B e f o r e :
SIR ANTHONY CLARKE MR
LORD JUSTICE BROOKE
Vice President, Court of Appeal (Civil Division)
LADY JUSTICE ARDEN
|| (1) A
|| - and -
- and -
SUFFOLK COUNTY COUNCIL
SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
(3) X & Y
- and -
LONDON BOROUGH OF WANDSWORTH
(Transcript of the Handed Down Judgment of
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(1) Mr Alan Newman QC and Mr Paul Spencer (instructed by Messrs DLA Piper Rudnick Gray UK LLP) for the Appellant
Mr Christopher Sharp QC and Mr Andrew McLaughlin (instructed by Atkins Public Law Solicitors) for the Respondent
(2) Mr Nigel Cooksley QC and Mr Stephen Field (instructed by BTMK Solicitors) for the Appellant
Ms Kate Thirlwall QC and Mr Steven Ford (instructed by Messrs Browne Jacobson) for the Respondent
Mr Jason Coppel (instructed by the Treasury Solicitors) for the Intervenor
(3) Ms Elizabeth-Anne Gumbel QC and Mr Henry Witcomb (instructed by Messrs Bolt Burdon Kemp) for the Appellants
Ms Kate Thirlwall QC and Mr Steven Ford (instructed by Messrs Browne Jacobson) for the Respondent
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(This summary forms no part of the judgment)
The Court of Appeal heard these three appeals together because they all had a common feature. The claim in each case was brought more than six years after the sexual abuse of which complaint was made (or, in two of these cases, after the schoolboys who had been abused had reached the age of 18), and the judges in the lower courts had held that their claims were all statute barred.
The facts in each case are set out in the Appendix to the judgment, which begins at para 138.
In A v Hoare (paras 116-118, 138-143), a serial sexual offender had been sentenced to life imprisonment for the attempted rape of the claimant A. He had not been worth suing until he won £7 million on the National Lottery on a single lottery ticket bought when he was on day release from prison 16 years after the offence.
In H v Suffolk County Council (paras 119-123, 144-186), a teacher subjected a 15-year old boy to sexual abuse while he was in the care of the Council at a residential school for teenage boys with various difficulties. He did not tell anyone about the abuse until more than six years after his eighteenth birthday, when the police interviewed him after other allegations of sexual abuse at the school had been made.
In X and Y v Wandsworth Borough Council (paras 124-137, 187-221) a boy aged 11 and a boy aged 14 were subjected to sexual abuse by the same teacher, who was responsible for their pastoral care at the school they both attended. Both suffered serious psychiatric disturbances, and neither brought a claim until after the conviction and sentence of the teacher, by which time they were in their late 20s.
In the judgment of the court, given by the Master of the Rolls, the Court of Appeal dismissed all the claimants' appeals. It held (paras 8-69) that it was bound by the decision of the House of Lords in Stubbings v Webb to hold that although most claims for damages for physical or psychiatric injury now have an extendable three-year limitation period from the date of the claimant's "knowledge", claims for damages arising out of an intentional sexual assault have a non-extendable six-year limitation period from the date of the assault (or the claimant's eighteenth birthday, if later). Because the six-year limitation period had expired before the Human Rights Act came into force, the claimants could not rely on the provisions of that Act for assistance.
The Court also held (paras 70-115) that it was bound by the recent decisions of the Court of Appeal in KR v Bryn Alyn and C v Middlesbrough Borough Council to hold that the three claimants who alleged sexual abuse at school could not claim against the school authorities on the grounds that they were vicariously liable for the teacher's breach of the duties he owed these schoolboys or for his failure to report the abuse to the school authorities.
In X and Y v Wandsworth Borough Council the teacher also behaved himself in many other ways which contributed to the harm the boys suffered, but the Court of Appeal considered (para 130) that instead of directing an inquiry into damages, which would have to be conducted on an entirely artificial basis (because the acts of assault would have to be excluded from the inquiry), it would be better to dismiss the appeals and grant permission to appeal to the House of Lords.
The Court observed (para 3) that in 1995 the Law Commission had identified the concern that was felt about this area of the law, and that (para 4) in July 2001 the Commission had laid a report before Parliament which contained recommendations that would enable a court to extend the limitation period in cases like these, if it thought it just to do so. "The remedy has now been in Parliament's hands for nearly five years" (para 6).
The Court also expressed itself willing (subject no doubt to further argument and limited to questions of principle) to grant all the claimants permission to appeal to the House of Lords, if they wished to do so, so that the House of Lords, which would not be constrained by binding case law, could consider how the issues raised by these appeals could be addressed without the intervention of Parliament (para 130). The Court said: "The House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot" (para 6).
|2. The 1980 Act and Stubbings v Webb
|3. Stubbings v United Kingdom
|4. The HRA
|5. The English cases on limitation since Stubbings & Webb
|6. The Appellants' submissions on the limitation issues
|7. Argument (i): Stubbings v Webb was wrong and/or should not be followed
|8. Argument (ii): The effect of the HRA
|9. The first response to argument (ii): Retrospective Effect
|10. The second response to argument (ii): Stubbings v UK, para 54
|11. Argument (iii): An exclusion for claims against a public authority
|12. Argument (iv): Declaration of incompatibility
|13. Argument (v): Stubbings v Webb can be distinguished
|14. Argument (v): The duties of teachers and the developing law: (a) Hippolyte, Page v Smith and Phelps
|15. Argument (v): The duties of teachers and the developing law: (b) Vicarious liability for a teacher's unauthorised acts:
Lister v Hesley Hall
|16. Argument (v): The duties of teachers and the developing Law: (c) Vicarious liability for a teacher's unauthorised acts:
Bryn Alyn and later cases
|17. Argument (v): The duties of teachers and the developing Law: (d) Vicarious liability for unauthorised acts: other recent cases
|18. Argument (v): Can Stubbings v Webb be distinguished by reliance on a concurrent breach of duty?
|19. The application of the law to the three appeals: (i) A v Hoare
|20. The application of the law to the three appeals: (ii) H v Suffolk County Council
|21. The application of the law to the three appeals: (iii) X and Y v Wandsworth Borough Council
|22. A footnote
|APPENDIX PART A: A v Hoare
|APPENDIX PART B: H v Suffolk County Council
|APPENDIX PART C: X and Y v Wandsworth London Borough Council
Sir Anthony Clarke MR:
This is the judgment of the court to which all members of the court have contributed.
- On 6th to 8th February we heard the appeals of claimants whom we will call H, X and Y from the decisions of judges in the county court who had dismissed their claims for damages for the psychiatric harm they suffered as a consequence of sexual abuse to which they were exposed during their schooldays. On 13th February we heard a second appeal by a claimant we will call A. Her claim had been struck out by a High Court master, whose decision was upheld on appeal by a judge. The defendant was a serial sexual offender, and he was sentenced to life imprisonment 17 years ago after he had attempted to rape A in 1988. He was not worth suing until he won £7 million in the National Lottery in 2004. A then brought an action for damages against him, but the master and the judge both held that it was statute-barred. This case has attracted widespread national publicity.
- All four cases fell foul of the decision of the House of Lords in Stubbings v Webb  AC 498 in which it was held that a claim based on an intentional sexual assault is subject to a non-extendable six year limitation period. Within two years of that decision this court had pointed out one of its unhappy consequences when it held that a daughter's claim against a father who had subjected her to repeated acts of sexual and physical abuse was statute-barred, but that she was at liberty to pursue a claim against her mother for want of care because acts or omissions which constitute negligence are subject to a more generous limitation regime. The court upheld the judge's view that the result was both illogical and surprising and called for the attention of the Law Commission. (For this decision see para 31 below).
- These and other serious contemporary concerns led to the then Lord Chancellor approving the implementation of a comprehensive review of the law of limitation in the Law Commission's Sixth Programme of Law Reform (1995) Law Com No 234. In describing this programme item, the Commission said:
"Needless complexity in the law costs money. The law on limitation periods, which is largely contained in the Limitation Act 1980, is uneven, uncertain and unnecessarily complex. [Examples are then given] … Concern has also been expressed at the existence of situations where limitation periods can be less favourable from the plaintiff's point of view for intentionally inflicted injury than for negligence. …
We believe … that the law in this area is in need of a comprehensive review which gives an opportunity to simplify, rationalise and update it…"
- At that time the Commission hoped that it would be able to complete its work within three years. In the event it laid its report, Limitation of Actions (2001) Law Com No 270, before Parliament on 9th July 2001. It recommended that problems of the kind with which we are concerned in these appeals should be resolved by a very simple reform which left it to the discretion of the court to decide whether it would be just to extend the limitation period according to criteria similar to those contained in section 33 of the Limitation Act 1980 ("the 1980 Act").
- On 16th July 2002 the then Lord Chancellor announced in a Parliamentary written answer that the Government had accepted the recommendations in this report in principle. On 16th February 2003 this court returned to the topic when it said, in connection with appeals arising from the sexual abuse perpetrated in children's homes in North Wales, that it warmly commended the Law Commission's proposal. It added:
"Early statutory implementation of it would obviate much arid and highly wasteful litigation, turning on a distinction of no apparent principle or other merit."
(The court's full statement is set out in greater detail in para 32 below).
- And there the matter has rested. The remedy has now been in Parliament's hands for nearly five years following a comprehensive law reform study conducted at considerable public expense. Although the Commission's recommendations would not have affected cases in which the defendant already possessed an accrued limitation defence under existing legislation, justice would be far more simply achieved in claims like this in future if Parliament were to simplify the law along the lines the Commission recommended. In the meantime, the House of Lords itself may be able to remedy some of the very serious deficiencies and incoherencies in the law as it stands today in a way that we cannot.
- We will start this judgment by setting out the scheme of the 1980 Act and the effect of the decision in Stubbings v Webb and then go on to describe the fate of that case when it reached the European Court of Human Rights. We will then consider the different legal arguments that were advanced to us before we apply our conclusions of law to the facts of the three cases. Those facts are set out in more detail in the Appendix to this judgment.
2. The 1980 Act and Stubbings v Webb
- Sections 2 and 5 of the 1980 Act provide for a limitation period of six years in respect of actions founded on tort and simple contract respectively. These periods run from the date the cause of action accrued but, by sections 28(1) and 38(2), where the claimant is under 18 on that date, from the date of his eighteenth birthday, when he ceases to be a minor. Section 11 provides, so far as is material:
"(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 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) … below.
(4) … [T]he 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."
Section 14 provides how the date of knowledge is to be ascertained, and section 33(1), which applies to the same classes of case as section 11(1), gives the court a discretion to extend the period of three years if it "would be equitable to allow an action to proceed".
- In Stubbings v Webb the House of Lords held that an action for damages for deliberate assault or trespass to the person was not an "action for damages for negligence, nuisance or breach of duty" in respect of personal injuries within the meaning of section 11(1) of the 1980 Act. In particular, such an assault or trespass was not a breach of duty within the meaning of the section. It followed that, on the one hand, the limitation period was six years and, on the other hand, the court had no discretion under section 33 to extend the six year period. In the cases with which we are concerned all the claimants were in difficulties because their principal complaints related to deliberate trespass to the person, and they sought various means of circumventing this difficulty.
- The statutory history of sections 2 and 11 of the 1980 Act went along the following lines. It is summarised by Lord Griffiths (who gave the only substantive speech in the House of Lords) in Stubbings v Webb. By section 2 of the Limitation Act 1939 ("the 1939 Act"), actions founded on simple contract or tort were barred after six years. However, section 21 of the 1939 Act continued the special protection previously afforded to public authorities by which the time limit for claims, many of which were personal injury claims, was only 12 months. That period was thought to be unjustly short, and in January 1948 the Committee on Limitation of Actions ("the Tucker Committee") was asked to consider, among other things, whether the present state of the law was unjust and also whether there should be any change in the six year limit.
- In the meantime in 1944 this court had decided Billings v Reed  KB 11, in judgments which included a consideration of section 3(1)(b) of the Personal Injuries (Emergency Provisions) Act 1939. This statutory provision excluded liability for compensation or damages which
"(b) would, by virtue of any enactment, by virtue of any contract, or at common law, be payable – (i) in the case of a war injury, by any person … on the ground that the injury in question was attributable to some negligence, nuisance or breach of duty for which the person by whom the compensation or damages would be payable is responsible."
The court rejected a submission to the effect that the phrase "breach of duty" did not include trespass. Lord Greene MR, with whom Mackinnon and Lawrence LJJ agreed, said (at p 19):
"It seems to me that in this context the phrase "breach of duty" is comprehensive enough to cover the case of trespass to the person which is certainly a breach of duty as used in a wide sense."
It is true to say that the particular trespass to the person which the court had in mind in that case was an accidental trespass. Billings v Reed was cited to the House of Lords in Stubbings v Webb but not referred to in the speeches.
- In June 1949 the Tucker Committee reported. It recommended that the special period for public authorities should be abolished and that the period of limitation in actions for personal injuries should be two years, with the court to have a discretion to extend this period up to a maximum of six years. The Government, however, decided to support a Private Member's Bill which provided for a limitation period of three years but with no discretion to extend it. As a result, section 2(1) of the Law Reform (Limitation of Actions etc) Act 1954 ("the 1954 Act") added the following proviso to section 2 of the 1939 Act:
"Provided that, in the case of actions 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 such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six there were substituted a reference to three years."
It can be seen immediately that this language is later reproduced in section 11(1) of the 1980 Act and also that the same phrase ("negligence, nuisance or breach of duty") was used as had appeared earlier in section 3(1)(b) of the Personal Injuries (Emergency Provisions) Act 1939.
- Section 2 of the 1939 Act, as amended by the 1954 Act, was considered by this court in the well known case of Letang v Cooper  1 QB 232. In that case the plaintiff, who had been run over in an accident, sought to frame her claim in trespass to the person, which it was argued was not a breach of duty within the proviso to that section, in order to achieve the advantages of a six-year limitation period. Lord Denning MR held that the cause of action of trespass to the person was limited to intended acts, and that when the act was not intended the plaintiff's cause of action lay in negligence.
- Diplock LJ for his part observed that the cause of action in trespass included both intended and unintended acts. The significance of his judgment for present purposes is his opinion, expressed at pp 245 and 247, to the effect that in their ordinary meaning the words "breach of duty" are wide enough to cover any cause of action which gives rise to a claim for damages for personal injuries. He said at p 246 that he saw no reason for approaching the construction of an enactment of this character with any other presumption than that Parliament used the words it selected in their ordinary meaning and meant, as he put it, what it chose to say. Although it is true that, like Billings v Reid, upon which he relied, Letang v Cooper was not a case of intended trespass on the facts, Diplock LJ was of the opinion that the expression "breach of duty" in section 2 of the 1939 Act, as amended, included both intended and unintended trespass.
- Lord Denning, who expressly referred to the report of the Tucker Committee, clearly took the same view of the construction of the section. His approach was to say that, while the Tucker Committee's opinion was relevant, too much regard should not be paid to it, if only because Parliament did not adopt its recommendations as they stood. He said at pp 240-1:
"In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of 'trespass to the person' or the rest. It used words of general import; and it is those words we have to construe, without reference to the words of the Committee."
Lord Denning then analysed the words of the section and concluded that "breach of duty" meant any breach of duty. He said:
"Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character."
Danckwerts LJ agreed. As we read his judgment, the main reason why he did so was that the words of the statute were plain, although he also agreed with Lord Denning's first ground.
- In 1963 Parliament enacted the Limitation Act 1963 following the decision of the House of Lords in Cartledge v E Jopling & Sons Ltd  AC 758. This statute enabled the court to extend the three year primary limitation period in cases in which the plaintiff was unaware within that time that he had suffered actionable injury. In due course the Limitation Act 1963 was replaced by the Limitation Act 1975 and then by the provisions of the 1980 Act to which we have referred.
- In Stubbings v Webb the facts were that the plaintiff, who reached her majority in 1975, alleged that she had been subjected to sexual and physical abuse at the hands of her stepfather and stepbrother during her childhood. The judge held, applying sections 11(1) and 14 of the 1980 Act, that she had the requisite knowledge in September 1984, and that because her writ was issued in August 1987 her claim was not time barred.
- This court for its part dismissed the defendant's appeal on the basis that it was bound by its earlier decision in Letang v Cooper: see Stubbings v Webb  1 QB 198, 204-5. Bingham LJ observed that Parliament should be taken to have enacted the Limitation Acts 1975 and 1980 against the background of law laid down by the Court of Appeal in Letang v Cooper. He also referred with approval to the judgment of Cooke J in Long v Hepworth  1 WLR 1299.
- It would have been open to the House of Lords to follow the same approach. The 1980 Act was a consolidation Act, and as such it was to be construed in the first instance in the same way as any other Act (see Bennion on Statutory Interpretation, 4th Edn (2002) at p 515 and Farrell v Alexander  AC 59, 72-73, 82-84 and 97). See also Lowsley v Forbes  1 AC 329 in which Lord Lloyd of Berwick, after doubting whether this court's decision in WT Lamb & Sons v Rider  2 KB 331 had been correctly decided, said of section 24(1) of the Limitation Act 1980:
"Parliament having given its blessing to W.T. Lamb & Sons v Rider … it is now too late for your Lordships to hold that its reasoning is erroneous."
- When Stubbings v Webb reached the House of Lords, however, it does not appear that any argument was addressed to the House about the proper way to interpret a consolidation Act. Nor was any reference made to the presumption in Barras v Aberdeen Steam Trawling and Fishing Co Ltd  AC 402, 411 to the effect that when Parliament uses a term, the meaning of which has been the subject of judicial ruling in the same or a similar context, then it may be presumed that the term found in the later statute was intended to bear the same meaning. This is not, however, an inflexible rule (see R v Chard  AC 279, 294G-H, 295C and 295E). In any event, instead of adopting that approach, Lord Griffiths went straight back to the report of the Tucker Committee in order to elucidate the meaning of section 11(1) of the 1980 Act.
- Pepper v Hart  AC 593 had been decided just before the House of Lords decided Stubbings v Webb, and this enabled Lord Griffiths to say that the House was entitled to look at Hansard, unlike the Court of Appeal. Having done so, he concluded (at p 507B) that it was clear that Parliament had enacted section 2(1) of the 1954 Act with the deliberate intention of giving effect to the Tucker Committee's advice that the three year limitation period should apply to accident cases and that it should not embrace causes of action such as rape or indecent assault. He relied in particular upon para 23 of the Tucker Committee's report:
"We consider that the period of limitation we have recommended should apply to all actions for personal injuries, whether the defendant is a public authority or not. We do not think it is necessary for us to define 'personal injuries,' although this may possibly be necessary if legislative effect is given to our recommendations. We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution, or defamation of character, but we do include such actions as claims for negligence against doctors."
He also referred to a statement made by Lord Tucker himself during the passage of the Bill through Parliament. He then construed the section in the light of the assistance he found in the report.
- He added, however, that he would have reached the same conclusion unassisted by Hansard. In short, his view was, as he put it at p 508B, that the phrase "breach of duty" lying in juxtaposition with the words "negligence" and "nuisance" carried 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 the affected person.
- It should be noted in passing that when Stubbings v Webb was decided psychiatric injury alone could not give rise to a cause of action in tort other than in the areas covered by the rule in Wilkinson v Downton  2 QB 57 or in the post-traumatic stress disorder cases like McLoughlin v O'Brian  1 AC 410 which involved what later came to be known as "secondary victims". It was perhaps because his mind was fixed on the need to identify a physical injury that Lord Griffiths said, obiter (at p 506B):
"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."
- It was in these circumstances that the House of Lords decided to allow the defendant's appeal. It held that section 11(1) of the 1980 Act did not apply to claims arising out of sexual and physical abuse, because these were claims for intentional trespass to the person and not claims for "damages for negligence, nuisance or breach of duty" within the meaning of that provision.
- It can be seen that there is a stark difference between the approach of the Court of Appeal in Billings v Reid and Letang v Cooper on the one hand and that of the House of Lords in Stubbings v Webb on the other. The Court of Appeal's view was that the words "breach of duty" are of wide import and (as Diplock LJ put it) wide enough to cover any cause of action which gives rise to a claim for damages for personal injuries. The House of Lords' view, in contrast, was that the words are to be narrowly construed, being coloured by the expression "negligence and nuisance". It seems to us that, free of authority, there would be much to be said for the construction preferred by Diplock LJ and that, as to the Tucker Committee's report, there is something to be said for Lord Denning's view that too much regard should not be paid to it because Parliament did not simply adopt the committee's recommendation, but altered it in a significant respect. However that may be, this court is of course bound by the House of Lords' decision, and we must follow it unless bound by some provision of the Human Rights Act 1998 ("the HRA") to construe section 11(1) of the 1980 Act differently.
3. Stubbings v United Kingdom
- The plaintiff in Stubbings v Webb sought to challenge the decision of the House of Lords in Strasbourg. Her challenge failed in Stubbings v United Kingdom (1997) 23 EHRR 213. The European Court of Human Rights ("the Court" or "the Strasbourg Court") held that, while article 6 of the European Convention of Human Rights ("the Convention") provides a right of access to the courts, it is not an absolute right. The Court said at para 48:
"However this right [ie the right of access] is not absolute. It may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
- The Court noted that limitation periods in personal injury cases were a common feature of the domestic legal systems of the Contracting States and that they serve several important purposes. Among these purposes are the need to ensure legal certainty and finality, the need to protect defendants from stale claims which might be difficult to counter, and the need to prevent the injustice which might arise if courts were required to decide upon events which took place in the distant past on the basis of evidence which might have become unreliable and incomplete because of the passage of time. The Court held that the very essence of a claimant's right of access to the courts was not impaired because of the six year limitation period, and also because a criminal proceeding could be brought at any time. If it were successful, a compensation order could be made. Furthermore the time limit was not unduly short in comparison with the limitation periods contained in other international treaties. In these circumstances the provisions of the 1980 Act were held to be proportionate, and the Strasbourg court expressly held that they fell within the margin of appreciation afforded to Contracting States. The Court also took note in para 53 of the fact that Parliament had devoted a considerable amount of time to the problem in recent years, and it held that Parliament's decisions were not arbitrary in the light of the Tucker Committee's report.
- For all those reasons the plaintiff's challenge failed, even though the Court was aware of the essential thrust of her case, namely that it was unjust that her claim should become time barred before she had enough knowledge to bring an action. It should, however, be noted that the Court added these words:
"54. There has been a developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims, and it is possible that the rules on limitation actions applying in Member States of the Council of Europe may have to be amended to make special provision for this group of claimants in the near future.
However, since the very essence of the applicants' right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the Court to substitute its own view for that of the State authorities as to what would be the most appropriate policy in this regard."
In all the circumstances the Court held that there was no breach of article 6.
4. The HRA
- The HRA came into force on 2nd October 2000. By section 2, the court determining a question which has arisen under the HRA in connection with a Convention right must take into account any relevant judgment or decision of the European Court of Human Rights in Strasbourg. Sections 3 and 4 of the HRA provide, so far as relevant, as follows:
"3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
(2) This section applies to primary and subordinate legislation whenever enacted.
4(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility."
- All the events in the three cases with which we are concerned occurred before the HRA came into force. In these circumstances the respondents in each case and the Secretary of State for Constitutional Affairs, who has intervened in the case of H, all submit that, in so far as the appellants suggest that section 11(1) of the 1980 Act should now be construed in a way which is different from that adopted by the House of Lords in Stubbings v Webb, their arguments should be rejected on the ground that so to construe the subsection would be to give impermissible retrospective effect to the HRA. This question of retrospectivity is an important issue in the appeals of H and A.
5. The English cases on limitation since Stubbings v Webb
- In Seymour v Williams  PIQR P470 the plaintiff issued proceedings against her father and mother. She alleged that her father had been guilty of physical and sexual abuse and that her mother was guilty of want of parental care. This court held that the claim against the father, which Russell LJ described as "plainly a claim alleging trespass to the person", was subject to a six year period of limitation in accordance with Stubbings v Webb and out of time. On the other hand, the claim against the mother was a claim in negligence, covered by section 11(1) of the 1980 Act. It was therefore subject to the shorter three year limitation period which could, however, be disapplied under section 33. We have already referred to the way in which the court said that the anomaly revealed by this case warranted the attention of the Law Commission (see para 2 above).
- In the later case of KR v Bryn Alyn Community Ltd  EWCA Civ 85,  QB 1441, Auld LJ, giving the judgment of the court, was referring to the judgments in Seymour v Williams when he said (at para 100):
"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 in not preventing it and of the potential extension of the limitation period for the latter instead of, as the Tucker Committee had recommended, 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. … 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."
- In KR v Bryn Alyn itself the court was concerned with the claims of a number of people who had suffered abuse when they were children in residential homes run by the first defendant in North Wales between 1973 and 1991. Mr John Allen was the defendant's chief executive and he controlled the homes in this capacity. In 1995 he was sentenced to six years' imprisonment for a number of offences of indecent assault. The abuse the claimants suffered was described as sexual and/or physical and/or emotional, and there was plenty of evidence of physical beatings.
- Some of the claimants succeeded on the basis of the first defendant's systemic negligence. However, three of them relied only on "deliberate acts of abuse by certain Bryn Alyn employees", for which they said that the first defendant was vicariously liable. An attempt was made on their behalf to argue that the principle in Stubbings v Webb did not apply to defeat their claims on the grounds that they were time barred. They submitted, for instance, that the allegations of deliberate abuse also amounted to other torts, so that their claims could be brought within the ambit of section 11(1), and thus section 33, of the 1980 Act. In considering these submissions the court discussed in some detail the differing approaches of the members of the appellate committee of the House of Lords in Lister v Hesley Hall Ltd  1 AC 215. There the House of Lords held, depending always on the facts of any given case, that a person in the position of the first defendant could be vicariously liable in such circumstances. We will refer more fully to Lister in paras 83 to 101 below.
- At para 107 of the judgment in KR v Bryn Alyn Auld LJ said that what the court had to decide was whether, in the light of the decision in Lister, section 11 applied to vicarious responsibility for deliberate abusive conduct as distinct from responsibility for an employee's delegated or "entrusted" duty of care to prevent such abuse. The court held, at para 108, that in the light of Stubbings v Webb claims for personal injuries in respect of deliberate conduct, whether considered in the context of vicarious liability or not, fell outside section 11 of the 1980 Act. The court also held that, in the absence of some provable allegation of systemic negligence of the first defendant, its employees' deliberate abuse did not fall within section 11, so that a claim in respect of such abuse was governed by a non-extendable limitation period of six years.
- The decision in KR v Bryn Alyn was followed by this court in C v Middlesbrough Council  EWCA Civ 1746. This was another case in which a claimant had been subjected to sexual abuse at school. The allegations against the school of a direct breach of duty failed on the facts, and a claim based upon vicarious liability for abuse at the hands of one of the teachers was held to be time barred under section 2 of the 1980 Act. The court followed Stubbings v Webb and KR v Bryn Alyn and held that the claim was outside section 11(1) of the Act. Ms Gumbel QC, who acted for the claimant (as she did in X and Y before us), submitted that it was open to the claimant to argue that the deliberate abuse was also a breach of a duty of care owed by Mr Brady to him to protect him from the risk of harm. The court rejected that submission on the basis that it could not survive the decision in KR v Bryn Alyn. We will refer to this decision again at paras 107-108 below.
6. The appellants' submissions on the limitation issues
- In this state of the authorities, the appellants in these three appeals have advanced a number of ways in which claimants in cases of this kind might be able to avoid the non-extendable six year time limit provided by section 2 of the 1980 Act and take advantage of the more relaxed limitation regime that is found in sections 11, 14 and 33. These arguments may be summarised in this way:
i) The decision of the House of Lords in Stubbings v Webb should no longer be followed because it was wrong and/or because the Law Commission has demonstrated that the approach should be different.
ii) The decision should no longer be followed because section 11(1) of the 1980 Act should now be construed differently in the light of section 3 of the Human Rights Act 1998 ("the HRA").
iii) The decision does not apply to a claim against a public authority.
iv) If necessary, the court should grant a declaration of incompatibility between the 1980 Act and the Convention.
v) Stubbings v Webb can be distinguished on the facts in those cases where the claimant can also rely on a breach or breaches of a duty of care that does not arise solely in connection with the deliberate act or acts of trespass to the person and/or is different from the simplistic duty of care to avoid causing personal injury which was at the centre of the discussion in that case.
- Arguments (i) to (iv) were at the forefront of the appeals in H and A, and argument (v) was most thoroughly developed in X and Y. It is convenient to consider each of these submissions in turn before applying our conclusions to the facts of the three appeals.
7. Argument (i): Stubbings v Webb was wrong and/or should not be followed
- The appellants in all three cases would like to submit that Stubbings v Webb is wrong or, at all events, that it should not be followed. However, they all correctly recognise that it is binding on this court and that it is not open to us to depart from it, at any rate absent the HRA. It will be a matter for the House of Lords to decide whether it wishes to review the decision and perhaps even to depart from it.
- It is not appropriate for us to speculate as to the view the House might take. We would only add this in the light of the detailed discussion of all the problems that have emerged since Stubbings v Webb was decided. That decision must have been a closely balanced one, given the decisions and approach in Billings v Reid and Letang v Cooper. Powerful arguments, based on the plain words of section 11(1), can be advanced along the lines discussed in paras 19 to 20 and 25 above to the effect that the Act should be interpreted like any other consolidation Act and/or that the phrase "breach of duty" should be construed as it was by Diplock LJ and Lord Denning MR in Letang v Cooper.
- Moreover, both the cases decided since Stubbings v Webb (including the present appeals) and the detailed analysis by the Law Commission in its comprehensive report point to some very unsatisfactory features of the present law as it is applied to sexual abuse cases. A good example is the difference between the positions of the father and the mother in Seymour v Williams. It might be thought that in any rational legal system the three year extendable limitation period should apply to the claim against the abusing father as well as to the claim against the negligent mother, and that a claimant who does not possess the relevant knowledge before the expiry of the primary limitation period should be permitted in an appropriate case to advance a claim against both such parents and not merely against the less guilty one.
8. Argument (ii): The effect of the HRA
- It is submitted on behalf of the appellants, particularly in the cases of H and A, that section 3(1) of the HRA (for which see para 29 above) enables the court to construe section 11(1) of the 1980 Act differently from the way in which it was construed by the House of Lords in Stubbings v Webb. It is submitted that in order to afford access to it in accordance with article 6 of the Convention, the court must have a discretion to enlarge the limitation period in an appropriate case so as to avoid a problem which we identified earlier: that is, that a claimant might not otherwise possess the knowledge he needs to enable him to decide whether or not to make a claim against the relevant tortfeasor before the primary non-extendable limitation period has expired.
- This argument was of course rejected by the Strasbourg Court in Stubbings v United Kingdom. However, the appellants draw attention to para 54 of the Court's judgment (for which see para 28 above) and submit that, in the light both of subsequent events and of new recognition of the problems since that decision, the Strasbourg Court would be likely to take a different view today. It is suggested that it would decide that, if English courts were still to follow Stubbings v Webb and continue to hold that there was a fixed non-extendable period of six years for claims in respect of deliberate sexual abuse, claimants' rights of access to the courts under article 6 of the Convention would be infringed.
- The respondents in each appeal resist that submission on two main grounds. The first is that, whatever view the Strasbourg Court might take in the future, it is not open to the English courts to read down the 1980 Act in the way suggested in any of the instant appeals because all the relevant events in each case occurred before the HRA came into force on 2nd October. To construe the Act differently from the way it was construed by the House of Lords in Stubbings v Webb would be to give the HRA retrospective effect, which the authorities show is not permissible. This argument is supported by the Secretary of State for Constitutional Affairs, who has intervened in the case of H.
- The second ground is that whether this country adopts the Law Commission's recommendations and amends the 1980 Act in this or other respects is a matter for Parliament and within the margin of appreciation or margin of discretion which the Strasbourg Court allows to the legislature of Contracting States, as Stubbings v United Kingdom itself makes plain.
- Before we consider these two arguments, however, we must make clear our view that article 6 merely provides a right of access to a court to determine civil rights. If one of the parties no longer possessed a right to a remedy when the HRA came into force, because his claim was already statute-barred, by no alchemy could the HRA breathe new life into that extinguished right. We will now consider each of these arguments (so far as appropriate) in turn.
9. The first response to argument (ii): Retrospective effect
- It is common ground that the HRA does not have retrospective effect in the sense that it does not retrospectively confer upon a claimant a cause of action which he would not otherwise have had. There is ample authority for this proposition: see eg Wilson v First County Trust Limited (No 2)  UKHL 40,  1 AC 816. The respondents and the Secretary of State submit that the same applies to accrued defences, and that in each case the respondent had an accrued right to rely upon section 2 of the 1980 Act when the HRA came into force. The appellants do not, as we understand it, argue that, where a defendant had an accrued right before 2nd October 2000, that right can be defeated by the HRA. However, they submit that, since limitation is a matter which must be specifically pleaded by a defendant, and since none of the defendants had pleaded the time bar before the HRA came into force, there is no reason why section 3 of the HRA should not apply, with the result that section 11(1) of the 1980 Act should be construed so as to apply to the facts in these appeals.
- We accept the submission that limitation is a procedural defence and that it must be pleaded. However, we are unable to accept the appellants' contention that the respondents did not have a relevant accrued right to rely upon section 2 of the 1980 Act before the HRA came into force. Nor are we able to accept the submission (if it is different) that they are entitled to rely upon section 3 of the HRA to defeat the respondents' defences of time bar (if they are otherwise good), notwithstanding the fact that the six year period expired in each case before 2nd October 2000.
- In our judgment, the authorities clearly support the submissions advanced on behalf of the respondents and the Secretary of State. The case which shows the position most clearly is the decision of the Privy Council in Yew Bon Tew v Kenderan Bas Mara  AC 553. The facts were shortly these. On 5th April 1972 the appellants were injured by a bus being driven by a servant of the respondent public authority. At the time of the accident section 2 of the Public Authorities Protection Ordinance 1948 ("the 1948 Ordinance") provided that an action against a public authority in such a case had to be brought within twelve months, so that the appellants' claim became time barred on 5th April 1973. In June 1974 the Public Authorities Protection (Amendment) Act 1974 ("the 1974 Act") came into force. By that Act a period of three years was substituted for the period of twelve months in the 1948 Ordinance. The appellants issued a writ against the respondent on 20th March 1975, which was more than twelve months but less than three years after their cause of action accrued.
- The position was therefore that at the date the 1974 Act came into force the claim was time barred under the 1948 Ordinance. It follows that it was time barred when the writ was issued unless the appellants could rely upon the 1974 Act. The Privy Council held that the claim was time barred because the respondent's entitlement to plead the twelve-month time bar constituted an accrued right, and that the 1974 Act was not to be construed retrospectively so as to deprive the respondent of its defence unless such a construction was unavoidable, which it was not.
- Section 2 of the 1948 Ordinance provided that the relevant action "shall not lie or be instituted unless it is commenced within 12 months" of the relevant event. Section 2 of the 1980 Act is in very similar terms. It provides that "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". Lord Brightman gave the opinion of the Judicial Committee. Having referred to the relevant provisions of the Malaysian Interpretation Ordinance, he stated the general principle at p 558F as follows:
"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."
- He then expressly considered whether a right to rely upon a statutory limitation provision of the type found in the 1948 Ordinance was a vested right of the kind identified in the principle he had just stated. In concluding that the answer was "yes", he cited with approval the judgment of Williams J in the High Court of Australia in Maxwell v Murphy (1957) 96 CLR 261 at 277, which included the following passage:
"A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights."
For these reasons he approved the statement made by the Federal Court of Malaysia in Yew Bon Tew to the effect that the respondent had acquired an "accrued right" on the failure by the appellants to commence an action within the specified period.
- Lord Brightman said at p 563B that the proper approach to the construction of the 1948 Ordinance was to see whether the statute, if applied retrospectively, would impair existing rights and obligations. At p 563D he said that an accrued right to plead a time bar, which is acquired after the lapse of the statutory period, "is in every sense a right, even though it arises under an Act which is procedural." He concluded his judgment in this way at p 565A:
"In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a 'right' as any other statutory or contractual provision against a future suit."
- We note by way of postscript that Lord Diplock expressed much the same view in Walkley v Precision Forgings Ltd  1 WLR 606 at p 618:
"Despite the use of the phraseology 'an action shall not be brought', it is trite law that technically a Limitation Act does not prevent the commencement of an action by the plaintiff after the limitation period has expired. What it does is to provide the defendant with a cast-iron defence if he chooses to avail himself of it; which he may do either by pleading it or, in a case where the action is indisputably statute-barred, by taking out a summons to have it dismissed as vexatious."
- In Wilson v First County Trust Limited (No 2) the House of Lords held that it could not have been the intention of Parliament that section 3(1) of the HRA should have the effect of altering the existing rights and obligations of a party to an agreement (in that case a consumer credit agreement). In Laws v The Society of Lloyd's  EWCA Civ 1887 this court, applying the principles set out in Yew Bon Tew and Wilson v First County Trust Limited (No 2), held that Lloyd's had an accrued right under section 14(3) of the Lloyd's Act 1982, namely (as Waller LJ, giving the judgment of the court, put it at para 33) that they had no liability in damages except where bad faith could be established. The court held that section 3(1) of the HRA could not be used to construe section 14(3) of the Lloyd's Act in such a way as to alter that accrued right, which depended upon the way in which section 14(3) would be construed but for section 3 of the HRA.
- In Rowe v Kingston-upon-Hull City Council  EWCA Civ 1281,  ELR 771, the claimant claimed damages for a breach of duty by his teachers committed before 1991. It was suggested on his behalf that section 3(1) of the HRA should affect the construction of section 14(1) of the 1980 Act. In agreeing with the judgment of Keene LJ, who did not comment on this point, Mummery LJ said at para 46:
"It is important to note that Mr Rowe's cause of action in this case is alleged to have arisen before the Human Rights Act came into force on 2nd October 2000. Although no retrospectivity point has been taken on behalf of the appellant, it is my opinion that, on the present state of the authorities, section 3 of the Human Rights Act does not in general apply retrospectively to a cause of action which arose before the Human Rights Act came into force, so as to take away from a defendant public authority the limitation defence, which would otherwise have been available to it before the Human Rights Act came into force :- see Secretary of State for the Home Department v Wainwright  QB 1334, 1352 and the decision of the House of Lords, in particular the speech of Lord Nicholls, in Wilson v First County Trust Ltd (No 2)  3 WLR 568, 576 at para 20. Section 3 of the Human Rights Act is not, therefore, in my judgment available to the respondent in this case."
- We can see no distinction in principle between section 2 of the 1948 Ordinance and section 2 of the 1980 Act. The reasoning in Yew Bon Tew shows that the respondents in these appeals had an accrued right to plead the six year non-extendable period provided for in section 2 of the 1980 Act before the HRA came into force. The reasoning in Wilson and Laws (and indeed Rowe) shows that in those circumstances the appellants are not entitled to rely upon section 3(1) of the HRA so as to enable us to construe section 11(1) of the 1980 Act differently from the way in which the House of Lords construed it in Stubbings v Webb.
- None of the submissions advanced on behalf of any of the appellants leads to any other conclusion. In particular the appellant in A relies upon these points:
i) under CPR 16PD.13 limitation must be pleaded;
ii) the action is not treated as time barred until such a plea is made: Kenneth v Brown  1 WLR 582;
iii) no defence has yet been served and the application to strike out is premature: Ronex Properties Ltd v John Laing Construction Ltd  QB 398;
iv) by contrast with the limitation provision in section 2 of the 1980 Act, where the Act provides for the automatic extinction of the claimant's right it does so expressly, as in section 17; and
v) the time to decide which section of the 1980 Act applies is when action is brought and not when the cause of action accrues: Gulf Shipping Lines Ltd v Jadranska Slobodna Plovidba  1 Lloyd's Rep 31.
- As to points i) to iii), we accept that limitation must be pleaded and that the claim will not be held to be time barred until the point is taken. It is, after all, a matter for a defendant whether or not he wishes to rely upon a defence of time bar, although that is true of all defences. We do not, however, accept that a defendant does not have an accrued right to rely upon such a defence until he takes the point in a defence. As explained in Yew Bon Tew, he has an accrued right when time expires. How he exercises the right will depend upon the circumstances. He will do so only after proceedings have begun. In a plain case, as Stephenson LJ pointed out in Ronex Properties at p 408C, he can apply to strike the claim out on the ground that it is statute barred. In any other kind of case he must plead limitation in his defence. Lord Diplock was making the same point in the passage from Walkley quoted above. In either case the defendant is relying upon a right which accrued when time expired.
- As to point iv), it is true that sections 2 and 17 of the 1980 Act are in different terms but, again, that does not affect the proposition that the defendant's right to a defence of time-bar accrues when time expires. It is precisely that proposition for which Yew Bon Tew is authority. As to point v), there is nothing in the Gulf Shipping Lines case to lead to any other conclusion.
- Finally, it is true, as Mummery LJ pointed out in the passage from Rowe quoted above, that on the present state of the authorities section 3 of the Human Rights Act does not in general apply retrospectively to a cause of action which arose before the Human Rights Act came into force (our emphasis) and that section 3 sometimes has what may be called retrospective effect. For example, in Wilson Lord Nicholls said at para 21 that "different considerations apply to post-Act criminal trials in respect of pre-Act happenings." In the present cases the reason why section 3(1) of the HRA does not apply to enable a different interpretation of section 11(1) of the 1980 Act to be provided is that to give it that effect would interfere with the respondents' accrued right to say that the claim was time barred under section 2 of the 1980 Act.
- The conclusion just stated makes it unnecessary for us to consider what the position would be if the HRA did apply. That issue will no doubt arise in the future in a case in which the claim was not time barred when the HRA came into force. In such a case it will no doubt be necessary for the court to consider whether section 11(1) should indeed be differently construed. Such questions should be considered in a case in which they arise for decision on the facts.
10. The second response to argument (ii): Stubbings v UK, para 54
- The respondents' second ground of resistance is based on the margin of appreciation afforded by the Strasbourg Court. However, we do not think that it is necessary for us to say anything further about it. We have already expressed our view that, absent the HRA, we are bound by Stubbings v Webb to hold that deliberate acts are subject to section 2 and not section 11 of the 1980 Act. We have also expressed our view that section 3(1) of the HRA cannot be used to construe section 11(1) differently because to do so would infringe the respondents' accrued rights. It follows, as we see it, that the judge in each case was bound to hold that the claims were time barred under section 2 of the 1980 Act.
- We note that in A the judge held that the question whether article 6 would be infringed on the facts was determined by the decision of the Strasbourg Court in Stubbings v United Kingdom. He so held on the basis that that court decided that the construction of the 1980 Act preferred by the House of Lords in Stubbings v Webb was within the margin of appreciation afforded to Member States, and that in the light of that decision he, too, should hold that there was no infringement of the claimant's rights under article 6. He also considered whether, in the light of para 54 of the judgment in Stubbings v United Kingdom, he should hold that, given the recommendations of the Law Commission and the Government's failure to implement them, it should be held that there was now an infringement of the claimant's rights under article 6. He concluded, however, that the passage of four years since the Law Commission's Report was not so long that, as he put it, what was within the margin of appreciation ceased to be so.
- The respondents submit that he was correct so to hold on the basis of the decision in Stubbings v United Kingdom, and on the further basis that the Law Commission's report shows that there are number of possible limitation provisions that might be enacted as an answer to the current problems, and that it is within the margin of appreciation available to the United Kingdom to determine whether or not to change the law, and if so how. There is considerable force in that submission. However, whether it is correct or not, the position appears to us to be this. It was the duty of the trial judge in each case to determine the civil rights of the parties. Those rights included the right of the respondent in each case to rely upon the right to plead a time bar. This right accrued to the respondent before the HRA came into force and before the relevant action was brought. If the appellants' claims were time barred on that basis, it was the duty of the judge to so hold.
11. Argument (iii): An exclusion for claims against a public authority
- It is submitted in H that the decision in Stubbings v Webb does not apply to a claim against a public authority. In short, it is argued that the application of section 2 of the 1980 Act, as applied in Stubbings v Webb, ought to be confined to cases of deliberate acts by primary individual tortfeasors and should not extend to public authorities who would normally, but for the passage of time, be vicariously liable for such acts.
- It is true that Stubbings v Webb itself was concerned with a claim against individuals but, as we have explained in para 9 above, the basis of the decision of the House of Lords was that section 11(1) did not apply to the claim of deliberate sexual abuse because it did not give rise to an "action for damages for negligence, nuisance, or breach of duty" as that expression was used in the subsection. As appears below, one of the bases of the claim by H against the Suffolk County Council was that it was vicariously liable for the deliberate trespass of the teacher who was the perpetrator of the abuse. In order to avoid the effect of section 2 of the 1980 Act H had to show that his action against the Council was in that respect an "action for damages for negligence, nuisance, or breach of duty" within section 11(1).
- We do not see how it could be held that his action against the teacher was not such an action (because it was an action for deliberate trespass) whereas his action against the Council came within the language of section 11(1) where the very basis of the claim was the Council's vicarious responsibility for an act of deliberate trespass. Such a distinction has no logical basis. In our view, on its true construction either both claims are within section 11(1) or both claims are outside it. The effect of the decision in Stubbings v Webb, in our judgment, is that both claims are outside it and within section 2.
12. Argument (iv): Declaration of incompatibility
- The court has power to make a declaration of incompatibility in an appropriate case. Since, in our judgment this is not such a case, we say nothing more about it.
13. Argument (v): Stubbings v Webb can be distinguished
- It is submitted that Stubbings v Webb can be distinguished on the facts in those cases where the claimant can also rely on a breach or breaches of a duty of care that does not arise solely in connection with a deliberate act or acts of trespass to the person and/or is different from the simplistic duty of care to avoid causing personal injury which was at the centre of the discussion in that case.
- The main argument in X and Y, which leading counsel in H sought to adopt on his client's behalf, was to the effect that in a case involving a concurrent duty of care (such as schools or teachers owe to the children in their care), it is legitimate for a claimant to rely on a claim in negligence to circumvent the problems created by the decision in Stubbings v Webb. It is said that this course is open even when some of the matters complained of (and perhaps the main ones) involve intentional assaults.
- This argument embraces, but is not restricted to, a contention that in these circumstances, just as a teacher with supervisory responsibilities would be under a duty to bring the paedophilic activities of another teacher to the attention of the school authorities, so a fortiori is he under a duty to do so in relation to his own misconduct, and that the school authorities are vicariously liable for such a teacher's breach of duty in this respect.
14. Argument (v): The duties of teachers and the developing law: (a) Hippolyte, Page v Smith and Phelps
- In order to understand the way in which this argument is advanced it is necessary to say something about the way in which the law has developed in the years since Stubbings v Webb was decided, both in relation to the nature of the duty of care that may be owed by a teacher to the children in his charge, and also in relation to the circumstances in which a school may be vicariously liable for the consequences of a teacher's sexual misconduct to a child at his school.
- It is perhaps easiest to follow the development of the law by referring to the landmark cases in chronological order.
- In Hippolyte v Bexley LBC  PIQR P 309 this court held that a teacher was under a positive duty to obtain medical assistance for a pupil in distress. Steyn LJ cited such cases as Rich v LCC  2 All ER 376 and Van Oppen v Clerk to Bedford Charity Trustees  1 WLR 235, 261 B-D and 263 F-G in support of the proposition that there was a special relationship between a teacher and pupil which might potentially give rise to a duty on the teacher to take positive steps to protect the pupil from physical harm. In the latter case Balcombe LJ equated a school's duty with that of a reasonably careful parent. This line of authority goes back to Williams v Eady (1893) 10 TLR 41, 42 where Lord Esher MR said that a schoolmaster was bound to take such care of his boys as a careful father would take of his boys.
- In Page v Smith  AC 155 the House of Lords held that a plaintiff in a traffic accident case could claim damages even if his injuries were psychiatric rather than physical. Lord Lloyd of Berwick, giving the leading speech for the majority, said at p 190:
"Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatric or both."
At p 197 he said that there was no justification for regarding physical and psychiatric damage as different "kinds of damage".
- In Phelps v Hillingdon LBC  2 AC 619 the House of Lords took the law one stage further. Lord Slynn at p 653 restated the well known principle that persons exercising a particular skill or profession might owe a duty of care in its performance to people who it could be foreseen would be injured if due skill and care were not exercised. In the context of a failure to diagnose a child's dyslexia he said (at p 654):
"The result of a failure by an educational psychologist to take care may be that the child suffers emotional or psychological harm, perhaps even physical harm. There can be no doubt that if foreseeability and causation are established, psychological injury may constitute damage for the purpose of the common law. But so in my view can a failure to diagnose a congenital condition and to take appropriate action as a result of which failure a child's level of achievement is reduced, which leads to loss of employment and wages. Questions as to causation and as to the quantum of damage, particularly if actions are brought long after the event, may be very difficult, but there is no reason in principle to rule out such claims."
- It follows that if a breach of the duty of care is established in such a case a cause of action will be complete if as a result the child suffers foreseeable "psychological injury" or foreseeable loss of employment and wages arising from a reduction of the level of achievement he could have attained but for the negligence.
- At p 659 Lord Slynn approved the approach of Auld LJ in the joined appeal of G (A Minor) v Bromley LBC when he said that it was the law that teachers had a duty to take such care of pupils in their charge as a careful parent would have in like circumstances; that they had a duty to exercise the reasonable skills of their calling in teaching and otherwise responding to the educational needs of their pupils; and that those responsible for teachers might be vicariously liable for their negligence.
- At p 667 Lord Nicholls of Birkenhead said:
"A teacher must exercise due skill and care to respond appropriately to the manifest problems of [a child with learning difficulties], including informing the head teacher or others about the child's problems and carrying out any instructions he is given. ... I can see no escape from the conclusion that teachers do indeed owe [duties to all their pupils in respect of the way they discharge their teaching responsibilities]."
- Lord Clyde, for his part said at p 670:
"The allegation of negligence is directed not at the risks of physical dangers which might occur through something dangerous in the premises, but at something done in the course of the educational activities of the school.
[W]hile the injury which is alleged to have occurred is principally a loss or at least a retardation of their educational progress with such consequential financial loss and expense as that may entail, it may also involve some form of mental or psychological injury. The loss claimed may be purely of an economic character. But the mental or psychological effects of negligent advice may in themselves be able to constitute a proper head of damages, such as a post-traumatic stress disorder or a psychological illness. "
- This decision brought about a great loosening of the straitjacket which had corralled the development of the law of negligence in what was traditionally regarded as the field of personal injuries law. Judges now had to take more trouble to identify first the contents of the relevant duty of care, and then the reasonably foreseeable harm which a breach of that duty might cause, subject always to observing the rules governing causation that were identified by the House of Lords in the SAAMCO case (South Australian Asset Management Corp v York Montague Ltd  AC 191). That harm might be psychological or it might be purely financial or it might be a mixture of the two. So long as there was some psychological harm that might properly be described as "mental impairment", the more relaxed limitation regime prescribed by section 11 of the Limitation Act 1980 would be applied even if the harm in question would not in itself qualify to be described as a psychiatric injury or illness (see Lord Slynn at p 664 and Lord Clyde at p 676 in relation to the joined appeal in Anderton v Clwyd County Council).
15. Argument (v): The duties of teachers and the developing law: (b) Vicarious liability for a teacher's unauthorised acts: Lister v Hesley Hall
- The natural starting point when considering whether a school is in breach of duty in a case like this is its affirmative duty to take reasonable care of its pupils and to protect them from risks referable to the school-pupil relationship. A school also has a duty to act as a careful parent in relation to children within its care. It has a duty to act as a careful parent and put in place appropriate mechanisms for detecting, eliminating and/or controlling areas of potential risk. The existence of this direct duty owed by the school itself is relevant to any consideration of the state of the law in providing remedies to adults who were sexually abused while at school. Subject to one point, it is not however relevant to a consideration of these appeals. In both X and Y and H, the claimants relied on a breach of a direct duty of this kind, but the lower courts rejected their claims in this respect. There is no appeal from this part of their decisions, except in respect of one point in H. That is the appeal against the judge's rejection of H's case that the school was in breach of its duty of care in failing to monitor the teacher who abused him, Mr Bennett. However, for the reasons given below we have concluded that H's appeal on that ground must be dismissed. It is therefore necessary to turn to the way in which the law of vicarious liability for a teacher's unauthorised acts has developed in recent years.
- When Phelps was decided the House of Lords had not yet addressed the question whether a teacher's employers might be vicariously liable for his acts when he subjected a child in his care to sexual abuse. In Trotman v North Yorkshire County Council  LGR 584 this court had held that a teacher's employers were not vicariously liable for the acts of the deputy headmaster of a special school who sexually assaulted a handicapped teenager on a foreign holiday when he was responsible for the child's care. In Lister v Hesley Hall Ltd  UKHL 22;  1 AC 215, however, the House of Lords held that Trotman was wrongly decided.
- In Lister the claimants were residents in a boarding house attached to a school run by the defendant for children with emotional and behavioural difficulties. The warden of the boarding house subjected them to systematic sexual abuse without the defendant's knowledge. Two questions arose for decision on the appeal, and the House of Lords decided the first of them. The second was also relevant to an issue raised on the present appeal, and we will refer in paras 100 to 102 below to the approach of the different members of the House on that matter.
- Lord Steyn described the matters complained of in Lister in these terms (at para 5):
"The sexual abuse took the form of mutual masturbation, oral sex and sometimes buggery. The sexual abuse was preceded by 'grooming', being conduct on the part of the warden to establish control over the appellants. It involved unwarranted gifts, trips alone with the boys, undeserved leniency, allowing the watching of violent and x-rated videos, and so forth."
There are echoes of most of this in the evidence in the cases of X, Y and H, with which we are at present concerned.
- In Lister the duties of care relied upon included a duty to take all reasonable steps to safeguard the plaintiffs (and other pupils) in their physical, moral and educational development at the school. It was also said – and this gave rise to the second issue to which we have referred - that the warden's employers were vicariously liable for his failure to report the acts of abuse that he was perpetrating on the boys.
- It was not contended that the defendant was vicariously liable for any intentional assault by the warden because that way of putting the case would have fallen foul of the rule in Stubbings v Webb. This was, no doubt, why the claimants relied on the reporting failure. Although the youngest claimant had reached the age of 18 by 1988 and the claims were not issued until 1997, limitation issues do not appear to have been canvassed in the Court of Appeal or in the House of Lords, presumably by reason of the way in which the case was being put.
- The House of Lords held unanimously that the defendant was vicariously liable for the consequences of the abuse perpetrated on the boys by the warden whom it employed.
- Lord Steyn, with whom Lord Hutton agreed, was content to apply the test recently prescribed by the Supreme Court of Canada in Bazley v Curry (1999) 174 DLR 45, 64-65. McLachlan J, giving the judgment of that court, said that the fundamental question was whether an employee's unauthorised intentional wrong was sufficiently related to conduct authorised by the employer to justify the imposition of vicarious liability. Lord Steyn also called in aid the decision of this court in Rose v Plenty  1 WLR 411 in which Scarman LJ applied a test propounded by Diplock LJ in the earlier case of Ilkiw v Samuels  1 WLR 991, 1004:
"The matters must be looked at broadly ... by asking: what was the job on which [the servant] was engaged for his employer?"
- On that basis a milkman's employers were held liable in Rose v Plenty for the injuries suffered by a boy who was helping the milkman on his round, even though this form of help was prohibited by the employers. Lord Steyn commented:
"If this approach to the nature of employment is adopted, it is not necessary to ask the simplistic question whether in the cases under consideration the acts of sexual abuse were modes of doing authorised acts. It becomes possible to consider the question of vicarious liability on the basis that the employer undertook to care for the boys through the services of the warden and that there is a very close connection between the torts of the warden and his employment. After all, they were committed in the time and on the premises of the employers while the warden was also busy caring for the children."
- Lord Clyde, like Lord Steyn, went back to the first edition of Salmond, Law of Torts (1907) which contained this passage at para 36:
"But a master ... is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes – although improper modes – of doing them."
- After citing English and Scottish case law Lord Clyde considered that the essence of the Canadian decision in Bazley lay in the recognition of the existence of a sufficient connection between the acts of the employees and the employment. Applying that approach Lord Clyde acknowledged (at para 50) that the care and safe-keeping of the boys had been entrusted to the respondents and that they in turn had entrusted their care and safe-keeping to the warden, so far as the running of the boarding house was concerned. He went on to say:
"It appears that the respondents gave the warden a quite general authority in the supervision and running of the house as well as some particular responsibilities. His general duty was to look after and to care for, among others, the appellants. That function was one which the respondents had delegated to him. That he performed that function in a way which was an abuse of his position and an abnegation of his duty does not sever the connection with his employment. The particular acts which he carried out upon the boys have to be viewed not in isolation but in the context and the circumstances in which they occurred. Given that he had a general authority in the management of the house and in the care and supervision of the boys in it, the employers should be liable for the way in which he behaved towards them in his capacity as warden of the house."
- Lord Hobhouse's approach was more closely analytical. After referring to Diplock LJ's judgment in Ilkiw v Samuels he said (at paras 59 to 60):
"59. ... Whether or not some act comes within the scope of the servant's employment depends upon an identification of what duty the servant was employed by his employer to perform. ... If the act of the servant which gives rise to the servant's liability to the plaintiff amounted to a failure by the servant to perform that duty, the act comes within 'the scope of his employment' and the employer is vicariously liable. If, on the other hand, the servant's employment merely gave the servant the opportunity to do what he did without more, there will be no vicarious liability, hence the use by Salmond and in the Scottish and some other authorities of the word 'connection' to indicate something which is not a casual coincidence but has the requisite relationship to the employment of the tortfeaser (servant) by his employer.
60. My Lords, the correct approach to answering the question whether the tortious act of the servant falls within or without the scope of the servant's employment for the purposes of the principle of vicarious liability is to ask what was the duty of the servant towards the plaintiff which was broken by the servant and what was the contractual duty of the servant towards his employer. The second limb of the classic Salmond test is a convenient rule of thumb which provides the answer in very many cases but does not represent the fundamental criterion which is the comparison of the duties respectively owed by the servant to the plaintiff and to his employer."
- Lord Millett on the other hand expressly declined to hold the school vicariously liable for the warden's failure to perform his duty to take care of the boys. Instead, he held that it was vicariously liable for his intentional assaults. He based his thinking on a principle suggested by Professor Atiyah in Vicarious Liability in the Law of Torts at p 171:
"[T]he master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on".
- After analysing the case-law and referring to the passage in the first edition of Salmond to which we have referred, Lord Millett expressed his conclusion in these terms (at paras 83 to 84):
"83. 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.
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 liable for deliberate, criminal wrongdoing on the part of an employee without indulging in sophistry of this kind. "
- It is not at all clear why the claims were not statute barred according to the way in which Lord Millett considered the matter. It is also not clear why he thought that in Morris v C W Martin & Sons Ltd  1 QB 716 the cleaners were made vicariously liable for their employee's conversion of the fur and not for his negligence in failing to look after it.
- Lord Denning MR decided the Morris v Martin case by saying (at p 725) that if a master was a bailee for reward he was under a duty to use due care to keep the bailed goods safely and protect them from theft, and that if he entrusted that duty to a servant he was answerable for the way the servant conducted himself. Diplock LJ said (at pp 732-3) that such a bailee was under a duty to take reasonable care of his bailor's goods and a duty not to convert them, and that he would be vicariously liable for any breach of duty by the vicar whom he had chosen to perform his duty. Salmon LJ, for his part, explained even more vividly how there were two relevant duties operating concurrently. He said (at p 738):
"[A]part from authority, it is in my view quite plain on principle – qui facit per alium facit per se – that the defendants are liable for what amounted to negligence and conversion by their servant in the course of his employment. It does not appear to me that in the circumstances of this case, there is any relevance in the distinction between the two causes of action. When Morrissey stole the fur, he clearly converted it; equally clearly in my view, the act of stealing the fur was a glaring breach of the duty to take reasonable care to keep it safe – and that is negligence."
- There is nothing in the speeches of the other members of the House in Lister v Hesley Hall to show that they shared Lord Millett's belief that the only matter in issue in this part of the case was whether the school authorities were vicariously liable for the warden's intentional assaults. It was apparently accepted that the school was under a duty to take all reasonable steps to safeguard its pupils in their physical, moral and educational development, and they all held that it was liable for the warden's activities, which represented a flagrant breach of that duty. They all seem to have been impressed by the fact that the warden was the person to whom they had entrusted this duty in relation to the boys at the boarding-house, and although three of them placed emphasis on the mantra of "close connection", it is difficult to read their speeches as excluding a finding that the warden had been negligent in the way he conducted himself towards the boys (for the relevant duty of care see para 79 above). To identify the only wrongs which the warden committed as intentional assaults would be to run straight into the Stubbings v Webb limitation problem, of which these experienced judges could not have been unaware.
- In these circumstances the House of Lords did not consider it necessary to rule on the second issue on the appeal (for which see para 85 above), which Lord Steyn referred to as "the employee's alleged breach of a duty to report his sexual intentions or the consequences of his misdeeds". He was content to say:
"Nonetheless 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 this 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?"
- Lord Hutton agreed, and Lord Hobhouse expressed himself strongly in favour of this way of putting the case. He said at para 62:
"However, it was part of both the duty of the carers towards the plaintiffs and of Mr Grain towards his employers to report to them any incident which was relevant to the health and well-being of the plaintiffs: finding 5 in Judge Walker's list. It follows from this and what I have previously said about the nature of the duties owed to the plaintiffs and the principles governing the issue of vicarious liability that the Court of Appeal were mistaken in not attaching more validity to this way of putting the plaintiffs' case. In truth, there were a whole succession of breaches of the duty to care for the plaintiffs by Mr Grain. The fact that the defendants might not have been liable for some of them does not alter the fact that the defendants would have been liable for the others. All it does is to put the former class of acts into the same category as acts done by some third party but of which, or of the consequences of which, Mr Grain was aware. To take one of the judge's hypothetical examples, say, there might have been a groundsman at Axeholme House and he might have been the abusing party; Mr Grain might have discovered what had happened and the distress it had caused to the boy but did nothing about it and did not report the incident to the defendants. The defendants might not be liable for what the groundsman did; he was employed to look after the grounds, not to have anything to do with the boys. But the defendants would be liable for the breach of Mr Grain who was employed to care for the boys and their welfare. The liability of the defendants might not be so grave or extensive as if Mr Grain had been the abuser himself but it would in principle be capable of existing."
- Lord Clyde, on the other hand, said at para 32 that to rely on a duty on the part of the warden to report his wrongful intentions and conduct seemed to be a somewhat artificial basis for the claim, and Lord Millett expressed his opposition to this proposition in even more forthright terms at para 84:
"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. 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."
16. Argument (v): The duties of teachers and the developing law: (c) Vicarious liability for a teacher's unauthorised acts: Bryn Alyn and later cases
- As we have already seen, the problems created by Stubbings v Webb surfaced again in KR v Bryn Alyn Community (Holdings) Ltd & Anr  EWCA Civ 85;  QB 1441 (for which see para 33 above). The claimants' claims were really concerned with long term post traumatic psychiatric injury: see para 27 of the judgment of Auld LJ. The judge found that most of them were entitled to recover damages because of systemic negligence on the part of other employees of the defendant which had failed to protect them from being abused by Mr Allen. Because they limited their claim in this way, this court was able to decide some of the limitation issues in the case on the basis that the "injury in question" for the purposes of section 11(1) of the 1980 Act was psychiatric injury and that the claimants did not know that this injury was significant and that it was attributable in whole or in part to the abuse they had suffered until dates much later than those identified by the judge.
- The judge for his part had applied Lord Griffiths' obiter dictum in Stubbings v Webb (see para 23 above) and fixed the date of knowledge as the date(s) when the young person in question knew that he/she had been assaulted on a regular basis or that he/she had been buggered, masturbated or fondled in an inappropriate way. Auld LJ dealt with this side of the case at paras 16 to 58 of the judgment of the court.
- What the court described as "the Lister point" in KR v Bryn Alyn arose in the following way. Three of the claimants relied only on "deliberate acts of abuse by certain Bryn Alyn employees". It appears from para 98 of the judgment of the Court of Appeal that the judge held that one of these claims was statute barred "since the conduct of John Allen of which she complained was deliberate" and because there was no negligence by any other member of the staff arising out of their failure to prevent it. Two of the other claims were held to be statute barred in part for the same reason.
- This court upheld the judge's approach, except in relation to one claim which had in fact been brought before the relevant six year period expired. The route by which it reached this conclusion ran along these lines:
i) That in Stubbings v Webb the House of Lords disapproved Diplock LJ's suggestion in Letang v Cooper to the effect that the words "breach of duty" could include trespass to the person;
ii) that in Seymour v Williams this court ruled that the claim against the abusive father was "plainly a claim alleging trespass to the person" and was governed by a six year limitation period;
iii) that some factual situations fit the section 11 criteria even if they also fit other criteria entitling the bringing of the action;
iv) that in the present cases, however, there was no cause of action in negligence against the employers that was independent of the assaults;
v) that although in Stubbings v Webb and Seymour v Williams it might have been said that the allegation of deliberate abuse by a parent also amounted to an allegation of a breach of duty of care, it was plain from the reasoning in both cases that such a point would have been most unlikely to succeed;
vi) that no limitation point arose in Lister, and it was therefore unnecessary to examine closely the nature of the tort in respect of which vicarious responsibility was in issue; but that the proper conclusion to draw from the speeches in Lister was that expressed by Lord Millett (for which see para 95 above).
- Auld LJ summarised the court's conclusions in these terms (at para 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 circumstances, and bearing in mind Lord Griffiths's reasoning in Stubbings v Webb, … 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 C v Middlesbrough County Council  EWCA Civ 1746 this court, as we have seen (see para 36 above), considered that it was bound by this part of the decision in KR v Bryn Alyn. That case had marked similarities to the cases with which we are concerned. A teacher at the claimant's school had a flat in the school premises to which he invited his favourites, contrary to the school rules. He groomed them by giving them cigarettes and other presents and otherwise performing acts of favouritism towards them. He then performed acts of sexual abuse.
- The judge found that the school's head teacher had not been negligent in relation to these matters, and an appeal against that finding was dismissed. What was left was the contention that the council was vicariously liable for the teacher's actions. Latham LJ, with whom the other members of the court agreed, summarised the effect of the case law leading up to the decision in KR v Bryn Alyn and then said (at para 31):
"[Counsel for the appellant] tried valiantly to escape from what seems to me to be the inevitable consequence of this decision. She submitted that the court had not fully considered the nature of the duty which Lord Hobhouse had suggested as the basis for liability. But I confess I found it impossible to see in her argument anything which could enable us to distinguish the Bryn Alyn case or hold that this court's decision was for some other reason not binding on us. In my view the judge was correct in the conclusion that he reached."
17. Argument (v): The duties of teachers and the developing law: (d) Vicarious liability for unauthorised acts: other recent cases
- Questions about the principle that underlies the attachment of vicarious liability for unauthorised acts resurfaced from time to time after the decision in Lister. In Dubai Aluminium Co Ltd v Salaam  UKHL 48;  2 AC 366 the House of Lords extended the scope of the principle to duties arising in equity. In this case Lord Nicholls explained why that policy dictated that liability for agents should not be strictly confined to acts done with the employer's authority, and then went on to say (at paras 23-24):
"23. If, then, authority is not the touchstone, what is? Lord Denning MR once said that on this question the cases are baffling: see Morris v C W Martin & Sons Ltd  1 QB 716, 724. Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment. Lord Millett said as much in Lister v Hesley Hall Ltd  1 AC 215, 245. So did Lord Steyn, at pp 223-224 and 230. McLachlin J said, in Bazley v Curry (1999) 174 DLR (4th) 45, 62:
'the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization).' (Emphasis added)
To the same effect is Professor Atiyah's monograph Vicarious Liability in the Law of Torts, (1967) p 171:
'The master ought to be liable for all those torts which can fairly be regarded as reasonably incidental risks to the type of business he carried on'. (Emphasis added)
24. In these formulations the phrases 'may fairly and properly be regarded', 'can be said', and 'can fairly be regarded' betoken a value judgment by the court. The conclusion is a conclusion of law, based on primary facts, rather than a simple question of fact.
25. This 'close connection' test focuses attention in the right direction. But it affords no guidance on the type or degree of connection which will normally be regarded as sufficiently close to prompt the legal conclusion that the risk of the wrongful act occurring, and any loss flowing from the wrongful act, should fall on the firm or employer rather than the third party who was wronged…
26. This lack of precision is inevitable, given the infinite range of circumstances where the issue arises. The crucial feature or features, either producing or negativing vicarious liability, vary widely from one case or type of case to the next. Essentially the court makes an evaluative judgment in each case, having regard to all the circumstances and, importantly, having regard also to the assistance provided by previous court decisions. In this field the latter form of assistance is particularly valuable."
- Lord Slynn, Lord Hutton and Lord Hobhouse agreed with Lord Nicholls's speech. Lord Millett, for his part, added this (at para 129):
"129. An employer has been held to be vicariously liable for the intentional wrongdoing of his employee in a wide variety of different circumstances. In some of the cases the employer has undertaken a duty towards the plaintiff and then delegated the performance of that duty to his employee: see Morris v C W Martin & Sons Ltd  1 QB 716; Photo Production Ltd v Securicor Transport Ltd  AC 827; Lister v Hesley Hall Ltd  1 AC 21. … But the circumstances in which an employer may be vicariously liable for his employee's intentional misconduct are not closed. All depends on the closeness of the connection between the duties which, in broad terms, the employee was engaged to perform and his wrongdoing."
- In Bernard v Attorney-General of Jamaica  UKPC 47 Lord Steyn said (at paras 18 to 19):
"18 In Lister a warden of a school boarding house had sexually abused resident children. The question was whether the employers were vicariously liable. In the leading opinion a single ultimate question was posed, namely [at 230C]:
"... whether the warden's torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable."
The four substantial opinions delivered in Lister revealed that all the Law Lords agreed that this was the right question. On the facts the members of the House unanimously took the view that the answer was 'yes' because the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in the boarding house. … Lister is … important for a number of reasons. It emphasised clearly the intense focus required on the closeness of the connection between the tort and the individual tortfeasor's employment. It stressed the need to avoid terminological issues and to adopt a broad approach to the context of the tortious conduct and the employment. It was held that the traditional test of posing, in accordance with Salmond's well-known formula, the question whether the act is "a wrongful and unauthorised mode of doing some act authorised by the master" is not entirely apt in cases of intentional wrongs: Salmond, The Law of Torts, 1907, 83, now contained in the current edition of Salmond and Heuston, The Law of Torts, 21st edn, 1996, 443. …
The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable. In deciding this question a relevant factor is the risks to others created by an employer who entrusts duties, tasks and functions to an employee. This strand in the reasoning in Lister was perhaps best expressed by Lord Millett who observed (para 83, at 250D):
"... Experience shows that in the case of boarding schools, prisons, nursing homes, old people's homes, geriatric wards, and other residential homes for the young or vulnerable, there is an inherent risk that indecent assaults on the residents will be committed by those placed in authority over them, particularly if they are in close proximity to them and occupying a position of trust."
A year later in Dubai Aluminium Company Limited v Salaam and Others  2 AC 366 the House of Lords applied the principles in Lister in a very different context. The issue was whether a solicitors' firm was vicariously liable for the fraudulent acts of one of its partners who, together with others, had defrauded the Dubai Aluminium Company. If the firm, which had paid compensation to the company, was vicariously liable, it could properly claim contribution from the other participants in the fraud. The House found vicarious liability established. All the opinions are closely reasoned and important but it is not necessary to review the case generally. A citation from the leading opinion of Lord Nicholls of Birkenhead, reveals the link with Lister. Lord Nicholls stated (para 23, at 377E):
"... Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment."
19 Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on".
See also Majrowski v Guy's and St Thomas's NHS Trust  EWCA Civ 251;  QB 848 per Auld LJ at paras 27 to 40.
18. Argument (v): Can Stubbings v Webb be distinguished by reliance on a concurrent breach of duty?
- 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.
- 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.
- Again, if we were free from binding authority, we would have to consider quite carefully the reasoning of Lord Hobhouse in Lister (see para 101 above) to the effect that it is legitimate to include a failure to report among such a teacher's breaches of duty. It would follow from this reasoning that if the boys' head of year is under a duty to report to the headteacher that another master was about to involve himself in acts of indecency with a boy, a fortiori in that capacity he was under such a duty if he was about to behave in this way himself. This, of course, is an artificial approach, and its artificiality stems from the way in which as the law now stands we have to segregate those acts of indecency that amount to intentional assaults from acts of indecency that do not involve touching (as when an abuser persuades a boy to strip off his clothes and masturbate in front of him) but are nevertheless probably causative of harm. However, in Bryn Alyn Auld LJ preferred Lord Millett's approach to this issue in Lister as part of the court's reasons for denying vicarious liability in this respect, and we are bound by that decision.
19. The application of the law to the three appeals: (i) A v Hoare
- We will now apply the law to the facts of the three appeals. A more detailed description of the facts is to be found in the Appendix.
- In A the appellant was subjected to an attempted rape by a serial sexual offender. He was sentenced to life imprisonment. There would have been no point in A suing him before the primary limitation period expired in February 1994 because he had no money. Ten years later, however, he won £7 million on the national lottery, and A issued proceedings against him in December 2004.
- If Parliament enacted the Law Commission's proposals, the court would have a discretion to override the primary limitation period. How it would exercise its discretion would of course depend upon all the circumstances of the case and we express no view upon how it would be exercised on the facts of this case. Like the judge, we were not asked to do so. As it is, we are bound by the decision in Stubbings v Webb to hold that the claim is statute barred, and for the reasons we have set out in paras 42 to 65 above the HRA cannot come to A's assistance because the defendant possessed an accrued right to a limitation defence long before the HRA became law. For these reasons we must dismiss A's appeal.
20. The application of the law to the three appeals: (ii) H v Suffolk County Council
- In H the judge found that H had been indecently assaulted by one of his teachers in 1990. The circumstances are fully explained in Part B of the Appendix below. The primary limitation period expired in February 1999. The claimant never disclosed to anyone what had happened to him until shortly after the claim had become statute barred, and these proceedings were commenced in April 2002.
- At the outset of the trial, the judge struck out his direct claim against the teacher, and there is no appeal against that decision. At the end of the trial he dismissed the action against Suffolk County Council ("the Council") as the school authority on the ground that it had neither been negligent in recruiting that teacher nor in the way the teacher's conduct towards the boys was monitored or supervised. Ground one of H's appeal challenges the second of those conclusions. A consideration of this ground involves a comparatively detailed analysis of the facts which is contained in paragraphs 162 to 186 below. For the reasons there given, we have reached the conclusion that there is no basis upon which we could properly say that the judge was wrong in reaching the conclusions he did. We therefore dismiss the appeal on this ground.
- Permission to appeal was granted by Brooke LJ on two grounds. The first was that to which we have just referred and the second was that section 2 of the 1980 Act should not be applied to a case of this kind because of article 6 of the Convention. This ground fails for the reasons set out in paras 39 to 68 above.
- In addition to grounds one and two, at the hearing of the appeal Mr Cooksley sought to distinguish Stubbings v Webb on the basis that it only applied to the individual tortfeasors and not to a local authority. He also associated himself with the various other bases for saying that Stubbings v Webb should not be followed. However, the only ground upon which a formal application for permission to amend the appellant's notice and for permission to appeal was made was that the judge was wrong to strike out the claims in negligence and that (as it is put in the proposed ground 3) "a deliberate abuser who exposes himself to a situation he is likely to abuse and which he knows he is likely to abuse, and who fails to take steps to prevent abuse by himself acts negligently in so failing". We understand that it is intended to include the allegations of failure to report discussed elsewhere in this judgment in that formulation.
- For the reasons we give more fully in paragraphs 153 to 160 below, we grant appropriate permission to appeal, so that these points will be available if the House of Lords should take a different view of any of the relevant principles. However, we dismiss the appeals on all the grounds argued for the reasons given in paras 39 to 41 and 66 to 69 above.
21. The application of the law to the three appeals: (iii) X and Y v Wandsworth London Borough Council
- X and Y were contemporaries at the same school, although they did not know each other. Both were subjected to sexual abuse by the teacher who was their head of year: in that capacity he was entrusted with pastoral responsibility for their welfare. This teacher was in due course convicted and sentenced to imprisonment for his assaults on these two boys. The six-year primary limitation periods expired in 1999, and these claims were not started until November 2002 and June 2004 respectively. It was common ground that if permitted to do so the court would have exercised a discretion to extend the time for bringing these claims.
- It was accepted that we were bound by authority to find that the defendant's vicarious liability for the sexual assaults perpetrated by the teacher was subject to a non-extendable six year limitation period. In these circumstances the following issues arose for our decision:
i) Whether the judge was wrong to hold that it was not possible for an abuser to report anything other than physical harm to a child; whether he was wrong to distinguish between physical and psychological harm in the context of a reporting duty; whether he was wrong to find that in neither case there was any psychological harm to report; and whether he was wrong not to find that the teacher's failure to report the psychological harm suffered by each claimant represented a breach of duty on his part;
ii) Whether the judge was wrong not to find that the actions of the teacher which may very loosely be described as "grooming" constituted a breach of duty on his part which caused damage;
iii) Whether the judge was wrong to find in Y's case that the sexual abuse he suffered was not carried out in the course of the teacher's employment, or closely connected with it, because it was performed away from the school premises.
- So far as the first of these issues is concerned, we have explained we are bound by the decision of this court in Bryn Alyn to reject the contention that the school could be vicariously liable for the teacher's failure to report what he was doing, or about to do, to these boys: see para 114 above.
- As to the second group of issues, there were in each case very long periods of time in which the teacher acted in breach of the duty of care he owed these boys. In X's case it started with a promise to X's parents that he would look after X, moved rapidly through a period of favouritism to two sessions in the teacher's school office in which he raised indecent topics and two episodes in the toilets when he perpetrated indecent assaults, all of this in the boy's first year at the school. According to the evidence X gave at the trial, there may indeed have been eight episodes involving improper discussions, only two of which included intentional assaults. This only goes to show how artificial it is to segregate the assaults from the remainder of a course of conduct which leads to long-lasting psychiatric harm. Long after X said "no" to any further indecent assaults, the teacher persisted in picking him out for attention and protected him from the justified complaints of other teachers. This unwanted attention and protectionism ultimately led to X truanting from school. He suffered psychiatric injury from the cumulative effect of this prolonged course of conduct and financial loss resulting from his handicaps on the labour market due to his lack of a normal education.
- In Y's case the breaches of duty of care started with initial grooming (such as it was), went through a central six month period in his third year at the school which included frequent indecent assaults but much else beside – nudity, presents, trips to Richmond Park, the Esher golf range and Brighton, pornographic magazines and videos – and continued with a long period of obsessive interest after the boy said "no" to any further indecent assaults. The improper course of conduct led to truanting from school in this case, too, because the boy did not want to have to set eyes on the teacher at school. The psychiatric damage and consequential financial loss caused to Y resulted from a cumulative course of conduct in breach of duty that was not limited to the indecent assaults. There is indeed a further feature of this case in that Y's mother was sufficiently worried about Y that she suggested to the teacher that Y might see a psychologist, only to be told that this was not necessary.
- In each case the whole of this conduct was performed in breach of the duty of care the teacher owed these two boys as their head of year with pastoral responsibilities towards them. We find it unsatisfactory that we have to set on one side the intentional assaults, and we have already expressed the hope that the House of Lords will reconsider Stubbings v Webb at an early date.
- All that is left, therefore, is a contention that those elements of the teacher's breach of duty that did not themselves constitute intentional assaults or failures to report what he was doing or about to do to the boys are sufficient in themselves to ground these claims, on the basis that they made a material contribution to the psychiatric harm which these claimants suffered. It would be tempting to allow these appeals on this basis and to remit them to the county court for an inquiry into damages, but such an inquiry would have to be conducted on an entirely artificial basis which would bring the law into disrepute. We consider that it would be better for us to dismiss the appeals and to grant permission to appeal to the House of Lords, if permission is sought, so that the House can consider if it can do anything to rescue the law from its incoherent state without the intervention of Parliament.
- As to the third issue, we have described how the teacher had a measure of pastoral responsibility towards Y. The limited acts of grooming – inviting Y into his office and asking him how he was getting on - which preceded the teacher's offer to help in "fitness tests" took place in school hours and led to his offer to help Y get fit. Y trusted the teacher because of the school post he held, and the only reason why the judge rejected the contention that the defendant should be vicariously liable for his misconduct was because the sexual acts themselves took place off the school premises.
- This cannot in itself be sufficient to dismiss an allegation of vicarious liability. The question that must be asked (see para 110 above) is: Can the teacher's actions towards Y be fairly regarded as being performed in the course of his employment by the school? In our judgment they can. The facts of this case are quite different from a case that might concern the acts of a school groundsman or the acts of a teacher in the school holidays which had no connection with his responsibilities at the school. This teacher's case falls into a special category because of his pastoral responsibilities for the boys' welfare, with which his acts were closely connected, and we would reverse the judge's decision on this point. We would add that we derived assistance in reaching this conclusion from the judgment of McLachlin J in Bazley v Curry 174 DLR (4th) 46, particularly at paras 44 and 46.
22. A footnote
- Since we heard argument in this case, Field J has delivered a judgment in C v D  EWHC 166 (QB) in which he explored the possible availability of a Wilkinson v Downton cause of action in a case like this: see  2 QB 57. The matters complained consisted of one incident in which the defendant headteacher had videoed the claimant and other ten year old boys in his class while they were taking a shower, and another incident at about the same time in which he pulled down the claimant's trousers and underpants and stared at his genitals. These claims were not advanced as claims in trespass, and indeed in Wainwright v Home Office  UKHL 53;  2 AC 406 Lord Hoffmann said at para 47 that Wilkinson v Downton had nothing to do with trespass to the person.
- It appears from para 89 of Field J's judgment that no claim in negligence was being made against the headteacher. Instead it was being said that the filming constituted "sexual abuse of the claimant and amounted to a breach of the duties the defendant owed him in respect of his care, safety and welfare". The judge held that the headteacher owed no legally enforceable legal duty quoad the claimant other than "the common law duty to take reasonable care and not to touch him or threaten him so as to commit battery or assault". In other words, it appears that the breadth of the potential duty of care was not explored as widely in that case as it was before us.
- The judge examined the two incidents separately. He found that the claimant only suffered emotional distress as a result of the first incident, and he did not pursue that matter any further. On the other hand he found that the second incident caused the claimant to suffer psychiatric injury, and this led the judge to consider the headteacher's state of mind when he behaved as he did (for which see Wainwright v Home Office  UKHL 53;  2 AC 406 per Lord Hoffmann at paras 41-46). He found that the headteacher did not subjectively intend that the boy should suffer psychiatric injury as a result of the second incident; that his acts were not calculated to cause such harm or done with the knowledge that they were likely to cause harm; and that psychiatric injury was not "so likely to result from his conduct for him not to be heard to say that he did not mean it": see Wong v Parkside Health NHS Trust  3 All ER 932, per Hale LJ at 937. On the other hand, the judge held that the headteacher had been reckless as to whether he caused such injury, and as such was liable under the principle in Wilkinson v Downton.
- In C v D the relevant allegations had been pleaded and were explored in evidence. No such allegation was made in either of the cases under appeal or canvassed in the grounds of appeal, and we decided in those circumstances not to reopen the appeal to hear submissions from the parties about the effect of this decision. It seems preferable for the law to develop along conventional modern lines rather than through recourse to this obscure tort, whose jurisprudential basis remains unclear, particularly as its use may itself attract limitation difficulties along Stubbings v Webb lines.
- For these reasons we would dismiss all these appeals.
PART A A v Hoare
(i) The facts of the case
- This is a second appeal, brought by the claimant with the permission of Smith LJ against an order made by Jack J on 7th October 2005 when he dismissed her appeal from an order striking out her claim made by Master Eyre on 14th June 2005. Master Eyre struck out the claim on the ground that the cause of action had arisen 16 years before the issue of the claim form and so was barred by limitation.
- The facts may be taken substantially from the judgment of Jack J. The respondent has served in all seven periods of custody for serious sexual offences. In 1989 he was convicted of the attempted rape of the appellant on 22 February 1988 and was sentenced to life imprisonment. In 2004, while on day release from that sentence, he purchased a ticket for the national lottery. He won £7 million. He was released from prison on licence later that year. On 22nd December 2004, A commenced proceedings against him in the High Court. She had previously obtained an order providing for her anonymity. The reason why the action was commenced when it was and was not started earlier was that until the defendant's lottery win there was no prospect of his meeting any judgment obtained against him. That position was, as the judge put it, changed dramatically by his win.
- The respondent's case is of course that A's case is time barred through the operation of section 2 of the 1980 Act. It is not in dispute that, if section 2 applies to her claim, it is indeed time barred. The question is whether there is any basis upon which it can be held that the claim falls within section 11(1) of the 1980 Act. Even if it does, A does not say that she is entitled to bring the claim as of right because she acquired the relevant knowledge for the purposes of section 11 long ago and the period of three years from that date has long expired. It follows that in order to avoid the time-bar A must persuade the court that section 11(1) of the 1980 Act applies and that this is a case in which the court should exercise its discretion under section 33 of the 1980 Act to extend the time so that the proceedings are treated as in time.
(ii) The arguments on the appeal and Jack J's conclusion
- It was accepted on behalf of A that both the master and the judge were bound by the decision of the House of Lords in Stubbings v Webb to hold that her claim was time barred. It was, however, submitted that section 11(1) of the 1980 Act should be construed, as it was in Letang v Cooper, in order to ensure that the claimant had access to the courts under article 6 of the Convention. Alternatively it was submitted that section 33 should be construed as applying to a case of this kind in order to give the court a discretion to extend the six year period when it was equitable to permit the action to proceed. It was submitted that this would be such a case, although the judge was not asked to say how he would exercise such a discretion on the facts.
- The judge held that the issue whether article 6 would be infringed on the facts of A was determined by the decision of the European Court in Stubbings v United Kingdom. He so held on the basis that the European Court decided that the 1980 Act, as construed by the House of Lords in Stubbings v Webb, was within the margin of appreciation afforded to Member States and that in the light of that decision he, too, should hold that there was no infringement of the claimant's rights under article 6. He went on to consider whether, in the light of para 54 of the judgment in Stubbings v United Kingdom, he should hold that, given the recommendations of the Law Commission and Parliament's failure to implement them, it should be held that there was now an infringement of the claimant's rights under article 6. He held that the passage of four years since the Law Commission's Report was not so long that, as he put it, what was within the margin of appreciation ceased to be so.
- For the reasons given in paragraphs 116 to 120 above we have no alternative but to dismiss A's appeal.
Part B H v Suffolk County Council
1. The facts and the claim
- In H the appeal is by the claimant, H, against an order made by His Honour Judge Yelton in the Southend County Court on 11th March 2005 dismissing his claims against the Council and Robert Bennett. The sole respondent to the appeal is the Council, but the Secretary of State for Constitutional Affairs has also intervened. The essential facts are not in dispute. H was born on 7th February 1975 and thus became 18 years of age on 7th February 1993. Between 7th December 1989 and 29th October 1990 he was a boarder at Kerrison House School near Eye in Suffolk, a school owned and managed by the Council. It used to be an approved school but when H went there in December 1989 it was a residential school for teenage boys with various difficulties. H had himself encountered many difficulties in his teenage years and throughout 1989 he was the subject of interim care or supervision orders.
- The judge held that during the time that H was at the school he was sexually assaulted by one of the teachers, Mr Bennett. This did not, however, come to light until July 1999 when he was interviewed by the police after other allegations of sexual abuse at the school had been made. He collapsed both physically and emotionally for a number of days following those interviews. In July 1999 he made two statements to the police describing his abuse at the hands of Mr Bennett. Although no criminal proceedings were ever brought, he was awarded compensation by the Criminal Injuries Compensation Authority in the amount of £2,000. This sum was substantially less than it would otherwise have been, by reason of the fact that he had criminal convictions.
- He started this action against the Council and Mr Bennett on 26th April 2002. In the particulars of claim he alleged that he had been sexually assaulted on about 20 to 30 occasions in various ways. He also alleged that he had been threatened by Mr Bennett. In addition, and no doubt because of the effect of the decision of the House of Lords in Stubbings v Webb, H's claim was put in negligence.
- It can immediately be seen that, on the basis of Stubbings v Webb, a claim framed in trespass, assault or battery would be time barred on the facts. H's cause of action against Mr Bennett and indeed the Council accrued between December 1989 and October 1990, although because of his age, time did not start to run until his 18th birthday on 7th February 1993. Since the action was not begun until 26th April 2002, a claim framed in trespass was by then time barred.
- In an attempt to avoid this result H's claim was pleaded in negligence. He alleged a breach of a duty of care. The case against the Council was pleaded in two ways, first (in paras 13 and 21 of the particulars of claim) as breaches of duty owed by the Council to H and secondly (in para 14) on the basis that the Council was vicariously liable for breaches of duty owed by Mr Bennett to the Council. There were essentially two types of direct breach of duty alleged: negligence at the time when Mr Bennett was recruited and negligence in the way the school supervised or monitored his activities. As to vicarious liability, the Council was said to be vicariously liable in respect of the two main allegations of breach of duty that were pleaded against Mr Bennett. These related, both to the carrying out of the acts (and threats) themselves, and to his failure to report to the Council that he intended to abuse H and the harmful consequences of his conduct vis-à-vis H.
- At the start of the trial the judge was asked to strike out the claim against Mr Bennett, who was represented by counsel throughout the trial. The judge directed himself by reference to the decision of the House of Lords in Stubbings v Webb and to the later decisions of this court in KR v Bryn Alyn and C v Middlesbrough Borough Council (see paras 33-36 above). He derived from those authorities the proposition that, where deliberate sexual abuse is alleged, the limitation period is a six year non-extendable period which dates from the time of the claimant's majority. He said that he regretted that that was the state of the law but that he was bound by those decisions so to hold. He therefore struck out the direct claim against Mr Bennett.
2. The trial and the appeal
- No attempt was made on H's behalf to challenge that decision at that time, and the trial proceeded on the footing that his claim against Mr Bennett personally could not succeed because it was time barred. The trial was concerned solely with his case that the Council was in breach of the duty of care it owed him and not with the question whether it was vicariously liable for Mr Bennett's abuse. Mr Bennett nevertheless gave evidence at the trial and, indeed, his counsel was present throughout the trial because the Council was claiming an indemnity or contribution from him if it should be held liable. In the event the judge held that there was no breach of a duty of care owed by the Council to H.
- H sought permission to appeal against that decision and permission was granted on paper by Brooke LJ. As stated earlier, two grounds were advanced. The first was that the judge should have held that the Council was in breach of the duty of care which it owed to H. This is essentially an appeal on the facts, to which we will turn in a moment. The second ground was that section 2 of the 1980 Act is incompatible with the HRA. This ground was extended in argument by an attempt to distinguish Stubbings v Webb on the ground that it only applies to individuals. For the reasons given earlier, the appeal on ground two must fail.
- Ground three seeks to reopen the allegations in paras 14.3 to 14.5 of the particulars of claim. H needs permission to appeal on that aspect of the case. We consider that application first. In para 14 of the particulars of claim it was alleged that Mr Bennett was in breach of his duty of care to H and the particulars of breach were that he
"14.1 carried out the acts alleged in paragraph 9 herein [viz the sexual abuse referred to above];
14.2 made the threats set out in paragraph 10 [as referred to above];
14.3 failed to report to [the Council] his intentions to sexually abuse [H];
14.4 failed to report to [the Council] that he was carrying out his intentions; and
14.5 failed to report to [the Council] the harmful consequences of his conduct and activities towards [H]. "
- Fortunately we have a transcript of the beginning of the trial. It was agreed at the outset of the trial that the judge would first consider the issue whether the claim against Mr Bennett was time barred. Mr Field sought to distinguish Stubbings v Webb on the basis that H's claim was in respect of a course of conduct which did not amount to a trespass and was only actionable on proof of injury. In short he submitted that the claim could be put in negligence or breach of duty. However, he realistically recognised the problems created for him by the decisions of this court in Bryn Alyn and C v Middlesborough, which we have discussed at some length.
- Thus he said that, so far as the allegations of failure to report alleged in paras 14.3 to 14.5 of the particulars of claim were concerned, although he did not concede the point, in the light of those decisions, counsel for Mr Bennett was likely to persuade the judge that the claim would fail. The point he developed before the judge was that the allegations of abuse did not amount to trespass to the person and so were not caught by the decision in Stubbings v Webb. No separate argument was, so far as we can see, addressed to the judge with regard to the allegation of threats.
- The judge rejected Mr Field's submissions. He did so with regret on the basis (as stated above) that the effect of the decision in Stubbings v Webb, as refined in the Bryn Alyn and C v Middlesborough cases, was that the kind of deliberate abuse alleged against Mr Bennett was not negligence or breach of duty within section 11(1) of the 1980 Act and was subject to the non-extendable six year period provided for in section 2. He accordingly struck out H's claim against Mr Bennett.
- The trial, which took place immediately after the judge's ruling proceeded on the basis that the whole of the claim against Mr Bennett failed, that the claim based on vicarious responsibility also failed and that the sole question was whether the Council was in breach of a duty it owed directly to H in the two respects to which we have referred. None of the evidence focused on the question whether Mr Bennett should have reported to the Council as alleged in paras 14.3 to 14.5 of the particulars of claim. The issue was not explored.
- In addition, permission was not initially sought to appeal on the reporting point and H did not appeal against the order striking out his claim against Mr Bennett. As a result Mr Bennett was not represented at the hearing of the appeal. In these circumstances it is submitted on behalf of the Council that it would not be just, either to Mr Bennett or to the Council which is said to be vicariously liable for Mr Bennett's failure to report, to permit H to raise the reporting point at this stage. We have considered that submission with care but, as stated in para 123 above, we have reached the conclusion that in this unusual case it would not be unjust to permit H to rely on the Council's vicarious liability for a breach of duty in relation to a failure to report, so that the point would be open for argument in the House of Lords in his case, too, even though we are bound to reject it.
- If the House of Lords were to depart from the decision in Stubbings v Webb, or indeed to distinguish that decision in one of the ways suggested above, it is not, as we understand it, suggested that H could not argue that the Council was vicariously liable in respect of the trespass committed by Mr Bennett. That is so even though (i) the appellant's notice does not include a challenge to the correctness of Stubbings v Webb or the submission that it can be distinguished, whether on the ground that it does not apply to public authorities or on any other ground and (ii) H did not appeal against the order striking out his claim against Mr Bennett.
- In these circumstances justice seems to us to require that, if the House of Lords were to hold that Mr Bennett owed a duty of care to report his intention to abuse H or the fact of his having done so or indeed was otherwise in breach of a duty of care or negligent, H should be able to advance a case that the Council was vicariously responsible. As in the case of the abuse itself, it is not possible to conceive that any further evidence would have been or be needed on this technical legal issue. We will therefore grant permission to amend the notice of appeal and (if necessary) the particulars of claim so that this point remains a live one.
- That conclusion is subject to this. In so far as it is suggested that H should be able to rely upon the threats alleged in the particulars of claim, it is important to note that, so far as we can tell, at no stage during the trial was it argued on behalf of H either that H could succeed on the basis of the alleged threats as opposed to the alleged sexual assaults. Moreover the judge made no clear findings about threats. In these circumstances it is, in our judgment, too late for H to rely upon the alleged threats as a separate basis of liability.
- We have already given our reasons for concluding that H's appeal must be dismissed on all grounds other than ground one, which involves an appeal on the facts and to which we now turn.
3. Ground one - appeal on the facts
- We turn to the question whether the judge was wrong to hold that the Council was in breach of a duty of care owed to H on the ground that it failed to monitor Mr Bennett's activities and that, if it had monitored them properly, it would have discovered the truth in time to prevent his suffering psychiatric injury.
- The judge heard evidence from a number of witnesses including the appellant, who said that he was first buggered and subjected to other sexual practices on a camping holiday and that the abuse continued at Kerrison, in Mr Bennett's flat, in a field and in the school showers. Having heard the appellant's evidence, the judge summarised his conclusions in paragraphs 34 and 40 of his judgment as follows:
"34. I formed the view after careful consideration of the claimant's evidence that even with its internal contradictions and its vagueness it was essentially truthful and that he was indeed sexually abused by the second defendant.
40. In reaching that conclusion, I am not finding more than that during his time at Kerrison the claimant was sexually abused by the second defendant. I am not finding that specific assaults occurred at specific times, because as I have said I believe that the claimant unconsciously exaggerates, but is basically truthful."
We note in passing that the judge did not find as a fact that the abuse began on the camping holiday (see below), although it may have done.
- As to the date of H's knowledge within the meaning of section 11(1) of the 1980 Act, if it had been applicable, he held that it was not before July 1999. It followed that if section 11(1) had been applicable, the action would not have been time barred because the action was begun within three years of the date of knowledge. No question of the exercise of the court's discretion to extend time under section 33 of the 1980 Act would have arisen. The judge disposed of the alleged breach of duty in recruiting Mr Bennett quite shortly in paragraph 52 of his judgment as follows:
"52. … Mr Bennett had a background of experience in care work, and came with good references. He clearly was an able man and to those who were not the subject of his attentions he was well-regarded: Mr Lindsay had nothing but good memories of him. I see nothing in the references or the recruitment process which in any way suggests that the County Council were at fault in deciding to employ Mr Bennett."
There is no appeal against that finding.
- The argument before the judge focused, as it has before us, on the question whether the Council failed properly to supervise or monitor Mr Bennett and/or whether it failed to pick up the warning signs which, on H's case should have alerted it to Mr Bennett's propensities. The judge considered this part of the case in some detail in paragraphs 53-64 of his judgment and held that the Council was not in breach of duty. H's claim against the Council accordingly failed.
- This ground of appeal asserts that the judge erred in concluding that the Council was not in breach of its duty of care to H in failing to suspend Mr Bennett or to take other adequate measures to protect H from abuse.
- In considering this ground of appeal it is important to remember that the judge saw and heard the witnesses and was in a far better to determine the facts than this court, which will only allow an appeal on the facts if persuaded that the judge was wrong, notwithstanding those advantages. There are many decisions to that or similar effect: see eg Assicurazioni Generali SpA v Arab Insurance Group  EWCA Civ 1642,  1 WLR 577 at paras 6 to 23. In this case, apart from psychiatric evidence, the judge had the advantage of oral evidence from H, from Colin Lindsay, from the headmaster, Mr David Welch, his line manager, Mr Martin Ayres, and a foster carer who worked at the school as an independent consultant, Mrs Daphne Ashley, on behalf of the Council and from the second defendant Mr Bennett.
- We have already quoted paras 34 and 40 of the judgment which set out the judge's view of H's evidence. The judge rejected the evidence of Mr Bennett as evasive and dishonest. He held that he picked on H because he was vulnerable and unlikely to be believed if he complained. As to Mr Welch and Mr Ayres, the judge said this in para 53 of his judgment:
"It is right to say immediately that in relation to the allegation that the first defendants failed properly to supervise Mr Bennett, or alternatively that they failed to pick up the warning signs which, says counsel for the claimant, should have alerted them to his propensities, that Mr D Welch, the then headmaster of Kerrison, and Mr M Ayres, his line manager at Social Services, were both impressive witnesses, clearly conscientious men who ran what on the whole was a happy and healthy school. There was no suggestion that Kerrison had been the object of other such accusations or that there was any internal cover-up or anything of that sort."
- The judge considered each of the aspects of the evidence relied upon on behalf of H as matters which should have alerted the school. They were (1) visits by boys to Mr Bennett's flat alone, (2) the fact that Mr Bennett alone took three boys on a camping trip to Devon and (3) anxieties raised by Mrs Ashley. We consider each in turn, since they are again relied upon in this appeal.
(i) Visits to Mr Bennett's flat
- H's case was that the abuse started on a week's camping holiday in Devon in late May and early June 1990 to which we will return in a moment. However, the first incident relied upon by Mr Cooksley in support of the appeal took place before the camping holiday. A daily record sheet was kept for each boy and there is an entry for H for 13 May 1990 made by a member of staff which states:
"Terry out with RJB [ie Mr Bennett] for the afternoon. Returned at tea time and went down the gardens. Evening spent watching a video in RJB's flat."
- It was the case for H that it should be inferred from that entry that he had spent the evening alone in Mr Bennett's flat and that that was contrary to the instructions given to staff. Mr Ayres said in evidence that it was unacceptable for a boy to be invited into a teacher's flat alone, although he also said that it was not unacceptable if he was not alone.
- The judge said this with regard to that entry in paragraph 33 of his judgment:
"The second defendant said that an entry in the daily log before the camping holiday indicating that the claimant had watched a video in his flat was false: he had no video equipment and the claimant had never been in his flat. He accepted that he had been warned by the headmaster not to have pupils in his flat alone, but said that the only time that had occurred was when one of the other boys (Mark Dugdale) stood inside the door for a short time."
- The judge said in paragraph 37 of his judgment that he did not believe that the log entry in relation to the video was false, although that was not to say that anything untoward occurred on that occasion and there may well have been other boys there at the same time. The judge expressed his conclusion in relation to this point thus in paragraph 55:
"I have already discounted the entry about the claimant visiting Mr Bennett's flat as being a warning sign. It was common knowledge that boys were not to visit staff accommodation alone, and it seems unlikely that the member of staff who filled in the log would have done so knowing that a disciplinary offence had been committed without bringing the matter to Mr Welch's attention, or at the very least that Mr Welch would not have been alerted to it by reading the log or by someone else seeing the entry in the log."
- We can see no sensible basis upon which the judge's conclusions set out above can properly be reversed. In short he was not persuaded that the entry was sufficient to disclose a disciplinary offence because the entry does not disclose that H was alone watching a video in Mr Bennett's flat. It seems to us that the judge must have accepted Mr Ayres evidence that his conduct would only be unacceptable if H was in the flat alone with Mr Bennett and we can see no reason why he should not have done so.
- There was also a suggestion that there was an occasion when a different boy was in Mr Bennett's room doing his homework in respect of which Mr Bennett was said to have been given a warning. Indeed, Mr Welch said in evidence that he recalled one occasion when a member of staff brought to his attention the fact that a boy had been doing his homework in Mr Bennett's room. His evidence was that he told Mr Bennett that that was unacceptable and that arrangements were to be made for it to be done somewhere else. As to that, the judge said this in paragraph 56 of his judgment:
"Further, I do not see that one incident where a boy did his homework in Mr Bennett's flat, on a date which is not clear, as a result of which he was given a warning, should have alerted the [Council] to the fact that [Mr Bennett] was or might be attracted to teenage boys."
- Again, we do not think that those conclusions can fairly be criticised. It is, of course, very easy to be wise after the event.
(ii) The camping holiday
- Mr Bennett was the only teacher on the camping holiday. In addition to H there were two other boys, Chris Hodges and Colin Lindsay. Two criticisms were advanced of the trip. The first was that more than one member of staff should have gone and the second related to the tent arrangements. The first point was put to Mr Welch, who said that he had discussed the matter with H's social worker and his adoptive parents, all of whom agreed.
- The judge's conclusions on this put are set out in paragraph 57:
"It was certainly unusual for one member of staff on his own to take boys away. Mr Welch clearly gave careful consideration to the expedition and, with the consent of the parents concerned, permitted it. As he said, he had to act according to the standards then thought appropriate, which were unwritten. …. Mr Ayres said that he would have had no problem at that time with the camping expedition, but would not have been happy with a member of staff sharing with a boy."
Then in paragraph 59 the judge said:
"I do not think that, on the proper application of the well known test in Bolam and applying the standards for the time about which we are concerned, the defendants were negligent to permit the camping trip to take place. At that time, on the evidence I have heard, there was nothing at all to suggest to Mr Welch or the other staff that Mr Bennett was other than a conscientious and properly behaved member of staff."
- In these circumstances we do not think that any fair criticism can be advanced of the judge's approach or conclusions on the question whether the school should have forbidden a camping trip with only one member of staff.
- The second criticism of the trip relates to the sleeping arrangements. It was (and is) said that Mr Bennett should not have been permitted to share a tent with a boy. Unfortunately H's case on this point was not put to Mr Welch. In any event, the judge said that it seemed to him that on the balance of probabilities the school was not told by Mr Bennett in advance that he was sleeping in the same tent as a boy and that there was no evidence that it knew of it later. It is said that the school, in the person of Mr Welch or his delegate should have enquired. Again, however, there is no expert evidence on this question and we see no reason to think that in 1990 it would not have been appropriate to leave Mr Bennett in charge of sleeping arrangements without checking up on him, at any rate in the absence of evidence that he was not in some way to be trusted.
- However that may be, as we see it, the point is only relevant if it is shown on the balance of probabilities that the abuse would probably not have occurred if the suggested precautions had been taken. It appears that there were two tents but it is far from clear who shared a tent with whom. The judge did not find that H shared a tent with Mr Bennett. H said Colin Lindsay was not on the trip but the judge accepted the evidence of Mr Lindsay that he was. H said in his statement to the police that he shared a tent with 'John' and that Mr Bennett had a tent on his own. The judge recorded that Mr Bennett agreed in evidence that he had shared a tent with Chris Hodges and that H had shared a tent with Colin Lindsay.
- In these circumstances, there seems to us to be no satisfactory basis upon which it could be held that the decision to permit two tents to be used was causative of any abuse. The judge was justified in rejecting this part of H's case.
(iii) Mrs Ashley's anxieties
- In about July 1990 Mrs Ashley expressed concern that Mr Bennett might be getting too close to the boys and that there was a possibility that he might be grooming a particular boy. Her concern related to Chris Hodges. There was evidence that Mr Bennett visited Chris Hodges' parents' house to help him decorate his room
- She expressed her concern to Mr Ayres, who spoke to Mr Welch. The judge held that when the school learned of Mrs Ashley's concern alarm bells should have rung but he also held that they did ring. Mr Ayres subsequently visited the school and had a meeting with Mr Bennett and, the judge held, the deputy headmaster Mr Page. The judge held that at that meeting Mr Bennett was reminded to maintain proper boundaries and Mr Page was told to supervise Mr Bennett carefully. We see no reason to reject those findings of fact.
- The judge further held that that was not an inappropriate response. He added that he did not see that the Council was negligent in not suspending or disciplining Mr Bennett at that time. He considered both the individual incidents and the evidence in the round and concluded that, judged by the standards of the time, the whole of the concerns about Mr Bennett which were known at the time were not such that the Council was in breach of a duty of care or negligent in not disciplining Mr Bennett.
- In our judgment, the judge was entitled to reach that conclusion. We cannot properly reverse any of the judge's findings of fact. He was entitled to make all of them. Moreover, as indicated above, no expert evidence was put before the judge that no school in the position of Kerrison would have acted as the Council did. In all the circumstances, we have reached the clear conclusion that the judge was entitled to hold that the Council was not in breach of its duty of care. It follows that the appeal must be dismissed.
Part C X and Y v Wandsworth London Borough Council
- This is an appeal by the claimants against a judgment of Judge Cotran on 7th October 2005 whereby he dismissed their claims for damages against the London Borough of Wandsworth arising out of the sexual abuse perpetrated on them by a teacher when they were pupils at a secondary school in Wandsworth which was maintained by that authority. The claim of the first claimant, whom we will call X, was issued on 13th November 2002, when he was 29. The claim of the second claimant, whom we will call Y, was issued on 23rd June 2003, when he was 31. The incidents in question occurred between 1984 and 1987, and any claim against the teacher for trespass to the person was statute barred by the time the claims were issued (Stubbings v Webb  AC 498). The claims were therefore brought in negligence against the defendant, and it was common ground that if the claims were otherwise viable, the claimants would in any event have been granted permission to proceed with their claims pursuant to the operation of section 33 of the Limitation Act 1980.
- The teacher was not himself a party to the proceedings – in May 2001 he was convicted of indecent assaults in connection with these matters and sentenced to three years imprisonment – and there was no dispute about the underlying facts of the two cases.
2. The first claimant's experiences at school
- X first attended the school in September 1984 when he was 11 years old. Mr Derek Harding was "Head of Year" for Year 7. This was the age-group, consisting of six classes, of children who entered the school at 11. He was then 37 years old and had been a teacher at the school for 14 years. He remained Head of Year for this group as they progressed through the school. The head teacher said that he was highly respected by pupils, parents and teachers. He was viewed as a pillar of the school community, and he was very visible around the school premises. He taught X maths and geography, in addition to undertaking pastoral responsibilities towards all the children in that year.
- Part of this role involved caring for pupils who were bullied. When X was bullied soon after he joined the school, Mr Harding invited his parents to come and talk to him. He told them he would take good care of him and would arrange to have the bully removed from the form. After this incident Mr Harding developed the habit of inviting X to see him in his office, which was located in the corner of his classroom. During lesson times the only route to the boys' toilets was through that classroom. Mr Harding would arrange to see X in his office at times when the classroom was empty. At first he would ask him general questions about his home life and his life at school and check that everything was going well.
- After a number of these meetings, Mr Harding on one occasion asked the boy about his penis, and how things were with it. When X asked him what he meant, Mr Harding responded by pointing to his groin area, and asked how things were down there. The boy felt very uncomfortable, but he was assured that these questions were concerned with his educational welfare. X told him that things were OK down there, and Mr Harding ended the meeting by saying that what he had said to him would be treated as confidential.
- At the next meeting, he was again asked about things at home and at school, and a similar conversation ensued about the state of his penis. X was only 11 years old, in his first year at senior school, and he was very frightened that if he did not answer these questions he would get into trouble. On this occasion Mr Harding asked him whether he had ever touched his penis, and if he had ever played with it and made it erect. He also asked whether he had ever ejaculated. He had to explain what he meant by this. The conversation ended with Mr Harding saying that he would like to have a look at the boy's penis to check that everything was OK. Although the boy originally said "no", he eventually felt constrained to agree that he would do this in the boys' toilet when next they met.
- The third of this series of meetings began in the same way, and then Mr Harding gave X a key to the boys' toilet and told him to go into the first cubicle and take off his trousers and pants. When Mr Harding joined him, he told him to play with his penis and make it erect. Once it was erect Mr Harding touched it and then pulled the boy's foreskin back and forth, without saying a word. He then left the cubicle, and the boy joined him in his office in due course. Mr Harding then told him that things seemed to be OK, but he would need to continue to check. He told the boy to try to masturbate at home because he would have major problems in later life if he did not. He ended that meeting by saying he would need to see him again and go through the same procedure again because it was for his educational welfare.
- When X made his original statement to the police on 10th July 2000, he said that the fourth meeting went along the same lines as the third, except that on this occasion he did not get an erection. Mr Harding then stepped forward, placed his open hand under his penis and testicles, and then cupped and squeezed his testicles, thereby causing the boy to have an involuntarily erection. He then stepped back and smiled, and instructed the boy to pull his penis in order to masturbate. After that he said that everything was OK and told the boy to get dressed. When they reassembled in his office he gave him instructions similar to those given on the previous occasion.
- When he made his statement to the police in July 2000 X believed that all these meetings had occurred before the Easter break in 1985. He spoke of one final meeting in the toilet when he had managed to get an erection, and Mr Harding had left the toilet without touching him. After this the boy steeled himself to say "No" whenever Mr Harding asked to see his penis.
- His witness statement for the civil proceedings was made in August 2002. It is not easy to understand from para 26 of that statement how many separate incidents in the toilet he was describing after the first. He appeared to describe a fourth occasion when "he had his go at masturbating me". He then said that
"this whole episode happened on several occasions, and on one occasion I did not get an erection and he stepped forward and placed his open hand on my testicles, cupped them and he started squeezing them until my penis became erect. Once erect, he masturbated me. I just froze, I kept my eyes closed and wished I were not there. Then he let go and stepped back. I remember he smiled and seemed pleased. He then instructed me to masturbate. Looking back I now think he wanted me to ejaculate, but I never did". (Emphasis added)
It was after that that he was determined to say "no". He appeared to date all these incidents prior to Easter 1985.
- In his evidence at the trial he said that what he called "the abuse" probably happened about eight times, although he had only previously spoken about four incidents. He said that it was on either the third or fourth occasion that Mr Harding cupped his testicles and did the pulling and touching, and that this happened twice. He now believed that the meeting with his parents took place at about Easter 1985, and that the abuse started about three months after that meeting. The eight incidents took place between then and the end of the year.
- After he had said "no", although Mr Harding would continue to summon him to his office or pull him out of dinner queues or wait for him in corridors and pull him on one side, he would answer his questions about his home life and his life at school but he would consistently say "no" when invited to show Mr Harding his penis again.
- He said that the time came when he was so frightened of Mr Harding that he became too scared to go to school, and he found himself trying to avoid him. He spent most of his home life worrying lest Mr Harding told people that he had shown him his penis or told his parents that he had let him play with him. He would play truant as a means of reducing these fears, and his schooling suffered as a result. Mr Harding, however, always gave him merit awards, and he would cover up for him when other teachers complained about his truanting or other misbehaviour. He was never punished, and from the third year onwards he seldom attended school. He told the judge that he could barely read or write when he left school.
- We will describe his later history and the psychiatric evidence after we have described how Mr Harding treated Y. For the present it is sufficient to note that in his judgment the judge did not refer to X's witness statement or his evidence at the trial at all. He restricted himself to quoting verbatim from the prosecution's case summary in the Crown Court proceedings in 2001, and from the particulars of claim which referred to only four meetings, the last two of which involved incidents in which Mr Harding touched X's genitals.
- We have already referred to the very unsatisfactory state of the law. The judge's treatment of the evidence at the trial was equally unsatisfactory. The statement of case referred to two incidents in the toilet when Mr Harding touched his penis each time, touching his testicles on the second occasion. His evidence to the police spoke of three incidents in the toilet, in two of which he was touched. His witness statement appeared to speak of several occasions in the toilet after the first one, on three of which he was touched. His evidence at the trial did not identify more than three incidents of "touching" at most, but referred confidently to eight incidents of abuse in all. We mention these matters because of the artificial distinction that now has to be made between incidents of intentional trespass and incidents in which the abuser, although requiring the abused person to perform indecent acts in front of him, does not actually touch him. Since no application was made to amend the statement of case and we do not know what the judge made of the claimant's oral evidence we will have to proceed on the basis that the judge found proved the four episodes pleaded in the statement of case and no more, the last two of which involved Mr Harding in handling the claimant's genitals.
3. The second claimant's experiences at school
- Y joined the school at the same time as X, but he was in a different class and did not know him at all. Mr Harding did not start expressing an interest in Y until his second year at the school, when he would beckon him into his office and ask him how he was getting on. In his third year Y started playing American football on Sundays with a club in Streatham Park. This had nothing to do with his school activities, but it became known within the school that he was doing this, and there came a time when Mr Harding would call him into his office and ask if he would like help him with his fitness. He said that he would want to test Y's pulse rate at his home in order to gauge his fitness level, and that it would be best if he wore minimal clothing, or better still, no clothing at all, in order to carry out the tests accurately. Y trusted Mr Harding because he said he had played a lot of sport in the past and he seemed to know what he was talking about.
- Mr Harding arranged to meet Y at Collier's Road Underground station. He then drove him to his home in Southfields. There was never anybody else in the house when Y was there. They went upstairs to a back bedroom, where the boy was told to undress. He stripped down to his boxer shorts and was then persuaded to take these off. The exercises involved press-ups, sit-ups and running up and down the stairs, and intermittently Mr Harding took Y's pulse. After about half an hour he was told to lie on the bed face down, and Mr Harding purported to give him a full body massage. He was then told to turn over, and the massage continued. Y had an involuntary erection when his thighs were massaged, but he was told that this was a natural reaction. The conversation moved on to masturbation. Y said he had done it in the past, but he accepted Mr Harding's offer to show him how to do it properly. Mr Harding then masturbated him to ejaculation. He told Y that this was therapeutic and would help him to relax.
- The same thing happened the next time they agreed to meet, and these meetings continued over a six month period between about June 1987 and January 1988. They occurred once a week during the school term, and sometimes more often during the holidays. Mr Harding would sometimes drive his car to meet Y near his home. Sometimes they went to Richmond Park, where Y would jog and exercise under Mr Harding's supervision. No acts of indecency occurred then. Sometimes Mr Harding drove Y through quiet residential streets to a secluded area where he would masturbate him.
- Y said that throughout this time he trusted Mr Harding and quite liked being with him. He knew that he was not gay, and any concerns he might have had that Mr Harding was gay were removed when the teacher produced some soft porn magazines from the glove compartment in his car. As the autumn wore on Mr Harding began to demand more emotion from Y while he was masturbating and while they were looking at pornographic magazines together. On two occasions Mr Harding rented pornographic videos, and he once masturbated Y while they were watching one of these videos from the sofa in the sitting room. Mr Harding told him to call him Derek, and to say "Derek I love you", and he gave him athletic vests and shorts, exercise equipment and handgrips, and tracksuit bottoms as presents. He also took him on trips to a golf range in Esher and to Brighton.
- Gradually, however, Y felt that Mr Harding was interfering with his life and eventually, when Mr Harding asked if he could put a finger up Y's anus, it all came to an end. He said "no", and although another appointment was arranged, Y did not keep it. This made Mr Harding very cross. But he still seemed to be obsessed with how the boy was getting on. If Y walked past his office he would call him in, and he generally took more of an interest in him than he needed to. Eventually things got to a point at which the boy no longer wished to go to the school because he did not want to have to see Mr Harding. He started truanting, and he eventually left school two months early without taking his GCSEs.
- He never told anyone about what was going on. His parents had separated, and he used to tell them that he was meeting a friend, or going shopping, at the times when he was meeting Mr Harding. He stopped playing American football about two months after his relationship with Mr Harding ended.
4. The psychiatric evidence in each case
- Mr Harding's activities had a disastrous effect on the lives of these two young boys. It is unnecessary to say very much about the details, since damages were agreed (subject to liability) and there was no dispute about the evidence of Professor Maden, who was the single joint expert.
- In short, X's life was very disturbed after he left school. He was eventually referred to a psychiatrist in 1995. At the end of his interview he was just reaching the door when he mentioned in passing that he had been abused by a teacher when he was at school. The psychiatrist said she would have to report this to the authorities if he told her any more, and this led him to storm out of the room. A little later he went down to the school with a baseball bat, intending to kill Mr Harding if he saw him. When he could not find him, he went instead to his mother's place of work and told her everything that had happened to him at school.
- Professor Maden saw X in the summer of 2002, a year after he had given evidence against Mr Harding at his criminal trial. He concluded that he was suffering from an emotionally unstable personality disorder. He was prone to mood swings, substance misuse, and volatility within relationships. He also suffered from long-standing feelings of anxiety and depression, combined with anger and frustrations about the abuse.
- The professor considered that the sexual abuse perpetuated by Mr Harding had caused the mixed disorder of conduct and emotions during late childhood. It was reasonable to suppose, on the available evidence, that hereditary factors accounted for a third of X's personality disorder, and that the sexual abuse accounted for the other two thirds, as well as being the cause of his long-standing feelings of anxiety, depression, anger and frustration. The report continues:
"The sexual abuse by Harding was likely to have long-term consequences in anybody. It was inflicted over a prolonged period, there was abuse of trust, it was inflicted at a sensitive period in the social and psychosexual development of the victim, and the perpetrator exhibited the victim's fears about his future, normal development. The social consequences of the abuse were continued long after the sexual abuse itself had finished, in Harding's attempts to manipulate the victim. Effects of the abuse were compounded by the fact that the abuser was a teacher, and the abuse therefore interfered with the victim's education to a disastrous extent."
The professor went on to explain why he considered that X's dependence on drugs and alcohol in his adult life should be regarded as being caused primarily by the sexual abuse, since this dependence was intimately related to his feelings of anxiety, depression, frustration and anger.
- Y's life after school followed a similarly disturbed pattern. In his case he did not disclose what had happened to him at school until 1999. When Professor Maden saw him in January 2003 he was an in-patient at a psychiatric hospital. He summarised Y's history by saying that he had suffered from lack of confidence, difficulty in sustaining relationships, difficulty in holding down a job and difficulty in establishing a stable, independent life. In psychiatric diagnostic terms these problems amounted to a personality disorder, with features of anxious avoidant personality disorder and of emotionally unstable personality disorder.
- In addition to these problems Y had suffered from chronic feelings of depression throughout most of his adult life, with more serious episodes of depression superimposed on this background. At least one of these episodes had been severe and had led to a serious suicide attempt when he could easily have died. Although his mother had a history of depression it was event-related and was not of the same recurrent type. In Y's case the genetic contribution to his problems should be regarded as a vulnerability factor rather than the cause of his problems. Professor Maden continued:
"Assuming that the Claimant's account is true, then the main cause of his adult psychiatric problems is the experience of sexual abuse in childhood. The sexual abuse involved a breach of trust and directly jeopardised his education. The sexual abuse occurred at a particularly vulnerable time, as he had just begun to establish relationships with girls, and it is reasonable to assume that sexual abuse by an older man at this time would lead to confusion about sexual identity and consequent low self-esteem. The depth of the Claimant's shame and embarrassment about the abuse is reflected in the length of time it took him to disclose his experiences. The time course of the emergence of his symptoms is also consistent with causation by the sexual abuse."
5. The way the claimants' case was put
- A number of different allegations were made in the two statements of case, but for the purposes of this appeal it is necessary only to consider one element of the allegations of negligence. In X's case the history was set out in para 4 of the particulars of claim and the allegations of negligence were framed in the following way in para 6.1(D):
"6.1 The Defendant, its servants or agents, were negligent and/or in breach of duty in that they:
(D) By their servant/agent Mr Harding acting in the course of his employment or in activities closely connected with his employment:
(a) Did not act in the Claimant's interest when purporting to advise and guide him. It is the Claimant's case that Mr Harding, whilst purporting to advise and guide the Claimant, groomed and entrapped him; further that this conduct was in breach of Mr Harding's duty of care to act in the Claimant's interest when advising and guiding him.
(b) Injured and harmed the Claimant by destroying the trust which the Claimant had placed in him and by abusing and harassing the Claimant sexually and emotionally in the manner described in paragraph 4 above.
(c) Failed to protect the Claimant from emotional, psychiatric and psychological injury and instead caused him injury by abusing and harassing him.
(d) Caused as a result of the abuse the Claimant to be injured so as to be unable to take advantage of the education that was provided to him.
(e) Failed to report the fact that he was unable to act in the Claimant's interest and had abused the Claimant sexually and emotionally."
- Y's case was advanced in identical terms except that it contained an additional averment to the effect that Mr Harding took advantage of the Claimant's vulnerability in the knowledge that his parents were separated and that he lived with his mother.
- No allegation of trespass to the person was made in either case.
- Ms Gumbel QC, who appeared for the claimants both in this court and in the court below, developed her arguments before the trial judge in a way that extended the width of some of the allegations in the statement of case, particularly under sub-para (e). At the trial she submitted that a teacher in Mr Harding's position had a duty to take reasonable care of the boys within his group and to report any incident he was aware of that had caused injury or might cause injury to any of these boys. She posed the question "Why should Mr Harding's duty to report his own harmful activities be a lesser duty than his duty to report activities of other members of staff?" In this context she emphasised Mr Harding's pastoral role as the boys' head of year at all material times.
- The judge held that it was the nature of what was done in this case that it was a secret enterprise. Except in the case of physical harm it was not possible to go and report something. It seemed to him that it was artificial for a teacher like Mr Harding to report to his employers that he was about to strip a boy naked or to masturbate him. The grooming was part and parcel of the process of child abuse, and acts preparatory to abuse were not actionable in themselves. He therefore rejected Ms Gumbel's submissions. His overall conclusion was that the defendant owed no vicarious duty that was independent of the allegations of intentional trespass to the person, in respect of which any claim was statute barred.
- He also held in Y's case that because the relevant sexual acts took place off the school premises they occurred outside the course of Mr Harding's employment, and that vicarious liability would not have attached to the defendant in Y's case in any event.
- From that decision both claimants appealed with the permission of the judge.