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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Catholic Care (Diocese of Leeds) & Anor v Young [2006] EWCA Civ 1534 (14 November 2006) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2006/1534.html Cite as: [2007] QB 932, [2007] 1 All ER 895, [2007] PIQR P15, [2007] 2 WLR 1192, [2006] EWCA Civ 1534 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
Judge Cockroft
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE DYSON
and
SIR PETER GIBSON
____________________
(1) Catholic Care (Diocese of Leeds) (2) The Home Office |
Appellants/ Defendants |
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- and - |
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Kevin Raymond Young |
Respondent/ Claimant |
____________________
(2) Mr N Wilkinson QC and Mr N Moss (instructed by Treasury Solicitors) for the Home Office
Mr Stuart Brown QC (instructed by Messrs Jordans) for the Respondent
Hearing dates: 17th and 18th October 2006
____________________
Crown Copyright ©
Lord Justice Dyson:
The facts
"The Claimant was sexually abused by Neville Husband a senior officer in charge of the kitchen area. The Claimant was invited to work in the kitchen area. At the start of each shift he was required to change into his kitchen whites. This required the Claimant to remove all clothing including, at Husband's insistence, his underwear.
The abuse was progressive. Whist performing kitchen tasks Husband approached the Claimant. Initially he approached him from behind and would rub himself, in particular his penis, against the Claimant's bottom. This progressed to Husband touching the Claimant's bottom and genital area over his clothing.
Within weeks the abuse progressed further. Husband would try to separate the Claimant from other prisoners. The Claimant would be taken to the dry storeroom or the first aid room. In the dry storeroom the Claimant would be required to stand against the wall. His trousers would be removed. In the majority of instances Husband would perform oral sex on the Claimant.
With the passage of time the abuse became more brutal and aggressive. Husband liked to tie the Claimant around the neck to the shelving, in the form of a ligature. This would tighten with movement until the Claimant was close to unconsciousness. On other occasions the Claimant would be blindfolded and his hands and/or feet would be tied.
The Claimant was further sexually assaulted in the first aid room. The Claimant recalls being required to get onto the bed and position himself on his hands and knees. The Claimant recalls Husband pushing his erect penis between his legs from both the front and from behind stimulating sex. Further, on occasions Husband tried to bugger the Claimant and achieved partial penetration. Husband further digitally penetrated the Claimant's anus.
The Claimant recalls an incident when he was taken out of the Detention Centre to what he believed was Prison accommodation and probably Husband's home. He was blindfolded. His clothing was removed. He was required to kneel on the stairs and put himself in various positions whilst Husband took photographs of him.
The Claimant complied with the abuse. He saw Husband as all-powerful. Husband threatened him. The Claimant believed that he would be subjected to a hanging if he reported the abuse."
Sections 11 and 14 of the 1980 Act
"11(4) Except where subsection (5) below applies, the period applicable is three years from
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
14.(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 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".
The section 14 appeal
The authorities
"It is clear that the test is partly a subjective test, namely: 'would this plaintiff have considered the injury sufficiently serious?' and partly an objective test, namely: 'would he have been reasonable if he did not regard it as sufficiently serious?' It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages?"
"Sections 11(4)(b) and 14(1)(a) are tailored to meet the case where a plaintiff knows more than three years before bringing his action that he has suffered some injury but not an injury which is, within the meaning of section 14(2), significant. Whether a particular injury would reasonably be regarded as significant by a particular plaintiff, as the person whose date of knowledge is in question, is a very highly judgmental question. The education of public opinion over the last five years or so, both as to the prevalence of child abuse within families and as to its serious long-term consequences, might well mean that almost any plaintiff would now reasonably regard such conduct (if other than very trivial) as significant in the statutory sense. But before the publicity given to the Cleveland inquiry the level of public (and even professional) understanding was much lower and claims by children on reaching their majority against parents and siblings were unknown. Recognition that these acts had caused her serious long-term mental impairment could reasonably be seen by the plaintiff as importing a new order of gravity. To distinguish between the immediate impairment of the plaintiff's mental condition caused by these acts, apparently minor and transient, and the much more serious long-term impairment of the plaintiff's mental condition, the attributability of which to the Webbs' conduct was only appreciated later, is not in my judgment to defeat the intention of the legislature but to promote it."
"40 Section 14(2) was designed principally to provide for cases of late diagnosis of physical diseases, such as asbestosis or byssinosis, the deadly development of which may be unknown until their symptoms eventually appear. At first sight, it does not fit so readily the circumstances of abused children who, because of their immaturity and vulnerable position, might never consider or seek advice about suing their abusers, or those responsible for them, for damages. The test, properly interpreted, is likely to be somewhat unrealistic in many child abuse cases when applied to claims for immediate injury. Such injury is likely to include, in addition to any physical injury, a mix of emotions and other mental effects, for example, humiliation, distress, shame, guilt and fear of being disbelieved or of disclosure. In such circumstances, depending on the severity of the victim's condition and the dates of the abuse, it could have been unreasonable and unreal to have expected him, as he moved from childhood to three years beyond majority, to consider recourse to the civil courts for damages for something he just wanted to put behind him. Given the circumstances of the abuse and his subsequent way of life, making such a claim, or seeking advice about it, might reasonably never occur to him. He might have known at the time of the abuse that it was wrong; he might have harboured resentment, great grievance, or even a desire for revenge, perhaps even a wish to report it to the police, but not necessarily to litigate for damages.
41 Application of the section 14(2) meaning of "significance" to child victims of abuse is often the more difficult because many of them, as in the case of these claimants, come to it already damaged and vulnerable because of similar ill-treatment in other settings. For some such behaviour is unpleasant, but familiar. As Mr Owen put it in his supplemental submissions, such misconduct was for many of these claimants "the norm"; it was committed by persons in authority; and they, the claimants, were powerless to do anything about it. Some victims of physical abuse may have believed that, to some extent, they deserved it. And, in cases of serious sexual abuse unaccompanied by serious physical injury of any permanent or disabling kind, it is not surprising, submitted Mr Owen that they did not see the significance of the conduct in section 14(2) terms, and simply tried to make the best of things.
42 However artificial it may seem to pose the question in this context, section 14 requires the court, on a case by case basis, to ask whether such an already damaged child would reasonably turn his mind to litigation as a solution to his problems? The same applies to those, as in the case of many of these claimants who, subsequent to the abuse, progress into adulthood and a twilight world of drugs, further abuse and violence and, in some cases, crime. Some would put the abuse to the back of their minds; some might, as a result or a symptom of an as yet undiagnosed development of psychiatric illness, block or suppress it. Whether such a reaction is deliberate or unconscious, whether or not it is a result of some mental impairment, the question remains whether and when such a person would have reasonably seen the significance of his injury so as to turn his mind his mind to litigation in the sense required by section 14(1)(a) and (2) to start the period of limitation running. At this stage the section 14(1)(b) issue of actual or constructive knowledge of attributability becomes more of a live issue than it would have been at or shortly after the abuse, because in some cases it might only be after the intervention of a psychiatrist that a claimant realises that there could have been a causal link between the childhood abuse and the psychiatric problems suffered as an adult, an argument accepted by the Court of Appeal, but which Lord Griffiths found difficult to accept, in Stubbings v Webb."
"……It was for the judge to determine in the case of each claimant whether, within three years after majority, he or she had significant knowledge within the meaning of section 14(2) and in respect of what injury, whether physical and/or mental. In the case of each claimant, the judge had to consider, among other things, his or her individual history and circumstances, the nature, severity and duration of the abuse, the period of time when it occurred and its physical and/or mental effects evident to the claimant within three years after reaching majority. He then had to relate them all to the question whether that claimant, given those and any other relevant circumstances, would have considered the injury of which he knew ("the injury in question") sufficiently serious to institute proceedings against a solvent and compliant defendant."
"The word is generally used in the law to import an objective standard, as in "the reasonable man". But the degree of objectivity may vary according to the assumptions which are made about the person whose conduct is in question. Thus reasonable behaviour on the part of someone who is assumed simply to be a normal adult will be different from the reasonable behaviour which can be expected when the person is assumed to be a normal young child or a person with a more specific set of personal characteristics. The breadth of the appropriate assumptions and the degree to which they reflect the actual situation and characteristics of the person in question will depend upon the reasons why the law imports an objective standard."
"The standard of reasonableness [is] finally objective but must be qualified to take into consideration the position, and circumstances and character of the plaintiff ... In considering whether or not the inquiry is, or is not, reasonable, the situation, character and intelligence of the plaintiff must be relevant."
" It is true that the plaintiff must be assumed to be a person who has suffered the injury in question and not some other person. But, like Roch LJ in Forbes [1997] QB 402, 425 I do not see how his particular character or intelligence can be relevant. In my opinion, section 14(3) requires one to assume that a person who is aware that he has suffered a personal injury, serious enough to be something about which he would go and see a solicitor if he knew he had a claim, will be sufficiently curious about the causes of the injury to seek whatever expert advice is appropriate."
"Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test."
The judgment of Judge Cockroft
"59. I come now to my conclusions on Section 14. The difficulty we have is that Section 14 was clearly not framed with cases of sexual abuse in mind. There is no express provision for cases in which the claimants have knowledge of all necessary facts but are understandably reluctant to turn their minds to litigation. For my part I would have preferred to have legislators draft and pass an amendment to Section 14 rather than to rely in this difficult area upon judge made accretions to the law. But the Bryn Alyn test must be binding upon me. I must ask the question, "When would the claimant reasonably have turned his mind to litigation as a solution to his problems?" To find either that he did or ought to have done so when he left Medomsley on attaining his majority, would be, it seems to me, to defy the Court of Appeal and I intend to do no such thing. It seems to me that in June 1977 and for three or so years thereafter it would be wholly unrealistic to hold that time began to run by reason of the very disability the claimant then suffered from. By the time his disability was subsumed or accommodated, when he was getting on with his life and making a real success of it with his box of memories firmly sealed in the attic, he no longer appeared to have an injury which he perceived as significant and that was a reasonable perception. So time was not running against him at any stage up to 1996. If a meeting with Husband had never occurred I do not believe this claim would ever have been made. Query whether it would have been made or if made allowed to proceed, if that chance meeting had occurred 30 or 40 years after leaving Medomsley? That is something I do not need to speculate about.
60. Within months of that chance meeting the claimant's world collapsed around him, and he knew why. He was now suffering a cluster of serious psychiatric symptoms because of being abused in care and at Medomsely, but to treat him as a mature adult free of the controls of care home and detention centre for 20 years capable of making rational decisions would, it seems to me, to be to ignore the condition that he was in and once more to neglect the Bryn Alyn test. His world had imploded. He was drinking alcohol to excess and taking cocaine to forget. He was in abject denial. If this dramatic reaction had been the result of extreme hyper-sensitivity or unusual instability on his part, such personal characteristics could not have postponed the date of knowledge, (see Adams). But Mr. Godsi told me, and this was not contradicted by Doctors Wood and Latcham, that after a trigger event, long after the abuse, here a chance meeting or in other cases a television programme or a newspaper report, victims will characteristically react in the way the claimant did, so his behaviour did not depart from the norm. So the reasons for not disclosing which operated on leaving Medomsley were operative again after December 1996, as Doctor Wood conceded. That quality of reasonable curiosity spoken of by Lord Hoffmann in Adams remains entirely absent in the claimant's case. In my judgment it remains so until it was first stimulated by the police investigations. The claimant only spoke to them reluctantly and apprehensively. By the time he gave his first statement he had begun to feel better. He had been listened to. He had been taken seriously. That is when I find time began to run. The precise date does not need to be identified because whenever it comes it falls within the three years prior to date of issue. Subsequently, I have no doubt at all that three hours with Mr. Godsi had a considerable therapeutic effect but all that was lacking before then was the label with which to describe the claimant's psychiatric illness from which he knew he had been suffering for a long time. So I reject the argument that the date of knowledge post-dated the issue of the claim, but it is no matter. Like the successful appellants in Bryn Alyn and the claimant in Rose Wood this claimant did not begin his action out of time. So there will be judgment accordingly for the claimant on the first limitation issue."
The correct approach
Section 14 applied to this case
"Such victims are, as is well known, confused, fearful, ashamed, with low self-esteem, mistrustful of persons in authority, and expect to be disbelieved. Mr Godsi could not think of anyone that he had dealt with on attaining his majority, as it were, rushing off and seeking compensation. That was the last thing that would occur to them, food and shelter are the pressing priorities. If there was anything unusual about the claimant, it was the quite pathological degree to which he was able to shut off and detach himself from his experiences in getting his life together."
"He was asked the question "did you know you were ill?", to which the answer was "of course I did". "Did you know why you were ill?", "It was probably because of the abuse", though the claimant went on to say that he was too busy fighting everybody to ask himself the question. He said "I knew it but I didn't want to accept it".
"Q. I am asking you, first of all, did you realise in 1997, that you were not the man you had been in 1996?
A. Of course I did, from everything else happening around me.
Q. You realised?
A. Slowly, yes.
Q. Did you know, and I emphasise the word know, did you know that you were ill?
A. I probably did know I was ill, but did I accept it and take it on board, no. I was in total denial.
Q. You were in total denial?
A. And if I could be in denial today, I would continue to be in denial. Had I not dealt with some of the issues I would still be in denial. I, at no point, wanted to run around asking anybody for anything, I give no quarter, I take no quarter, I ask no quarter. I never have done.
Q. So when you say that you were ill in 1997, you were in a state of denial, did you realise you were ill?
A. Of course, I had lost the very things that were me.
Q. Did you know why you were ill?
A. Probably, deception, what I would class as betrayal, others may not, many, many reasons. Yes I knew I was ill.
Q. You knew you were ill?
A. I did not know."
Section 33
"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… prejudice the plaintiff or any person whom he represents; and (b) any decision of the court under this sub-section 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."
"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 purposes of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant; (d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action; (e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages; and (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."
Overall conclusion
Sir Peter Gibson:
Lord Justice Buxton:
What did the House of Lords decide in Adams?
The objective test
"The Bryn Alyn test"
to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
The level of injury contemplated is by no means high: most people might be expected to decide to proceed for even quite slight damage if they were assured that they would incur no expense or trouble either in obtaining or in enforcing a judgment. What does the reasonable man have to think about the damage and the claim? He has to think that he is justified in bringing the claim. That is something different from his not being embarrassed, uninterested or in a state of fugue. The reference to a claim being justified can only be intended to assess the nature, amount and circumstances of the claim, and not the nature and circumstances of the claimant. But the Bryn Alyn test, objective or subjective, is expressed in the latter terms: when would it be reasonable for the claimant to think of litigation? That question has nothing to do with justification, and all to do with the attitudes and desires of the claimant.
The modified Bryn Alyn test applied to the claimant in 1980
The modified Bryn Alyn test applied to the claimant in 1986
Mr Young told me that he wanted the Home Office and Social Services to be accountable for what happened, as well as the Roman Catholic Church….He has been trying to gain access to his social services records for 20 years as part of his desire to hold these organisations to account…
Mr Godsi returned to that issue in his Addendum Report of 28 July 2004, in which he further reported the claimant as saying that his wish to access the records was "not motivated by seeking to hold these organisations to account in the legal sense but was driven by a desire to try to make sense of his life and to understand what had happened to him as a child". Nonetheless, Mr Godsi's opinion, accepted by the judge, was that the claimant continued to be of the frame of mind described in §56 above until 1996, and that that was typical of people in the claimant's position.
The modified Bryn Alyn test applied to the claimant in 1996
Mr Young became aware at that point that he had suffered abuse, but was not well enough to appreciate that he had suffered a significant psychiatric injury, to justify instituting proceedings for damages. Mr Godsi is further of the view that Mr Young became aware…in 1996 both of the abuse at Medomsley and the abuse at St Camillus, but was not aware of their impact on him, and was not well enough to understand that both periods of abuse and their consequences justified instituting proceedings for damages.
And the judge further reported, at §60 of his judgment, that after such a chance meeting "victims will characteristically react in the way the claimant did, so his behaviour did not depart from the norm. So the reasons for not disclosing which operated on leaving Medomsley were operative again after December 1996". Those reasons were only dislodged during the investigations by the police which, whatever precise date within those investigations is specified, and despite the fact that the investigations started in 1999, in the judge's view occurred within three years of the issue of proceedings in April 2003.
Section 33