proceedings, we would have found it difficult to exercise discretion in the claimant’s favour. Even allowing for some “blocking” effect of the abuse so as to prevent his appreciation of “another” significant injury in the form of long-term psychiatric injury, the sheer length of delay in such a case would, in our view, make it inequitable to allow the matter to proceed. First, the period of delay, whether based on the total period of delay from the end of the abuse – 24 years - or on the Judge’s implicit assessment of the date of knowledge – 20 years, was very long. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant’s evidence, given the absence of other evidential support for it and the lack of contemporaneous documents or witnesses by which to test and/or contradict it. In our view, given the Judge’s finding as to section 14, it would have been inequitable to require the respondent, by disapplication of the limitation period under section 33, to meet such a stale claim. However, as, in our view, the Judge was wrong in his ruling under section 14, unfairness or inequity in proceeding so long after the event does not come into it; the claimant is entitled to proceed with the claim – a comment equally applicable to most of the other claims.

The Judge reviewed the evidence about Kenneth Rowland’s experiences after leaving Bryn Alyn. He referred to the effect of the stress disorder from which he had suffered and of its effect on his work record. He concluded that it was more likely than not that he had earned less money than would have been the case had he not been abused and that further, notwithstanding treatment, he was at a continuing disadvantage on the labour market. He assessed past losses at £5,000 taking account of the known work record and the fact that there were periods when he had been unemployed for reasons wholly unconnected with his psychiatric disorder. He awarded a similar sum for losses in the future.

In arriving at £35,000 for general damages the judge had regard to the “intense psychological distress” which had included sleeping difficulties, difficulty in concentrating and disturbing flashbacks. He also took into account the length of time over which those symptoms had been experienced and to the probability that they would not go away in spite of therapy.

Subject to our views on limitation and their potential effect on the cogency and completeness of the evidence before the Judge, we do not disagree with the manner in which he approached his task or with the level of award at which he eventually arrived for the psychiatric consequences of the abuse. It must be remembered that he had the opportunity of seeing KR in the witness box and, subject to the cogency and adequacy of the evidence as a whole, was in a far better position to assess the effect of the abuse on him than ever we could be.

Because the amount and make-up of the award was not the subject of appeal, we have not heard detailed submissions from Mr Owen. However, at trial he suggested that the appropriate level for general damages lay between £45,000 and £50,000, which, in his supplemental submissions on appeal, he suggested would have been justified having regard to the lengthy period of pre-trial suffering and also to the fact of the abuse itself. In contrast, Mr. Faulks put forward a bracket of £15,000 to £20,000.

Although £35,000 does not seem to us to be over generous for the psychiatric injury, we would not have interfered with it. However, we do consider that the Judge should have included in his award of general damages some additional sum for the claimant’s pain and suffering caused by the two years abuse itself.

However, as there is no appeal in this case against quantum, we are confined to finding that the claim is not statute-barred and would, therefore, allow the claimant’s appeal on that issue, as a result of which the respondent’s cross-appeal falls to be dismissed.

DK was 36 at the date of trial. In mid 1979, when 14 years of age, he was taken into care of the Bryn Alyn Community where he was to remain for the next three years.

Once again we are satisfied that the Judge’s résumé is an accurate and fair account of the evidence before him. There is no doubt that even before going to Bryn Alyn DK had been a difficult child. He was, as found by the Judge, over anxious, wilful, assertive, and egotistical. At times he could appear vulnerable and it was noted that he had “a depth of awareness and sensitivity” unusual in a child of his age. At a previous assessment centre he had been described as a “bright, personable child, indefatigable in his pursuit of knowledge, friendship, trust, affection and any other stimulatory experience he can gather”. It had also been noted that he could not handle “any ambivalence on the part of authority”. The Judge found that “the child, who arrived in the Bryn Alyn Community in the summer of 1979 aged fourteen, was clearly a child who needed specialist care and understanding from adults experienced in dealing with problem cases and who would undoubtedly test the patience of adults to the limit from time to time”.

So it might seem that, given appropriate handling during his time at Bryn Alyn, there was every prospect of DK turning into a worthwhile member of society. Sadly, his handling was far from appropriate. Throughout his three years there he suffered physical violence at the hands of members of staff and of older children under the ‘Top Dog’ system which had been promoted by those running the Community in order to enforce discipline. The Judge concluded, at paragraph 48 of his judgment:

“I am satisfied that inexperienced staff inadequately supervised, accepted a regime in which the use of violence by way of pushes, slaps, cuffs and punches was a regular occurrence. Accepting as I do that DK was a complex and difficult child who was himself capable of significant violence, nonetheless he was the victim of serious physical abuse over three years and at a time in his life when he needed to be able to trust adults and to be treated sympathetically by them. He suffered in this way because of faults in the system which were operated in the Community, in which the safety and wellbeing of some of the residents were neglected on a regular basis.”

The Judge also observed that the claimant had been an extremely vulnerable child who had needed sensitive handling from skilled workers but who had received the opposite and had been very badly let down by several of the adults at Bryn Alyn.

Before looking at the Judge’s assessment of damages, we should consider the issue of limitation. The claimant’s evidence was that he had tried to block out all memory of the abuse and had not acquired the requisite section 14 knowledge until after he had obtained medical advice from Dr. Holloway in January 1998, following interview by the police and consulting solicitors in 1997. In cross-examination, in response to a question of what he had thought at the time about the abuse, he indicated that he simply had not thought about it.

As to section 14, the Judge held that the claimant had known from 1982 when he left Bryn Alyn at the age of about 17 that he had suffered significant injury attributable to his physical ill-treatment there. He concluded, therefore, that he could not rely on that provision to extend the limitation period since the claimant did not issue proceedings until July 1999 shortly after contact with the police, consulting a solicitor and receipt of medical advice in about 1997 or 1998. As to section 33, the Judge found that, as the claimant had not wanted to remember his experiences and had done his best to block his unhappy memories from his mind for many years, it was equitable to disapply the limitation period.

For the reasons we have given earlier in this judgment, we are of the view that the Judge wrongly concluded that the claimant had knowledge of significant injury for the purpose of section 14 in the early 1980s so as to prevent him from relying on that provision. In our view, the physical abuse the claimant suffered from staff and older children at Bryn Alyn over three years, though serious in itself, and painful and distressing, would not have been such that by February 1986, that is, within three years after the expiry of his extended limitation period, he would reasonably have considered it sufficiently serious to justify proceedings. In so concluding we bear in mind the character and circumstances of the claimant, the nature of the abuse and the period of time in which it occurred, applying the approach of all members of the Court of Appeal in Stubbings v. Webb, which we have set out in paragraphs 36, 43 and 44 above.

It follows that, in our view, there was again no occasion for the Judge to consider the exercise of his discretion under section 33. His reasoning on that issue, as in the case of Kenneth Rowands, would have been more apt in the particular circumstances to his determination of the date of knowledge for the purpose of section 14. If, contrary to our finding, the date of knowledge was, as the Judge implicitly ruled, before February 1986, that is, over 13 years before the issue of proceedings in July 1999, we would have found it difficult to exercise discretion in the claimant’s favour. By then the delay from the most recent of the conduct of which he complained was some 17 years. To the extent that the Judge took into account, in addition to the claimant’s reason for delay, any other relevant circumstance, his reasoning is no doubt to be found in his general approach to the exercise of the discretion under section 33. For the reasons we have given, that approach was defective. And, in its application to this claim, we are of the view that it led to a plainly inequitable result in section 33 terms. First, the period of delay, whether based on the total period of delay from the end of the abuse – 17 years - or on the Judge’s implicit assessment of the date of knowledge – over 13 years – meant that the claim was very stale. Second, the effect of that delay was bound, given the source and nature of the allegations, to have had a serious effect on his ability properly to assess the cogency of the claimant’s evidence of the “top dog” regime as it affected him, although there was some general support for his claims in the evidence of another claimant, CGE, and of one of the care workers, Dafydd Vevar.

Turning now to quantum, DK was interviewed by Dr Holloway in July 1999 and in January 2001 and by Dr Carnwath in July 2000. Both doctors agreed that he was suffering from a personality disorder that involved mood swings, and further that periodically he suffered from depression. In Dr Holloway’s words it is “a recurrent major depressive disorder”. The doctors were not in agreement, however, as to the extent to which his experiences at Bryn Alyn had contributed to his current condition. Dr Holloway considered the Bryn Alyn experience to have been a significant factor, whereas Dr Carnwath suggested that the major cause had been the preceding unhappy upbringing. On that issue the Judge preferred the evidence of Dr Holloway. And from the extracts from his judgment that we have cited it is plain that he was aware that he had to compare the way in which DK has turned out with how he would have been if had he not been let down by the Bryn Alyn staff.

For pain suffering loss and amenity the Judge awarded DK the sum of £25,000. Was it enough? In arriving at that figure the Judge said, at paragraph 49 of his judgment:

“I am satisfied that a significant part, but certainly not all of the damage suffered by the claimant is attributable to his experiences at Bryn Alyn. ... I shall make the best estimate I can, in the light of the evidence, making the fullest allowances in favour of the claimant for the uncertainty known to be involved in any apportionment. I shall approach this issue as a jury question taking a broad view and doing my best to reach a fair conclusion on the whole of the evidence. With these matters in mind I shall award the claimant the sum of £25,000 by way of damages against the first defendants for pain, suffering and loss of amenity.”

It is not evident from those remarks whether the Judge had in mind what he had earlier described as the “serious physical abuse over three years … at a time in … [the claimant’s] life when he needed to be able to trust adults and to be treated sympathetically by them”.

We are perhaps assisted as to what the Judge considered “a significant part” of the damage by the manner in which he dealt with the claim for the cost of therapy. We have set out his approach to claims in this category in paragraph 135 of our judgment. He awarded approximately two-thirds of the amount claimed for therapy. Although we shall conclude that the whole sum claimed for therapy was recoverable, we infer that the Judge intended to apply the same ratio to general damages. That would suggest that he had in mind £35,000 for the long-term personality disorder but for the pre Bryn Alyn difficulties. If that is so, we do not disagree with his quantification. However, we consider that the figure is insufficient to the extent that it does not appear to include an unapportioned element for the pain and suffering caused by the serious violence to which he was subjected for three years. We would increase the award of general damages by £10,000 to reflect that injury, so as to increase the total award under this head to £35,000.

DK claimed £20,000 for past loss of earnings and £10,000 for loss of earnings or handicap in the labour market in the future. The Judge awarded £3,000 and £2,500 respectively. By the same reasoning that we applied in the appeal against the general damages award, we would have been minded to hold that he was entitled to two-thirds of any loss of earnings, which could be proved. The difficulty for the Judge was, and is for us, that there was no firm evidence from which to reach a figure for past loss of earnings, let alone a sum for any likely losses in the future. The Judge noted that the claimant preferred to be self-employed and that he had a reasonable record of such employment in the past and sensible plans for the future. He noted that his drug and binge drinking habit might have had an adverse effect upon his ability to hold down a job. Such was the somewhat tenuous basis for the Judge’s figures. On the evidence available, it is our view that the claimant was fortunate to receive anything at all for loss of earnings. For that reason and in the absence of any cross-appeal we leave the award undisturbed.

We have already indicated our views with regard to the various claims for treatment costs. We consider that the Judge should have awarded the whole sum of £1,800 claimed.

It follows that we allow DK’s appeal to the extent only that we substitute £35,000 and £1,800 for the sums of £25,000 and £1,250 awarded by the Judge respectively for general damages and the cost of therapy.

CGE was 34 at the date of trial. From early 1980 to late 1983, between the ages of 13 and 17, he was in the care of the Bryn Alyn Community, first of all at Cotsbrook and then at Bryn Tirion Hall. His treatment during that time is described by Connell J at paragraph 54 of his judgment. It is essentially the claimant’s account, which the Judge was later to accept. In his first week at Cotsbrook he was assaulted by a member of staff, Jeff Davies, because he had refused to pick up some rubbish. Davis punched him in the stomach. He received similar treatment from other members of staff and other residents. The assaults included hair pulling, punching and kicking. He was beaten up by a judo expert called Smyth and assaulted by Russell Mensah, a member of staff, whilst on a camping holiday. This last was perhaps the worst act of violence; Mensah dragged him out of his tent and repeatedly punched him to the ground.

In November 2000 CGE was seen by a consultant forensic psychiatrist, Dr J Kenney-Herbert who expressed the following view:

“CGE displays features of an emotionally unstable personality disorder. There is little detail about his early childhood available at present however in my opinion it is highly likely that this was a period of marked disruption with some intermittent positive experiences. I think that it is likely that his attachments with primary carers may well have been problematic. There is evidence that he was behaving in a disturbed way to some extent prior to going to Bryn Alyn. He had some experience of abusive practices whilst in care prior to going to Bryn Alyn. The early manifestations of his personality difficulties were likely present prior to being received into care at Bryn Alyn. If his account of his experiences within Bryn Alyn is accurate then they would have undoubtedly contributed greatly to the further development of his personality problems and contributed to his difficulty adjusting to society as an adult.”

Before moving on to the psychiatric evidence in more detail and to the Judge’s assessment of damages, we should deal with his treatment of limitation. He dealt with it much the same way as he had the claim of DK and all the other claimants. He found that CGE had suffered significant injury within the meaning of section 14 from 1983 when he left Bryn Alyn and that he had delayed some 12 years from achieving his majority in 1984 before issuing proceedings in July 1999. He referred to the claimant’s evidence that he had wanted to put his experiences behind him and had not been able to trust anyone, and concluded:

“I have accepted the burden of his complaint against the first defendants and I shall exercise the court’s discretion under s. 33 … in his favour, since in my view it is equitable so to do.”

For the reasons given earlier in this judgment, both general and those applicable to KR and DK, we are of the view that CGE did not have knowledge of significant injury for the purpose of section 14 within three years after his majority so as to prevent him from relying on that provision to extend the period of limitation. He made a statement to the police in 1993 about the assault by Russell Mensah and also a claim to the Criminal Injuries Board in respect of it, but his evidence was that he did not know at that time of the development of his personality disorder. In his case also, part of the long-term disabling effect of the abuse on his personality and appreciation of what had happened to him, was, on the Judge’s finding, an inability to face up to it and to discuss it with others. It was not until 1998 or 1999 that he first consulted a solicitor and was seen by Dr. Rowan about his condition, and it is at about then that we consider he first learned of the significance of his injury in a section 14 sense.

We also consider that the Judge’s ruling under section 33, predicated as it was on his section 14 ruling, was defective for the general reasons we have given. And, in its application to the circumstances of this claim, it would have led to a plainly inequitable result. First, the period of delay was very long – nearly 16 years from the last of the abuse and 12 years from the expiry of the primary limitation period - nearly as long as that in the case of DK. Second, such delay was again likely to have had a serious effect on the cogency of the evidence, particularly that of the claimant himself. It is plain from the Judge’s treatment of his account when tested against other contradictory material that there were at the very least serious question marks as to his truthfulness.

Accordingly, we are of the view that, given the Judge’s finding as to section 14, it would have been inequitable to require the defendants, by disapplication of the limitation period under section 33, to meet such a claim arising out of events so long before. However, as, in our view, the Judge was wrong in his ruling under section 14, the claimant was entitled to proceed with his stale claim regardless of such inequity.

Returning now to the evidence of the long-term psychiatric effect of the abuse, Drs. Kenney-Herbert and Rowan, in a joint report, stated that if the claimant had the claimed abuse it would have had an adverse effect on his pre-existing psychological difficulties. Neither doctor was able to say to what extent the previous experiences, as opposed to those which took place whilst at Bryn Alyn, had been causative of the problems. In giving evidence and under cross-examination Dr Kenney-Herbert said, when asked if the claimant might have avoided his symptoms but for the Bryn Alyn experience:

“I think it is difficult to say absolutely he would have avoided them. I suspect that even with the best of care some of the experience he has had in childhood, he would have remained with some problems and they would have been ameliorated.”

And later:

“If the occurrences he reports did happen in Bryn Alyn as he has said that certainly pushed him further down the path to having a personality disorder and significant problems. I do not think I can say that he would not have gone on and had problems without the Bryn Alyn experience.”

At an assessment centre where the claimant spent some time before going to Bryn Alyn he had been described as “a quiet but sparkling lad.”

On that evidence the Judge found that CGE had been badly let down by the Bryn Alyn Community. He said, paragraph 57 of his judgment:

“… I accept that he arrived in their care as a badly damaged and occasionally difficult teenager. For this reason he needed skilled and sensitive handling, which he did not receive. The first defendants were in breach of their duty of care to him. The treatment he received at Bryn Alyn homes in the light of the medical evidence before me, had undoubtedly made a material contribution to his problems of the present day.”

Against that background and in consequence of his findings the Judge awarded CGE £17,500 by way of general damages and £2,500 in respect of his likely handicap in the future labour market. He awarded £1,000 against a claim for £1,800 cost of therapy.

It was contended by Mr Owen on CGE’s behalf that the award is too low under each of those three heads. We agree.

First of all, without apportionment it seems to us that the general damages figure should not have been less than £35,000. Although neither doctor spoke in terms of percentages it is clear that both considered that the Bryn Alyn mistreatment made a material contribution, as the Judge seems to have recognised in awarding more than half the therapy costs. We consider that CGE’s claim for psychological injury is worth slightly less than that of DK. He too had been a badly damaged child before his arrival at Bryn Alyn; his period of subjection to physical violence there was slightly longer – some three and half years, but the degree of violence, apart from one major assault, was slightly less; and he too should be compensated for the pain and suffering caused by and at the time of the abuse, an element to which the Judge, no doubt because of the concentration at trial on its psychological damage to the claimant, seems to have overlooked. In our view, £20,000 is the least sum that should have been awarded as an apportioned sum for the pain and suffering and loss of amenity due to long-term personality disorder resulting from the abuse. To it should be added a further sum of £9,000 for the immediate pain and suffering caused by the abuse.

It also seems to us that once it is recognised, as it was by the Judge, that the claimant is and continues to be handicapped in the labour market, a total award of £2,500 is far too little. The Judge attributed his failure to hold down a job in part to his criminal record and in part to his dependence on drink and drugs. But his dependence on drink and drugs was the result, in part at any rate, of the treatment he had received at the hands of the first defendant. We think that it would not be over generous to award him the equivalent of two years purchase for past loss and one year for the future, namely a total of £30,000. That, as it happens, would be about the amount claimed at trial on the basis that he was never likely to earn more than £10,000 per annum. Again we consider that the whole of the cost of treatment, namely £1,800, is recoverable.

Accordingly, we allow CGE’s appeal by substituting for the Judge’s awards: £29,000 for pain suffering and loss of amenity, £30,000 for past and future loss of earnings and £1,800 for the cost of psychiatric treatment, £60,800 in all.

RM spent just under two years in the Bryn Alyn Community from mid 1988 to mid 1990, between the ages of 15 and 17. She was 28 at the date of trial. Even before being admitted to Bryn Alyn, her life had been unsettled and troubled. She was one of seven children. Her mother had left home when she was aged about three and her father was unable to cope with the family responsibilities. She was moved between relations and various foster parents, ending up in care at Nazareth House, Lancaster together with three of her sisters. Whilst there she was regularly assaulted and claims to have been sexually abused by a nun. She was then sent to Milverton Court in Shropshire where she was assaulted by other residents and staff. By this time she was becoming extremely difficult and had threatened one girl with a knife and attempted to throttle another. She had also caused extensive damage to the home and had been involved in assaulting a staff member. So this was a very badly disturbed young woman when first admitted to Bryn Alyn, even though an educational psychologist had described her as “a raw, ill-developed child still desperately striving for a strong parental relationship” and as having “considerable emotional warmth in her character and no sign of the usual neurotic symptoms”. He also described her as being “socially responsive” and “concerned for the troubles of others”. The Judge described her as “a very needy fifteen year old.”

Whatever her needs, they were, on her evidence, hardly met by the treatment she received at Bryn Alyn. She was under the immediate supervision of a member of staff called Mark Joseph. She described in evidence, which the Judge accepted, how she was punched, kicked and her hair pulled. On one occasion Joseph lifted her up by a broom handle placed under her chin. On another occasion she was terrified when two members of staff wearing masks pretended to kidnap her.

By the time she came to be examined by psychiatrists, Drs. Holloway and Carnwath, some ten years later, she was suffering from depression and agoraphobia. She was addicted to heroin and cocaine. The prognosis was bleak. Although it was considered that some treatment might help to ameliorate her condition, both doctors thought that she would remain unfit for work for the foreseeable future.

As to limitation, RM issued proceedings in July 1999, some nine years after the last abuse complained of and five years after the expiry of the period of limitation. Although her claim appears to have been prompted by the mention in a radio programme about the possibility of such proceedings, she had, as the Judge observed, complained to a social worker and the police at the time about her treatment at the time it occurred. Accordingly, the Judge held that she had the section 14 knowledge by the time she left Bryn Alyn and her claim was thus out of time. However, he held that he should exercise discretion to disapply the limitation period under section 33:

“in particular, in view of the anxiety and panic attacks from which she suffers, which would make it all the more difficult for her to relive her unhappy experiences at Bryn Alyn.”

Notwithstanding RM’s early complaints about the physical abuse at Bryn Alyn, we consider, for similar reasons to those given in the preceding claims, that RM did not have knowledge of significant injury for the purpose of section 14 until 1997 at the earliest when she first contemplated proceedings, that is, within three years of commencing them. As Mr. Owen has submitted, she had had a long and significant history of psychiatric trouble. A particular issue in her case was one of attribution of cause for her present condition, one on which could not reasonably have been expected to acquire the requisite knowledge without the assistance of expert advice. It is reasonable to conclude from the evidence that it was only about then that she would have appreciated the significance and partial attribution of the injury resulting from the abuse, namely the exacerbation of her already serious psychiatric condition.

However, if we were wrong as the section 14 date of knowledge, and the Judge’s ruling on it were to stand, we would be minded to disapply the limitation period under section 33. First, although the period of delay was long – some nine years after the last abuse and five years after the expiry of the limitation period – it was significantly shorter than that of some of the other claims. Second, although her account was unsupported, there was some documentation in evidence covering the earlier part of her period at Bryn Alyn by which it could be, and was, tested. Third, her difficulty in bringing herself to relive the unhappy experience of her abuse at Bryn Alyn, would, as the Judge considered, be a relevant circumstance in considering the exercise of discretion under section 33.

As to the contribution made by Bryn Alyn to RM’s long-term psychiatric difficulties, the doctors agreed that:

“on the balance of probabilities she would have developed present disorders even if she had not suffered the alleged unpleasant experiences at Bryn Alyn. In our opinion the experience at Bryn Alyn would have acted to exacerbate her disorders and as mentioned earlier may have been aetiologically important in the development of the panic disorder.”

In the circumstances, it is not surprising that the claimant does not appeal the Judge’s refusal to award any damages in respect of loss of earnings or cost of therapy. However, she does appeal the award of £5,000 for general damages. Whilst Mr Owen did not quarrel with the Judge’s summary of the evidence, he complained about the amount of the award in two respects: first, that the Judge failed sufficiently to attribute her psychological difficulties to the abuse; and second, that he took no account of the physical abuse suffered over a period of nearly two years. As in all the other claims, the focus of the claim before the Judge had been on the long-term psychological condition from which she had suffered for up to two years.

In our view, but for the difficulties of attribution, RM would have been entitled to compensation for her psychological symptoms by a sum in the region of £50,000. Even allowing that her experiences at Bryn Alyn did no more than “exacerbate her disorders” and contribute to the development of “panic disorder”, we would find it difficult to justify an award of less than £15,000 for a serious condition from which, on the medical evidence, she had a poor chance of recovery and also for the physical violence to which she was increasingly subjected during her two years at Bryn Alyn. Consequently, we allow RM’s appeal to the extent of substituting that global sum for the Judge’s award of £5,000 for general damages.

GS appeals an award of £5,000 for general damages. He does not appeal the Judge’s refusal to award anything for loss of earnings or cost of treatment.

At the date of trial GS was aged 27. In late 1988, when aged 15, he had been accepted at Gatewen Hall, part of the Bryn Alyn Community. He came from a poor and violent background. He had been beaten by his father, and after his parents separated had had to witness his mother being assaulted by his stepfather. He spent various periods in foster homes and in homes and assessment centres run by Flintshire County Council. Perhaps unsurprisingly, his own behaviour deteriorated. He was abusive, aggressive and beyond control of staff at the various placements. He assaulted other residents and, in one instance, a residential care worker.

It was against that background that he was moved to Gatewen Hall where he remained for approximately nine months. He alleged that during his time there he had been assaulted on a regular, almost daily, basis by members of staff, who included the man in charge, Steve Ford. After leaving Gatewen he became increasingly dependent on drugs, unable to hold down any kind of employment and from time to time in conflict with the law. He blames all his misfortunes on his experiences at Gatewen.

As to limitation, the Judge held, with reference to the date of knowledge in section 14, that the claimant knew he had suffered significant injury at the time of the alleged abuse, that is, in 1989, some ten years before he issued proceedings in July 1999 nearly five years after the expiration of the limitation period. The Judge also referred to witness statements about the acts of assault on him that he had made to the police in 1992 and 1993, copies of which were in evidence. He held that, in those circumstances, it was not open to him to extend the limitation period by reference to the section 14 date of knowledge. However, he exercised his discretion to disapply the limitation period under section 33 because of his view that:

“… his reluctance to press a claim based on physical abuse … [was] attributable mainly to the painful experience which is inevitably involved in recalling such unhappy events …”

As in the case of RM, despite GS’s early complaints about physical abuse at Bryn Alyn, we consider that the Judge wrongly held that he had the requisite knowledge early enough to put his claim out of time, that is, one including damages for long-term psychiatric injury to which the abuse there had partly contributed. He undoubtedly had been aware of the violence and its effects on him at the time. But, in our view, the evidence does not support a finding that he knew that they constituted significant injury in a section 14(2) sense, notwithstanding that they could have justified an award of damages standing on their own. Given his extremely difficult past before admission to Bryn Alyn, his own proclivity to violence, making him, as the Judge said, difficult to control and provoking incidents of violence against him, and his subsequent heavy drug abuse and criminal tendencies, it is fanciful to consider that he could have satisfied the section 14(2) test of knowledge of significant injury by the time he left Bryn Alyn or for many years thereafter. On his own uncontradicted evidence, which the Judge accepted, he had only realised in 1999, shortly before commencing proceedings, that his psychiatric symptoms could be related to the violence the subject matter of his claim. It was about that time that he first instructed solicitors and saw Dr. Veasey.

Again, if the Judge’s ruling on section 14 were correct, we would have disapplied the limitation period under section 33. First, the period of overall delay from the last abuse and that from the expiry of the limitation period - about ten and five years respectively - is similar to that in the case of RM. Second, although, his account was largely unsupported, there was evidence from one of the care workers, Peter Steen, challenging some of his allegations. There was also some documentation in evidence covering his period of stay in Bryn Alyn against which his account could be, and was, tested. The Judge clearly took account of such material when rejecting some of his allegations and in determining how much of his later difficulties were attributable to his time at the Community. Finally, there are the claimant’s explanation of his delay in following up his provision of witness statements to the police in 1992 and 1993, namely that he did not think he would be believed, and the Judge’s finding that he, in common to all the claimants, was reluctant to re-open unhappy memories. Such matters, though possibly not relevant in the particular circumstances of his case to section 14 postponement, are nevertheless capable of being a relevant circumstance for the purpose of section 33.

Returning to the psychiatric evidence, the agreed report of Drs Duncan Veasey and Jeremy Kenney-Herbert is that GS suffers from a form of personality disorder, which stems largely from his unfortunate background. Both doctors agreed that one significant, though not major, factor in bringing about his present difficulties was the physical abuse suffered as an adolescent. Neither could see formal treatment bringing about any marked improvement. Because of some early positive indications Dr Veasey thought there would have been a good chance that most of the unfortunate effects would have been avoided given appropriate treatment by the first defendant. However Dr Kenney-Herbert’s view was that the claimant would have had the same problems irrespective of the abuse alleged to have been suffered at Gatewen.

The Judge preferred the view of Dr Kenney-Herbert and, at paragraphs 73 and 74 of his judgment, summarised his conclusions as follows:

“73 … there are many reasons for questioning the evidence of the claimant and I reject that part of the account which alleges significant violence literally on a daily basis. I have no doubt that he was difficult to control and equally I have no doubt that on many occasions he brought about situations in which violence was used by him and against him. Given his background there must often have been a need for those who had charge of him to defend themselves. On the other hand the regime which prevailed at Gatewen was not appropriate to the needs of the claimant when he was placed there. Violence should not have been used upon him to the extent and with the frequency that I am satisfied that it was so used. Peter Steen admitted to the Waterhouse Enquiry that he did lose his temper from time to time and he agreed to a complete lack of professional training. In my view the description by the claimant of assaults upon him by Steen is likely to be true in part, albeit that I accept that the regularity alleged was exaggerated. …

74.

….In my view in the light of his experiences before January 1989, it was probable that he would have suffered significant problems in adulthood, even if he had not been to Gatewen. The Gatewen experience was inappropriate, and caused him some material damage over and above that which would in any event have occurred.”

Mr Owen attacked the Judge’s conclusions partly on the basis that there was no evidence to support the finding that Mr Scahill had brought some of the violence upon himself. And further, he criticised the Judge for failing to give reasons and pointed to a number of documents that tended to support Dr Veasey. On the basis that the Judge was entitled to make the factual findings he did and to prefer the evidence of Dr Kenney-Herbert, he suggested that an award of £5,000 is so low as to require revision by this Court. He maintained that one incident, which the Judge accepted had occurred, when Mr Scahill was assaulted by five care workers and as a result of which he had to be taken to hospital, was of itself enough to justify an award of £5,000.

In our view, the Judge was entitled to reach the conclusions expressed in the passages which we have quoted from his judgment. He saw and heard the claimant give evidence and, having regard to all the background material, was entitled to make the findings he did. Further, notwithstanding the material to which Mr Owen has brought our attention it was open to the Judge to prefer the expert opinion of Dr Kenney-Herbert.

We consider that there is merit in Mr Owen’s complaints about the level of the Judge’s award of general damages; he makes none about the dismissal of the claims for loss of earnings and for cost of therapy. If the whole of Mr Scahill’s psychological problems could be attributed to mistreatment at the hands of the first defendant then general damages for that element alone could hardly have been less than £35,000. £5,000 would seem to be little enough for what was agreed to be “a significant causative factor”, never mind the pain and suffering at the time from the violence itself. We propose to substitute an award of £12,000 for general damages to reflect both those considerations. To that extent we allow the appeal.

MCK instituted proceedings in July 1999 in respect of John Allen’s sexual abuse of her on about six occasions over a period of about six months some 16 years before, in 1982-83. Her claim, which was in negligence, was based on an allegation of systemic failure by the first defendant to protect her from such conduct, alternatively on its vicarious responsibility for it.

The Judge held that:

Accordingly, he ruled that the non-extendable limitation period of six years, not the extendable section 11 three years period, applied to her claim, with the result that it was statute-barred. He indicated that if, contrary to his ruling, the first defendant was liable in negligence or for other breach of duty under section 11, he would have found her claim out of time because of her early date of knowledge under section 14, but would have disapplied the limitation period under section 33 and awarded her general damages of £5,000.

MCK appeals against the Judge’s dismissal of her claim of systemic negligence and his ruling that her claim based on vicarious responsibility for Allen’s conduct was not within the extendable three years limitation regime of sections 11, 14 and 33 and was, therefore, statute-barred. She also appeals, contingently on the success of that challenge and that of the respondent under section 33, against his finding that her date of knowledge under section 14, along with that of all the other claimants, arose outside the three years period before issue of proceedings. And she maintains on the same contingent basis that the Judge’s assessment of general damages was too low.

We deal first with the challenge to the Judge’s rejection of systemic negligence on the part of the first defendant. This is how he expressed his ruling at paragraph 83 of his judgment:

83.

… the submission on behalf of the claimant is that other employees, had they been properly trained and supervised, ought to have prevented these assaults by John Allen. The problem with this submission is that, as described by the claimant, the assaults occurred when she went to John Allen’s office for a legitimate purpose. She was alone with him at the time. In my view it cannot be argued that other employees were negligent in allowing a resident at Bryn Alyn to visit the principal in his office. The claimant does not suggest any distress on her part after these assaults, nor does she suggest that she made any complaint to any other member of staff. Even if the proclivities of John Allen ought to have been suspected by a properly trained social worker or residential care worker, in my view it is asking too much of the defendants to expect other staff members to monitor every visit by a resident to the principal in his office in an attempt to ensure that no secret act such as sexual abuse might take place. Accordingly, the claim based on negligence must fail.”

Mr. Owen submitted to us, as he had to the Judge, that these allegations should not be looked at in isolation, but in the context of the general failure of the first defendant, evidenced in other claims, to establish a proper system of care and protection for children at Bryn Alyn. He referred to certain findings of the Judge in the early, general, part of his judgment, culminating in the following summary at the end of paragraph 19:

“Had the staff been properly selected, trained and supervised, I … conclude that they would have questioned John Allen’s use of favourites, his giving of gifts to particular children, and his frequent night time presence around the dormitories; with the result that many of his acts of sexual abuse would have been prevented. In summary the system of care operated in the first defendants’ Community was neither adequate nor properly organised and supervised. In this way the first defendants in my view are proved to be negligent.”

Mr Owen referred also to findings of the Judge in relation to other of the claimants that the first defendant was vicariously liable in negligence for the failure of its staff to heed warning signs of Allen’s misconduct and for their failure to intervene to prevent it. He referred, in particular, to the claims of KR, DJ, KJM and DHM, all of whom had been placed at Bryn Alyn before MCK. In such circumstances, submitted Mr. Owen, the Judge should have found that Allen’s proclivities were either known to or could reasonably have been suspected by properly trained staff, and that the first defendant and its staff ought not to have allowed Allen anywhere near the children in its homes by the time of her placement there. Mr. Faulks spent little, if any time, responding to this part of MCK’s challenge, relying, so far as we could tell, on the Judge’s reasoning and on his entitlement, notwithstanding his general observations early in his judgment, to look at each individual claim on its own facts.

In our view, it would be wrong to construe the general observations of the Judge in paragraph 19 of his judgment as effectively fixing the first defendant with liability in negligence in respect of every deliberately abusive act of Allen. It is plain that the Judge, in his individual treatment of the claims, was alive to the distinction between conduct of which the first defendant was or ought reasonably to have been aware and conduct, which by reason of the particular circumstances and where - even if there had been an adequate system by the standards of the time - other employees may not have been put on notice. Here, the Judge was plainly influenced by the particular circumstances of the assaults on MCK over about six months when she visited his office for a legitimate purpose and was with him there alone for a short time, and in respect of which she exhibited no distress and made no complaint. And, as the Judge indicated, in the passage we have set out, it would be a counsel of perfection for those who did or should have known of his proclivities to monitor every ostensibly legitimate visit by a child to his office. For those reasons, we consider that the Judge, with the breadth of experience given to him in assessing the evidence overall about the workings of the Bryn Alyn Community and the differing individual claims, was best placed to draw the line where he did. We would not disturb his dismissal of the claim in negligence on this account.

As to the Lister point and the alternative basis on which the claim was put, the Judge said this at paragraph 82 of this judgment:

“…. The actions of John Allen towards this claimant were disgraceful assaults and plainly abusive …. In the light of the decision … in Lister …the first defendants are vicariously responsible for the actions of John Allen in this regard. His conduct was clearly connected with his employment, since he was seeing the claimant in his office and ostensibly as the head of the Community. He was giving her money for the proper purpose of visiting her elder sister at weekends. It is in my view fair and just in all the circumstances that the first defendants should be held responsible for such conduct, which clearly constituted an assault or trespass to the person. In the case of this claimant however any claim alleging such an assault is statute barred, more than 6 years having elapsed since she became an adult. There is no discretion in the court to extend or disapply this period (see Stubbings v. Webb …) However, the claimant bases her claim upon allegations of negligence. In my view the actions of John Allen as described were in breach of the duty owed to the claimant to keep her safe from abuse, but they were deliberate actions, and not negligent.”

For the reasons given in paragraph 108 of this judgment, we are of the view that the Judge’s ruling was correct. In the circumstances, Allen’s deliberate abuse engaged the six years non extendable limitation period rather than the three years extendable regime of sections 11 and 14 of the 1980 Act and the claim must fail because it is statute-barred.

As to the Judge’s indication that, if had found this to be a section 11 claim, he would have held the date of knowledge to be contemporaneous with the abuse but would have exercised discretion in her favour under section 33, we should set out his findings of fact against which such indication should be tested:

“79.

… The nature of the abuse was that he required the complainant to masturbate him whilst he put his hands down the back of her trousers and on to her buttocks. The claimant told me that she co-operated in this process because, as she now supposes, she wanted the extra pocket money with which she was bribed to behave as John Allen wished. She frankly said that she did not recall these occasions as being particularly distressing at the time; but she has thought about them quite a lot since with alternating emotions of anger and guilt. She feels very strongly that she should not have been abused in this way and that the experience was damaging to her. She first related these experiences to her current partner … in about 1997. She hadn’t thought about it a great deal before then, since she had got on with bringing up her 4 children. She had known for a long time that it should not have happened; she thought about it from time to time; but she got on with her life.

82.

… The actions of John Allen towards this claimant were disgraceful assaults and plainly abusive, and I accept her evidence that this abuse has had a damaging effect upon her over the years ….

83.

… The claimant does not suggest any distress on her part after these assaults,…

84.

… They [the consultant psychiatrists] agree … that the abuse which she suffered at the hands of John Allen has had no major impact on her personality development. Undoubtedly, she suffered quite significant distress following the revelations in relation to sexual abuse in the Waterhouse Inquiry, which distress has been if anything amplified by her subsequent involvement in this litigation. Although she has no identifiable psychiatric disorder, she has been damaged in a material sense by these experiences. …”

“85.

… I would, in this case, have exercised my discretion under s. 33 … in favour of the claimant had she established a case in negligence, especially since her delay in bringing proceedings was mainly attributable to her commendable efforts to put these matters out of her mind and to get on with her life.”

Mr. Owen submitted that the Judge wrongly relied on Lord Griffiths’ obiter dictum in Stubbings v. Webb, at 506A-C, which we have set out in paragraph 33 above. He maintained that, in any event, the Judge should have treated this claim, on its facts, as falling short of significant abuse such as rape, and more akin to indecent fondling to which Lord Griffiths referred in more qualified terms later in the passage at 506C-D. He said that the injury that grounded her cause of action - the only candidate for a “significant” injury within section 14(1)(a) and (2) - was the emotional distress that first appeared in about 1997 when stirred by the publicity given to the Waterhouse Inquiry.

The passages from the Judge’s ruling that we have set out suggest that that is how he should have considered MCK’s claim, had he found that she had a case in negligence against the defendants. Whatever his intention, it is plain that this claimant did not, on his own summary of the evidence that he accepted, suffer any physical injury or short-term psychological hurt from Allen’s treatment of her. Accordingly, we consider that he wrongly concluded that her date of knowledge would have preceded the period of three years immediately before she brought her claim. In our view, if she had had a case in negligence, her date of knowledge would not have arisen until about 1997 and well within three years of her institution of proceedings in July 1999. If we were wrong about that, we would have difficulty, on the basis of the Judge’s implicit finding that her date of knowledge must have coincided with the sexual abuse in 1983, in agreeing with him that this would be a suitable case for disapplication under section 33. Such an approach would have required to defendants to meet a 16 years old claim as well as being some ten years out of time. It would also have attracted the other difficulties to which we have referred in other claims. And it would have been highly artificial and difficult to fit with the facts of the case as found by the Judge.

As to the judge’s indicative assessment of £5,000 for general damages, Mr. Owen contended that it is far too low.

The joint findings of Dr Jamil and Dr Trevor Friedman are that MCK does not have an identifiable psychiatric disorder and that her experiences whilst a resident in Bryn Alyn children’s home have had no major impact on her personality development. It follows that she would have been entitled to be compensated for the “the quite significant distress” to which the Judge referred following the revelations of the Waterhouse Inquiry associated with the revival of unhappy memories. It is to that, we believe, the judge referred when he said “although she has no identifiable psychiatric disorder she has been damaged in a material sense by these experiences”. However, she has managed to avoid psychological damage and we consider that the most that she could have expected by way of damages at this stage would be a sum in the region of £7,000, taking into account as well the effect on her at the time of the sexual indecency.

This appellant was in the care of the Bryn Alyn Community from March 1975 until January 1981. At the date of placement he was not quite ten years old and by the time he left not yet sixteen. He was the third of four illegitimate children and of mixed parentage. His mother could not cope with him. He was taken into care and suffered considerable abuse before being sent to Bryn Alyn. At one of his placements the woman in charge had kicked and punched him and beaten him with a cane. During a stay in a children’s home he had been sexually abused by two women members of staff. At another home he was beaten by his foster mother with a belt and locked in his room. Throughout this period he had been the victim of racial abuse. By the time he arrived at Bryn Alyn he was already a troubled and aggressive child with a history of truancy, shoplifting and violence.

As the Judge found, his treatment at Bryn Alyn did nothing to help him get over these early difficulties. Almost straight away members of staff, and in particular John Allen, began to abuse him sexually. Very early on he had been brought down stairs in the middle of the night and fondled by Allen in front of members of staff. Thereafter Allen continued to pay him attention, grooming him to the point where he was prepared to submit to buggery. He was buggered not only by Allen but also by Kenneth White, another member of staff. He was offered to Allen’s friends as a sexual plaything. In return he was given presents and money. The fact that he was Allen’s favourite did not protect him from suffering violence at the hands of others. He was slapped, punched, kicked, hit with a stick, made to take cold showers and scrub floors. Members of staff would hit him for no apparent reason.

Since leaving Bryn Alyn DJ has acquired an unenviable criminal record. He has convictions for theft, assault, grievous bodily harm, blackmail, wounding, possessing an offensive weapon, and grievous bodily harm with intent, for the last of which he served a sentence of twelve years imprisonment.

It is not contended on his behalf that the first defendant is responsible for his appalling record of crime, but it is said that he has suffered particular distress upon learning that Allen had abused his trust. He is now diagnosed as suffering from delayed chronic post-traumatic stress disorder. The Judge accepted that diagnosis.

As to limitation, the claimant issued proceedings in January 1998, that is eighteen months earlier than most of the other claimants. The last of the abuse in respect of which he claimed was in 1981 some 17 years before. The Judge held that he had the requisite knowledge under section 14 before he left Bryn Alyn in early 1981, which, if correct, put his claim nearly 12 years after the expiry of the limitation period. The Judge said, at paragraph 95 of his judgment:

“I accept … that the claimant must have known in respect of the sexual abuse that what was done to him was wrong and that he had suffered significant injury. He must have known this before he left Bryn Alyn. Equally he knew that the injury suffered was at least in part attributable to the failure of the staff to protect him. That said, what he did not realise until he saw his solicitors and the doctors thereafter instructed was the extent of the damage that this wrongful abuse had caused him. In February 1997 the claimant saw a psychiatrist at his own request whilst in prison. This was shortly after he had made his statement to the Waterhouse Inquiry on 31^st January 1997. …”

For the reasons we have given earlier in this judgment and on the available evidence in this claim, we are of the view that the Judge wrongly concluded that DJ had knowledge of significant injury for the purpose of section 14 by the end of the abuse in 1981 or within three years after his majority, by 1986, so as to prevent him from relying on that provision. More accurately, in our view, on the evidence before the Judge as to the nature and circumstances of the claimant, the manner of the abuse and the time at which it occurred, he would not have reasonably considered that the abuse, despite its seriousness, would justify the institution of proceedings. The Judge’s distinction in saying that he did not know “the extent of the damage” until much later does not engage the meaning in section 14(1)(a) and (2) of the “significance” of the injury, as explained by Bingham LJ, as he then was, in Stubbings v. Webb, in the passage that we have set out in paragraph 36 above. Even allowing for the seriousness of the abuse alleged, the Judge’s approach also overlooks the fact that such test has to be applied to conduct taking place in a wholly different climate of public opinion and attitudes over twenty years ago. And it is plain from the Judge’s remarks and assessment of damages further on his judgment, at paragraph 97, that the only “extent” of damage which he had in mind was lately developed post traumatic stress disorder:

“In my view this claimant has suffered significant distress since early 1997, which distress is likely to recur, albeit on a diminishing scale, for the indefinite future. The doctors agree that his tendency to lose control when in temper has been precipitated by his experiences of racial abuse as a child and his experiences of sexual and physical abuse at Bryn Alyn. Having seen the claimant in the witness box over half a day, I conclude that he is likely to mature further and to overcome his difficulties as time proceeds, getting on with his life in a more constructive way than hitherto. I take the view that he had in essence blocked out his memories of abuse between 1981 when he left Bryn Alyn and 1996/7 when he learned of the Waterhouse Inquiry. His suffering as a result of the Bryn Alyn experiences in that period of time was not such in my view as to merit compensation. He has however suffered significantly over 4 ½ years now and he will suffer on a reducing scale as time goes on. Given the length of time over which these problems have persisted, and bearing in mind the length of time over which the abuse described took place I conclude that the claimant’s symptoms do justify the description of a post traumatic stress disorder which cannot be described as severe in the light of the claimant’s constructive manner and positive outlook for the future. ” [our emphases]

In our view, the abuse suffered by DJ at Bryn Alyn, though serious and prolonged, and painful and harrowing, was not of significance to him within the meaning of that word in section 14(2). What became of significance to him much later, in about 1996 and within three years of his commencement of proceedings in January 1998, was his delayed post-traumatic stress disorder, prompting him then to frame a claim for damages for it.

The Judge’s decision to exercise his section 33 power of disapplication notwithstanding over 17 years of delay from the end of the abuse and, on his determination of the date of knowledge, nearly 12 years delay from the expiry of the limitation period was, as in other cases, expressed shortly by reference only to the claimant’s reason for delay:

“99 … He had successfully blocked his memories on the Bryn Alyn abuse for 15 years and in my view it would be inequitable in all the circumstances not to allow his action to proceed.”

For the reasons we have given earlier in this judgment, his approach was defective. And, in its application to this claim, we are of the view that it would have led to a plainly inequitable result in section 33 terms. First, the period of delay was very long. This is an important circumstance given the purpose of section 33 to protect defendants from stale claims, however strong or weak they may seem when limitation is being considered. As we have said, a judge may walk on uncertain ground when he determines the critical facts in an action and then relies on that determination to vouch for the safety and fairness of embarking on the trial at all. In this case the effect of the delay was bound to have had a serious effect on the Judge’s ability properly to assess the cogency of DJ’ evidence as a whole. The lack of other evidential support and of contemporaneous documents or witnesses by which to test and/or contradict his evidence was aggravated because of his potential unreliability, having had a number of convictions for dishonesty and a history of prolonged use of illicit drugs and alcohol abuse. In our view, it would have been unfair on the defendants to require them, by disapplication under section 33, to meet such a claim arising out of events so long before.

The Judge went on to assess general damages at £25,000 to take account of the claimant’s difficulties, partly attributable to his experiences at Bryn Alyn, for the late development of post traumatic stress disorder, including his difficulty in maintaining long-term relationships with women. He awarded nothing by way of damages for loss on the labour market and only £500 for costs of therapy against a claim of £2,520.

It is accepted that the Judge was entitled to dismiss the claim for loss of earnings. However Mr Owen has submitted that the sum for general damages is too low given the length of time – getting on for six years - over which the claimant had been abused and the fact that he had eventually developed post traumatic stress disorder notwithstanding that it was described by the Judge as less than severe. Mr. Owen also submitted that the Judge should have awarded the whole of the costs of therapy.

As to general damages, the award of the £25,000 was intended to compensate the claimant for the period over which he had suffered and would continue to suffer from post traumatic stress disorder as well his difficulties past and present in holding down relationships with women. Given the Judge’s finding as to the relatively recent onset of this disorder and its diminishing severity, we consider that that figure was adequate to compensate him for the injury in respect of which he claims. However, it looks as if the Judge, in fixing on that figure for the post 1996/97 suffering, has not included any allowance for the fact and effect on the claimant of the abuse at the time or for some consequential psychiatric problems in the intervening period from 1981 to 1996/97 mentioned in the agreed medical reports. Given the length and great seriousness of the abuse itself, particularly in the prolonged period of “grooming” and buggery to which he was subjected, we consider that a global sum for general damages of £50,000 would be appropriate. And, for reasons that we have already given in our general observations on the Judge’s awards of the costs of therapy, we consider that he is entitled to recover the whole cost of therapy, namely £2,520.

Accordingly, we allow the appeal so as to substitute an award of £50,000 for general damages and £2,520 for cost of therapy for the respective awards of the Judge of £25,000 and £500.

KJM was in the care of the first defendant from March 1973 until December 1975, that is to say between the ages of thirteen and nearly sixteen. He was forty-one at the date of trial.

The claimant was the eldest of seven children living with his parents in a “two up two down” house in Warrington. Both his mother and father were heavy drinkers. When in drink his father used to beat his mother. At his local primary school he was involved in fights. As he grew older he was said to be the “prime instigator of a great deal of anti-social behaviour”. He was put on probation for burglary and theft. Someone described him as being insolent, using foul language and having a vicious temper with “uncontrollable outbursts”. He threatened other children with a knife and threw bricks at them. When he was excluded from school he persuaded other children to join him. It was at this stage that he was placed with Bryn Alyn on the advice of a consultant children’s psychiatrist, Dr Joseph Neville, who reported:

“I would earnestly suggest that the Warrington Educational Authority should in the very first place make a direct approach to the Principal of the Bryn Alyn Community near Wrexham, Flintshire, to ask whether the Community would accept Kevin in the near future. I would suggest that my entire report should be made available to the Bryn Alyn people rather than an extract or summary. I believe that Kevin might do very well in a community where boisterous and adventurous behaviour is catered for, particularly because Kevin so obviously needs legitimate excitement and adventure if he is to fulfil himself, rather than conventional classroom activities.”

So it is apparent that those who had dealings with KJM by no means regarded him as a lost cause. However, the Judge was entirely justified in concluding that:

“he was a very needy child and one who was unusually difficult to control and care for because of his disturbed family background, his significant difficulty in controlling his temper and his tendency towards crime at a young age.”

The Judge found that, during his time at Bryn Alyn, the claimant was indecently assaulted by John Allen on a number of occasions. He did not accept that the claimant had proved to the necessary standard that he had been indecently assaulted and buggered by others. At one time that finding was under appeal. That is no longer the position. What is under appeal is the Judge’s award for general damages of £5,000 and his award of part, £1,500, rather than the full cost of therapy, namely £2,000. There is no appeal against his refusal to award any sum in respect of lost earnings.

As to limitation, the Judge, as part of his general ruling on the date of knowledge for the purpose of section 14, held that KJM had the requisite knowledge by the time he left Bryn Alyn, which was in 1975. However, he exercised his discretion in the claimant’s favour under section 33 to disapply the limitation period. The Judge noted, in paragraph 106 of his judgment, that the claimant had made no mention of the abuse until he spoke in late 1992 with a probation officer:

“106 ….. the claimant made no disclosure of the abuse now described until the end of 1992. He explained this in his evidence by saying that he did not think about the abuse when he left Bryn Alyn and he had no symptoms that he can recall before speaking to the probation officer … He must have known that he was the victim of abuse when he gave his evidence against Allen in 1995, but these proceedings were not instituted until July 1999. His case on limitation is that he has not been concerned to obtain compensation for the abuse suffered, but has preferred to avoid recalling matters which cause him pain. In short he invites the court to exercise its discretion to pursue his claim, notwithstanding that he is out of time, and I conclude that it is equitable so to do.”

For the reasons we have given earlier in this judgment and on the available evidence in this claim, we are of the view that the Judge wrongly concluded that KJM had knowledge of significant injury for the purpose of section 14 on leaving the Community in 1975. In our view, in the light of the evidence, any injury from the serious sexual abuse to which he was subjected at Bryn Alyn, though serious and distressing, was not of significance to him within the meaning of that provision at so early a stage or even by the end of the primary limitation period in December 1980. Its significance and attributability to the abuse could possibly have become apparent to him in discussions with his probation officer in about 1992 at the earliest, leading to his giving evidence against Allen in criminal proceedings and claiming compensation from the Criminal Injuries Compensation Board in 1995. However, either of those dates would have been too early to bring his July 1999 claim within time. It appears from the claimant’s evidence, unchallenged and uncontradicted on this point, that his state of mind in 1992 and 1995 was of some uncertainty, particularly as to attributability - simply that his continuing difficulties might be sufficiently serious to warrant proceedings and might be attributable to the abuse. It certainly fell short of a firm belief that that was so. As Mr. Owen submitted, such an ambivalent state of mind, even if it had amounted to an unreasonable failure to consider his condition sufficiently serious to warrant proceedings for damages, would not have sufficed if he did not also have a firm belief in its attributability to the abuse while in the care of the first defendant; see dicta of this Court in Spargo v. North Essex District Health Authority [1997] PIQR 235, at P242 and Roberts v. Winbow [1999] PIQR P77, at P88. The Judge, having found and erred in the way he did as to the claimant’s section 14 knowledge at the time of the abuse, cannot have intended to make a repeat finding in respect of the 1992 or 1995 matters, and on the evidence, as it stood, would not have been justified in doing so. In our view, he should have concluded from the evidence that the claimant’s date of knowledge was much later, probably in 1999 when he first instructed solicitors to investigate his claim and/or was seen by the psychiatrist, Dr. de Taranto.

As to the Judge’s ruling under section 33, predicated on his section 14ruling, we consider for the reasons we have given in our general treatment of this issue that his decision – seemingly centred on KJM’s reason for delay – was defective. In its application to this claim, it would have led to a plainly inequitable result. First, the period of delay, based on the Judge’s assessment of the date of knowledge as 1975 was extremely long - over 24 years from the last abuse and over 18 years from the expiry of the limitation period. Second, the effect of the delay was bound to have had a serious effect on the Judge’s ability properly to assess the cogency of the claimant’s evidence. The lack of other evidential support and of contemporaneous documents about matters in issue over 24 years before by which to test and/or contradict his evidence was aggravated by his potential unreliability. He had been described in reports as “a chronic liar and manipulative”, had numerous convictions for dishonesty and had a long history of use of drug and alcohol abuse.

If, contrary to our view, the claimant acquired the requisite knowledge in 1995 when he gave evidence at the trial of Allen and applied to the CICB for compensation, the period of delay after the expiry of the limitation period would have been minimal and the Court would then have been entitled, notwithstanding Donovan v, Gwentoys, to consider that as a relevant circumstance in the exercise of its discretion. As we have already observed, the House of Lords did not have to consider in that case, an extension of the limitation period because of a delayed date of knowledge and there is nothing in the speeches of their Lordships to exclude regard to such a circumstance. However, the weight to be given to it in the final balance of circumstances in each case is another matter. Here, given the great length of the delay after the abuse itself and the problems that it created for the defendants, we would have given it less weight than in other cases of shorter overall delay.

Assuming for this purpose the correctness of the Judge’s ruling on section 14, or a date of knowledge in 1995, we are thus of the view that it would have been inequitable to require the defendants by disapplication of section 33, to meet so stale a claim. However, for the reasons we have given, we are satisfied that the claimant did not have the requisite knowledge until well within the three years period before issuing proceedings.

As to general damages, the Judge said that, since leaving Bryn Alyn, KJM had accumulated a number of convictions for serious criminal offences and, insofar as he is now to be regarded as a psychopath that was not something to be laid at the door of the first defendant. However, the Judge was prepared to attribute what might be called post traumatic stress disorder to the recollection of the abuse he had suffered at the hands of John Allen. He was satisfied that the claimant continued to have unpleasant memories of that abuse and that he would continue to suffer from those unpleasant memories “although it … [might] be possible to minimise their effect to some extent by psychotherapy”. As to the claimant’s other problems, the Judge considered that they were probably genetically based or attributable to his treatment and way of life before arriving at Bryn Alyn.

On our reading of paragraph 111 of the Judge’s judgment, he considered £5,000 to be the appropriate compensation for the continuing symptoms that he described. We believe this sum to be insufficient given the evidence, which the Judge appears to have accepted, that the first defendant should have been able to alleviate the claimant’s problems rather than make them worse. There is also the immediate two and half years suffering caused by the abuse. We consider that £12,000 would better reflect the overall measure of general damages.

For reasons advanced earlier in this judgment we also consider that there was no justification for failing to award the full cost of therapy, namely £2,000.

Accordingly we substitute the sum of £12,000 for general damages and £2,000 for the cost of therapy for the respective awards of the Judge of £5,000 and £1,500. To that extent KJM’s appeal is allowed.

This claimant was first taken into care at the age of five. She had a number of different placements and at one time was considered suitable for adoption. However, she was prone to temper tantrums during which she would bite, kick and use obscene language. By the time she arrived at Bryn Alyn in late 1982 aged twelve and a half she had experienced a number of sexual encounters and was suspected of being sexually precocious. During the three or so years that she was at Bryn Alyn she claims to have been sexually abused by three members of staff. One of those was Ian Muir, the deputy head, whose attentions spanning several months culminated in an act of sexual intercourse. There is no suggestion that JS was unwilling. The second individual was a Patrick Bates who, she alleged, had attempted to make love to her during a camping trip. She also complained that a member of staff with the initials DV had buggered her on a number of occasions and that, at his invitation, she had masturbated him.

The Judge found her allegations against Bates and Muir to be proved but not those against DV. It is worthy of notice that in 1986 Muir pleaded guilty to an offence of unlawful sexual intercourse with her and was sentenced to six months imprisonment. Following complaints to the police in 1998 DV was tried at Chester Crown Court on an indictment containing three counts of buggery and two counts of assault. He was acquitted on all counts. At one time Mr Owen was minded to challenge the judge’s finding in relation to DV. He no longer does so.

As to the indecent assaults of Muir, the Judge found the first defendant vicariously responsible for them, seemingly in negligence for failing to prevent them. On that basis, we would take the same course in respect of his conduct as we have taken with that in other claims where the delay was relatively short – and for similar reasons. We would regard JS’s date of knowledge as likely to have been within the three years limitation period. Or, if wrong about that, we would exercise discretion in her favour to disapply that limitation period.

As to the indecent assault by Bates, the Judge found no negligence on the part of the first defendant. He said, at paragraph 121 of his judgment:

“… the abuse proved against Patrick Bates happened on an isolated occasion when the claimant and other residents were on a camping trip with Mr. Bates. Although he was the only member of staff present, the party was a mixed party, with more boys than girls. There is nothing in the evidence placed before me to suggest that other members of staff should have suspected any relationship between the claimant and Bates; and I am unable to find negligence proved against the defendants in respect of this indecent assault.”

Such a finding did not close the door to recovery from the defendants in respect of the vicarious responsibility of the first defendant for the assault by Bates. First, in our view, his abusive conduct had a sufficiently close connection with his work to satisfy the Lister test as we have interpreted it. Second, since JS commenced her action in January 1994, within the six years period of limitation governing the claim, it was not statute-barred. However, this compliance with that time limit appears to have been overlooked by counsel and by the Judge, who, mistakenly, did not take the Bates’ incident into account in his award of damages.

So JS is entitled to be compensated for the sexual abuse suffered at the hands of Ian Muir, and for the single incident of indecent assault carried out by Patrick Bates.

In the event the judge awarded £15,000 by way of general damages for Muir’s sexual abuse of her and nothing at all for loss of earnings. There had been no claim for costs of therapy.

There is no doubt that this claimant has had a very unhappy life, which is mainly due to her experiences before being placed and since leaving Bryn Alyn. She lost a child in 1990, which the judge found had made a “significant contribution to the symptoms of depression and to her borderline personality disorder”, which all three relevant doctors agree is the most appropriate description of the claimant’s symptoms. What the Judge had to decide, however, was the extent, if any, to which the Bryn Alyn experience had contributed to those symptoms. Looking at the effect of the abuse by Muir and disregarding the indecent assault by Bates, he concluded, at paragraph 126 of his judgment:

“… that the proven Bryn Alyn abuse did make a material contribution to the symptoms now apparent as did the many other features disclosed in the previous history of this unhappy claimant. The abuse proved however, was abuse by an assailant who was in loco parentis and there is no doubt that the claimant’s perception of the trauma to which she was subjected as a result of the abuse by Ian Muir is that it was most significant. I assess her general damages in all the circumstances in the sum of £15,000.”

He went on to state that, in his view, she had failed to make good her claim for loss of earnings.

In the light of the medical evidence, we agree with the Judge’s view that Muir’s abuse had made a material contribution to her current symptoms. No doubt, he would have awarded slightly more by way of general damages had he felt able to take account of the Bates incident. However, Mr Owen submitted that some adjustment is necessary beyond the inevitable uplift for that incident. He maintained that the Judge’s award did not sufficiently reflect the long-term harm of Muir’s exploitation of her weakness, culminating in his taking away her virginity and then abandoning her at a highly impressionable age.

We consider that there is force in Mr Owen’s submissions. Had all JS’s problems been attributable to her treatment at Bryn Alyn, we would have considered an appropriate award by way of general damages to be in the region of £45,000 to include an appropriate sum for the indecent assault by Bates. Since we accept the Judge’s general approach to apportionment, we consider that the proper award for general damages should be £28,000, taking also into account the proven abuse itself. We accept his conclusion with regard to the claim for loss of earnings and accordingly the appeal of JS will be allowed to the extent that we substitute the sum of £28,000 by way of general damages.

For just over two years from 1984 to 1986, between the ages of thirteen and fifteen, GOM was in the care of the first defendant. At the date of trial he was aged thirty-one.

Like so many of these claimants GOM’s early life was beset with difficulty and unhappiness. He never knew his father, and his mother, a drunk, entirely neglected her maternal duties. She had a succession of male friends or co-habitees who were frequently violent towards her. Often enough GOM became involved in the violence out of a wish to protect his mother. At the age of eight he was made a ward of court and went to live with his grandmother. He and she did not get on and in March 1983 he was committed to the care of the local authority. He had already got himself into trouble over “joy-riding”. Whilst with the local authority he had a history of absconding from his placements and playing truant from school. He was described in one report as “being resentful towards authority and surly and argumentative”. It was thought that he needed firm control. An educational psychologist considered that he had developed a non-trusting attitude towards adults and authority figures, and that should surprise no one. The same psychologist suggested a placement in a secure and long-term base where the adults in charge would be able to accept his difficulties and develop his trust. So he was sent to one of the homes within the Bryn Alyn Community, Pentre Saeson, where the man in charge was Ken Taylor.

During the two years he spent at Pentre Saeson GOM was repeatedly indecently assaulted and buggered by John Allen. The occasions described are without number. Apart from the touchings and buggery he was made to masturbate Allen on approximately thirty occasions. For all this he was given money and presents. So much for being placed in the company of adults who could accept his difficulties and develop his trust.

There was also physical abuse. He described it as “a few good slaps”. But he made little of it as he did the various punishments that were imposed, such as scrubbing the floor with a brush or, on two occasions, with a toothbrush. As the Judge found, the physical abuse paled into insignificance when placed alongside what Allen had done to him.

It took a long time for GOM to reveal the full story. He felt confused and ashamed about what had had happened. It was not until about three weeks before the trial date that he admitted to having been buggered. Nevertheless, the Judge accepted his account.

By the time he came to be seen by Drs. Staley and Carnwath in 2000 he was a mess. He was suffering from a personality disorder that had led to what is termed “opiate dependence syndrome”. It was Dr Staley’s view, accepted by the Judge, that his experiences whilst in the care of the first defendant had been sufficiently traumatic to lead to a diagnosis of post-traumatic stress disorder. That involved intrusive memories, nightmares, flashbacks and a poor sleep pattern. All that had been going on for at least five years and, even with treatment and counselling, it was unlikely that he would ever be free from the effects of his ill treatment.

As to limitation, the Judge, as part of his general ruling on the date of knowledge for the purpose of section 14, held that GOM knew he had suffered significant injury at the time of the alleged abuse, that is, by early 1986 when he left Bryn Alyn, some 13 years before the issue of proceedings in July 1999. The delay from the expiry of the primary limitation period was just over eight years. When dealing with his state of mind at the time of leaving Bryn Alyn and later until very shortly before the hearing, the Judge said, at paragraphs 131 and 132 of his judgment:

“130.

… When he saw Dr. Christopher Staley … on 8^th March 2000 he found it very difficult to talk about the acts of abuse perpetrated by Allen, but confirmed the account given to Leslie Cohen. He was asked specifically if he had been the victim of anal intercourse to which he replied Allen was “getting around to it but I told him no.” He realised that this abuse was wrong but he did not tell anyone about it until 1996. This was because he was ashamed of these events, and because he was warned by John Allen that if he told anyone, then he would be straight back to the secure unit at Rose Hill. Eventually in 1996 a solicitor who was representing him in a criminal matter asked him whether had been at the Bryn Alyn Community, and whether he had been abused. Thereafter he disclosed the abuse as described.

131.

On 7^th February, 2001 (i.e. approximately 3 weeks before the start of this hearing) the claimant went again to see Dr. Staley. On this occasion, and for the first time ever, GOM admitted that he had been buggered by John Allen on numerous occasions. Dr. Staley describes in his addendum report of 11^th February 2001 that the claimant was emotional when he made this admission and clearly did not wish to discuss the matter in any detail.

132.

The situation therefore in this case is that the claimant made no complaint of any abuse at all until 10 years after the event; and a further 5 years elapsed before he made any allegation of buggery. In these circumstances the court must look carefully at his evidence when asking whether or not the abuse alleged is proved to the requisite standard. In my view it is not surprising that a young man is slow to reveal sexual abuse in which he has been a participant over a significant period of time, particularly when his participation has produced financial reward. Further in my view it is significant that the allegation of buggery emerged during an interview with the doctor at which the claimant’s drug counsellor was present. The claimant had built up a trusting relationship with that counsellor and in those circumstances in my view it became more possible for him to tell the full story. Dr Staley observed that the claimant was very emotional and embarrassed as he described the events relied upon. I observed the same characteristics in the claimant when he gave his oral evidence to the court, and he impressed me as a witness who was doing his best to recall events which he had attempted over a number of preceding years to dismiss from his mind. I realise, of course, that this is a notoriously difficult field in which to reach conclusions as to truth; but I am satisfied, particularly bearing in mind what I have heard about John Allen throughout this hearing, that the sexual abuse alleged by GOM including the buggery, is proved to the requisite standard.”

The Judge went on to exercise his discretion under section 33 to disapply the limitation period, giving much the same terse reason as he had in the cases of other claimants:

“As a result of his embarrassment at his own involvement in these abusive activities he was slow to articulate his claim. With this in mind in particular, it would be inequitable not to allow his claim to proceed.”

In our view, the sexual abuse suffered by GOM at Bryn Alyn, though serious and of over two years duration, is unlikely to have been of significance to him at the time or for many years after within the meaning of that word in section 14(2). The sexual abuse, though of great frequency and gravity, was not itself secured by or accompanied with violence or threats of violence, but by bribery. Its effect on the claimant at the time was one of confusion and shame, such that he felt unable to, and did not resist or complain about Allen’s conduct. And the separate and more generalised physical abuse by members of the staff was certainly not the stuff of which a boy of his background and circumstances at the time would have realistically considered civil proceedings for damages. The effects of the abuse, particularly of the sexual abuse by Allen only became of significance in a section 14 sense much later when he first began to face up to its after-effects. For the reasons we have given earlier in this judgment, the Judge’s general approach to the meaning of knowledge of significant injury in this context was defective and led him to error in his finding of an early date of knowledge in this case. On the claimant’s unchallenged and uncontradicted evidence on the point, although he may have known at the time or shortly after the abuse that it was “wrong”, it was not until late 1996 or 1997, shortly after the severe depressive illness had begun to manifest itself in 1996, and when prompted by his disclosure of the matter to the Waterhouse Inquiry, that he reasonably began to focus on the significance of what the abuse had done to him. In the meantime, as Mr. Owen noted, albeit in the context of the Judge’s exercise of discretion under section 33, the claimant had “blocked out” the abuse at Bryn Alyn and had resorted to drug abuse. In our view, on the evidence, he did not have the relevant knowledge before late 1996 or 1997, that is, within three years before issue of proceedings.

As to the Judge’s exercise of section 33 discretion in favour of the claimant, predicated on his section 14 finding, we are of the view that it would have led to a plainly inequitable result. First, the period of delay, based on the Judge’s assessment of the date of knowledge, was long – over 13 years from the last of the abuse complained of and over 8 years from the expiry of the limitation period. Second, the effect of the delay was bound to have had a serious effect on the Judge’s ability properly to assess the cogency of the claimant’s evidence, particularly in this “notoriously difficult field in which to reach conclusions as to truth” as he put it. Although, there was some contemporaneous Bryn Alyn documentation available, it did not amount to very much; and there was the usual lack of evidential support for the claimant’s evidence or by reference to which it could be tested. As in other cases, he was potentially a highly unreliable witness, having had numerous convictions for dishonesty and a long history of drug and alcohol abuse. This may be offset in part by evidence of other similar behaviour of Allen, to which the Judge referred. However, we are of the view, given his finding as to section 14, that it would have been unfair on the defendants to require them by disapplication under section 33, to meet such a claim arising out of events so long before. Even if the claimant’s date of knowledge was early enough in 1996 to be just more than three years before his issue of proceedings in July 1999, the consequence that the delay beyond the limitation period would have been minimal, would not deter us from concluding that the staleness of the claim and its consequences on the facts of this case would have made it inequitable to allow the claim to proceed. We acknowledge that another tribunal might exercise its discretion differently in such circumstances, but we consider it important to keep in mind that section 33 relief is, as Lord Diplock put it in Thompson v. Brown, at 750C and 752E-F, “an exception to a general rule that has already catered for delay” in the provision, first, of the limitation period itself and, second, of an extension to it based on the claimant’s excusable ignorance of material facts.

As to quantum, the Judge accepted that GOM’s experiences before and after his placement at Bryn Alyn could not be ignored, in particular as to the latter, an incident in 1998 in which he had been attacked with a knife. His dependence on drugs had led to him committing many offences – over 90 – and he had never been in employment.

In the event, the Judge awarded general damages of £25,000 and £2,500 for future loss on the employment market. He accepted the need for counselling and for in-patient treatment. Under this head he awarded £10,000 against a claim for £13,800.

Mr. Owen submitted that in each case the award is too low. We agree.

It is clear from paragraph 137 of the Judge’s judgment that he directed his attention mainly to the effects of the sexual abuse. In arriving at the figure of £25,000 he allowed for the fact that the claimant had been badly damaged by his early childhood experiences. He regarded what had happened at Bryn Alyn as being “cumulative”. It is no doubt true that the Bryn Alyn experience built on what had gone before. But, as we have pointed out earlier in this judgment, the proper comparison is between how a particular claimant turned out and how he would have turned out given proper support during his or her time in the first defendant’s care. On that basis we are of the view that, taking full account of the serious after-effects of the abuse, a greater sum than £25,000 is warranted. Also to be taken into the account, which the Judge omitted to do, is the effect on the claimant at the time of being subjected to such repeated and serious sexual abuse in particular over two years. In our view, an appropriate global figure should have been in excess of £50,000. After apportionment in respect of the long-term injury, we consider the appropriate award for general damages should be £45, 000.

As to loss of earnings, we understand why the Judge declined to make any award for past loss. He said, at paragraph 139 of his judgment:

“I reject the claim for damages for loss of employment in the past, taking the view that his criminal record has rendered him virtually unemployable.”

It is impossible for us to go behind that finding. As to the future, the Judge said, in the same paragraph:

“… it will be very difficult for him to obtain employment, given his age and lack of training. There is no evidence as to when he may recover from his heel injury but the impediments to his obtaining employment, that injury apart, are his inability to mix with other people and his need to overcome his drug addiction. These are the responsibility of the first defendant. It is encouraging that he has committed no criminal offences since 1997, but the claim for future loss on the employment market remains somewhat speculative. I shall make a modest award in this regard in the sum of £2,500.”

The award represents three months loss of wages in some poorly paid employment. Since it is acknowledged that certain impediments in the way of the claimant finding employment are the responsibility of the first defendant, that figure does not appear to be adequate. Notwithstanding the speculative nature of the claim we consider that it would not be appropriate to award less than £10,000 under this head.

Again, we can see no reason why the full claim for cost of treatment should not be included. It was accepted by the Judge that the treatment would be likely to contribute to some improvement in the future, thus reducing the level of general damages and future loss of earnings. Moreover, he considered that the claimant would take full advantage of it, which would have been necessary even without any contribution from the pre and post Bryn Alyn experiences.

Accordingly we allow this claimant’s appeal by substituting for the Judge’s awards, £45, 000 for general damages, £10,000 for future loss of earnings and £13,800 for the cost of therapy.

This appellant was at Cotsbrook Hall (part of the Bryn Alyn Community) for just over three years from late 1977 to the start of 1981, between the ages of thirteen and sixteen and a half. He was placed there after having been taken into care by the Manchester City Council following his conviction of an offence of malicious damage. Previously he had been a difficult child who was often argumentative, insolent, violent and dishonest. Like many other of the claimants he was the product of a broken home.

After leaving Bryn Alyn he succumbed to drink and was brought before the courts on a number of occasions for crimes of dishonesty and violence. He married in April 1987 and for some time his wife managed to restrain his drinking. But by 1990 his consumption had reached twenty five pints of beer a day.

It was not until January 1997 when visited by the police that he made any complaint about his treatment at Cotsbrook Hall. Thereafter he made three statements in which he described having been indecently assaulted by a care worker, David Stanley. The indecent assaults, which covered a significant period of time, included mutual masturbation, oral sex and attempted buggery. For his participation he was rewarded with gifts and sweets. He was not the only resident at Cotsbrook to complain about David Stanley. In due course Stanley was prosecuted and convicted at Worcester Crown Court of a number of offences, including indecent assault on this claimant. In February 2001, nearly 20 years after the event, the claimant alleged that he had also been abused by John Allen. He accused Allen of mutual masturbation and attempted buggery. As the Judge was to find, the claimant had been the victim of very serious sexual abuse over a prolonged period whilst he lived at Cotsbrook Hall.

The appellant also complained of physical abuse. He spoke of having been clipped around the ear, and having been punched and kicked by various members of staff. The Judge was satisfied that the regime at Cotsbrook Hall was abusive in that violence was used as a method of control “with unnecessary and unjustifiable frequency”, although, in his view, that aspect of the case was of “significantly less importance” than the sexual abuse.

There is no disagreement between the doctors who have reported on this claimant. Drs. Shapero and Carnwath acknowledge his account of having been subjected to systematic and regular sexual abuse while a resident at Cotsbrook Hall. They agree that the police enquiries provoked the late onset of psychological symptoms that they describe as “delayed onset post traumatic stress disorder”. They also agree that he suffers from “alcohol dependence syndrome” or, as most of us would say, alcoholism, and further that he has undergone an enduring personality change. As to causation, the doctors are of the view that his difficult childhood and lack of care and affection had a part in the later development of alcohol dependency and poor anger control. But, they agree nonetheless that his experiences at Cotsbrook Hall played the major part in the development of his post traumatic stress disorder and enduring personality change.

On a more optimistic note the doctors agree that, with appropriate treatment, the claimant should make good progress and that there is hope “for considerable resolution of his symptoms”.

As to limitation, the Judge’s general finding was that the claimant had the requisite knowledge for the purpose of section 14 on leaving Bryn Alyn in early 1981. But he exercised his discretion to disapply the limitation period under section 33 in respect of his claim brought over 18 years later in July 1999, some 13 years 8 months after the expiry of the primary limitation period. In doing so, he said, at paragraph 152 of his judgment:

“… He did very well to put his abusive experiences to the back of his mind until 1997. Although the delay in this case is nearly 14 years, there is minimal prejudice to the defendants since both Stanley and Leen have been convicted of sexual offences; and could have been called if the second defendant had so decided. …”

For the reasons given earlier in this judgment and on the facts of this case, we are of the view that the sexual abuse suffered by the claimant at Bryn Alyn, though serious and prolonged, was not of significance to him within the meaning of section 14(2) at the time of leaving Bryn Alyn, or for many years after. It is likely that his first knowledge of significant injury for this purpose was after the intervention of the police in 1997 resulting in his giving evidence to the Waterhouse Tribunal and the onset then of post-traumatic stress disorder. We also consider that the Judge’s exercise of his section 33 discretion in favour of the claimant, predicated as it was on his section 14 ruling, was defective and in its application to this claim, led to a plainly inequitable result. First, the overall period of delay of 18 years from the last of the alleged abuse was very long and was likely to have a serious effect on the cogency of the evidence notwithstanding the potential availability of two of the Bryn Alyn staff alleged to have had a part in it. What was in issue was not so much the fact of the abuse, as the Judge appears to have had in mind in the above passage, but whether, having regard to the standards to be expected of the time, up to 20 or more years before the trial, the first defendant had been in breach of its duty of care. The Judge’s reliance, in paragraph 147 of his judgment, in this respect on the evidence of Mr. John Jeffreys to the Waterhouse Tribunal, is somewhat tenuous. There were, in addition, the various other obstacles, common to nearly all these claims, to a fair trial of all the issues, including the potential unreliability of the claimant given his convictions for dishonesty and history of significant alcohol abuse.

In short, assuming for this purpose the correctness of the Judge’s finding as to section 14, we are of the view that it would have been unfair to the defendants to require them, by disapplication under section 33 of the limitation period, to meet so stale a claim.

As to the Judge’s assessment of general damages, he was entitled, in our view, to conclude that the greater part of the claimant’s symptoms was attributable to his ill treatment at Bryn Alyn. He awarded the sum of £30,000. In our view, that figure may be on the low side, but not by much, for the long- term effects of the serious nature and duration of the abuse. It is to be remembered that the onset of those effects was relatively recent. Dr Shapero, in his report of 3^rd September 1999 wrote:

“There has of course been a very considerable gap between the experiences of abuse and the symptoms which have arisen from them. Nevertheless it is clear that Mr. Halliwell-Meachen has been quite psychologically disabled by his symptoms in the past two years. … At present Mr. Halliwell-Meachen is functioning at a far lower level psychologically than he was two to three years ago prior to the intervention of the police.”

There is also the doctors’ agreement that, with treatment and resolution of the present claim, he should make good progress - they hoped - towards considerable resolution of his symptoms. Dr Shapero, in his letter, expressed the view that

“once the legal action is completed and these matters are no longer at the forefront of Mr. Haliwell-Meachen’s mind it will take him six months to a year to regain his equilibrium.”

However, the Judge’s award of £30,000 for general damages took no account for the immediate effects of the regime of serious sexual abuse and also the separate excessive “disciplinary” violence to which he was subjected for over two years. In our view, taking into account the gross nature, duration and frequency of much of that abuse as well as its long-term injurious effect on the claimant, the appropriate figure for general damages is £50,000.

As to past loss of earnings, the Judge awarded nothing. He said, at paragraph 149 of his judgment:

“I observe that for much of the time after leaving the Bryn Alyn Community the claimant was in work, having worked for British Rail and for Parker International. His last criminal conviction was in 1987 and there is no doubt that his marriage had a very beneficial effect upon him. Further he stopped work not because of the abusive experiences which he had suffered but because one of his four children, Liam, suffered severe brain damage at birth which requires special care. Mr Halliwell-Meachen provides a substantial degree of this care.”

We do not seek to go behind those findings or criticise the Judge for failing to make an award under this head.

As to future loss or handicap on the labour market, Judge said, at paragraph 151:

“Although the claimant will remain vulnerable to a return to alcoholism he has demonstrated his ability in the past to hold down proper employment. In my view he should be employable in about two or three years time, when Liam no longer needs his full time care. It is likely that there will be periods of unemployment as a result of some lapses in the future, but the damages in this regard cannot be calculated on a precise basis. For this loss I shall award him the additional sum of £10,000.”

The Judge’s approach seems to us to be unexceptionable and we decline to interfere with his award under this head.

As to the cost of therapy, the Judge awarded the whole sum, as to which there is and could be no appeal.

Accordingly we allow the appeal against the Judge’s award of general damages of £30,000, by substituting for it a sum of £50,000, but dismiss the appeal against his award of £10,000 for future loss of earnings.

This claimant was thirty-eight at the date of trial. He was born in Gateshead, the second youngest of eight children. His father worked for the Electricity Board and his mother worked part-time in a factory. Apart from the facts of his father coming home drunk and smashing up the house and his mother dying when he was about five years old, he has very little recollection of his early years. When he was six he was taken into care and placed together with his younger brother, Paul, in a Catholic children’s home in Newcastle called Nazareth House. Whilst there he was badly treated by the nuns. They hit him with wooden spoons and if he was disobedient made him sit in a cold bath. If he wet the bed they would rub his face in it. One of the other residents at Nazareth House, an older girl, made him touch and lick her body.

PS remained at Nazareth House until the age of eleven. From there he was sent to an assessment centre where he was treated kindly. Unhappily he stayed at the centre for only about twelve months before going on, with his brother, to St Vincent’s Convent where his treatment was no better than that at Nazareth House.

In an assessment made at that time a social worker reported as follows:

“Through inconsistent handling, an attitude from family that can be described as ambivalent at best, and through a degree of institutionalisation both boys have fairly serious problems in all spheres of relationships, have poor opinions of themselves, are below average intelligence and react unreasonably to correction and frustration, by sulks, tears or verbal abuse.

In short, there is fairly serious emotional damage and immaturity.

To a degree, we have failed these boys, whose responses to an environment with a clear structure and a simple system of controls is much better as we have observed when they have been placed at Harlow Green.

They are, however, unfit for a family group home, owing to the absence of male staff, and the fact that they tend to dominate younger children.

I feel that these boys are a long term proposition, and a stable, secure and caring environment of the kind Bryn Alyn carries a fair chance of success.”

In consequence, in early 1976 the claimant was sent at the age of thirteen to Bryn Alyn, where he stayed for three and half years until the end of 1979 when nearly seventeen.

Whilst at Bryn Alyn, or more particularly Bryntirion, the claimant was subjected to what the Judge described as “unjustifiable violence” from time to time, and became another victim of the system by which the staff over-disciplined residents. It has to be said that the claimant was himself capable of using violence and was big and strong enough to take on members of staff, as the Judge implicitly accepted at paragraph 158 of his judgment:

“Accepting as I do that many of the residents were themselves violent and difficult to control; nonetheless I am satisfied that there were frequent occasions when the action taken by staff members is accurately described as excessive in the violent sense; and I am further satisfied that those in authority such as Keith Evans, Peter Steen and John Jeffreys were not properly trained or supervised for the difficult task required of them on a daily basis.... In summary there was physical abuse by staff to residents including this claimant which ought not to have been permitted by the first defendants. The first defendants were in breach of their duty of care to the claimant.

On leaving the Bryn Alyn Community the claimant joined the Army and served for approximately eight and a half years. By the time of his eventual discharge he was suffering from an acute depression syndrome with which he attempted to cope by drinking too much. Then he had a variety of jobs, including some time spent as a security guard. But he was throughout beset by feelings of having been let down and was much in need of counselling.

Matters came to a head in late 1996 when the claimant read a newspaper article about John Allen and the Bryn Alyn Community. In consequence he was interviewed and seen by psychiatrists. One of those psychiatrists was Dr Bhate who saw him on a number of occasions during 1998 and diagnosed chronic post traumatic stress disorder, with specific symptoms namely haunting images and flashbacks. Dr Bhate attributed those symptoms to traumatic experiences suffered whilst in care which the Judge, reasonably, took to refer to time spent at Nazareth House and St Vincent’s as well as at Bryn Alyn. The other psychiatrist, Dr Bronks, was of much the same view on this issue. However, there was some disagreement between the two of them as to the future. Dr. Bhate considered that the prognosis was poor and that it was likely that the claimant’s psychiatric condition would remain unchanged “for the foreseeable future”. Dr. Bronks was less pessimistic. While accepting the likely continuance of current psychiatric symptoms for, possibly, some years, he considered it likely that there would be “a gradual and probably substantial, though incomplete, improvement in due course”. The Judge, in his assessment of general damages and as to future loss, appears to have preferred Dr. Bronks’ less pessimistic assessment.

As to limitation, the Judge took the same course as he had with the other claims. He said, at paragraph 166 of his judgment:

“… I conclude that this claimant had knowledge within s. 14 … for many years; and there is delay in his case of nearly 15 years. Nonetheless it is equitable to exercise the court’s discretion in his favour. His embarrassment at what had occurred prevented him for very many years from talking to anyone about his experiences; and the delay, although lengthy, has caused no significant prejudice to the defendants.”

The claimant issued proceedings in January 1998. For the reasons we have now given many times, and on the evidence in this case, we are of the view that the claimant did not have knowledge of significant injury for the purpose of section 14 by late 1979 or before about 1997 so as to prevent him from relying on that provision to continue his action. His uncontradicted account was that he had not recognised or realised that he had problems, later identified as post traumatic stress syndrome, until 1997, after he had been interviewed by the police and had given a witness statement to the Waterhouse Tribunal.

We also consider that the Judge’s ruling under section 33, predicated on the section 14 ruling,was defective and, in its application to the circumstances of this claim, led to a plainly inequitable result. First, there was the exceptionally long period of delay of nearly 18 years from the latest of the abuse alleged, and over 14 years after the expiry of the primary time limit. Second, there were all or most of the factors present in the other claims going to the cogency of the evidence. For the Judge to say, in his short remarks on this issue in this claim, that he was satisfied that the “delay, although lengthy. [had] caused no significant prejudice to the defendants”, begs the very question of the integrity of the evidence on which he relied in making it. Whilst, there is something in Mr. Owen’s argument about the Judge’s entitlement to take into account the cumulative effect of the evidence in various of the claims, it is of limited weight given that the integrity of those claims was also under question by reason of their staleness. Also for consideration in cases like this is whether, if the matter is to go to trial, a court of first instance would be capable of satisfying itself that an individual claimant is not simply “jumping on the bandwagon”.

Accordingly, as in the other claims we are of the view that, assuming for the purpose the correctness of the Judge’s section 14 ruling, it was unfair on the defendants to require them, by disapplication under section 33 of the limitation period, to meet so stale a claim.

As to quantum, the Judge awarded the claimant £12,500 for general damages. He dealt with the questions of apportionment of cause and assessment as follows in paragraph 163 of his judgment:

“A dispassionate assessment of his present day problems leads me to two conclusions. First, the Bryn Alyn abuse did have a material effect upon his psychiatric symptoms. Second, notwithstanding his abusive experiences in care he was able to work as a soldier for eight years and thereafter as a security guard, a cleaner and from time to time as a demolition worker. Further he is able to care for his eight-year-old daughter for significant periods of time, and is seeking from the relevant court a joint residence order. I conclude that it is probable that he will return to work once this litigation is over; and also that his abusive experiences at the hands of nuns in Nazareth House were as least as damaging to him, and probably more damaging, than his experiences of abuse in Bryn Alyn. In these circumstances I assess his claim to general damages at £12,500.”

Mr Owen challenged that assessment. He submitted, first, that the Judge’s approach to apportionment was simplistic. He maintained that the correct comparison is between how the appellant has ended up with how he would have ended up if he had been given appropriate treatment at Bryn Alyn. The best guide available to the Judge on that issue was the report of the social worker written just before the claimant’s placement at Bryn Alyn (see paragraph 282 above) to the effect that, given proper treatment, there was a fair chance of success. If weight is to be given to that evidence - as it should - it must lead to the conclusion that the first defendant should bear a significant share of responsibility for the claimant’s eventual condition. Mr. Owen also drew attention to the nature, degree and length of the abuse and to the extent of the claimant’s disabilities and, as he described it, the claimant’s poor long-term prognosis.

We accept Mr. Owen’s submission as to the effect of the social worker’s evidence on the issue of apportionment and, on that basis, would increase the award of general damages in part on that account. But we do not consider that the Judge can be criticised for failing to have regard to the evidence as to the extent of the claimant’s present condition or as to the long-term prognosis. As we have said, and as his remarks, (which we set out below), as to future loss of earnings indicate, he clearly preferred the more optimistic evidence of Dr Bronks in this respect. As in all the other claims, we would also increase the sum of general damages so as to include an element for the suffering of the abuse itself – here, excessive disciplinary and other violence for a period of about three and a half years. In our view, having regard to those considerations, the proper sum for general damages is a sum of £30,000.

As to the claim for past loss of earnings, the Judge awarded £2,500. He stated that in his view there had been some loss, but that the extent of it had not been clearly proved. In those circumstances it might be thought that the claimant was fortunate to be awarded anything at all.

As to future loss the judge said, at paragraph 164 of his judgment:

“… it is probable that he will return to work once this litigation is over and once he has benefited from the psychotherapy and anti-depressant medication which both psychiatrists recommend. There are, however, likely to be periods when this claimant who has shown that he can work well at times, will not be able to work because of the abusive memories which periodically revisit him. In this regard I shall award the sum of £10,000.”

Mr. Owen suggested that this award, also, is inadequate. As we read the judgment, the Judge did not attempt to apportion responsibility for loss of earnings between experiences at Bryn Alyn and experience prior to that time. Nor has this Court been shown any material that might suggest that the sums awarded, whether on the basis of full recovery or proper apportionment, are too low. We have, therefore, no basis on which we could properly interfere with this award.

The same is not true of the claim for the costs of therapy, of which the Judge awarded half on the basis of what he had found to be the respective contributions of Nazareth House and Bryn Alyn. For the reasons we have given in the context of this claim for general damages as well as those in the other appeals, we would substitute for the sum of £2,000 awarded by the Judge the full figure of £4,000 claimed.

Accordingly, PS’s appeal will succeed to the extent that the award for general damages is increased to £30,000 and the award for the cost of therapy to £4,000.

CD was first taken into care at the age of nine months, following which he lived in a succession of foster homes and residential children’s homes. In all he was moved over twenty times. In many of the placements he was horribly abused, both physically and sexually. In one, when he was thirteen, a member of staff subjected him to oral sex and masturbation. At another his care worker sexually assaulted him. At yet another he was sexually abused by a care worker weighing about twenty stone. The same man would physically abuse him before subjecting him to buggery. At about the age of fifteen an educational psychologist stated:

“Carl has had an horrendous background with a long history of care and failed foster placements. Severe emotional and behavioural problems have been evident for some considerable time, and what strategies have been attempted have had seemingly little long term success.”

It was against that background that, in mid 1990 at the age of fifteen, he was placed at Bryn Alyn, where he remained for a year. During that time, as the Judge found, he was repeatedly buggered by Patrick Bates, mostly in his, the claimant’s bedroom, but on three occasions elsewhere and outside the care home. He also alleged lesser sexual abuse, including oral sex and mutual masturbation, by a care worker called Steve. In addition, he was subjected to extensive physical abuse throughout the whole period. So bad was his treatment that on two occasions he attempted suicide and ran away several times. He was to describe his experiences at Bryn Alyn as being “the straw that broke the camel’s back”.

By the date of trial CD was still only twenty-six and the youngest of all the claimants. In about 1995 he had started to live with a young woman, Cheryl Nicolson. She had helped him to cope with his day to day life. They had had two children who have since been taken into care. It was to Cheryl Nicolson that, in about 1995, he first spoke of the sexual abuse, although some two years earlier he had made a statement to the police about assaults by John Allen and other members of staff including Bates, a matter to which we shall return.

Drs. Shapero and Black, in their joint psychiatric report, conclude that the CD is now suffering from post traumatic stress disorder. Dr Shapero describes him as having:

“a mixed personality disorder with features of several different conditions, including features of paranoid, schizoid, avoidant and anti-social personality disorders. In summary, he is a very disturbed and disabled individual.”

The Judge found, after anxious consideration of CD’s allegations and the history of how he came to make them, that he had established the various acts of buggery by Bates and the other serious sexual abuse by Steve. However, in respect of three of the acts of buggery by Bates, those not alleged to have been committed in the claimant’s bedroom, he held, in the following passage at paragraph 178 of his judgment, that the defendants were not liable in negligence:

“According to CD the first two acts of buggery took place when he was on his own with Pat Bates at the bulldozer track by the river. On another occasion buggery is alleged in the laundry room of the YMCA hostel in Cornwall. In respect of those particular activities, given where they occurred and given the absence of any warning signs concerning Pat Bates, I do not find negligence proved against the first defendants. However, the situation is different in relation to the buggery and sexual abuse which occurred in the claimant’s bedroom at Bryn Alyn. A member of staff was specifically on duty to supervise what went on in the bedrooms and whilst it would not be realistic to expect such a night guard to know everything that occurred, he ought to have been aware that there were too many visits by Bates to the claimant’s bedroom and he ought to have been put on his guard by the number of such visits. In this way I am satisfied that negligence is established against the first defendants in respect of the acts of abuse just mentioned.”

Mr Owen submitted that the Judge was wrong to distinguish in that way between the conduct of Bates in the claimant’s bedroom and that elsewhere, since, as he argued, it overlooked the general evidence that he had accepted of the first defendant’s failure to devise, implement and operate a safe system of child care. Mr Owen also urged, wrongly as we have found, that the Judge mistakenly interpreted Lister as preventing him in the three instances in which it was an issue from holding the defendants liable in negligence.

We believe that the Judge was entitled, when considering the defendants’ liability in negligence, to make the distinction he did, just as he had done in respect of the abuse alleged by MCK and of part of that alleged by JS. On our interpretation of Lister, as applied to these facts, the first defendant would have been vicariously responsible for Bates’ three acts of buggery away from CD’s bedroom as acts of trespass to the person committed in the course of and closely connected with his employment, and thus subject to the non-extendable six years’ limitation period. As such, the claim was still out of time – just. But the practical consequences for the claimant in the assessment of damages, given the finding in negligence against the first defendants for Bates’ repeated other acts of buggery of the claimant over a year, are minimal.

Of more importance is the issue of limitation in relation to the finding of negligence, in respect of which the claim was just over three years out of time. The Judge held that the claimant had had knowledge for the purpose of section 14 when he left Bryn Alyn. He then went on, as in the other claims, to exercise his discretion under section 33 to disapply the limitation period. However, he did so after much more anxious consideration than in the other claims for, as is clear, this was a particularly difficult case in which to assess the cogency of the only evidence, that of CD, as to liability, and, given his pre and post Bryn Alyn life, as to the assessment of damages.

The Judge began by expressing the particular difficulty he had had in evaluating the claim because of the manner in which the claimant had given his evidence. Later he set out at some length the history of the development of the allegations to illustrate the reasons for his anxiety as to their truth. First, in about 1993, some two years after leaving Bryn Alyn, the claimant told a social worker that he had been physically assaulted whilst there, but not sexually abused. Shortly, afterwards, in October 1993, in a statement to the police, he alleged that he had been physically assaulted at Bryn Alyn by John Allen, Pat Bates and others, but did not allege any sexual abuse. His explanation in evidence for that inconsistency with his present claim was that he had lied to the police on the advice of the social worker in order to persuade them that he would be of no value as a witness in any proceedings about abuse at Bryn Alyn. That explanation could not be tested since the social worker had died some years before the hearing.

It is no wonder the Judge found difficult both the question of proof of abuse and the inextricably connected issue of the effect of such difficulty on the cogency of the evidence for the purpose of his exercise of discretion under section 33. He said, at paragraphs 175 and 177:

“ 175. The first matter which the court must decide is whether the abuse alleged at Bryn Alyn is proved to the requisite standard. For reasons previously explained, this is a difficult task. In addition there is no evidence one way or the other relating to these matters from Mr. Bates. As far as I am aware the allegations have never been put to him and he cannot now be traced. …

177.

Accordingly, the only evidence as to what occurred in Bryn Alyn concerning this claimant comes from the claimant himself. Both the statement to the police dated 30th March 1999 and the statement produced for the purposes of these proceedings give specific detail of the abuse alleged, and they are broadly consistent the one with the other. I recognise the continuing possibility that the claimant has invented these matters; but at the end of the day it seems much more likely to me that he was abused as he now describes. Patrick Bates has also been accused of sexual abuse by JS, which abuse has been proved to my satisfaction. In these circumstances he is shown to be a man capable of abusing children despite his position of responsibility. Accordingly I conclude that the abuse alleged by CD, both sexual and physical, is proved to the requisite standard by evidence which is sufficiently cogent. In my view the delay on the claimant’s part in alleging sexual abuse is understandable given the embarrassing nature of the subject matter. His delay in beginning proceedings is 3 years, and the defendants have not been able trace … Bates. They do establish prejudice in this respect, but the prejudice which would result if the claimant should be prevented from pursuing his claim would be significant and in my view it would be unjust in all the circumstances so to prevent this claim from proceeding.”

The Judge’s reasoning in those passages is a good illustration of the danger in the section 33 exercise of putting the cart before the horse, that is, determining the claim and relying on that determination in undertaking the balance of prejudice as to whether the claim should have proceeded at all. For the general reasons given earlier in this judgment and on the available evidence in the claim, we are of the view that CD did not have knowledge of significant injury in the section 14 sense when he left Bryn Alyn in mid 1991. He may have known at the time or shortly after that it was wrong, but, on his evidence, he was more likely to have acquired the requisite knowledge some years later, possibly in 1995 or in 1996 when he was prompted by the publicity given to the Waterhouse Inquiry.

As to the Judge’s ruling under section 33, predicated on his section 14 ruling, we are satisfied, for the reasons we have given earlier in this judgment that it was defective. In exercising our own discretion under section 33 we take account of the fact that the period of delay from the last of the abuse, – some 8 years - is not so long as in some of the others, and the possible delay from expiry of the limitation period on the basis of our view of the earliest date of section 14 knowledge is relatively short – a year or so at the most. To that extent the other features of potential prejudice to the defendants, common to all of the claims is lessened, though there are particular reasons in this case, as the Judge observed, for questioning the reliability of the claimant’s evidence.

We cannot tell on the material before us whether greater urgency in bringing the claim might have overcome the prejudice to the defendants arising from the death of the social worker or the untraceability of Bates. And we bear in mind that it is for a claimant to establish the exceptionality of the case as a candidate for the exercise of discretion in his favour. Nevertheless, if the claimant has not established a late enough date of knowledge on which to rely under section 14, given the special difficulties of this case for both sides we would exercise our discretion under section 33 in the claimant’s favour and disapply the limitation period.

As to quantum, CD claimed general damages of between £60,000 and £70,000, loss of earnings of £20,000, costs of therapy of £8,100 and an unspecified amount for care. In the event, the Judge awarded £10,000 by way of general damages, nothing for loss of earnings, £3,000 towards the cost of therapy, and £21,450 towards the cost of past and present care. Mr Owen took issue with all those determinations save in respect of the Judge’s refusal to award any sum for loss of earnings.

We accept Mr Owen’s submission with regard to general damages. If all of CD’s psychiatric symptoms could be laid at the door of the first defendant an award of £60,000 for them would not have been unreasonable. From the Judge’s apportionment of the cost of therapy it would seem that he found that the defendants should be held responsible for just over a third of his present symptoms. On the material before us, we see no reason to disagree with such an apportionment for the purpose of general damages and would, therefore, substitute a figure of £22,500 for the long-term psychiatric harm and a further sum of £12,500 to allow for the horrendous sexual assaults and extreme physical violence to which he was subjected for nine months, £35,000 in all.

As to proper recovery for the costs of therapy, for reasons that we have held to be good in other cases, we consider that the claimant should recover the whole of the costs, namely £8,100. On the other hand it does seem to us that the Judge was entitled to apportion the costs of care; we certainly do not have sufficient material before us to hold that his assessment was wrong.

Accordingly, we allow the appeal to the extent of substituting £35,000 for the Judge’s award of £10,000 for general damages and £8,100 for his award of £3,000 for the cost of therapy.

JM was one of seven children in a family where the father drank and gambled and the mother played around with younger men. The marriage finally broke up in July 1980 when he was seven years of age. His father was unable to cope and in January 1981 he was admitted to a children’s home. There he remained with a number of breaks during which his father once again took charge until he was removed to an assessment centre before going to live at Pentre Saeson Hall, part of the Bryn Alyn Community. That was in October 1985. He stayed at Pentre until 30th May 1986 when his father removed him for a period, but having committed a number of criminal offences he was returned there on 8th January 1987. He stayed at Pentre until June 1989. In all, therefore, he was in the first defendant’s care for two periods totalling about three years between the ages of about thirteen and sixteen.

On his own account the claimant had been the victim of extensive physical and sexual abuse before he went to Pentre Saeson. The picture is further complicated by the fact that after leaving he was buggered by a man called Manning. The claimant was to take his revenge against Manning by shooting him, for which offence he was sentenced to eight years imprisonment.

JM claimed that he had been seriously abused whilst in the first defendant’s care. The Judge accepted his evidence that he had been indecently assaulted by John Allen on many occasions, leading eventually to buggery, and also that he had been indecently assaulted and buggered by Ken Taylor, the man in charge.

There was also physical abuse. The Judge accepted the claimant’s evidence that he been kicked by a man called Rodda and bullied by another member of staff. However, the Judge was satisfied that the sexual abuse was much the more serious of the two, particularly as it had been carried out over a significant period of time.

By the date of trial the claimant had been diagnosed as suffering from post-traumatic stress disorder. In a joint statement Drs Barlow and Halstead, described by the Judge as experienced psychiatrists, agreed that the impact of the claimant’s experience overall had manifested itself:

“…. in symptoms of post traumatic stress disorder, a vulnerability towards episodes of depressive illness, significant problems in inter-personal relationships (particularly intimate relationships) and irritable bowel syndrome.”

As to limitation, the overall delay was ten years from the last of the alleged abuse when he left Bryn Alyn in mid 1989 to the institution of proceedings in July 1999. The Judge found, as with the other claims, that JM’s date of knowledge was, at the latest, when he left Bryn Alyn, putting him, on that finding, 5 years and 3 months out of time from the expiry of the limitation period. However, he exercised discretion in his favour under section 33 because his delay in claiming was due to acute embarrassment and blocking of memory of the abuse.

For the general reasons given earlier in this judgment and on the available evidence on in this claim, we are of the view that JM did not have knowledge for the purpose of section 14 of the significant injury in respect of which he claims before about the mid 1990s. Also, for the reasons we have given, we consider the Judge’s ruling under section 33, predicated as it was on his section 14 ruling, was defective. However, depending on the precise date of the claimant’s proper date of knowledge, his claim may, after all, be in time or the period of delay such as would nevertheless justify us in exercising our discretion under section 33 in his favour. Although there was potential prejudice to the defendants in the death of Taylor in August 1998, we doubt whether the inability to call him was, in the end, a potential prejudice attributable to delay. The decision in this claim is particularly finely balanced, given the overall delay of ten years from the last of the alleged abuse. However, given also the uncertainty of the exact date of knowledge so near to the date when the action could have been barred, we would in any event be inclined to exercise our discretion in the claimant’s favour.

As to quantum, both Doctors acknowledged that the pre and post Bryn Alyn experiences had had a part to play in the eventual outcome. Dr Barlow considered that there were certain features of the abuse suffered at Bryn Alyn “which suggest[ed] that these experiences played a greater role in the subsequent development of JM’s psychological problems”. Dr Halstead, on the other hand, was of the opinion that the claimant was already suffering from personality dysfunction and lack of educational achievement when he first went to Bryn Alyn. Nevertheless, he conceded that the outlook would have been better if, during his time at Bryn Alyn, he had received “good, consistent, non-abusive parenting”.

In the end the Judge awarded the claimant £17,500 in respect of his symptoms, having undertaken the same apportionment exercise as in other cases. In performing that exercise he placed particular weight upon the post-Bryn Alyn abuse by Manning, observing that the claimant must have felt strongly about it to act as he did. He then said, at paragraph 192 of his judgment:

“The conclusion which I reach is that there were particular features about each of the sources of abuse which have had an adverse affect upon this claimant. The St Christopher’s abuse took place when he was very young. The Bryn Alyn abuse was perpetrated by people in authority. The Manning abuse plainly gave rise to very strong feelings in the claimant. I am unable to conclude that any of these abuses was more harmful that the other. They have all made a significant contribution to the damage observed by the doctors in the claimant and they have had a cumulative effect.”

On that basis it seems the Judge arrived at a global sum by way of general damages for the symptoms in excess of £50,000. We are unable on the material before us to say that he was wrong either in that approach or in his final apportionment of damages at £17,500. However, the claimant is entitled to a substantial further sum for the serious abuse, particularly sexual abuse, to which he was subjected for about three years, a sum that we would assess at £20,000.

There was no claim for treatment costs and there is no appeal against the Judge’s refusal to award any sum in respect of loss of earnings. Accordingly, we allow this claimant’s appeal to the extent only of substituting for the Judge’s award of £17,500 for general damages a sum of £37,500.

In the case of all the appellants, we dismiss the respondent’s cross-appeals on the issue of limitation.

In the case of MCK we dismiss her appeal against the Judge’s dismissal of her claim as statute-barred.

In the case of CD we dismiss his appeal against the Judge’s dismissal of part of his claim as statute-barred

In the case of JS, we allow her appeal on the issues of liability and limitation in respect of a deliberate assault by Bates, a Bryn Alyn employee for which the first defendant was vicariously responsible.

In the case of all the appellants, save KR (who did not appeal on the issue of quantum) and MCK we allow their appeals on quantum in whole or in part.