A B & Ors v The Nugent Care Society

I refer to my judgment on the respective limitation issues as they arose by reference to Sections 14 and 33 Limitation Act 1980, and in particular to my direction that the case of P. L. should continue, having exercised the Section 33 discretion in his favour. The Defendants now submit that for additional reasons his claim is statute barred and I should now rule to this effect. Concerned to avoid costs expenditure if this further submission should be well founded, I sought and received the respective submissions on the premise that the facts are already clear enough to provide a foundation for what is in effect a ruling as to law. That ruling now follows with an initial review of the facts.

I start by reiterating the facts as to the abuse. The Claimant was born on the 11^th June 1964. On the 29th January 1976, then aged 12 he was made the subject of a care order. This led to residence in various establishments: materially, in and between October 1977 and June 1978 he was resident in St. Aidans – save for some 99 days when he was elsewhere, having repetitively absconded.

The then headmaster of St. Aidans was Terence Hoskin. He had been appointed to that position as from September 1974. From an early stage he had regularly maltreated boys in residence by way of sexual abuse (indecent assaults and buggery) and physical assaults plainly outside the scope of legitimate corporal punishment. Following his arrival, this Claimant became another victim. Repetitively he would be woken from sleep, taken to a side room and made to co-operate in acts amounting to gross indecency. Additionally he was caned violently on his bare buttocks whenever there was any colourable opportunity for punishment. As to abuse by Hoskin, this Claimant was the subject of an indecent assault count on an indictment and tried at Chester in March 1996. Hoskin was convicted following evidence from this Claimant. He was similarly convicted on 23 other counts concerning other inmates and received an 8 year sentence.

During this Claimant’s time at St. Aidans one member of staff was Colin Dick. He too subjected this Claimant to repetitive sexual and physical abuse of a similar nature. Significantly, per the witness statement: “I believe that in total I would have been abused on at least 30 or 40 occasions either by Mr. Hoskin or Mr. Dick. On some occasions they would both abuse me together. I remember one particular time they had been drinking whisky and I could smell it on their breath …”. Dick subsequently pleaded guilty to counts particularising like offences on other boys – a count alleging an indecent assault on this Claimant was left to lie on file.

Adverting to the position and duties of Hoskin, Mr. Maxwell QC draws helpful attention to the following provisions and guidance spawned when, pursuant to the Children and Young Persons Act 1969, Community Homes replaced Approved Schools:

“a.

The Community Homes Regulations 1972:

3(1) The responsible body, and in the care of a controlled or assisted community home the managers, shall arrange for the community home under their charge to be conducted so as to make proper provision for the care, treatment and control of the children who are accommodated therein.

10(c) The control of a community home shall be maintained on the basis of good personal and professional relationships between staff and the children resident therein.

b.

The St. Aidans, Widnes Instrument of Management Order 1973

22.(1) The organisation shall, after consultation with the managers, appoint a person to be in charge of the home.

(2)

The said person shall, subject to any general directions which may be given to him by the managers, be responsible for all matters relating to the organisation of the home and the care and discipline of children accommodated in the home.

(3)

The said person shall, except so far as the managers otherwise direct, attend all meetings of the managers.”

In this context Mr. Maxwell QC draws attention to material to be found in Dick’s happily surviving personal file. In April 1978 (that is, in the course of this Claimant’s residence) Hoskin as headmaster, had occasion to heed and act upon Dick’s conduct with respect to inmates. Inter alia, in the course of a school trip to Suffolk Dick had slept in a bed with two boys. In the event – and amazingly, in hindsight – he was seemingly counselled by Hoskin: at an interview of the 12^th April “The disappointment about his actions was expressed strongly. The dangerous situation that he presented for himself was fully explained.”

On behalf of the Defendants, Mr. Faulks QC now raises with respect to this Claimant a limitation point additional to those covered by my original ruling. It arises out of Sections 2 and 11 of the Limitation Act 1980:

“Section: 2. An action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

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 damage s claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(2)

None of the time limits given in the preceding provisions of this Act shall apply to an action to which this section applies.

(3)

An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4) or (5) below.

(4)

Except where subsection (5) below applies, 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 personal injury.”

His short submission is that the cause of action arising out of the facts as set out above (none of which are disputed) is not covered by Section 11. It is an action in trespass so as to be subject to the fixed six year time limit, thus making my earlier ruling immaterial. This limitation period terminated for all purposes on the 4^th June 1988.

It is convenient to begin with such and thus with the deployment of authority. The essential starting point is Stubbings v. Webb (1993) A.C. 498. The facts and the resultant issue readily appear from the head note:

“The plaintiff, who had attained her majority in 1973, issued a writ against the defendants in August 1987, claiming damages for personal injuries, including psychological disorders and mental illness, suffered in her adult life as a result of alleged sexual and physical abuse during her childhood by the first and third defendants , her step father and stepbrother, and physical abuse by the second defendant, her stepmother, which the plaintiff claimed she had only perceived to be causative of her illness after consultation with a psychiatrist in September 1984. On a determination of a preliminary point as to whether the claim was statute-barred, the master treated the plaintiff’s cause of action as a claim in respect of personal injuries within section 11(1) of the Limitation Act 1980, with a consequent limitation period, under sections 11(4) and 14 of the Act, of three years from the plaintiff’s date of knowledge that the injuries in question were significant and attributable to the defendant’s acts. The master held that the plaintiffs had issued her writ more than three years after that date and struck out her claim. On the plaintiff’s appeal, the judge held that the relevant date of knowledge under sections 11 and 14 had been the plaintiff’s realisation in September 1984 that there might be a causal link between her psychiatric problems and her sexual abuse, and that the claim against the first and third defendants should proceed. He dismissed the appeal in so far as it related to the claim against the second defendant. The Court of Appeal upheld the judge’s decision.”

The Court of Appeal relied, inter alia, upon a decision of that court in Letang v. Cooper (1965) 1 QB 232 to the effect that ‘breach of duty’ as subsequently utilised by the draughtsman for Section 11(1) should be construed as applying to any cause of action which gave rise to a claim in damages for personal injury. In the House of Lords Lord Griffiths gave the only speech. Having traced the statutory history of Sections 2 and 11, starting with Section 2(1) Law Reform (Limitation of Actions etc) Act 1954, he concluded:

“… 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 then 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 my view apt to give effect to that intention, and cases of deliberate assault such as we are concerned with in the case are not actions for breach of duty within the meaning of section 2(1) of the Act of 1954.

The language of section 2(1) of the Act of 1954 was carried without alteration into the Act of 1975 and then into section 11(1) of the Act of 1980 where it must bear the same meaning as it had in the Act of 1954. It thus follows that the plaintiff’s causes of action against both defendants were subject to a six-year limitation period. This period was suspended during her infancy but commenced to run when she attained her majority: see section 28 of the Act of 1980.”

Applying the foregoing to the instant situation means that the current and authoritative law allocated this Claimant’s cause of action to trespass and thus outwith the regime established pursuant to Sections 11 and 33.

It is necessary to introduce at this stage in the argument two further cases. The first such is Trotman v. North Yorkshire County Council (1999) LGR 584. A preliminary issue arose upon the following pleading:

“(I)

At all material times the defendants operated a school for mentally handicapped children … whereat the plaintiff attended from about May 1990. (2) The defendants’ servants or agents who were the staff at the school organised a holiday trip to Spain which took place on 28 May to 4 June 1991 and the plaintiff, with other pupils, went on the trip and was totally within the control, and subject to the care, of the defendants’ said servants or agents, the staff at the said school. (3) Whilst on the holiday in Spain the plaintiff shared a bedroom with the deputy headmaster of the said school, the defendants’ servant or agent, one MS, and on several nights during the holiday the plaintiff was indecently assaulted by the said MS.”

No breach of duty by the council was alleged nor was there a limitation issue. What was contended was that the Council could not as a matter of law have vicarious responsibility for assaults committed by a member of staff in such circumstances – that is, there could not be vicarious responsibility in trespass. The matter got to the Court of Appeal where this contention was upheld.

The second such case is Lister v. Hesley Hall Ltd (2002) 1A.C. 227. This featured claims for damages based upon sexual abuse suffered in the course of residence in a boarding house attached to a school owned and managed by the Defendants. The alleged abuser was the Warden of this establishment. Seemingly trying to distinguish Trotman, the case was advanced, first, in negligence, invoking care, selection and control of the warden; and second in trespass, invoking “the warden’s failure to report to them his intentions to commit acts of abuse and the harmful consequences to the Claimants of those acts,” together with the actual assaults. The Judge rejected the case in negligence and so much of it in trespass as contended for vicarious liability for the assaults. He did find liability on the alternative case in trespass. For some unknown reason limitation was not in issue.

In the Court of Appeal the appeal of the Defendants was allowed. Per Waller L.J.:

“The simple point in this case is that if wrongful conduct is outside the course of employment, a failure to prevent or report that wrong conduct cannot be within the scope of employment so as to make the employer vicariously liable for that failure when the employer was not vicariously liable for the wrongful conduct itself.”

The Claimants appealed to the House of Lords and with success. The nub of the decision appears from the head note and follows upon an unanimous decision to overrule Trotman as wrongly decided:

“Held, allowing the appeal, that having regard to the circumstances of the warden’s employment including close contact with the pupil and the inherent risks that it involved there was a sufficient connection between the work that he had been employed to do and the acts of abuse that he had committed for those acts to be regarded as having been committed within the scope of his employment and the defendants should be held vicariously liable for them.”

The reasoning as respectively developed by Lords Steyn (with whom Lord Hutton agreed), Clyde, Hobhouse and Millett differed. It is presently pertinent to refer to the speech of Lord Millett at page 250:

“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 C W Martin & Sons Ltd. The cleaners 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. 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, in which I prefer to express no option, 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. The same reasoning would not, of course, necessarily apply to the duty to report the wrongdoing of fellow employees, but it is not necessary to decide this.”

This then leads into the main thrust of the Defendants argument as deployed by Mr. Faulks QC. That thrust is centred upon another Court of Appeal decision, KR v. Bryn Alyn Community (Holdings) Ltd (2003) QB 1441. This case featured 14 Claimants all of whom alleged abuse whilst resident in a care home run by one, John Allen. A multitude of issues arose but presently the focus is upon a point that arose out of the case of one such Claimant, MCK. As to her, there was a finding that she had been indecently assaulted on several occasions by John Allen himself. Each such occasion was in private, that is, when she visited his office for a legitimate purpose. The trial Judge found that the first Defendants would have been vicariously liable for such assaults in trespass had the claim been brought within the non-extendable limitation period. The claim could not be sustained as one in negligence so as to take advantage of the opportunities for extension provided by the 1980 Act. As to this latter finding it was in terms: “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, not negligent.”

MCK’s appeal received full consideration in and between paragraphs 97 and 108 of the judgment of the Court of Appeal. It directed itself at paragraph 101:

“Thus, it is necessary, when an issue of limitation arises, to consider whether the factual situation alleged fits the section 11 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.”

It then analysed the speeches in Lister’s case and expressed a preference for the approach of Lord Millett as already cited and reached in paragraph 108 its conclusion:

“108.

In our view, the correct approach is as Lord Millett 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’s 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 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.”

The final stage of the Defendants case invoked A v. Hoare (2006) 1 W.L.R. 2320, another Court of Appeal judgment. Again the Court was confronted by a multiplicity of issues raised by way of the appeals of four Claimants. One such issue was as to causes of action appropriate to accommodate deliberate sexual abuse and necessarily gave rise to considerations similar to those discussed in the passages cited from KR v. Bryn Alyn. This time the reaction of the Court of Appeal was in the following terms:

“113.

The law has clearly moved on a long way since Stubbings v Webb was decided.  Limitation issues were not even discussed in Lister v Hesley Hall, and we no longer think only of a duty of care to avoid personal injury when we consider what duties exist in the context of a teacher-pupil relationship.  On the face of it, principle and justice seem to require that when a teacher, in flagrant breach of the duty he owes a pupil in his charge, grooms him and encourages him to perform indecent acts in front of him or watch pornographic videos with him, and performs indecent assaults on him, and follows a prolonged policy of favouring him and protecting him from justified complaints by other teachers, so that the child truants in the short term and suffers serious psychiatric harm in the long term, in addition to losing the benefit of a normal education, the law should not provide a more relaxed limitation regime for the less serious breaches of duty and a more stringent regime for the more serious breaches.
114. Unconstrained by authority, we would be inclined to follow what appears to be the approach of the majority in Lister v Hesley Hall (see para 99 above) and hold that such a claimant could recover damages for breach of duty in respect of the cumulative effect of all these activities, so that recovery is not confined to those improper activities that do not constitute intentional assaults. But in our judgment we are not free to take this course. In KR v Bryn Alyn this court expressly preferred the approach of Lord Millett in the Lister case as to the non-viability of an alternative claim based on breach of duty.  And if it were to be suggested that in Bryn Alyn the facts complained of may have been limited to intentional assaults, in C v Middlesbrough Borough Council the facts were similar to those with which we are at present concerned, and this court nevertheless held that it was bound by the decision in Bryn Alyn not to apply the more relaxed limitation regime that is available in "breach of duty" cases. We considered whether we were able to depart from this part of the judgment in Bryn Alyn, but even if we were free to do so we think that it would be very much better to leave it to the House of Lords to consider this area of the law as a whole, rather than for different divisions of the Court of Appeal to provide different answers in relation to what is, after all, only one part of a larger scene.”

Thus, submits Mr. Faulks QC, the case of P.L. is on all fours with that of MCK. The Court of Appeal ruling, based as it is on the earlier House of Lords cases of Stubbings and Lister is that any such case must lie in trespass so as to be subject to the six year limitation period that expired finally and without prospect of extension on the 4^th June 1998. That ruling is binding on the Court of Appeal (see above) and, a fortiori, on me.

Mr Maxwell QC’s response was cogent, careful and thought provoking. Unhappily, in significant measure his submissions were such that, in the present state of law, a positive response could only be forthcoming from the House of Lords – and I, alas, am not of such. I therefore propose to avoid a needless extension of the length of this judgment and to proceed directly to my judgment. My indebtedness to Mr. Maxwell’s submissions should be apparent.

Assault by Hoskin. I cannot draw any effective distinction between this part of the instant claim and the claim by MCK. In result I cannot distinguish the material part of KR v. Bryn Alyn and I am currently bound by it, see A v. Hoare op. cit. So much of P.L.’s claim is statute barred as being a claim in trespass and subject to a long since expired six year limitation period.

That said, were the matter free from currently binding authority, I would be minded to make the following findings:

In support of this approach, were I not bound by KR v. Bryn Alyn, I would very respectfully adopt the approach obviously preferred by the constitution responsible for the judgment in A v. Hoare, op. cit., adding simply the following:

Assaults by Dick. This time I can and do draw effective distinction between so much of the instant claim as is based on such and that of MCK. Mr. Maxwell QC may wish to argue the point elsewhere, but by reference to Lister v. Hesley Hall there is no immediately apparent basis for contending that the Defendants were vicariously responsible for abuse by Dick, and thus no case in trespass for deliberate acts falls to be considered. The matter thus has to be considered as a claim in negligence, that is, a contention that, on behalf of the Defendants, Hoskin had to satisfy their duty of care by, inter alia, instituting and maintaining systems to ensure, so far as was reasonably practicable, that the Claimant avoided reasonably foreseeable injury – and this he failed to do by causing or permitting exposure to Dick’s paedophile proclivities, notwithstanding actual knowledge of such. As to ‘actual knowledge’ I have in mind this Claimant’s evidence as to a joint assault by Hoskin and Dick together with the episode referred to in paragraph 6 above.

In this context, support now comes from KR v. Bryn Alyn. When considering MCK’s appeal the Court pointed out (paragraph 204) that the trial Judge had found the Defendants “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” and utilised this finding to sustain certain of the claims. The problem for MCK, as Connell J. pointed out with the eventual support of the Court of Appeal, was that the assaults upon her were in private and in the course of legitimate unsuspicious visits to Allen’s office. As I see it, P.L. has no like forensic problem with respect to Dick’s conduct.

Thus, with respect to so much of his claim as is based upon the abusive conduct of Dick, I reject the Defendants’ submission that it amounts to a claim in trespass and is thus statute barred. I would hold that it is covered by Section 11 and thus my dispensation pursuant to Section 33.

For the foregoing reasons I rule that to the extent that the claim of P.L. is based upon abuse and assaults by Hoskin it is statute barred; and to the extent that it is based upon abuse and assaults by Dick it is not statute barred. In making this ruling I see no reason to revisit my Section 33 decision. Nothing that has happened since making that decision has caused me to question it. It was, I maintain, plainly equitable to allow P.L’s. action to proceed so that, inter alia, this further litigation issue could be confronted on the basis of evidence of unimpeachable cogency.

Overall, whilst this outcome is, I hope, justified forensically as reflecting the impact of the current state of the law, I cannot regard it as satisfactory whether as a vehicle for achieving justice as between P.L. and the Defendants, or as a constructive contributor to the increasingly desirable resolution of the outstanding Nugent Care Society claims. I await with keen interest respective submissions as to what is to happen now – and I have to record that the overriding objective as set out in CPR 1.1 is threatening to influence further directions.