Catholic Care (Diocese of Leeds) & Anor v Young

As was observed by the Law Commission (Limitation of Actions, Law Com No 270), claims by victims of child sexual abuse pose particular problems for any limitations regime. The acts giving rise to the cause of action will, by their nature, occur when the claimant is a child. The claimant may suffer immediate physical injury as well as prolonged psychiatric problems. These problems may only become manifest, or at least be recognised as such by the victim, many years after the abuse. This creates difficulties similar to those created by latent disease.

The relevant limitation provisions are to be found in sections 11, 14 and 33 of the Limitation Act 1980. Section 11 provides that in respect of claims for personal injuries, the applicable limitation period is 3 years from the date on which the cause of action accrued or the date of knowledge (if later) of the person injured. Section 14 defines the date of knowledge for the purposes of section 11. The application of sections 14 and 33 to child sexual abuse cases was considered in detail by this court in KR and others v Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ 85, [2003] QB 1441. One of the questions that arises in these appeals is whether the reasoning of Bryn Alyn in relation to section 14(2) (date of claimant’s knowledge that the injury in question was significant) can stand in the light of the subsequent House of Lords decision in Adams v Bracknell Forest BC [2004] UKHL 29, [2005] 1 AC 76.

In both of the present cases, the claimant alleges that he suffered sexual and physical abuse at the hands of an employee of the defendant and that the abuse was caused by the defendant’s breach of the duty of care owed to the claimant. Proceedings were issued on 11 April 2003. On the trial of a preliminary issue, Judge Cockroft held that the claimant’s date of knowledge as defined by section 14 was within 3 years of 11 April 2003. He gave permission to the defendants to appeal because (i) he considered that the issues raised were difficult, (ii) this court should consider giving more guidance than had been given in Bryn Alyn and (iii) Bryn Alyn might need to be revisited in the light of the subsequent decision in Adams.

Although it was unnecessary for him to do so, the judge considered whether, if he were wrong on the section 14 issue, he should extend time under section 33. He decided that he would not have extended time. He refused to grant the claimant permission to appeal on this point. But Smith LJ granted permission on the grounds that the judge had exercised his discretion on a hypothetical basis and that, if this court decided that he had reached the wrong conclusion on the section 14 issue, it should have the opportunity to review the judge’s decision on the section 33 issue.

The claimant was born on 18 June 1959. He was taken into care on 15 September 1961 suffering from neglect and malnutrition. Both his parents were subsequently convicted of wilful neglect and sentenced to substantial terms of imprisonment. The claimant was passed from pillar to post during his childhood. He believes that he resided in no fewer than about 50 different institutions and homes.

Between October 1974 and July 1976, he was resident at the second defendant’s school, St Camillus in Tadcaster, York. He alleges that, whilst there, he was the victim of repeated physical assaults and three sexual assaults all committed by James Littlewood, a member of staff. On the first occasion, which also involved two head boys, he was forced to touch the erect penis, masturbate and perform oral sex until ejaculation on Littlewood and the two boys. The second incident involved being forced to perform oral sex on Littlewood. On the third occasion, he alleges that he was touched by Littlewood, who then removed the claimant’s boiler suit and masturbated himself to ejaculation over the claimant’s bare bottom.

He left St Camillus’s on 28 June 1976 when he was just 17 years of age. He then committed an offence of dishonesty for which he was sentenced to 3 months’ detention at Medomsley detention centre, Consett, County Durham. This is a centre which at the time was operated by the third defendant. He was there subjected to sadistic sexual abuse of a quite different order from that which he had previously experienced. The perpetrator was Neville Husband, an officer who was in charge of the kitchen. The abuse is described at para 14 of the amended particulars of claim in these terms:

He was released from Medomsley on 17 June 1977, the day before his 18^th birthday. He told the judge that at the time of his release, he was “shocked, dizzy, spinning and disorientated”. He had not had time to consider how the abuse had affected him. He was more concerned about survival. He did not talk about it to anyone, partly out of pride. As he put it to the judge, he succeeded in “putting his memories in a box, with a tightly sealed lid, in an attic”. The experts all agreed that by his own account the claimant had suffered post traumatic stress disorder (“PTSD”). Mr Godsi, the claimant’s expert (a consultant clinical psychologist with extensive experience of victims of sexual abuse), said that it was a complex PTSD, which was at its height during the first three years after the claimant was discharged from Medomsley and continued, at a greatly reduced level, until it was rekindled in 1996 as a result of a chance encounter with Neville Husband.

As the judge put it, the years 1980 to 1996 were good ones for the claimant. He made satisfactory long-term heterosexual relationships. He was very successful in forming and running various businesses.

He did not consult a doctor or a solicitor about the consequences of the sexual abuse. In January 1986, he requested to see his Social Services file. On interview, he was described as “a very presentable, articulate young man who appears to have achieved a considerable amount of maturity since his discharge from care”. According to the note of interview, he was writing a book on his experiences. He was not motivated by a desire for revenge, but wanted to check why certain decisions had been made about his placements and so on.

In December 1996, he was in the process of selling his security business which was achieving an annual turnover of more than £1 million. He had a settled relationship with a girlfriend. On the evening of 23 December, he was walking in the centre of York when he slipped on some snow and by an extraordinary mischance collided with Neville Husband.

This meeting had a dramatic effect on the claimant. The judge described him until then as having “assumed a macho personality, he was a man of action, a troubleshooter. He put himself in positions of danger and seemed to thrive upon it”. After the meeting, he became angry, distressed and lost all confidence. He felt vulnerable, overwhelmed and suffered a loss of weight from thirteen to eight and a half stones. His relationship with his girlfriend broke down within months. He would not tell her what had happened to him. He was incapable of any further involvement in the business, which carried on without him until it was sold. He started drinking heavily and taking illicit drugs such as cocaine. He did not take medical or legal advice at this stage. The judge described what happened in detail at para 60 of his judgment: see para 39 below.

There came a time when the police started making enquiries into the conduct of Littlewood and Husband. It is not clear how the police became involved: it was not as a result of any approach by the claimant. Eventually, the investigations by the police led them to the claimant. They invited him to speak to them. He told the judge that he did not want to speak to them.

It was not until December 2000 that he was first seen by the police. His first statement is dated 11 January 2001. He first consulted a general medical practitioner about his psychiatric problems on 3 March 2001. He was referred to hospital in York, but there was no follow-up. The police advised him to consult a solicitor. He now became motivated to seek justice by pursuing Littlewood and Husband through the criminal courts. He went to solicitors on 21 September 2001. They advised him that he might have a civil claim, but they were unable to arrange funding. He was also advised to await the outcome of the criminal proceedings which had by now been launched.

On 2 May 2002, Littlewood was convicted on 15 counts of cruelty and 3 of buggery all involving other residents at St Camillus’s. None of these counts involved the claimant, who was not required to give evidence. On 14 February 2003, Husband was convicted on 11 counts of indecent assault and buggery involving former inmates of Medomsley: these included 4 counts of offences committed against the claimant.

The claimant’s solicitors wrote a letter before action on 6 March 2003 and, as I have said, issued proceedings on 11 April.

He was seen by Mr Godsi on 10 June 2003. Mr Godsi’s report is dated 28 July 2003. His conclusion was that the claimant was suffering from a complex form of PTSD and other significant mental health problems such as a tendency to depression and anxiety all of which were directly attributable to his experiences of sexual, physical and emotional abuse. The claimant told the judge that this was an awakening for him. It was only after reading the Godsi report that he knew what had happened to him. He felt empowered with that knowledge.

So far as material, these provide:

I shall start with the defendants’ appeals against the judge’s decision that the claimant first had knowledge that the injuries in question were significant less than 3 years before the date on which proceedings were issued. The judge held that the claimant first knew that he had suffered a significant injury attributable to the omissions of the defendants when he spoke to the police at the end of 2000 or beginning of 2001.

The interpretation of section 14 has caused difficulty and has been considered in a number of cases. Before I turn to the judgment in the present case, I should review some of the principal authorities, not least because the relationship between Bryn Alyn and Adams calls for careful analysis.

It is now clearly established that time starts to run against a claimant for the purposes of section 14(1) when he knows that the injury on which he founds his claim is capable of being attributed to the act or omission of the defendant he wishes to sue, irrespective of whether, at that point, he knows that the act or omission is actionable or tortious: see Dobbie v Medway Health Authority [1974] 1 WLR 1234.

In Bryn Alyn, this court sought to elucidate the meaning of knowledge of “significant injury” in section 14(2) in the context of child sexual abuse claims. The judgment of the court was given by Auld LJ. He observed that in these cases there may be difficulty in disentangling the immediate injury from long-term psychiatric injury diagnosed very much later. The immediate physical effects will vary according to the violence and other circumstances of the case, 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 case, will vary in their severity and may or may not, at any 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” (para 18).

At para 32, Auld LJ said that the test for the application of section 14(2) was explained by Geoffrey Lane LJ in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081 G-H (and followed by this court in Nash v Eli Lilly & Co [1993] 1 WLR 782, 791):

At paras 33-37, Auld LJ explained how support for the “partly subjective” test was to be found in the decision of this court in Stubbings v Webb [1992] QB 197. In that case, the plaintiff claimed damages for personal injuries arising out of alleged sexual and other physical abuse during her childhood. She was 30 years of age when she issued proceedings. She asserted that the alleged abuse had resulted in psychological injury which had developed in her adult life. In the Court of Appeal, it was held that the plaintiff did not know that her mental impairment was a significant injury that was attributable to the acts of the defendants until she consulted a psychiatrist many years after she reached her majority. At p 208D, Bingham LJ said:

Sir Nicolas Browne-Wilkinson V-C and Nolan LJ expressed themselves in similar terms: see pp 211B-D and 212 B-G.

The decision of the Court of Appeal in Stubbings was reversed by the House of Lords [1993] AC 498. They held that section 14 did not apply at all because the claim was not based on negligence, nuisance or breach of duty of care. At p 506A, Lord Griffiths (obiter) expressed doubts about the conclusion of the Court of Appeal that, although the plaintiff knew that she had been raped and persistently sexually abused, she did not realise that she had suffered significant injury attributable to the acts of the defendants until she realised that there might be a causal link between psychiatric problems that she suffered in adult life and her sexual abuse as a child.

At paras 40-42, Auld LJ sets out the approach that should be adopted to the section 14(2) meaning of “significance” in child sex abuse cases in these terms:

At para 47, Auld LJ said in relation to the judgment of Connell J in the court below:

The other important authority to which it is necessary to refer in a little detail is Adams. The claimant, who attended the defendant’s schools between 1977 and 1988, had always experienced difficulties with reading and writing. As an adult he believed them to be the cause of the depression, panic and lack of self-esteem which he suffered. In 1999 when aged 27, he met an educational psychologist who suggested he might be dyslexic. Upon a doctor confirming that diagnosis, the claimant issued proceedings alleging negligence. In answer to the defendant’s reliance on a limitation defence, the claimant relied on section 14. The judge held that the claimant did not have actual knowledge for the purposes of section 14(1). Having found further that a reasonable person with the claimant’s unaddressed dyslexia would have been unlikely to have sought professional help for his condition such as would have alerted him to the possibility of a claim against the defendant, the judge held that the claimant was not to be imputed with constructive knowledge at any earlier date under section 14(3) and accordingly ordered the action to proceed to trial. The defendant’s appeal was dismissed by the Court of Appeal, but that decision was reversed by the House of Lords.

At para 33 of his speech, Lord Hoffmann noted that section 14(3) uses the word “reasonable” three times. He went on:

At para 45, Lord Hoffmann said that he found the reasoning of the majority in the decision of this court in Forbes v Wandsworth Health Authority [1997] QB 402 to be “persuasive”. In view of the wide discretionary power to extend time conferred by section 33 of the 1980 Act, there is no need to construe the knowledge provisions of section 14 narrowly or in favour of plaintiffs. The introduction of section 33 “had altered the balance”. The postponement of the commencement of the limitation period by reference to the date of knowledge is no longer the sole mechanism for avoiding injustice to a claimant who could not reasonably be expected to know that he had a cause of action. It is, therefore, possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period would be indefinitely extended.

Lord Hoffmann went on to say that Lord Reid’s dictum in Smith v Central Asbestos Co Ltd [1973] AC 518, 530 that the “test is subjective” is not a correct interpretation of section 14(3). The same was true of the dictum of Purchas LJ in Nash [1993] 1 WLR 782, 799:

He concluded his analysis of section 14(3) at para 47 in these terms:

At para 49, Lord Hoffmann said that, in principle, the judge was right to apply the standard of reasonable behaviour of a person assumed to be suffering from untreated dyslexia. “If the injury itself would reasonably inhibit him from seeking advice, then that is a factor which must be taken into account.”

The other members of the House (Baroness Hale of Richmond apart) expressed themselves in similar terms. Thus Lord Phillips of Worth Matravers said at para 58 that the test of what is reasonable is “one which is a recurrent motif in the provisions of the 1980 Act and some, at least, of those provisions suggest that the test of what is reasonable is an objective test which applies the standards of the reasonable man”. Lord Scott of Foscote (para 71), like Lord Hoffmann, preferred the reasoning of the majority in Forbes to that in Nash. He added:

Lord Walker of Gestingthorpe agreed with Lord Hoffmann that it was no longer possible to state roundly (as Lord Reid did in Smith) that “the test is subjective”. The courts have moved to a more objective approach and they are right to have done so. But the test is not wholly objective. The distinction between circumstances and personal characteristics is intelligible and helpful in many cases, but there are bound to be some where the distinction is elided. Lord Walker would be cautious about any simple formula put forward to cover every case that might occur.

Baroness Hale (para 91) did not want to rule out the possibility that the personal characteristics of a claimant may be relevant to what knowledge can be imputed to him under section 14(3). She said that there is a distinction between personal characteristics which affect a person’s ability to acquire information and those which affect one’s reaction to what one does know. It is worth noting that Baroness Hale was the only member of the House who referred to Bryn Alyn. She made passing reference to it (without comment) at para 84.

After referring to paras 40-42 of the judgment in Bryn Alyn, the judge said that, if this meant that a predominantly subjective approach should be taken to the issue of constructive knowledge, then such an approach was rejected by the House of Lords in Adams. He expressed regret that “for those of us labouring at the forensic coal face”, although Bryn Alyn was cited to their lordships, it received only passing reference in one speech.

Having set out the submissions of counsel in some detail, the judge expressed his conclusions on the section 14 issue as follows:

Bryn Alyn is concerned with the meaning of section 14(2) and the test to be applied in deciding whether an injury is significant for the purposes of section 14(1)(a). Adams was a case about the test to be applied in deciding whether a claimant has constructive knowledge within the meaning of section 14(3)(b) of one of the facts stated in section 14(1) (in that case attributability within the meaning of section 14(1)(b)).

In Adams it was held that a substantially objective test was to be applied for the purposes of section 14(3)(b). That is to say, in deciding what knowledge a claimant might reasonably be expected to acquire from facts observable with the help of expert advice which it is reasonable for him to seek, the claimant is to be assumed to be a person who has suffered the injury in question, but in all other respects he is to be assumed simply to be a reasonable person. In determining whether a claimant had knowledge which he might reasonably be expected to acquire, the court has to consider how a reasonable person in the situation of the claimant would have acted, save that (per Lord Hoffmann, Lord Phillips and Lord Scott) aspects of character or intelligence peculiar to the claimant are to be disregarded. On the other hand, if the injury affects the claimant’s ability to acquire knowledge or to seek expert advice, these are matters that can be taken into account. But in all other respects, the claimant is to be regarded simply as a reasonable person. Thus, his personal characteristics, such as shyness, embarrassment, his intelligence and his general circumstances are irrelevant so far as section 14(3) is concerned. The dicta of Lord Reid (“the test is subjective”) and Purchas LJ (“the standard of reasonableness [is] finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff”) were wrong.

It is true that Bryn Alyn was cited in Adams and was not disapproved. It received passing reference only in the speech of Baroness Hale. Nevertheless, it seems to me that the reasoning which I have just summarised compels the conclusion that this court adopted the wrong approach in Bryn Alyn. The court did not, of course, have the benefit of Adams and understandably applied the subjective, or partly subjective, test enunciated in McCafferty and Nash, a test that has now been disapproved by the House of Lords. The court was also influenced by the decision of this court in Stubbings. At para 34, Auld LJ said: “All the members of the Court of Appeal [in Stubbings] stressed the importance of the special, partly subjective meaning given by section 14(2) to the word “significant” in section 14(1)”.

Stubbings was a section 14(1)(a) case. Bingham LJ, with whose reasoning Nolan LJ and Sir Nicolas Browne-Wilkinson agreed, said that whether a particular injury would reasonably be regarded as significant by a particular plaintiff is a “very highly judgmental question” (p 208D). But I see nothing in the passage at p 208D-G (see para 24 above) which supports the view that, in deciding whether a plaintiff would reasonably regard an injury as significant in the statutory sense, regard should be had to individual characteristics of the kind that Adams says must be disregarded in relation to section 14(3)(b). Bingham LJ emphasised the recent education of public opinion, but that is a matter which would affect the knowledge and attitude to litigation of all victims of sexual abuse as a class.

The court in Bryn Alyn clearly enunciated a substantially subjective test. This is not surprising in view of the test stated in McAfferty and Nash. Thus Auld LJ said that, in determining whether a claimant would reasonably consider an injury to be sufficiently serious to justify proceedings, a judge had to consider “among other things [the claimant’s] individual history and circumstances”. These could include the nature, severity and duration of the abuse; whether humiliation, distress, shame, guilt and fear of being disbelieved or of disclosure would reasonably inhibit the claimant from making a claim; whether the claimant had come to the abuse in question already damaged and vulnerable because of similar ill-treatment in other settings, since for some victims, such behaviour is unpleasant, but familiar; whether the claimant’s way of life after the abuse in question would deter the claimant from considering litigation; and any other relevant circumstances.

In my judgment, the presence of the word “reasonably” in section 14(2) and the presence of the word “reasonably” and “reasonable” in section 14(3) require the same approach to be adopted in both subsections. Parliament cannot have intended that a substantially objective test be applied in section 14(3), but a substantially subjective test in section 14(2). It makes no sense to say that, in deciding whether a claimant would reasonably consider an injury to be sufficiently serious to justify litigation, the court should take account of the intelligence, personal history and all the personal characteristics of the claimant; but in deciding whether a person would reasonably be sufficiently curious about the causes of his injury to seek expert advice, those factors are to be disregarded. The concept of reasonableness is common to both section 14(2) and 14(3). It should be given the same meaning in both subsections.

The Adams approach to reasonableness indicates that if a person who has suffered a particular type of injury would reasonably be inhibited by the injury itself from instituting proceedings, then that is a factor that should be taken into account in deciding whether he or she would reasonably have considered it sufficiently serious to justify proceedings. The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered the degree of injury suffered by the claimant in question and of which he has knowledge.

Mr Faulks and Mr Wilkinson both submit that the question raised by section 14 is solely one of quantum. They rely on what Bingham LJ said in Dobbie at p 457 F-H, namely that “the requirement that the injury of which the claimant has knowledge should be “significant” is directed solely to the quantum of the injury. Time does not run against a plaintiff, even if he is aware of the injury, if he would reasonably have considered it insufficiently serious to justify proceedings against an acquiescent and creditworthy defendant, if (in other words) he would reasonably have accepted it as a fact of life or not worth bothering about”. But in that case, the question of whether a claimant is reasonably inhibited from instituting proceedings by the injury itself did not arise.

Where that question does arise, the Bryn Alyn test, modified as it must be to take account of the decision in Adams,shows that the section 14(2) requirement is not solely directed to the seriousness of the injury. That is not to say, however, that even in such a case, the quantum of the injury is not highly material in determining whether at any given time the claimant would reasonably have considered it sufficiently serious to justify proceedings. To regard the inhibiting effect of the injury in question as decisive would be to deprive section 14(2) of its proper effect. The subsection is directed to the question of whether litigation is reasonably justified by reason of the seriousness of the injury. The words “sufficiently serious” are of central importance.

In my view, it will be a question of fact in every case whether, having regard to (i) the claimant’s knowledge of the seriousness of the injury and (ii) the inhibiting and other consequences of the injury for the claimant, at the date of knowledge he would reasonably have considered the injury to be sufficiently serious to justify his instituting proceedings. I have in mind the observation of Lord Hoffmann in Adams that, in view of section 33, there is no need to construe the knowledge provisions of section 14 narrowly or in favour of claimants. Accordingly, the more serious the claimant knows the injury to be, the less likely the court is to regard the inhibiting and other consequences of the injury to be grounds for concluding that the claimant was justified in not instituting proceedings. But it will always depend on the facts of the particular case.

Another aspect of the decision in Bryn Alyn which needs to be considered is the precise formulation of the test at para 42. The court said that the relevant question for the purposes of section 14(2) is to ask whether and if so when “such an already damaged child would reasonably turn his mind to litigation as a solution to his problems”. Judge Cockroft rightly described this as “the Bryn Alyn test” (para 59).

By using the words “reasonably turn his mind to litigation as a solution to his problems”, I do not consider that Auld LJ was intending to depart from the statutory test of “reasonably have considered it sufficiently serious to justify proceedings”. He was attempting to explain that test in the context of the conclusion that he already reached that the relevant test was substantially subjective. I respectfully doubt whether it is helpful to explain the test in this way. Once the subjective/objective issue has been resolved, the meaning of the statutory test is clear enough and its language does not need to be expressed in different words. Its application on the facts of any individual case, however, will not always be easy.

Although the abuse suffered by the claimant at the hands of Husband was substantially more serious than that inflicted by Littlewood, nobody suggested before us that on that account there should or might be different outcomes of the limitation issues in the two cases. The argument has proceeded on the basis that, so far as the limitation issues are concerned, the two cases stand or fall together. I am content to proceed on that basis. This inevitably means that, so far as the section 14 issue is concerned, the main emphasis is on the claimant’s knowledge of his injury in relation to Husband and the Home Office.

Submissions were addressed to us as to whether it is necessary to consider whether the claimant had actual knowledge that he had suffered an injury which he would reasonably have considered to be sufficiently serious to justify instituting proceedings (i) at the time of assaults by Husband and during the 3 years following his release from the detention centre in June 1977, or (ii) in 1986 when he requested to see his Social Services file, or (iii) in the months following his chance encounter with Husband in December 1996. If the claimant had the relevant knowledge at any of these times, he had knowledge more than 3 years before he issued these proceedings. I shall take each in turn.

As regards the period after his release, I refer to para 8 above. The experts agreed that by his own account the claimant had suffered a complex PTSD which was at its height during the first three years after his release. At para 49 of his first witness statement in these proceedings, the claimant said that “for about three or four years, I was quite ill with it”; but during that time (and for a long time thereafter) he “tried successfully to keep the lid on it”. As he told the judge, he succeeded in “putting his memories in a box, with a tightly sealed lid in an attic”.

The claimant was obviously aware that he had been seriously assaulted. But the evidence shows that he was also aware that he was suffering from a psychiatric illness (later diagnosed as complex PTSD) during this period and that this was caused by the assaults. He tried to put it out of his mind. He did not seek any counselling or medical help. In my judgment, however, the evidence shows that he had actual knowledge that he had suffered and was suffering an injury (physical assaults and psychiatric injury) and that these injuries were serious. Physical and mental injuries are indivisible for the purposes of establishing the claimant’s date of knowledge: see Bryn Alyn paras 54-58. Viewed objectively and without regard to the fact that the claimant suppressed his memories of the assaults, they were sufficiently serious for proceedings against an acquiescent and creditworthy defendant to be reasonably considered to be justified. The claimant would have been awarded substantial damages for the physical assault and the psychiatric injury suffered during the first 3 years after his release. The claimant was not prevented by the injury from acquiring knowledge of and appreciating the seriousness of his injury, nor did the judge so decide.

But what is the relevance of the fact that the claimant did suppress his memories of the assaults, at any rate until 1986? The judge held (para 59) that in June 1977 and for about 3 years thereafter, “it would be wholly unrealistic to hold that time began to run by reason of the very disability the claimant then suffered from”. In my view, the judge was entitled to reach this conclusion. As he recorded at para 15 of his judgment, Mr Godsi described the claimant’s account of his reaction to the assaults as “typical” of victims of child sexual assaults. The judge said:

Mr Godsi’s evidence was of the very kind that was lacking in Adams. The psychiatric injury suffered during this first period, although serious, was not high on the scale of seriousness. It was far less serious than the injuries that the claimant suffered after the chance encounter with Husband in December 1996. In these circumstances and in the light of the evidence of Mr Godsi, the judge was entitled to hold that, in the period 1977-1980, the claimant did not know that the injuries were significant within the meaning of section 14(2).

For completeness, I should say that a distinct question was raised as to when the claimant first knew that his injuries were attributable to the omissions of the defendants which are said to constitute negligence. This was not dealt with by the judge. The allegations of negligence are put in various ways, but the essential complaint is that the defendants failed to prevent the assaults from being committed. In his first witness statement, he said that he “always felt betrayed by the system” and that he was in “a system of institutionalised abuse”. In his report of 28 July 2003, Mr Godsi said that the claimant had told him that he wanted the defendants and Social Services to be “accountable” for what had happened. He had been trying to gain access to his Social Services records for 20 years “as part of his desire to hold these organisations to account”. He knew that he had been assaulted and that the system had not prevented this from happening. In my judgment, it is plain that the claimant had sufficient knowledge that his injuries were attributable to the defendants’ omissions which he now says were negligent.

It follows from what I have just said that the claimant did not have knowledge of all the relevant facts stated in section 14(1) by about 1980.

As I have said, in January 1986 the claimant requested to see his Social Services file. The judge said of this request: “it suggests to me that he was at that time willing, if not eager, to confront the contents of the box in the attic” (para 22). This is an important finding which was justified by the evidence. The reason given by the judge for holding that the claimant did not know that the injuries were significant at any time during the period 1980-1996 is that by about 1980, his disability was “subsumed or accommodated”. He was getting on with his life “with his box of memories firmly sealed in the attic” and he no longer appeared to have an injury which he perceived as significant and that was a reasonable perception. The finding that, by asking to see the Social Services file, he showed that he was eager to confront the contents of the box in the attic does not sit easily with the finding that in the period 1980-1996 his box of memories was firmly sealed in the attic.

I do not, however, find it necessary to decide whether the claimant had the relevant knowledge in about January 1986, because, for reasons to which I am about to come, I consider that he had such knowledge within the months following the chance meeting with Husband in December 1996.

The claimant gave evidence about the effects on him of this meeting. He became angry, distressed and lost all confidence. The judge said that it had a dramatic effect on him. He said at para 27:

Mr Brown took us to the passage in the transcript of the claimant’s evidence on which para 27 is based and submitted that the claimant did not unequivocally state that he knew that he was ill and why he was ill. I would agree with the judge’s interpretation of this evidence. The relevant passage is:

Of course I did, from everything else happening around me.

You realised?

Slowly, yes.

Did you know, and I emphasise the word know, did you know that you were ill?

I probably did know I was ill, but did I accept it and take it on board, no. I was in total denial.

You were in total denial?

And if I could be in denial today, I would continue to be in denial. Had I not dealt with some of the issues I would still be in denial. I, at no point, wanted to run around asking anybody for anything, I give no quarter, I take no quarter, I ask no quarter. I never have done.

So when you say that you were ill in 1997, you were in a state of denial, did you realise you were ill?

Of course, I had lost the very things that were me.

Did you know why you were ill?

Probably, deception, what I would class as betrayal, others may not, many, many reasons. Yes I knew I was ill.

You knew you were ill?

I did not know.”

The last answer is difficult to explain. But the judge heard the evidence and it would be wrong for this court to say that the judge’s interpretation was wrong. What is clear is that the claimant was saying that he was “in denial”. This is picked up by the judge at para 60 of his judgment. But that means no more than that he was unable or unwilling to face up to the fact that, as he wellknew, he was ill. In my view, the claimant conceded in his evidence that he knew shortly after December 1996 that he was suffering from a serious (as it has transpired, long-term) psychiatric injury. As the judge said at para 60: “within months of that chance meeting, the claimant’s world collapsed around him, and he knew why. He was now suffering a cluster of serious psychiatric symptoms because of being in care and at Medomsley…”

Accordingly, he knew that he was suffering from a serious psychiatric injury. It was of a different order from what he had suffered at any time before December 1996. And yet, the claimant still did not consult a lawyer with a view to instituting proceedings. Was he reasonable in not doing so? The judge recorded at para 60 that it was common ground between the experts that the claimant’s reaction to the chance meeting was typical of victims of abuse who suffer a trigger incident: “his behaviour did not depart from the norm”. As the judge said: “so the reasons for not disclosing which operated in leaving Medomsley were operative again after December 1996, as Doctor Wood conceded. That quality of reasonable curiosity spoken of by Lord Hoffmann in Adams remains entirely absent in the claimant’s case”.

In my view, the judge erred in two respects. First, he applied the “reasonable curiosity” test mentioned by Lord Hoffmann at paras 47 and 51 of Adams. But Lord Hoffmann’s comments were made in relation to section 14(3). As Buxton LJ points out, they relate to curiosity about the origins or cause of the claimant’s illness, something that in this case the claimant already knew. Once such knowledge is established, there is no role for “curiosity” about whether legal proceedings are justified. Secondly, the judge concluded that the injury reasonably inhibited the claimant from instituting proceedings and he regarded this as determinative of the section 14(2) issue. Although I agree that, in the light of the experts’ evidence, it was a factor to be taken into account, he was wrong to regard it as determinative. It was also necessary to have regard to the seriousness of the injury of which the claimant was aware and to apply the approach that I have suggested at para 49 above. In view of these two errors, it is necessary for us to consider the section 14(2) issue afresh.

I would reach a different conclusion from the judge on this issue. Within a short time after the chance encounter, the claimant was aware that he was suffering from a serious psychiatric injury as a result of the abuse. As the judge put it, the claimant knew that his world had collapsed around him and he knew why. Applying the approach suggested above, I consider that the claimant would reasonably have considered the injury to be sufficiently serious to justify litigation. The seriousness of the injuries is a matter of considerable weight. As regards the inhibiting effect, it is relevant to have regard to the circumstances in which the claimant decided to co-operate with the police in relation to the criminal proceedings. He was seen by the police in December 2000 and by 11 January 2001 had given them a statement. The judge said that “having been indifferent, if not down right reluctant to co-operate, he became motivated to seek justice by pursuing Littlewood and Husband through the criminal courts” (para 29). It seems that once he was spoken to by the police, his reluctance and inhibitions were overcome within a short time.

I would, therefore, hold that the claimant knew that the injuries of which he now complains in these proceedings were significant shortly after December 1996. For the reasons that I have given, these proceedings were instituted more than three years after the date of knowledge and, subject to section 33, are time-barred.

Although it was not necessary for him to do so, the judge considered whether he should exercise his discretion to extend time under section 33 in case he was wrong on the section 14 point. Section 33(1) provides:

Section 33(3) provides:

The judge said (rightly) that section 33 imposed a heavy burden on a claimant. He referred to the guidance given in Bryn Alyn: see paras 68 and 74. The discretion is fettered only to the extent that it provides a non-exhaustive list of circumstances to which the court should have regard. 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).

The judge said that the section 33(3) checklist is a useful list of criteria. “But in the end one has to stand back and ask, in the light of all the circumstances of the case whether a fair trial can now be held”. He went through the checklist, but did not do so on the basis of any particular hypothetical date of knowledge outside the limitation period. He concluded at para 81 on balance that the checklist factors were either neutral or favourable to the defendants. He then asked the question: is a fair trial now possible? He concluded that the claimant had not discharged the heavy burden of persuading him that this was a case which would have justified the exercise of the section 33 discretion in the claimant’s favour if he had decided the section 14 issue differently.

Mr Brown realistically recognised that he faced an uphill struggle in seeking to persuade us that the judge’s exercise of discretion was flawed. He did not contend that the judge had applied the wrong test. The judge had meticulously applied the statutory test amplified by case law. He did not take account of any irrelevant factors and did not fail to take account of any relevant factors. Mr Brown simply submits that the judge reached the wrong conclusion. He points out that Littlewood (in 2002) and Husband (in 2003) had both received fair trials and submits that the judge had failed to give sufficient weight to this. He also submits that the judge erred in assuming that delay necessarily affects cogency notwithstanding the fact that there have been criminal trials and there was little evidence of specific prejudice, at any rate on the part of the Home Office.

Mr Brown did, however, acknowledge that, if the relevant date of knowledge was no later than 1980, it would be particularly difficult for him to challenge the judge’s exercise of discretion.

In my judgment, the attempt to impugn the judge’s exercise of discretion cannot succeed. The fact that there were (apparently) fair trials of Littlewood and Husband more than 20 years after the commission of the offences carries little, if any, weight. In the light of those convictions, it is unlikely that the offences would be in issue in the current proceedings. The real issues in these proceedings would involve a careful examination inter alia of who had responsibility within the defendant organisations for the welfare of those in their care and for supervising persons in the position of Littlewood and Husband, what the supervisors knew or ought to have known about the activities of these two men and what systems they had in place. The judge was fully entitled to conclude that it was no longer possible to have a fair trial to resolve issues of that kind so many years after the event.

In my judgment, the appeal against the decision on the section 33 point must be dismissed.

For the reasons that I have given, the appeal on the section 14 point should be allowed and the appeal on the section 33 point dismissed. In the result, these proceedings are barred by section 11 of the Limitation Act 1980.

I agree that this appeal should be allowed for the reasons given by Lord Justice Dyson.

I gratefully adopt the account of the facts and background that is given by my Lord. Like him I would allow the appeal under section 14 and dismiss the appeal under section 33, with the result that these proceedings are barred by section 11 of the Limitation Act. However, also like him I have found the case to be both anxious and difficult, and I therefore venture to add some words of my own.

First, there can be no doubt that the House decided that the test under section 14(3) is objective rather than subjective. The three references in section 14(3) to reasonableness outweighed the six references to the perception or action of the claimant himself. I discuss later in this judgment what the implications are of an “objective” test.

Second, although the House addressed section 14(3) and not section 14(2), its reasoning as to the objective nature of the provisions must logically apply also to section 14(2). I respectfully adopt what my Lord says in §45 above.

Third, because the House was not directly concerned with section 14(2) it did not address the analysis of section 14(2) that is to be found in Bryn Alyn, and in particular did not pass on what has been identified in our case as “the Bryn Alyn test”, that is, when such an already damaged child would reasonably turn his mind to litigation as a solution to his problems: see §50 above. The only amendment to that formula that follows from Adams is to express it in terms of the reaction in respect of litigation of a hypothetical reasonable child in the position of the claimant.

The content of any “objective” test of a person’s perceptions, foresight or reasonable reactions varies according to the extent to which the characteristics of the real person concerned are attributed to the reasonable man who is his objective proxy. That can be illustrated from other branches of the law. In the tort of negligence, dominated by the reasonable man, the personal characteristics of the defendant (as opposed to the characteristics of the situation in which he finds himself) are effectively excluded: see Lord Macmillan in Glasgow Corpn v Muir[1943] AC 448 at 457, cited by Lord Hoffmann in Adams at §42. By contrast, there have been serious disagreements in the law of voluntary manslaughter as to how many of the personal characteristics of the accused are to be attributed to the provoked reasonable man: see R v Smith(Morgan)[2001] 1 AC 146, and AG for Jersey v Holley [2005] 2 AC 580.

In relation to sections 14(2) and (3) the reasonable man does not share traits of character and intelligence that are personal to the claimant: see the analysis of the speeches in Adams in §41 above, which again I respectfully adopt. He does, however, share the characteristics of any class or category into which the claimant falls. In order to establish that categorisation there must be expert evidence, usually of a medical nature. That is shown by the fact that the claimant failed in Adams because there was no evidence, and thus the judge had been wrong to assume, that dyslexics, as a class, are reluctant or embarrassed to seek help with their condition: see per Lord Hoffmann at §50. The inevitable corollary of that analysis is that if there had been such evidence it would have been relevant to the constitution of the reasonable man.

We are bound, as the judge was bound, to apply the Bryn Alyn test as amended by implication by the House in Adams: that is, when a reasonable man in the circumstances of the claimant would reasonably turn his mind to litigation. That causes some difficulty in the present case, because although the judge properly sought to apply the objective test mandated in Adams he had to do so in the light of expert evidence that clearly had been formulated on the assumption that the subjective test still ruled. Such passages as he found that assisted him in his task accordingly appeared in the evidence more in passing than as something on which the witness was directly focussing. However, before analysing the judge’s judgment further I feel obliged to say that the Bryn Alyn test, binding on us though it is, does not correctly interpret the statute.

The test is used to determine the presence or otherwise of the requirement of “significant” injury imposed by section 14(2), namely to find the date on which the appropriately reasonable manwould have considered the injury sufficiently serious

I respectfully consider that those observations are consistent with what was said by Bingham LJ in Dobbie at p 457 F-H, set out by my Lord in § 47 above, even though, as my Lord says, those observations do not touch the issue of inhibition against starting proceedings, which was the issue in Bryn Alyn and which is the issue before us. And while it may seem hard to say that that test applies even where the victim’s inhibitions are caused by the injury itself, that is the inevitable result of the statutory language, that focuses on the actual condition of the claimant, without reference to how that condition was caused. Rather, such considerations arise, if at all, under section 33.

In our case, in contrast to Adams, there is expert evidence as to the characteristics of the class of persons in the position of the claimant. The relevant part of that evidence is summarised in §56 above. Under the jurisprudence of Adams those characteristics have to be attributed to the reasonable man. Under the Bryn Alyn test the judge was entitled to find, though not in the terms in which he expressed himself, that a reasonable sexually abused child would not have turned his mind to litigation. That suffices to meet the Bryn Alyn test for whether the claimant knew that the injury was significant.

If, by contrast, there were to be applied the analysis of section 14(2) that I have ventured to suggest in §85 above, there was no evidence that an abused person in the position of the claimant was incapable of assessing whether recourse to the courts would be justified. All that Mr Godsi’s evidence said was that such a person would think that such a claim would be unsuccessful: but that cannot be relevant, because the section requires it to be assumed that the claim would not be contested. Accordingly, Bryn Alyn in my view wrongly assists the claimant in a case such as the present; but it is that jurisprudence that we have to apply.

Like my Lord, I find difficult and unsatisfactory the evidence with regard to this period, and in particular in relation to the implications of the claimant asking to see his Social Services file in about January 1986. As my Lord records in §60 above, the judge held that that indicated that the claimant was willing, if not eager, “to confront the contents of the box in the attic”. That was a view very well open to the judge on the evidence, not least that in §7.2 of Mr Godsi’s report of 8 March 2004, which records:

The judge did not confront what I have to say is a clear inconsistency in the evidence. He followed his observation set out above by saying that the claimant’s achievements in the period around 1986 suggested that he had “come to terms” with his past experience, and that there were no referrals to doctors or solicitors. The claimant can be forgiven, indeed commended, for wanting simply to get on with his life, the content of the box in the attic notwithstanding. But that was a conscious decision by a man who, on the evidence directly about him, would have been capable of deciding otherwise. Had the judge at this stage of his judgment reminded himself of the modified Bryn Alyn test, and asked whether a reasonable abused man who was now willing to confront and to try to understand the past would reasonably turn his mind to litigation, there would seem to be only one possible answer. And that answer would have been reinforced by what seems to have been the claimant’s statement to Mr Godsi that he did indeed, to adapt to his case the words used in the Bryn Alyn test, “turn his mind” to litigation, even if only to decide that that was a route that he did not want to take. Mr Godsi’s evidence did not address that difficulty. What he seems to have said was that until 1996, and the meeting with Rev Husband, the claimant suppressed his symptoms (scil., of PTSD). That is not the same as suppressing the facts of what had happened to him to produce those symptoms, and specific evidence about the claimant suggests that he did not do that.

I do not think that the judge should have followed Mr Godsi in this respect, at least without much fuller analysis of the basis of his conclusions, and of their specific reference to 1986. Absent that analysis, I consider that the judge made the same error as the first instance judge in Adams, of assuming that the claimant’s failure to proceed was reasonable, in the sense of section 14(2), without having any adequate evidence to support that conclusion. I would hold that the claimant should reasonably have turned his mind to litigation in 1986, at least if he was going thereafter to claim that litigation was the appropriate response.

Mr Godsi’s evidence about the traumatic encounter with Rev Husband in 1996 was that the “defence” personality that the claimant had cultivated over the years suddenly fell apart. Mr Godsi continued, at §§ 6.3-6.4 of his report of 29 June 2005:

Like my Lord, I have difficulty with this treatment. The judge does not appear to have relied directly on the passage from Mr Godsi set out above, and he was right not to do so. The parts of the claimant’s actual evidence, set out by my Lord in §§ 62-64 above, show quite clearly that the claimant knew, shortly after the Husband encounter, that he was suffering from a serious illness. The premise on which Mr Godsi proceeded, that the claimant did not know that he was relevantly ill, was therefore contradicted by the actual evidence. And granted that the past that was unlocked included the claimant’s desire to understand his case, as set out in §91 above, Mr Godsi’s assertion, in the terms of the statute, that the claimant was not well enough to realise that what had happened to him justified instituting proceedings for damages (thus reciting the terms of the statute but not, as we have seen, the terms of the Bryn Alyn test) should not have been accepted without considerable further analysis.

The judge, at his §60, said that the claimant’s world had collapsed, he was in abject denial, and that on the evidence others in Mr Young’s position would react in the same way. Accordingly, “the quality of reasonable curiosity spoken of by Lord Hoffmann in Adams remains entirely absent in the claimant’s case”. But those references by Lord Hoffmann, in §§ 47 and 51 of Adams, related to curiosity about the origins or cause of the claimant’s illness, something that on the evidence Mr Young already well knew. Once that is established, there would not seem to be any role for “curiosity” about whether legal proceedings are justified. The issue, under the modified Bryn Alyn test, is whether a reasonable claimant in Mr Young’s position would have turned his mind to litigation about the condition in which he found himself. Although the judge did not directly follow Mr Godsi on this point, his reason for concluding that that requirement was not fulfilled seems to have been the same as Mr Godsi’s, that Mr Young was not aware of his illness. But, again, that conclusion was contradicted by the actual evidence.

Like my Lord, therefore, I do not consider that the judge addressed this matter correctly, and accordingly we must address the issue afresh. Once it is established that the claimant knew that he was ill, and had had recalled to him the causes of that illness, it seems inevitable that a reasonable person in the claimant’s situation would have turned his mind to litigation, as Mr Young himself must be taken to have done in earlier years: see §94 above. The judge should have held that the requirements of relevant knowledge set out in section 14(2), if indeed they had ever disappeared, returned to the claimant shortly after the encounter in 1996.

I would therefore allow the appeals of both appellants.

I respectfully agree with my Lord’s analysis, and there is nothing that I wish to add.