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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AB & Ors v Nugent Care Society & Anor (Rev 1)  EWCA Civ 827 (29 July 2009)
Cite as:  Fam Law 1045,  1 FLR 707,  WLR 516,  1 WLR 516,  LS Law Medical 524,  EWCA Civ 827,  PIQR P3
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Irwin
1997 A No 03700/3710 and 801
AND ON APPEAL FROM THE LIVERPOOL COUNTY COURT
His Honour Judge Main QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE MAURICE KAY
| AB and Others
(JPM, JB and DVB)
- and -
|NUGENT CARE SOCIETY
- and -
WIRRAL METROPOLITAN BOROUGH COUNCIL
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Justin Levinson (instructed by Pannone for the Claimant GR)
Edward Faulks QC and Nicholas Fewtrell (instructed by Hill Dickinson LLP) for both Defendants
Hearing dates: 5, 6 & 7 May 2009
Crown Copyright ©
LORD CLARKE OF STONE-CUM-EBONY MR:
This is the judgment of the court, to which each member has contributed.
The Limitation Act 1980
"14(1) Subject to subsection (1A) below, in sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts -
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty;
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire –
(a) from facts observable or ascertainable by him, or
(b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek;
but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate, to act on) that advice.
33(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –
(a) the provisions of section 11 … of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical legal or other expert advice and the nature of any such advice he may have received."
The relevant principles
"i) In multiple claims of this sort, a judge should consider the exercise of his discretion separately in relation to each claim.
ii) The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and it is a heavy burden. Another way of putting it is that it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it.
iii) Depending on the issues and the nature of the evidence going to them, the longer the delay the more likely, and the greater, the prejudice to the defendant.
iv) Where a judge is minded to grant a long "extension" he should take meticulous care in giving reasons for doing so.
v) A judge should not reach a decision effectively concluding the matter on the strength of any one of the circumstances specified in section 33(3), or on one of any other circumstances relevant to his decision, or without regard to all the issues in the case. He should conduct the balancing exercise at the end of his analysis of all the relevant circumstances and with regard to all the issues, taking them all into account.
vi) Wherever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly, the extent and content of discovery. (See further below)
vii) Where a judge determines the section 33 issue along with the substantive issues in the case, he should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence. Much of such evidence, by reason of the lapse of time, may have been incapable of being adequately tested or contradicted before him. To rely on his findings on those issues to assess the cogency of the evidence for the purpose of the limitation exercise would put the cart before the horse. Put another way, it would effectively require a defendant to prove a negative, namely, that the judge could not have found against him on one or more of the substantive issues if he had tried the matter earlier and without the evidential disadvantages resulting from delay.
viii) Where a judge has assessed the likely cogency of the available evidence, that is, before finding either way on the substantive issues in the case, he should keep in mind in balancing the respective prejudice to the parties that the more cogent the claimant's case the greater the prejudice to the defendant in depriving him of the benefit of the limitation period. As Parker LJ showed in Hartley v. Birmingham City District Council  1 WLR 968, CA, at 979G-H, such a finding is usually neutral on the balance of prejudice:
" … in all, or nearly all, cases the prejudice to the plaintiff by the operation of the relevant limitation provision and the prejudice which would result to the defendant if the relevant provision were disapplied will be equal and opposite. The stronger the plaintiff's case the greater is the prejudice to him from the operation of the provision and the greater will be the prejudice to the defendant if the provision is disapplied … as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendant's ability to defend."
We should not leave those remarks of Parker LJ without noting that they were qualified in Nash v. Eli Lilly & Co,  1 WLR 782 at 804E, where this Court said that there could be instances of weak claims where disapplication of the limitation provision could cause defendants considerable prejudice in putting them to the trouble and expense of successfully defending them and then not being able to recover costs against impecunious claimants."
We return below to the extent to which those principles must be revisited in the light of A v Hoare.
i) The discretion of a judge under section 33 is fettered only to the extent that it provides a non-exhaustive list of circumstances to which he should have regard. However, the matter is not determined simply by assessing comparative scales of hardship. The overall question is one of equity, namely, whether it would be "equitable" to disapply the limitation provisions having regard to the balance of potential prejudice weighed with regard to all the circumstances of the case, including those specifically mentioned in section 33(3). See .
ii) The width of the discretion is such that an appellate court should not intervene save where the judge was so plainly wrong that his decision exceeded the ambit within which reasonable disagreement is possible. That includes the exercise of wrong principles, taking account of irrelevant factors, ignoring relevant factors or the making of a decision that is "palpably" or "plainly" wrong. If the court intervenes on any of those grounds, it should treat the matter as at large and exercise its own discretion in accordance with section 33. See .
iii) Given the width of the discretion, the extent to which the court can give general guidance on the exercise is limited. The task for a judge is particularly difficult and onerous in cases where he has to decide whether he should attempt to determine and evaluate what happened many years before, often on little more than the uncorroborated and uncheckable assertion of a complainant. Where, as in the appeals in Bryn Alyn, there is a history of pre-care abuse supplemented by a post-care lifestyle each, individually or cumulatively, capable of causing or aggravating psychiatric harm, the further difficulty of determining the fact of injury and its extent and causation is formidable. See .
iv) Many claimants, before being taken into care, have had troubled backgrounds, including sexual and/or violent abuse, and arrive in the homes in a highly disturbed state. And, often, after leaving them, their lives deteriorate into alcohol and drug abuse and crime. Stripping away legal niceties, the question for the judge under section 33 was whether, given the delays, he could fairly try claims that the first defendant had culpably failed to improve the claimants' physical and/or mental condition and/or had culpably caused it to worsen. See .
v) The nature of the prejudice either way and the equity in allowing the action to proceed may vary from issue to issue. See .
"84. With regard to the exercise of the court's discretion under Section 33 of the 1980 Act, however, I would make just three brief comments - not, let it be clear, in any way to fetter a discretion which the House in Horton v Sadler  UKHL 27,  1 AC 307 recently confirmed to be unfettered, but rather to suggest the sort of considerations which ought clearly to be in mind in sexual abuse cases in the new era which your Lordships are now ushering in, first, by departing from Stubbings v Webb, and secondly, by construing consideration of the inhibiting effect of sexual abuse upon certain victims' preparedness to bring proceedings in respect of it.
85. First, so far as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffman suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial.
86. Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true), are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing. If, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial, (which must surely include a fair opportunity for the defendant to investigate the allegations, - see section 33(3)(b),), is in many cases likely to be found quite simply impossible after a long delay.
87. Hitherto, the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffman at paragraph 36). It is not to be supposed that the exercise of the court's section 33 discretion will invariably replicate that position."
"29. With great diffidence, I do have some difficulty in following how the cogency of a claimant's case can be held to be neutral. An incoherent and weak case from an impecunious claimant will be likely to prejudice a defendant, who will probably defend successfully, but not recover the cost of doing so. That is easy to follow. However, it seems to me that a cogent and well-supported case for a claimant must usually argue at least to some degree in favour of the extension of discretion, since such a case would tend to carry the promise of a potentially fair trial, and since the implication would also usually be that a case which remains cogent and well supported after a lapse of time, would always have been more difficult to defend. I find it hard to think that it is usually equitable to refuse to extend the discretion because the claimant's case is weak, whilst it is also usually equitable to bear in mind how valuable is the limitation defence when the claimant's case is strong."
What Parker LJ meant has been fully explored in the judgments of Smith LJ and the Chancellor in Cain v Francis and McKay v Hanlani  EWCA Civ 1451. All he was intending to say was that the prejudice to the defendant of losing a limitation defence is not the relevant prejudice to be addressed. The prejudice to be addressed is that which affects the defendant's ability to defend. Clearly the strength of the claimant's case is relevant and was relevant to the decision of Parker and Leggatt LJJ in Hartley. If the action in a case, where liability has been admitted, is commenced a day late but the defendant is in no way prejudiced in defending the claim, the limitation defence would be a windfall and so as in Hartley the discretion will be exercised in favour of the claimant.
"80. The consequence of the disapplication of s.11 will be that there may be a trial of the claimant's claim on its merits notwithstanding the delay in commencing the proceedings. Has that delay caused prejudice to the defendant in its defence? If so, does it outweigh the prejudice to the claimant of being denied a trial at all? In addition the court will need to consider all the circumstances of the case and in particular to the other aspects of the case enumerated in subsection (3).
81. In that context it does not appear to me that the loss of a limitation defence is regarded as a head of prejudice to the defendant at all; it is merely the obverse of the disapplication of s.11 which is assumed. It is this consideration which, in my view, accounts for and justifies the marked reluctance of the courts, as demonstrated by the judgments to which Smith LJ has referred in detail, to have regard to the loss of a limitation defence."
This echoes Smith LJ's own formulation, which we believe to be consistent
with our approach in paragraph 73:
"73. It seems to me that, in the exercise of the discretion, the basic question to be asked is whether it is fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The length of the delay will be important, not so much for itself as to the effect it has had. To what extent has the defendant been disadvantaged in his investigation of the claim and/or the assembly of evidence, in respect of the issues of both liability and quantum? But it will also be important to consider the reasons for the delay. Thus, there may be some unfairness to the defendant due to the delay in issue but the delay may have arisen for so excusable a reason, that, looking at the matter in the round, on balance, it is fair and just that the action should proceed. On the other hand, the balance may go in the opposite direction, partly because the delay has caused procedural disadvantage and unfairness to the defendant and partly because the reasons for the delay (or its length) are not good ones."
The section 33 issues
The Nugent Care Society case: procedural background
"whenever the judge considers it feasible to do so, he should decide the limitation point by a preliminary hearing by reference to the pleadings and written witness statements and, importantly the extent and content of discovery …".
However, Holland J decided not to take that course but to hear oral evidence, with the result that the hearing began as a trial. The judge heard oral evidence from the three claimants and the relevant medical witnesses, together with evidence from Mrs Barbara Taylor of the defendant who gave evidence about the current availability of witnesses and, as he put it, erstwhile contemporaneous documents. He also read the statements of the remaining lay witnesses. He said this at  of his judgment dated 23 November 2006:
"With such evidential material I am satisfied that I can now rule upon the limitation defences and that I should do so at this mid point in the trial so as to give the Defendants belated but still worthwhile benefit of any successful invocation of the defence – and so as to avoid unnecessarily prolonging the Claimants' stress."
"I was satisfied that, when giving evidence, the Claimant was doing his best to give me a fair and truthful history. Thus, as to the abuse itself, his account has been reasonably consistent and, notwithstanding the acquittal of Hepburn, it has understandably not been challenged before me. As to the subsequent 38 year period (1968 to 2006) his account is of virtual necessity blurred and broad brush but his bona fides are to my mind clear even if his reliability is inevitably more open to question."
He said much the same of JB at :
"… as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr JB has matured remarkably so as to make a notably impressive presentation."
He added in the case of both JPM and JB that they had had the satisfaction of being heard and believed.
"Therefore, the starting point in dealing with his findings is that he found proven abuse in both cases. The details or extent of that abuse, I do not regard as being necessarily proven. However, there is sufficient precision as to the findings for considering the exercise of discretion, and that was indeed the conclusion of the Court of Appeal when they remitted the matter for consideration, initially by Sir Christopher Holland himself."
We agree with Mr Faulks that that approach is not correct, or at least not entirely correct. The position was more nuanced than that. The highest it can fairly be put is that on the evidence available before Holland J the fact of the abuse was established in both cases. We turn to the cases of JPM, JB and DVB in more detail.
The case of JPM
"I couldn't tell anyone about the abuse I was suffering … I wanted to tell my parents but couldn't bring myself to do it … When I left St Aidans I began drinking alcohol, although I was still a young man. I have been drinking ever since. I believe St Aidans ruined my life. I have never been able to forget it … I am pleased now that I have had the opportunity to get it all off my chest. I have been asked if I intend to claim compensation for the abuse I have suffered. To tell you the truth, the thought never entered my head. I have not told this to claim compensation, as I have said before, my life has been ruined and I want these people to be brought to justice."
The police advised him to consult a solicitor. In the event he gave evidence against Hepburn, who was acquitted.
"54. This claimant had been cross-examined in a very detailed way as to the detail of his account, as part of the evidence leading to those findings to which I have referred. At paragraph 23, the judge [ie Holland J] concluded that this claimant was always aware of the serious impact of the abuse. The judge accepted in paragraph 24 that JPM had tried to deny the effects, and had been inhibited from seeking advice from doctors and others, directly as a consequence of the abuse and the nature of the abuse. Indeed in paragraph 26 of his judgment, the judge described the claimant as being "reasonably inhibited", meaning that the inhibition was comprehensible and reasonable, although he proceeded, given the state of the law he was then applying, to give little weight to that in his exercise of discretion, since of course at that stage such an inhibition fell to be considered in relation to knowledge.
55. It is also helpful to look at another passage from Holland J's judgment in paragraph 28, where he dealt with the specific considerations arising under section 33. Under section 33(a), as to the length of and reasons for the claimant's delay, he said this:
'As to reasons for the delay, there appear to be three. First, the claimant's hope that he could cope [with] the symptoms by avoidance and alcohol. Second, the inhibitions on the complaint discussed above, and third, the claimant's lack of interest in compensation, as appeared from his police statement and his evidence to me.'
56. Thus, he identified three factors which played on the claimant's mind. Of course I adopt those conclusions, although I have to apply them rather differently. The third consideration may also reflect, in my judgment, a belief on the part of JPM that he would never get relief."
"Given that abuse in general terms has been proved here, and given that system evidence is no longer relevant or is very much less so, the findings reached by the learned Judge required to be revised, in the light of the different way this case could be tried. The details of system which formed an important part of his thinking fall away or largely do so."
"58. The question of causation is a separate one from system, and may be rather difficult to try in this case. The defendants say that they are hampered by loss of records, particularly prior to the claimant's entry to St. Aidan's. They rely upon the complexity of causation for JPM's problems, specifically on the impact of being a ' looked after child.' They emphasise that he has had many subsequent traumatic experiences. They emphasise that there is a strong difference of degree between the experts as to the extent and perhaps the nature of the consequences of what happened to JPM, and in that context, it is helpful to look at the agreed note of discussion between the two experts.
59. The experts met on 31 October 2005, and as part of their joint answer to the fourth question set out in the note of their discussion, they said this:
'If the court is of the view that JPM has had PTSD, Dr Wood is of the view that this has been no more than minor as a condition. Ms Roberts regards this as having been severe. In terms of aetiology, Dr Wood is of the view that adverse experiences in care will have made a minor contribution to such symptoms as JPM has experienced, as described within his report. Dr Wood recognises that abuse in care, if credited, is likely to have aggravated JPM's problems in establishing stable relationships, and his tendency to drink to excess.'
I break off to note that this means that even the defendant's expert feels here that there has been an effect from abuse, if abuse is proved.
60. Resuming the quotation from the note,
'it is Ms Roberts' opinion that in the absence of predisposing adverse childhood events such as physical abuse and neglect, the most likely explanation for adult difficulties is the alleged sexual abuse, which has been exacerbated by further negative adult experiences. In assessing the extent of any harm arising from the alleged abuse in care, it is Dr. Wood's view that there are difficulties, in that JPM appears to have exaggerated his symptoms to Helen Roberts and to Dr. Wood. Ms Roberts is of the opinion that whilst exaggeration is a possibility, there are other explanations for invalidating scores on some test results. These include physical illness, substance misuse, trauma and the circumstances of psychometric testing. We agree that all sources of information, including documentation, clinical interview and psychometric results should be taken into account when formulating an opinion.'
61. In my judgment, the agreed note and indeed the rest of the material, demonstrate that analysis of such cases is difficult, in general terms more so because of the passage of time. That must be right, but the dispute between the experts in this case actually represents a familiar dispute, a process of interpretation, about which experts can and do take different views. The difficulty lies mostly in the inherent problem, rather than anything to do with the passage of time, so far as I can tell in relation to this case."
64. It follows, therefore, that the issue is really causation. There may perhaps be dispute about abuse, but mostly the case will turn on the effect of the abuse and general damages. The analysis of credibility and the analysis of causation are, in my judgment, not radically affected by the passage of time. It is not of course for me to pre-judge the outcome of this dispute between the parties. The question is whether the dispute can fairly be resolved, and whether the defendants have been prejudiced to any significant degree. It seems to me that this abuse was bad, and that must be weighed to some degree in the balance. If a more liberal approach to s 33 discretion is to be taken in these cases, then on balance this is a proper case for the exercise of the discretion, and I so rule."
The case of JB
"1. He complains of excessive and arbitrary corporal punishment, principally meted out by the bricklaying instructor, Mr FJ Colquitt. Particular mention is made of one occasion when the latter punched him in the stomach with such force that he coughed up blood for some time thereafter and a doctor was called in to examine him.
2. He further complains of sexual 'groping' on three occasions by a housemaster, Mr. James McEvoy, each such occasion being in contrived privacy.
"34. I interpose: as with Mr [JPM] I was satisfied that the Claimant was doing his best to give a fair and truthful history. Further, whilst making allowances for inevitable difficulties in terms of recollection arising when the history stretches back to 1972, I felt that I could reasonably rely upon his evidence. I should add that over the years since his troubled adolescence Mr. JB has matured remarkably so as to make a notably impressive presentation."
"This appears to be a case where pre-care factors arose anyway, and the alleged abuse in care have each contributed to the claimant's problems as an adult. I estimate that the attribution can be divided 60% pre-care, 20% alleged abuse in care and 20% the process of being in care generally."
As Irwin J observed, it follows that at least in that one passage, the defendant's expert did venture some attribution on a percentage basis.
"73. In terms of the specific criteria under the Act, firstly in relation to sub-paragraph a), the length of the delay is somewhat less than that of JPM, but it is still long. As found by Holland J., this claimant had no thought of suing. There was a clear inhibitory effect. It is to be noted this is much less serious sex abuse than in the case of JPM.
74. When considering the extent of delay, the evidence adduced would be less cogent, but this mostly bears on the issue of system which has gone. The primary abuse is proven, although its detail might need to be elaborated. There was a pre-existing disorder. There is a range of missing documents here, which both sides agree might have quite a degree of significance for causation. The causation issue seems to me to be more complex than in JPM. The trial of that issue seems to me undoubtedly to be affected by time. Dr. Wood gives some ascription in what seems to me, with great respect to him, to be rather a throwaway and clearly very approximate conclusion. On the facts of this case that cannot act to set aside the difficulty of causation.
75. The conduct of the defendant does not arise here. Nor is there any history of disability, meaning that limitation should be suspended in time. I have dealt already with delay by the claimant, and of the steps taken by the claimant in what I have said.
76. In considering whether it would be proportionate to exercise a discretion here, I do bear in mind that this again is a general damages only claim. It seems to me that causation evidence will mean a trial of experts, involving the assessment of a previous psychological disorder which will not necessarily be straightforward. It is not a large claim, on any view.
77. Is it equitable to let the action proceed, with all of those considerations in mind? Accepting that abuse has been proved here and that this claimant has been believed, I bear in mind that the House of Lords has made clear that cannot be the only consideration. Not every abused person, even where that is established, can proceed. The nature of the abuse here is much less stark. On balance, I do not extend discretion in the case of JB."
The case of DVB
"He then started to play with me. He put his hand on to my penis over my trousers. I was fully clothed. He then undid my trousers. I was totally numb. I felt trapped. I just sat there. He then had oral sex with me. I could not believe what was happening. He continued until I ejaculated, and I think he used a tissue to clean it up, but I cannot be sure."
The judge noted that essentially the same account was recited in the claimant's witness statement and in evidence in these proceedings.
"Really it was just self-preservation. I did not want to go through that again, and I also feared that if he did anything to me again, it would escalate, which absolutely terrified me. At the time I thought a lot about what had happened, and wondered if I was homosexual."
"It dragged me into the past, and all that I tried to push down, was suddenly in front of me and would not go away. I felt it was 'present' again. It was like it had just happened. It was not new for me. I told my wife why the police had been round, that I had been abused. It was news to her. It did not help our relationship, in fact it made me more isolated."
"Abused as a child in care. Been contacted by the police to make a statement to get compensation. Feels need to talk. Brandy started everyday, and brandy when has money. Job as welder."
The GP referred the claimant for counselling, which was intended to focus on the alcohol abuse, and signed him off as being sick.
"I am largely in agreement with Mrs Cohen's analysis of this case. A significant percentage of DVB's difficulties in life should be attributed to his genetic inheritance and pre-care childhood experiences. The alleged sexual abuse DVB suffered was comparatively minor, when compared with that experienced on a repeated basis by many of the claimants in historical/sexual abuse litigation. The history here is one of DVB suffering psychological difficulty, when his memories of being abused were brought to the fore by the police investigation. In the course of our assessment, the claimant was not found to be a reliable informant. He is probably exaggerating the symptoms in relation to the alleged sexual abuse.
If the court accepts the claimant's account of matters, the diagnosis of adjustment disorder, anxious and depressed type, is a reasonable one. Anxiety, depression and a tendency to drink to excess were associated with this process. There does not appear to be any other significant sexual discussion in the case. Further to receiving appropriate treatment, DVB has made a good recovery. His drinking is under control, his drug abuse is largely behind him and he is able to function normally."
The judge added at  that Dr Wood concluded:
"Assuming the court accepts his account of matters, DVB reacted badly to his memories of childhood sexual abuse being reawakened in the course of the police investigation. It is likely that he suffered an adjustment disorder reaction of moderate intensity, lasting about three years as a result of this, and in due course DVB has made a good recovery. His prognosis is now good."
i) In June 1995 Colin Dick pleaded guilty to four counts of buggery and three of indecent assault for which he was sentenced to four years imprisonment, albeit DVB was not one of the complainants on the indictment. That was powerful evidence in favour of DVB's case that he was abused.
ii) The judge rejected DVB's case that he did not have relevant (ie significant) knowledge until a sufficiently late date to make the commencement of proceedings within the primary limitation period. As the judge put it at , this was not casual fondling but oral sex. Although it was only one episode of oral sex, it had a marked effect on DVB at the time. He avoided Mr. Dick immediately and his reaction against what happened was strong.
iii) As to the length of and reasons for delay, the abuse took place in October to November 1979, so that the primary limitation period would end three years from DVB's majority, that is to say, on 21 January 1985. His police interview was on 27 March 1995. Shortly after 26 March 1997 he received a letter from the defendant's solicitors enquiring about whether he was concerned about sexual abuse at St. Aidan's. On 14 June 1999 he had got as far as to have an application for Legal Aid made out and proceedings were issued by 30 March 2001. It therefore follows there was a period of over 22 years from the abuse and 16 years from the end of the primary limitation period to the issue of proceedings. It is a long delay, but it is to be explained by the claimant's avoidance of referring to the sexual abuse and its consequences. That may be so in this case because, although there was a significant injury at the time, in the sense of a significant sexual assault, the psychological consequences for the claimant arose only from 1995 onwards. Thus, within two years or so of the beginning of the effects of the reawakening of these events for DVB, the defendant was aware that there was a question as to whether he was the victim of sexual abuse in St. Aidan's. See the judgment at .
iv) As to causation, the key issues relate to the later 1990s and are limited in extent: see .
v) Will the evidence of the key issues be made less cogent by the passage of time? The fact of abuse will not be made less cogent in this case. There is no possibility that a convicted abuser such as Colin Dick will realistically be called as a witness to deny a single episode of this kind, given the convictions in his case. The key medical issues are more recent, although still old by now, given the dreadful delay which has happened in these cases since the issue of proceedings. The issues are narrow and well capable of resolution. There is little loss of cogency as to the trial of the medical issues, causation and what happened in late 1990. See .
vi) There is no relevant conduct on the part of the defendant within section 33(3)(c) and no question of disability within (d): see .
vii) As to proportionality, although the damages here will be relatively limited, this was not trivial abuse, even though it was a single incident. The issues should be capable of resolution at a short trial. Although the case will need active case management to ensure that it is kept within bounds, there is no reason why that should not be achieved. See .
viii) In all the circumstances it is both proportionate and equitable to permit this case to proceed: see .
Conclusions under section 33 in the Nugent Care Society case
The Wirral case
"a. From a psychiatric perspective, the events of abuse, if they be established, did not result in any psychiatric injury.
b. After the disclosure to the police in 2000, the claimant did experience the onset of a psychiatric illness, which was a mixed picture of anxiety and depression characterised by a series of panic attacks.
c. The police interview was a trigger – what the interview triggered is a matter of dispute:
i. Dr Webster thought it triggered a recrudescence of memories of abuse which, although still in his memory, he had been able not to dwell on over his adult life, but which when they came to the fore, gave rise to a psychiatric injury in the weeks following his disclosure.
ii. Dr Boakes, leaving aside the 'possibility' of a false memory, whilst acknowledging that the interview triggered a depressive episode, felt that this was in fact due to the problems he was experiencing in his marriage and at work, which was always liable to come about, once the right trigger came along. So the earlier abuse in effect was the causa sine qua non of the anxiety/depression (the injury) but not the causa causans of the injury."
a) Reasons for delay. The claimant gave consistent and understandable reasons why he did not make the allegations earlier. In short he had got on with his life. The judge noted Dr Webster's view that the actions of the claimant were not all that unusual and quoted part of  of the speech of Baroness Hale in A v Hoare including her view that the abuse itself is the reason why so many victims do not come forward until years after the event. In short, the claimant was able to function quite normally until the delayed effects of his disturbance manifested themselves in November 2000 and the reason why things changed after that is explicable.
b) Effect of delay on the evidence. The effect of a delay of over 30 years will be to have a profound effect on the evidence available. This was especially true of the pleaded allegations of negligence relating to the system operated at the home. On the other hand, the evidence as to the fact of abuse from the claimant and other witnesses as similar fact evidence may well still be very cogent and reliable. The absence of Mr Robbins will prejudice the defendant but the judge wondered whether he could do more than deny the allegations. All the witnesses can be cross-examined and the inconsistencies in their evidence will count against them, so that the evidential prejudice is not all one way. The judge however expressly recognised that the court will face a difficult task in weighing up the evidence.
c) The conduct of the defendant. There is some substance in the criticisms made by Mr Levinson. The judge was unimpressed by the evidence of Ms Hassall with regard to the apparent inability of the defendant to obtain the police file or to interview a number of witnesses who had been identified. As we understand it, those witnesses might well be able to assist on such issues as there may be relating to vicarious liability. The judge did not hold the fact that the defendant did not take a statement from Mr Robbins against it because he properly recognised that he was an elderly man in poor health. Nevertheless he said that in the end he concluded that, after making all allowances as to the difficulty in investigating a very stale claim, the defendant was, as he put it, going slowly in a half-hearted effort.
d) The promptness of the claimant. The judge acknowledged the fact that the claimant was in ill health himself in 2001 but said that it was surprised that it then took him until 2003 to make the claim. However he doubted whether the delay in that period was very important. The claim was presented within three years of 2000. He had of course dealt with the earlier delay in (a) above. See also (e) below.
e) Steps taken by the claimant. Once the claimant realised that he was ill as a consequence of his disclosure to the police, the claimant did seek assistance. The judge recognised that he did not do so after the indecent assaults but he was very young and the nature of the abuse in itself makes it difficult to be open because of the humiliation and shame such an acknowledgment brings.
Date of knowledge
"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,
whichever is the later."
Section 14 provides:
"(1) In sections 11 and 12 of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant;
and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.
(2) For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment."
The relevant findings in DVB
"This was not a casual fondling but oral sex. Appreciating that there was only one episode of oral sex, it had a marked effect on the claimant at the time. He avoided Mr Dick immediately. His reaction against what happened was strong. These are powerful indications of the fact that even at that age he realised that what had happened to him was a significant assault. Anyone would recognise what happened on his account to be a significant assault."
The relevant findings in GR
" … whereas the claimant may well have experienced feelings of defilement, degradation and humiliation and, after the events in question, experienced feelings of revulsion, disgust and even feelings of guilt – whilst these are very understandable feelings of human emotion, they are not injuries properly so called – at least not recognised by the law … On the facts of this case, I cannot see that there will have been a discrete injury, whether physical or psychiatric."
" On the present facts, I take the view given the vulnerability and youth of the claimant at the time these acts of sexual abuse were perpetrated that it was reasonable for him at the time not to have regarded his repeated sexual insults as 'significant' – he obviously knew what was being done to him was wrong and serious but he was not being outwardly injured at the time … In my judgment this was an emerging problem which had to be combated as best the claimant could and his mechanism … was to block it out. … I am satisfied that by no later than his 16th birthday, the claimant will have had knowledge as to the 'significance' of what I find was an injury."
"In so far as an assault and battery results in physical injury to the claimant, the damages will be calculated as in any other action for personal injury. However, beyond this, the tort of assault affords protection from the insult which may arise from interference with the person. Thus a further important head of damage is the injury to feelings, i.e. the indignity, mental suffering, disgrace and humiliation that may be caused. Damages may thus be recovered by a claimant for an assault, with or without a technical battery, which has done him no physical injury at all."
"the greatest difficulty in accepting that a woman who knows she has been raped does not know she has suffered a significant injury".
In A v Hoare, Lord Hoffmann said  that there was "much sense" in that observation (which was also followed in Albonetti v Wirral Metropolitan Borough Council  EWCA Civ 783, per Smith LJ at  a) and that section 14(2)
"assumes a practical and relatively unsophisticated approach to the question of knowledge."
"'personal injuries' includes any disease and any impairments of a person's physical or mental condition, and 'injury' and cognate expressions shall be construed accordingly."
Conclusion on date of knowledge