| OUTER HOUSE, COURT OF SESSION [2006] CSOH 93 |
| A1435/00 | OPINION OF LORD GLENNIE in the cause M P (AP) Pursuer; against SISTER ZOE O'NEILL AND OTHERS Defenders: ________________ |
Pursuer: McEachran QC, Stirling; Drummond Miller
First and Second Defenders: Duncan; Simpson & Marwick
16 June 2006
Introduction
[1] This is a preliminary proof on time-bar, raising issues under sections 17 and 19A of the Prescription and Limitation (Scotland) Act 1973.
[2] The pursuer was born on 16 January 1963. Soon afterwards, her mother left the family for a time. She was left with her father, who placed her in Smyllum Orphanage, (to which I shall refer as "the Home"), in Smyllum Park, Lanark, run by the second defenders. She was resident there for about four and a half years, between June 1966 and December 1970 (according to her case on Record, which is supported by the documentary records lodged in process) or between 1965 and 1969 (as the pursuer insisted in her evidence). The difference in dates does not matter for present purposes. In this action she complains that whilst at the Home she was subjected to systematic and regular abuse.
[3] The nature of the alleged abuse appears from the following lengthy passage in Article 2 of Condescendence:
"The defenders knew the pursuer was a vulnerable child. Initially the pursuer was under the care of Sister A. Sister A was very kind to the pursuer. Sister A was replaced by Sister X and a lay helper called Y shortly after the pursuer arrived at the Home. Sister X and Y were in charge of the pursuer until she left the Home. They were very unkind to her. The pursuer was not aware of anyone being in charge of Sister X or Y. She does not know whether there was a Mother Superior. The Home had its own School, staffed by nuns. It had its own Chapel. There was no opportunity for the pursuer to have contact with persons outside the Home. She does not recall being visited by social workers. There was no-one to whom she could have complained. The pursuer was subjected to the standard regime in the said Home. Children including the pursuer in the said Home were regularly subjected to assaults and cruel punishments. The pursuer slept in a dormitory containing seven girls or thereby. In a cell adjacent to the dormitory slept one of the nuns, Sister X, and a lay helper by the name of Y. Children who wet their beds were punished severely: they were placed in cold baths with their soiled bed-sheets and thereafter made to lie on their beds with no bed-sheets. The pursuer witnessed such events on a nightly basis. She herself did not wet her bed. Nonetheless she was subjected to unwarranted punishment by Sister X and the lay helper, Y. Water was sprinkled on her bed by these individuals and she would be told that she had wet her bed. She was then subjected to the same punishment as genuine bed-wetters, as before condescended upon. Such happened to the pursuer around twice per week throughout her time at the Home. Towards the end of her time in the Home, in or around 1969, a stranger attempted to abduct the pursuer outside the Home by enticing her and her sister into his motor car. They refused to go with him. The pursuer, on telling Sister X of the incident, was told that 'it was your sister's fault'. The pursuer was thereafter beaten by Sister X and the lay helper, Y, each of whom pulled her hair and punched her on the back of her head. Towards the end of her time at the Home, in or around 1969, the pursuer was having her hair washed in one of the bathrooms. Uninvited by the pursuer, one of the boys entered the bathroom. Sister X accused the pursuer of immorality and pushed a bar of soap into her mouth. They were not provided with adequate food in that it was poorly cooked and unappetising. Children, including the pursuer, were made to eat all food which was placed before them. When children, including the pursuer, were unable to eat their food, they would be hit with a wooden spoon, a hairbrush or bare hands. Sister X and the lay helper, Y, beat the pursuer on a routine basis throughout her time at the Home for failing to eat food. Her brother and sister were made to watch her being forced to eat her food and being beaten if she was unable to do so. Any uneaten food was served up at the next mealtime. The pursuer was likewise made to watch her brother and sister when they were being beaten for failing to eat their food. She was made to watch this on a routine basis throughout her time at the Home. She was made on occasion to eat her own vomit. Hygiene and medical care were neglected. Baths were given no more than once per week. The pursuer was made to share the bathwater with the other girls in her dormitory, that is to say with another six girls or thereby. Accordingly, if the pursuer was last in the bath (as she frequently was) the water would be cold and dirty. She was given only one change of clothing per week. Such lack of attention to hygiene was unreasonable, even judged against the prevailing standard of the time. She was never seen by either a Doctor or a Dentist during the whole of her time at the Home. Children, including the pursuer, were assaulted and humiliated in front of other children and in front of other nuns and staff. They were slapped about the head and face, hit with implements including rulers and pulled by various parts of the body including the ears. The other nuns and staff did not intervene. Sister X and Y were able to assault and humiliate the pursuer and others with impunity. Such assaults took place on a daily basis. They often occurred at meal times. The pursuer seldom saw her siblings except on occasions when she was being beaten and they were summoned to watch and vice versa. Contact with families was discouraged. The pursuer's grandfather was the only member of her family who routinely visited. He was not always allowed to see his grandchildren. No explanation would be given to the pursuer when her grandfather was not admitted. Gifts he brought to the Home for her on the occasions of his visits were confiscated and not returned. Christmas presents from family members were confiscated and not returned to the pursuer each Christmas during her time at the Home. The pursuer ran away from the Home on approximately four occasions. She was returned to the Home by the Police. The Police did not ask her why she had run away. The nuns were polite to the Police. Once the Police left, the nuns and staff punished the pursuer by stripping her and putting her in a cold shower and separating her from the other children. Said treatment was systematic and regular. ... It occurred throughout the time the pursuer was a resident in the said Home. The punishments inflicted upon the pursuer were excessive, random and constituted assaults. They were frequently administered for no reason at all. They were cruel and unusual. The regime condescended upon was harsh and cruel. The treatment condescended upon was not the treatment reasonably to be expected of those acting in loco parentis."
It will be noted that the alleged abuse is of a non-sexual nature. Nonetheless, since the allegations are disputed, I have omitted the names both of the pursuer and of the individuals alleged to have committed the abuse.
[4] The pursuer raised this action on 16 May 2000. The defenders have taken a time-bar defence. There is an issue as to whether the action is time-barred. If it is, the pursuer asks the court to exercise its discretion to override the time limits.
The background
[5] In 1997 stories began to appear in the media about abuse at residential care homes run by nuns. These were discussed by Lord Drummond Young in his Opinion in the case of AB and others v. Sister Bernard Mary Murray and others (unreported, 2 June 2005), which concerned allegations of abuse at Nazareth House. The articles in the media were not confined to that establishment. It was agreed between counsel that a sufficient account of that media publicity can be taken from paragraphs 43-48 and 131 of Lord Drummond Young's Opinion. I set out below extracts from those passages:
"[43] On Sunday 18 May 1997 an article appeared in the News of the World newspaper, under the headline 'Nazareth', dealing with events that were said to have taken place many years previously in Nazareth House, Cardonald. The article began:
'A home for orphans was turned into a house of horrors by depraved nuns who delighted in making the kids' lives hell.
Youngsters were dragged from their beds and BEATEN, made to clean their teeth with CARBOLIC SOAP and forced to drink MOULDERING milk'.
The article went on to allege that some of the victims had been tracked down, and that many were still suffering mental torment. A number of individuals were named, and the events that were said to have happened to them were set out in some detail; these included beatings and punishment for bedwetting. A further article appeared in the News of the World the following Sunday, 25 May 1997, under the headline 'Wicked nuns left us scarred for life'. This contains a number of other detailed allegations made by named individuals who had been resident in Nazareth House.
[44] The author of both of these articles, Michael Jarvis, described in evidence how the articles came to be written and the reaction to them. He stated that unprecedented numbers of people came forward spontaneously in reaction to the initial article. Somewhere between 12 and 20 individuals came forward in the first week, and over the first two weeks after 18 May he spoke to between 30 and 35 individuals. Mr Jarvis stated that those concerned were in their fifties or older. Almost all were very distressed when they spoke, and said that they were delighted that the articles had been written. ...
[45] A third article appeared on Sunday 1 June 1997, under the headline 'Cardinal to probe house of horrors'. This contains further specific allegations from named individuals. Prior to 1 June Mr Jarvis had been in touch with Mr Cameron Fyfe, the Glasgow solicitor who has subsequently acted for most of the claimants against the defenders, including the three present pursuers. The article of 1 June contained the following passage:
'Lawyer Cameron Fyfe believes it could lead to claims for compensation of up to £100,000. He said: They might well have a case. They would have to prove there was negligence on the part of the organisation responsible for employees working in the house. But they could claim for the anxiety, stress and anguish they suffered. If they could show a long-term effect that would boost the compensation into very high figures. For example, 10 or 20 years of psychological damage and you are into the £50,000 plus mark. If you could show any wage loss because of the effect, it could take the figure to £100,000. I have dealt with many similar cases and I would be delighted to help'.
Mr Jarvis stated that the figures mentioned in the article were obtained from Mr Fyfe on the basis of a 'theoretical' quotation. Mr Fyfe also gave evidence; he stated that the quotation attributed to him was exaggerated. He had been asked by Mr Jarvis if the claims could be worth as much as £100,000, and he said that that was possible. He had also been asked if he was willing to act for claimants, and he replied that he was. I accept Mr Fyfe's evidence on this matter. ... A further, much shorter, article appeared on Sunday 8 June 1997, under the headline 'Cops step up probe on abuse'. This stated that police investigations had begun. It also stated that 'Glasgow lawyer Cameron Fyfe is handling claims for compensation'; he was quoted as saying that he had been told 'absolutely horrendous stories' and that the treatment 'amounted to just sadism'. A further article appeared on 29 June 1997, under the headline 'Church's secret fund for abuse'. A subheading stated 'Nazareth House victims hope for £100,000 payout'. The article began
'A secret Catholic Church slush fund may be used to compensate victims of Scotland's Nazareth House orphanage scandal. Lawyer Cameron Fyfe, representing 30 inmates abused by nuns as children, believes they could get up to £100,000 each'.
[46] More articles appeared later in the year and into 1998, both in the News of the World and in other newspapers. ...".
I was shown two newspaper articles along similar lines, published in October 1997, relating to Smyllum Park.
[6] In October 1997, soon after being made aware of one of the articles about Smyllum Park, the pursuer took steps to contact a solicitor, Mr. Cameron Fyfe. After taking the pursuer's account of her experiences, Mr. Fyfe referred her for assessment to a psychologist, Ms. Gray Taylor, who produced a Report in July 1998. The action was raised within three years of the pursuer first seeing or hearing about the newspaper articles and taking advice from a solicitor.
The issues
[7] As I have indicated, issues arise under both section 17 and section 19A of the Prescription and Limitation (Scotland) Act 1973. I propose first to consider the time-bar issues arising under section 17 of the Act.
Time-bar - section 17 Prescription and Limitation (Scotland) Act 1973
The statutory provisions
[8] Section 17(2) provides that no action to which the section applies shall be brought unless it is commenced within a period of three years after the later of the dates mentioned in paragraphs (a) and (b). The date stipulated in paragraph (a) is the date on which the injuries were sustained or, in the case of a continuing act or omission, the date (if later than that) when the act or omission ceased. The alleged events happened over the years leading up to 1970 at latest, and it was not suggested that the injuries which the pursuer claims to have suffered occurred at any later date. The period up to the pursuer's eighteenth birthday on 16 January 1981 falls to be excluded by reason of subsection (3), which requires the court to disregard any period of nonage. Unless s.17(2)(b) points to a later date, and subject to the exercise of discretion under s.19A, the action was time-barred if not commenced by 16 January 1984.
[9] The argument before me has focused on the terms of s.17(2)(b) which identifies the relevant date as being:
"(b) the date ... on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts-
(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii) that the injuries were attributable in whole or in part to an act or omission; and
(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person."
Although sub-paragraphs (i) - (iii) require to be read together, the submissions before me concentrated particularly on the terms of sub-paragraph (i).
[10] I should note also section 22(3), which provides that, for the purposes of section 17(2)(b), "knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant".
Submissions
[11] I propose first to consider the legal arguments. At the outset of his submissions, Mr. McEachran pointed out that this was the first case in Scotland where a proof had been heard on the application of s.17(2)(b) of the Act in a historic child abuse case. In AB v Sister Bernard Mary Murray, the section 17(2)(b) point had been dealt with on the procedure roll (B v Murray 2004 SLT 967) before the action came before Lord Drummond Young at a preliminary proof on the question raised by section 19A. Because of that, the issues raised in submissions before me went somewhat further than have, to date, been canvassed in the previous Scottish authorities, though they have been the subject of English decisions, in particular that of the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd. (in Liquidation) [2003] QB 1441. The relevance of those English decisions, and the light they cast upon the approach to be adopted in Scotland in applying the similar, though not identical, provisions in the 1973 Act, were fully argued before me. It is right, therefore, that I should set out the arguments and my conclusions on them at greater length than I might otherwise have felt constrained to do.
Submissions for the pursuer
[12] For the pursuer, Mr. McEachran QC introduced his submissions by referring to the remarks of Sedley LJ in Ablett v Devon County Council (unreported 4 December 2000), who points out (in para.4) that questions of limitation inevitably arise in this type of case, since it is in the nature of abuse that it creates shame, fear and confusion and, in consequence, silence, so that allegations commonly surface only many years after the abuse has ceased. He also drew my attention to the case of Stubbings v United Kingdom (1996) 23 EHRR 213, a case of childhood sexual abuse, in which the European Court of Human Rights drew attention to the developing awareness in recent years of the range of problems caused by child abuse and its psychological effects on victims: see para.54 of the judgment - but he did not argue that the applicable limitation provisions were contrary to any of the pursuer's Convention rights.
[13] At the forefront of his submissions, Mr. McEachran asked the question: what is this case all about? His answer was: it is about psychological injury caused by child abuse at the Home. He referred me to the opening lines of Article 5 of Condescendence (at p.22) in which the pursuer makes the following averments:
"As a result of the treatment at the said Home, the pursuer has suffered loss, injury and damage. The pursuer was injured psychologically by said assaults and by the cruel regime. The pursuer has suffered trauma and damage. The treatment inflicted has affected the pursuer's ability to lead a normal life. Her time at the Home has left her with numerous sequelae. ..."
Later in the same Article (at p.29), in addressing the question of limitation, the pursuer pleads:
"The triennium does not begin until October 1997 at the earliest, when the pursuer was first made aware that she could make a claim following an article in a newspaper. It was not until the medical report dated 17 July 1998 [a report by Valerie Gray Taylor, the psychologist to whom the pursuer was referred after she contacted solicitors in October 1997] that the pursuer became aware that she had high levels of anxiety, severe clinical depression and PTSD and that this was attributable to her time in the Home. The pursuer did not become aware, nor was it reasonably practicable for her in all the circumstances to become aware of the facts (i) that the injuries were sufficiently serious to justify her bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission until October 1997 at the earliest. ..."
Whatever the position when the proceedings were first raised, he said, the allegations on which the pursuer now seeks to proceed to trial are allegations only of psychological injury.
[14] It is clear that the enquiry into the question of actual awareness for the purposes of section 17(2)(b) requires a subjective approach. Mr McEachran submitted that the enquiry into constructive awareness in that same paragraph ("reasonably practicable for him in all the circumstances" to become aware) also involved an element of subjectivity: Carnegie v. Lord Advocate 2001 SC 802, M v Hendron 2005 SLT 1122 at paras.130-136, Johnston, Prescription and Limitation, 2nd ed. at para. 10.32. Carnegie v Lord Advocate established that the psychological injuries were to be treated as separate and distinct from physical injury, and subject to their own triennium. B v Murray, properly understood, was to the same effect. The pursuer in that case failed to satisfy section 17(2)(b) because, according to Lord Johnston, (i) she made no distinct and separate claim in respect of her psychological problems within three years of them manifesting themselves, and (ii) her own averments disclosed that at an early stage she had some realisation of what was happening to her: see paras.[7] and [8]. That decision (as well as that of Lord Drummond Young in the same case, AB v Sister Bernard Mary Murray) was being reclaimed; but in any event it was distinguishable, because there were distinct averments in the present case about psychological injuries. In this case the pursuer makes a case in the pleadings that she suffered psychological damage. In this preliminary proof, that case is to be taken pro veritate. She claims, and the evidence supports her claim, that she did not know of this medical condition or its association with the Home until she saw Ms.Gray Taylor in 1998. Actual or constructive awareness might go back to October 1997 when she went to see a solicitor, but no earlier than that. Whichever was the relevant date, the action was brought within time.
[15] In support of the more subjective, and more understanding, approach which should be adopted in a historic child abuse case, Mr. McEachran referred me to the decision of the Court of Appeal in KR v Bryn Alyn Community (Holdings) Ltd. (in Liquidation) and, by way of illustration of the approach to be adopted, to a number of English decisions that had sought to apply it, namely Rose Wood v Kirklees Metropolitan District Council (Judge Hawkesworth QC, Bradford County Court, unreported, 14 December 2004) and T v Boys & Girls Welfare Service (Court of Appeal, unreported, 21 December 2004, [2004] EWCA Civ 1747). Bryn Alyn was decided, of course, on the proper construction of the English legislation, but that is similar in effect to that in force in Scotland, and the case is therefore of direct relevance. I shall refer to Bryn Alyn in more detail later in this Opinion.
Submissions for the defenders
[16] For the defenders, Mr. Duncan made detailed submissions in a number of chapters. In summary - and my summary necessarily fails to do justice to the very detailed submissions which he made - they were as follows.
[17] One starts by asking what is the nature of the injuries being sued for. It is artificial here to regard the injuries in question as being simply the psychological injuries. The pursuer's original averments simply identified injury resulting from the assaults. Only by adjustment was the case altered so as to focus exclusively on psychological injuries. However, the essential averments of assault remain the same. This is "what the case is about". He referred me to Dobbie v Medway Health Authority [1994] 1 WLR 1235. Assault is actionable without proof of injury: Glegg, Reparation, 4th ed., chapter 6, p.129. So is cruelty and neglect in breach of Convention rights: Lester & Pannick, Human Rights Law and Practice, para.2.7.2). The "sufficiently serious" threshold in section 27(2)(b)(i) must be judged in the context of a claim for assault, cruelty and neglect. The psychological injury cannot be regarded as wholly distinct.
[18] Only a modest level of awareness is required to commence the limitation period. Detailed knowledge of prognosis and aetiology is not required. It is not necessary to know all the details that will, in due course, require to be pled in support of a claim. It is important to note, in this context, that awareness does no more than trigger the start of the triennium. Further investigation and fact gathering can be undertaken during that three year period. All that is required is that the pursuer's "awareness of the facts goes beyond the vague and general and is sufficiently firm to make it reasonable for him or her to investigate whether there is a case against the defender": Johnston, Prescription and Limitation, 2nd ed., para.10-28
[19] Mr. Duncan argued that a largely objective test had to be applied to the question of constructive awareness. This was implicit in the wording used in the section (the date when it would have been "reasonably practicable" for the pursuer to have become aware) and was also supported by the authorities. He referred me to Carnegie v Lord Advocate, to M v Hendron, and to Agnew v Scott Lithgow 2003 SC 448, 453, as well as to Johnston, Prescription and Limitation, 2nd ed., at paras.10.26-10.36. Johnston described the Scottish Law Commission's intended approach as being "mainly objective but not wholly so". Mr. Duncan accepted that one had to look at the circumstances of the particular individual, but this did not go so far as looking at peculiarities of his character, intelligence or behaviour, which might, for example, result in a disinclination to come forward or ask the obvious questions. This reflected the English approach: in so far as the case of Bryn Alyn suggested a more subjective approach, it must be read in light of the recent decision of the House of Lords in Adams v Bracknell Forest Borough Council [2005] 1 AC 76, in which the objectivity of the approach was emphasised and, perhaps more importantly, in which dicta in Nash v Eli Lilly [1993] 1 WLR 782, 799, which underpinned the decision in Bryn Alyn, were disapproved.
[20] Under reference to Blake v Lothian Health Board 1993 SLT 1248, Ferla v Secretary of State for Scotland 1995 SLT 662 and Shuttleton v Duncan Stewart 1996 SLT 517, Mr. Duncan submitted that the test for whether the injuries were sufficiently serious to justify bringing an action of damages - the test in section 17(2)(b)(i) - was, in effect, whether the injuries rendered it worthwhile to raise an action. It was not a very high test. In making the assessment of whether the injuries were sufficiently serious, the statute identifies the reasonable pursuer as one who assumes (a) that if the action was raised it would be successful, indeed liability would be conceded; and (b) that the defender would be good for any damages awarded. In those circumstances the only uncertain item is the seriousness of the injury, which is ultimately reflected in the quantum of the claim. He referred me to the remarks of Sir Thomas Bingham MR (as he then was) in Dobbie at p.1241-1242. The abuse itself, as averred on Record, would be sufficient to make it worthwhile bringing an action.
[21] The expression "attributable to" in section 17(2)(b)(ii) does not mean "caused by". Nor does it imply that before time starts to run the pursuer must have actual or constructive knowledge that the injuries are in fact attributable to the defenders' acts or omissions - it is enough that he has knowledge that they are capable of being attributed to them. Reference was made to Dobbie at p.1240, and to Adams at paras.43 and 49-52. Mr. Duncan submitted that the pursuer had known for a considerable period that her difficulties were in some way associated with her experiences in the Home.
[22] Section 22(3) of the Act states that knowledge, on the part of the pursuer, that the acts or omissions referred to in section 17(2)(b)(ii) are, or are not, actionable as a matter of law, is irrelevant. The pursuer asserts on Record (at p.29B), and said in her evidence, that the material change that happened when she saw the newspaper articles was that she was made aware that she could make a claim. In other words, she knew the facts, but did not know that they were actionable. This lack of awareness does not delay the start of the triennium.
[23] Scots law allows only one action for a particular wrong: Dunlop v McGowans 1980 SC 73, 81. That rule applies equally to personal injury actions: Stevenson v Pontifex & Wood (1887) 15 R 125. If the pursuers' non-psychological injuries were sufficiently serious to start time running, time runs for all her injuries. The psychological injuries claimed are not "clear and distinct", as they were in Carnegie.
[24] Mr. Duncan also made detailed submissions about Bryn Alyn touching upon the matters to which I have already referred.
Discussion
[25] It is not in dispute that, but for the operation of section 17(2)(b), the action is time barred. The question is whether the pursuer can bring herself within that paragraph of that sub-section. Put simply, the question in this case is: when did she become aware, or when (if earlier) would it have been reasonably practicable for her to become aware, that the relevant injuries (a) were sufficiently serious to justify her bringing an action and (b) were attributable to the acts or omissions of which she complains? Since there is no separate question here about whether those acts or omissions, if they occurred, were those of the defenders, this latter part of the question in this case encompasses both sub-paragraphs (ii) and (iii) of section 17(2)(b).
[26] Such a simple formulation of the question conceals a number of difficult questions that have been raised over the years as to the meaning of section 17(2)(b) and its English equivalent. These include the following. What are the relevant injuries of which the pursuer has to be aware and, furthermore, has to be aware that they are sufficiently serious to justify bringing an action? What is the test of whether those injuries are sufficiently serious and, in that context, how is the subjective/ objective balance to be struck? What level of "awareness" is required to start time running? In determining when it was reasonably practicable for the pursuer to attain that level of awareness, again, where is the balance to be struck between an objective and a subjective approach? What is the impact of the statutory assumption that the defender will not dispute liability and will be good for the damages awarded? To what degree must the pursuer be aware, actually or constructively, that the injuries were "attributable" to the acts or omissions? What happens in a case where the pursuer suffers two or more separate but serious injuries, and becomes aware of their seriousness (within the statutory definition) at different times? These and other questions have been addressed, and many of them answered, in the authorities to which I was referred. In order to consider the evidence and make relevant findings, and in light of the very careful submissions made to me by reference to the authorities, I propose to set out my understanding of what requires to be proved in terms of the section to start time running.
[27] I start by considering the phrase "the injuries in question". These injuries are what the pursuer must know something about before time starts to run. What injuries are relevant for this purpose? In their submissions, both parties appeared to adopt a similar test, namely: "what is the action about?" But they came to very different answers: Mr. McEachran focused on the psychological injuries pled on Record; Mr. Duncan on the assaults which underpinned the whole of the pursuer's case. This difference perhaps illustrates the danger of attempting to re-formulate a statutory test. To my mind "the injuries in question", the expression used in the subsection, is free of ambiguity. It points to the injuries, not the cause of the injuries. And by the use of the phrase "in question", it points to the injuries in issue in the proceedings, i.e. those in respect of which the pursuer advances the claim for damages. The point is put clearly by Sir Thomas Bingham MR in Dobbie, to which I was referred by Mr. Duncan, when he said (at p.1240) of the comparable wording ("the injury in question") in the English statute:
"This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it".
Later in the same passage he says:
"Time does not begin to run against a claimant until he knows that the personal injury on which he founds his claim is significant ..." (my emphasis in both passages).
In the present case the pursuer now claims damages only for psychological injuries. I accept Mr. McEachran's submission that the psychological injuries are "the injuries in question" to which the subsection refers. To my mind it matters not that she may have suffered other, perhaps physical, injuries or that the assaults are themselves actionable without proof of damage. Nor does it matter that at one point she may have included other injuries within her claim; the rules of pleading allow adjustment or (with leave) amendment to identify the real issues in dispute between the parties. The pursuer took advantage of the adjustment period to confine her claims to psychological injuries. These are "the injuries in question".
[28] This approach is consistent with the decision of the Inner House in Carnegie v Lord Advocate. The questions relevant to the present issue were raised in the cross-appeal. Lord Johnston gave the leading Opinion on these questions. The pursuer complained both of physical injuries and of psychological damage resulting from a series of assaults whilst serving in the army. It was held that the claim was time-barred in respect of the physical injuries, but not in respect of the psychological damage. At paras. [18] and [20], Lord Johnston put the matter in this way:
"In so far, therefore, as the pursuer makes a claim for injuries in respect of individual assaults as separate delicts, such, in my opinion, is clearly time-barred. ... The question remains, however, whether the pursuer has averred a relevant case of having sustained psychological injury within the triennium. It is well recognised, of course, that in relation to a single wrong only one action is competent, and losses, both past and future, must be claimed for in that action (Dunlop v McGowans 1980 (per Lord Keith at p 81)). However, as counsel on both sides came to realise, it is an entirely different question whether, in the only action raised, the pursuer can sue for only some of his injuries, namely those which are not time-barred. For this to happen the later injuries must, of course, be distinct as, otherwise, they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. ... [For] purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest, the injury basing the action emerged to the knowledge of the pursuer."
His Lordship is there emphasising that it is the injury sued upon which is relevant to the identification of the relevant triennium.
[29] As the decision in Carnegie v Lord Advocate makes clear, one action may contain claims, arising from the same delict, in respect of different injuries. The claims in respect of some of those injuries may be time-barred while the claims in respect of others will not be. So, in the present case, it is necessary to look at the triennium in terms of when the pursuer had the relevant knowledge (actual or constructive) of her psychological injuries. Had she included in her claim in the same action a claim for damages for physical injuries sustained whilst at the Home, or a claim for damages for the assault without proof of actual damage, in such a case, after a hearing on the procedure roll or at a preliminary proof, those other claims might well have been held to be time-barred, with the consequence that the pertinent averments would have been excluded from probation; but that would not have affected the question of time-bar in relation to the claim for psychological injuries. The case of Hill v McAlpine 2004 SLT 736 provides an example of different claims in the same action being subject, in this way, to different time bars. I note that, on this important issue, the position in Scotland appears to differ from that in England, where, as is made clear by the Court of Appeal in Bryn Alyn (at paras. 37-39, 47-56, and 58), the first knowledge of a significant or sufficiently serious injury will start time running for all claims. This seems to me, if I may respectfully say so, to be more consonant with the principle that one can have only one action in respect of the one wrong. I am, of course, bound by the decision in Carnegie v Lord Advocate; and Mr. Duncan, for the defenders, did not seek to persuade me that the pursuer's claim was time-barred on the basis that time started to run for all claims in respect of all injuries from the date when she was first aware of significant injuries (albeit non-psychological) resulting from her treatment at the Home.
[30] It is necessary to add two comments to the above discussion. First, as Lord Johnston points out, it is always necessary to consider whether the psychological injuries are distinct; or, by contrast, are a "continuation or exacerbation" of the injuries which are time-barred. On the procedure roll, this question will be considered by looking at the averments on Record, as was done in B v Murray, where Lord Johnston held that the pursuer's claim was time-barred since she "does not make a distinct and separate claim as was done in Carnegie v Lord Advocate in respect of her psychological problems within three years of them manifesting themselves [but instead] makes a claim going right back to a time in the home covering everything that happened to her and is seeking damages in respect of those elements." At preliminary proof, evidence may be required to resolve the question whether the psychological injuries are distinct and separate or merely part of a continuum. No such evidence was led here. Second, it was emphasised in Carnegie v Lord Advocate that the existence of a separate limitation period in respect of different injuries does not in any way affect the common law rule that only one action is competent in respect of a single wrong; and that all damages must be claimed in that one action: Stevenson v Pontifex, Dunlop v McGowans. It may be, therefore, that by the time a psychological injury is identified the pursuer has already brought and concluded an action for physical injury or for assault. In that case he would be unable to avail himself of the extended limitation period applicable to the claim for psychological injury - but this would be because of the common law rule rather than because the claim for psychological injury was time-barred.
[31] The next step is to ask when the pursuer became, or could reasonably practicably have become, "aware" of those psychological injuries and of the fact that they were, at least in part, "attributable" to what had happened ("acts or omissions") at the Home. It is only after this has been determined that the question of whether the pursuer was aware that the injuries were sufficiently serious to justify bringing an action has any real content. Although, logically, the question of her awareness of the injuries can be separated from the question of her awareness of their attribution, the evidence on these two questions in the present case overlapped to such an extent that it is convenient to deal with them together.
[32] I accept Mr. Duncan's submission, which reflects the discussion in Johnston, Prescription and Limitation, at paras.10-23 to 10-28, that, in general, the subsection requires only a relatively modest level of awareness. The pursuer need not be aware of the detailed diagnosis of her condition, nor of questions of prognosis and aetiology. In terms of the pursuer's awareness that the wrong was "attributable to" what occurred at the Home, there is little guidance in decided case law in Scotland; however, I consider that the English authorities, although directed to a statutory test of "knowledge" rather than "awareness" (a difference, so it seems to me, of language rather than of content), are of assistance. They are conveniently summarised by Sir Thomas Bingham MR in Dobbie at p.1240:
"Attributable to", he says, was construed by May L.J. [in Davis v Ministry of Defence (unreported 26 July 1985)] to mean 'capable of being attributed to' and not 'caused by', and I see no reason to question that conclusion. ... Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault."
The reference in that passage to time starting to run is, of course, subject to the claimant's knowledge that the injury is sufficiently serious. It must be remembered that, in terms of the statute, the pursuer need only be aware that the injury is "in part" attributable to what happened at the Home. At the end of the passage cited from Dobbie, it is also made clear that the claimant need not be aware that the acts or omissions to which he attributes his injury involve any fault on the part of the person whose acts or omissions they were. This represents the law in Scotland as well: the pursuer need not be aware that the acts or omissions of which she complains are actionable: section 22(3) of the Act. So the awareness needed to start time running in this case, subject to the points discussed below, is an awareness on the part of this pursuer of a disturbed mental state amounting to psychological injury (though she might not recognise it in those terms) which is, in part at least, attributable to her experiences at the Home.
[33] The pursuer must also have been aware that the psychological injuries were sufficiently serious to justify her bringing an action of damages. It is important in this context to note the statutory assumptions. She is assumed to know that liability will not be disputed. This has two consequences. First, she does not have to concern herself with any uncertainties, factual or legal, as to whether her action will succeed. She knows that, if she brings the action, she will succeed in establishing liability. Second, although she may still have to give evidence for purposes of establishing quantum, she will do so against the background that she knows that liability is not in dispute; and therefore there is no real possibility that her account of what happened will not be believed. This second point is of great importance, since it is often said that fear of not being believed is the greatest deterrent to the bringing of a claim in circumstances such as the present: see e.g. Bryn Alyn at para.40. That fear is removed from the equation by the statutory assumption. She is assumed also to know that the defenders are able to meet any award of damages. It seems to follow from these two statutory assumptions, that the factors relevant to an awareness of whether the injuries are "sufficiently serious to justify his bringing an action of damages" will be circumscribed. To put it colloquially: there is very little "downside" to bringing such an action. The question whether it is worthwhile bringing an action of damages will be judged substantially by reference to matters of quantum ("is it worth suing to get such and such an award?"). This is the approach suggested by Sir Thomas Bingham MR in Dobbie at p.1241 when he said that the question (under the English provisions) was directed solely at the "quantum of the injury", a suggestion which met with approval in Carnegie v Lord Advocate at para.[15]. I suspect that there may be cases where the pursuer is motivated not by the likely recovery of damages but by a need for vindication or "closure". In such a case the "quantum" of the injury, if that is the right expression to use, may need to be looked at in a rather broader sense.
[34] The subsection, of course, looks not only to the date on which the pursuer was actually aware of the injuries, of their attribution and of their seriousness, but also to the date on which "it would have been reasonably practicable for him in all the circumstances to become aware" of those matters. This brings constructive knowledge into play. In Carnegie v Lord Advocate, Lord Johnston made the following observations as to the correct formulation of the test (at paras. [15]-[16]):
"[15] It was not disputed from the authorities, and in particular the cases of Blake and Ferla that an objective assessment had to be made by the court to determine the question under section 17(2)(b)(i) but the real issue is what factors should be put into that equation beyond the existence of the injuries in question themselves, which is the obvious starting point. Until the injuries have occurred no time can run and furthermore the pursuer must either be aware of their existence or should, with reasonable practicability, have become aware before time can run in terms of subsection (b)(i). Although the wording of the English Act is slightly different I consider that the dictum of Geoffrey Lane L.J. in McCafferty is apt to cover the point where he says:
'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. I do not think that it is permissible under this section to look into such problems as whether it is or would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job.'
The Master of the Rolls, Sir Thomas Bingham (as he then was) said something to the same effect in Dobbie v Medway Health Authority where, at p.1241, he refers to the comparable English provisions being directed solely at the "quantum of the injury".
[16] I agree generally with that analysis and therefore do not accept Lady Cosgrove's position in Carnegie supra, a procedure roll hearing in this case, where she applied an entirely subjective test. However, I do not consider that subjectivity can be left out of the matter if there are factors present which weigh upon the gravity of the particular injury to the particular pursuer. Thus, while a sturdy rugby player may ignore, to all intents and purposes, the effect of a bruise, to a haemophiliac it would be of the utmost gravity. Equally it may be that a particular injury which may have a particular bearing on a particular career, such as damage to a finger to a potential or actual surgeon, may also bear upon the question of gravity or seriousness. I am, however, satisfied that it is not appropriate to go beyond these physical characteristics or personal relevant characteristics in relation to the actual injury to look at the context of the environment upon which the injury was sustained and it is certainly not relevant to take into account such factors as whether or not it was reasonable not to sue for fear of losing one's job. In my opinion, these factors, and the ones that were enumerated by counsel for the respondents as being the evidential questions the Lord Ordinary should have considered are not relevant factors under section 17(2)(b) albeit, of course, they would be wholly relevant in relation to a claim for relief under section 19(A) of the Act, which is not now made in this case".
He went on to say that the Lord Ordinary was correct to regard as irrelevant the fact that the pursuer was a soldier fearful of jeopardising his career in the army if he took legal action while he was still in it. This passage has to be read with the submissions recorded in para.[8]. I have some doubt as to whether, despite citing with approval the passage from McCafferty, Lord Johnston was, in fact, accepting that passage to its full extent. It is not clear what exactly Lord Johnston had in mind when he referred to "personal relevant characteristics in relation to the actual injury". I understand him to be differentiating between, on the one hand, a case where the "personal characteristic" causing the pursuer's failure to come forward was caused or brought on by the injury; and, on the other hand, one where the characteristic was not so caused. In the former case it is relevant; in the latter it is not.
[35] That analysis, in Carnegie v Lord Advocate, was directed to the question of when it was reasonably practicable for the pursuer to have become aware that his injuries were sufficiently serious. The same test must apply equally to the logically prior question of when it was reasonably practicable for the pursuer to have become aware of his injuries at all, and also of their possible attribution. For the purpose of constructive awareness of these matters, therefore, applying Carnegie v Lord Advocate, one has to look to this pursuer, in her circumstances, with the particular injuries of which she complains in the action, which, for this purpose, the court is required to take pro veritate. The question then is: on what date would it have been reasonably practicable in all the circumstances for such a person to become aware of the statutory facts?
[36] It is important, at this point, to emphasise that the test is when it would have been "reasonably practicable" to have become so aware; not when it would have been reasonable to make the relevant enquiries. Put another way, if the pursuer is aware of some relevant facts, and it is reasonably practicable to find out more by asking questions or taking advice, it is not relevant to ask whether his or her failure to do so is reasonable. Feelings of inadequacy, embarrassment, reluctance to come forward, fear of being disbelieved, and the like, may be entirely understandable and provide a reasonable excuse for not taking the matter further at a particular time, but they do not touch on the practicability of finding out, the only issue with which section 17(2)(b) is concerned. In any discussion about the subjective/ objective test, and what subjective factors can be taken into account, it is easy to lose sight of this point. Thus, in Carnegie v Lord Advocate, the "personal relevant characteristics" excluded from consideration were characteristics - such as fear of jeopardising his army career - which did not affect the practicability of coming forward. The importance of the distinction between "reasonable" and "reasonably practicable" is focussed in Agnew v Scott Lithgow at p.454A-C. The rubric summarises the decision, accurately in my opinion, in this way: "it was incumbent on a pursuer to take all reasonably practicable steps to inform himself of all the material facts as soon as he was put on notice of any of these, and the onus was on the pursuer to do so; the question was not whether he had reasonable excuse for not taking steps, but whether it would have been reasonably practicable to do so". In support of this proposition, the Court referred to Elliot v J & C Finney 1989 SLT 208. In that case Lord Sutherland said this (at p.210L-211A):
"In my opinion it would be reasonably practicable for a pursuer to become aware of necessary information if he would be able to do so without excessive expenditure of time, effort or money. I do not consider that the mere fact that he did not feel like asking these questions can in any way render the acquiring of the information not reasonably practicable."
I agree. I do not take Lord Sutherland to be using the word "mere" in a pejorative sense, to draw a distinction between the disinclination being based on whim, as opposed to being due to some underlying upset or depression; the distinction is between, on the one hand, not asking questions which one could ask; and, on the other, it not being reasonably practicable to ask them.
[37] The particular injuries in the present case are psychological injuries. In assessing whether, and when, it would have been reasonably practicable for the pursuer in all the circumstances to have become aware of her psychological injuries and their possible attribution to her experiences in the Home, any psychological difficulties arising therefrom, or suffered by the pursuer as a result of the alleged abuse, must be taken into account. Mr. McEachran submitted that pursuers who had suffered the abuse which she claims to have suffered were likely to be reluctant to come forward for fear of not being believed. That may be so. I am not persuaded, however, on the Scottish authorities cited to me, that "mere" reluctance is sufficient. Even assuming that it were proved that the reluctance was a manifestation or a consequence of the psychological injuries resulting from the abuse, it would have to be shown also that that reluctance, so caused, made it not reasonably practicable to obtain the necessary information. If that reluctance to come forward, so caused, prevented her consulting her doctor or otherwise asking the right people the questions which, if asked, would reasonably lead her to an awareness of the fact that she was suffering from the psychological injuries which are the subject of complaint in the action, and that they were in part attributable to her experiences at the Home, then that is something that could properly be taken into account in her favour. If that were shown, and it would require to be shown by evidence in relation to the particular pursuer that the psychological injuries caused to her had this consequence, then until such psychological impediment was removed, it could not be said that it was reasonably practicable for this pursuer in all the circumstances to have become aware of her psychological injuries and their possible attribution to her experiences in the Home. Time would not begin to run.
[38] However, once she acquired the relevant awareness, whether actual or constructive, the position would be different. Once she is taken to be aware of the injuries and their possible attribution, the only other question is when she became aware, or could reasonably practicably have become aware, that they are sufficiently serious to justify bringing an action. In answering this question, it seems to me that the statutory assumptions discussed above circumscribe the enquiry. In particular, at this second stage, a reluctance to come forward for fear of not being believed is effectively excluded by the statutory assumption that the defenders will admit liability, i.e. will accept her account of what happened to her at the Home as being true. It cannot therefore be considered as relevant to her assessment of whether the injury is serious enough to make it worthwhile bringing an action. The enquiry at this second stage is, therefore, whether it would have been reasonable for the particular pursuer to think it not worthwhile to make the claim, having regard essentially to matters of quantum.
[39] It is convenient at this point to turn to consider certain English authorities, in particular Bryn Alyn, upon which I was addressed. It was decided after Carnegie v Lord Advocate and has not, so far as I am aware, been considered by the Inner House in any subsequent decision. In B v Murray, Lord Johnson confessed to not finding the case easy, nor was he satisfied that it was going to be simple to apply. In M v Hendron, Lady Paton referred to it briefly for confirmation of certain general propositions about the debilitating consequences of abuse inflicted upon a child in an institution - specifically a lack of awareness by the person abused of the damage done to him by the abuse and, cumulatively or separately, a reluctance to come forward to disclose what has happened - though in that case she too emphasised, correctly in my opinion, that the facts of each particular case had to be investigated.
[40] Bryn Alyn was a consolidated action by some 14 claimants claiming damages in respect of alleged physical non-sexual and sexual abuse suffered by them as children at residential care homes run by the defendants. The case has certain procedural complexities. The issue of limitation was decided at the same trial as the issue of liability and damages. The judge at first instance awarded damages to most of the claimants; and, although he found the action to be time-barred under sections 11 and14 of the (English) Limitation Act 1980 (broadly the equivalent of section 17 of the Scottish Act), in the exercise of his discretion under section 33 of that Act (section 19A of the Scottish Act), he disapplied the time bar in respect of those claimants. The main appeal was by the defendants against the judge's decision to disapply the time bar under section 33. The claimant who had lost altogether before the judge appealed against the finding that his claim was time-barred under section 14. Thus, for a long time, the main focus of the appeal was concerned with the judge's exercise of his discretion under section 33. At a late stage in the argument, the Court of Appeal allowed the claimants who had been successful under section 33 to cross appeal on the issue of time bar under section 14. The section 14 issue therefore assumed a more prominent role. This issue is dealt with at paras.22-58 of the judgment. The claims were primarily claims for post-abuse psychiatric injury (para.20). The section 14 issue concerned the date of knowledge, i.e. when each particular claimant had the relevant knowledge required to trigger the start of the three year limitation period. The wording of some of the English provisions (sections 11 and 14), so far as material, is set out at para.22 of the judgment. There are differences in wording between the relevant provisions in the English and Scottish Acts, which I shall consider in due course.
[41] The judge at first instance, following certain remarks of Lord Griffiths in Stubbings v Webb [1993] AC 498 - a case in which the victim claimed for psychiatric problems in adult life stemming from sexual abuse as a child - held that the claimants had all had the relevant knowledge before they left the community in which they had been abused. Lord Griffiths had said, at p.506 of Stubbings v Webb that he had "the greatest difficulty in accepting that a woman who knows she has been raped does not know that she has suffered a serious injury." In similar terms the first instance judge in Bryn Alyn said (as quoted at para.25 of the judgment of the Court of Appeal in that case):
"In my view the same applies to a young person who knows that he or she has been assaulted on a regular basis; or has been buggered, masturbated or fondled in an inappropriate way. Of course, the realisation of the extent of the injury may grow with time, as may the injury itself; but in every case I conclude that these unhappy victims had the relevant knowledge before they left the community".
The Court of Appeal (at paras.26-30) criticised the judge's concentration on the immediate effects of the abuse rather than on the long term, post-traumatic, psychiatric injuries, which was what the case was all about. He ought to have asked when the claimants had knowledge of that psychological injury, and had knowledge that that psychological injury was significant. In asking this question, the test to be applied was the partly subjective partly objective test adumbrated by Geoffrey Lane LJ in McCafferty v. Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081G-H - which I have already set out from the Opinion of Lord Johnston in Carnegie - followed in Nash v Eli Lilly & Co. [1993] 1 WLR 782, 791.
[42] The Court then proceeded to analyse the decision in Stubbings v Webb, noting that Lord Griffiths' remarks, to which I have referred, were qualified and obiter. It therefore looked at the judgments in the Court of Appeal in that case. It noted (in para.34) that in Stubbings v Webb, the Court had stressed the importance of the "special, partly subjective, meaning" given to the word "significant" in the section ("significant" being defined in the English provisions as "sufficiently serious to justify his bringing an action of damages" on the statutory assumptions). In para.35, it summarised the reasoning of the Court of Appeal in Stubbings v Webb as follows: the abuse in that case had not caused physical injury sufficiently serious to justify proceedings against even an acquiescent and creditworthy defendant; her immediate distress caused by the sexual abuse would not have been regarded as sufficiently serious to justify proceedings; and it was only later, and within three years of starting proceedings, that she knew of her serious mental condition and that it was attributable to the abuse. On the basis of those findings, it said, it was easy to see why the Court of Appeal in Stubbings v Webb held that the action was not time barred. The Court in Bryn Alyn went on (at para.36) to quote from the judgment of Bingham LJ in Stubbings v Webb certain "observations of considerable general importance". In that action, Bingham LJ said that the section was "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 the [section], significant." He went on to say this:
"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 Webb's conduct was appreciated later, is not in my judgment to defeat the intention of the legislature but to promote it."
[43] The partly subjective partly objective approach, the distinction between the different types of damage attributable to the abuse, and the focus upon when the claimant acquired the relevant knowledge of the long term mental impairment, all accord, in my opinion, with the approach adopted by the Inner House in Carnegie v Lord Advocate, and I did not understand this to be contentious. However, Mr. McEachran sought to place considerable reliance on the following passages in the judgment in Bryn Alyn as widening the test applied in Carnegie v Lord Advocate. For convenience, and so that the full flavour of the passages comes through, I shall set out paras.40-45 of the judgment in full. It should be borne in mind that the term "significant" or "significance", as used of the injury, in the English legislation, equiparates to "sufficiently serious" in the Scottish legislation.
"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 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.
43 The posing of such questions may have become less artificial in recent years. As a result of the publicity given to inquiries of the sort conducted by Sir Ronald Waterhouse in 1997 and 1998 and the disturbing increase in the number of criminal prosecutions and civil suits for child abuse, some of it a very long time ago. The momentum of increase in public awareness of such conduct, of which Bingham LJ spoke in 1992 in Stubbings v Webb [1992] QB 197 is likely to have begun to usher in a generation more sensitive to its seriousness and 'significance' in a section 14(2) sense. In that case the court was concerned with sexual and other physical abuse of a child over a 12-year period from 1959 to 1971 when she was between two and 14 years old. Sir Nicolas Browne-Wilkinson V-C and Nolan LJ agreed with Bingham LJ that the claimant's undoubted knowledge on reaching maturity in the early 1970s of what she had been through and its effect on her physical and mental condition at the time did not, on the facts of the case and in the climate of the time, amount to knowledge of significant injury for the purpose of section 14(2). As I have said, Sir Nicolas Browne-Wilkinson V-C and Nolan LJ spoke in similar terms to those of Bingham LJ in the passage from his judgment that we have set out in paragraph 36 above, suggesting that it may not have been until the late 1980s that public awareness had become such that abused children were, before or within three years after majority, more likely, depending on the nature of the abuse and other circumstances, to become aware of the significance, in a section 14(2) sense, of what had happened to them. Nolan LJ said, at p 211:
"The question posed by the Act ... is not whether the plaintiff could have sued successfully in 1975, but whether at that time should reasonably have considered her injuries sufficiently serious to justify proceedings. It may well be argued that even if her physical injuries were relatively minor, the feelings of outrage, humiliation and despair which she must have experienced if her account is true could hardly have failed to result in mental injury. But in my judgment the available evidence does not show that she should reasonably have regarded her physical or mental injuries at that stage as sufficiently serious to justify the institution of proceedings for damages, even against hypothetically solvent and unresisting defendants. It has to be borne in mind that until the last few years proceedings of the present kind were unheard of." (Emphasis added.)
44 Sir Nicolas Browne-Wilkinson V-C said, at p 212:
'In ordinary terms, I have no doubt that quite apart from any long term psychiatric harm the alleged sexual abuse and rape caused significant injury. The gross interference with the physical privacy and integrity of the plaintiff would justify a substantial award of damages in itself, even if no long-term psychiatric physical damage was caused. But the word "significant" in section 14 does not bear its ordinary meaning. For the purposes of that section, an injury is only 'significant' if the plaintiff would "reasonably have considered it sufficiently serious to justify [her] instituting proceedings for damages" against her adoptive father and brother assuming that they would admit liability and be good for the damages. In deciding what [the plaintiff] would "reasonably have considered" one has to have regard to the circumstances obtaining in 1975, when she attained full age. The question is whether, in 1975, the plaintiff acted reasonably in not then suing ... for the serious wrong alleged to have been done to her. In my judgment it is important not to consider the question by reference to the social habits and conventions of 1991. Over recent years, for the first time civil actions have been brought by victims of adult rape against their assailants. As to actions against child-abusers, this is apparently the first case in which the alleged victim has sought to sue her abusers. In the present climate and state of knowledge it would in my judgment be very difficult, if not impossible, for a plaintiff coming of age in the late 1980s to establish that she acted 'reasonably' in not starting proceedings alleging child abuse within three years of attaining her majority. But we are concerned with the reasonableness of the plaintiff's behaviour in the period 1975-78. At that time civil actions based on sexual assaults were unknown in this country." (Emphasis added.)
45 There may be much force in Nolan LJ's general observation at the end of that passage as to claimants who came of age in the late 1980s. However, it should, in our view, be treated with some caution, particularly in cases, where as in most of these appeals, claimants came to the abuse in question already deeply disturbed and acclimatised by previous ill-treatment and poor backgrounds and moved on after it into a similar culture as an adult. To paraphrase Bingham LJ, whether a particular claimant would reasonably have not regarded a particular injury from such abuse when it occurred, as significant for this purpose is still likely to be a 'highly judgmental question'. It is a fact-sensitive question that needs to be considered on a case by case basis. It is plain that the judge did not do that. First, it looks as if he construed the word 'significant' in section 14(1) without reference to the special meaning given to it in this context by section 14(2). And, second, even if he had its partly subjective meaning in mind, he does not appear to have considered its application on a claim by claim basis, in particular as to the nature, condition and circumstances of the individual claimant or to 'the injury in question'. A sure sign of his erroneous approach is that he felt able to credit all of the claimants with 'the relevant knowledge before they left the community', namely at a time when all or most of them were still as or more vulnerable than when they had first arrived there and when each of them had still to go out into the world."
[44] Three particular points arise from that passage. The first, which is uncontroversial, is this: that the question, adapting what was said in that case to the terminology of the Scottish legislation, whether it was "reasonably practicable" for a particular pursuer to be aware that a particular injury was "sufficiently serious" to justify bringing an action of damages on the statutory assumptions, is a fact-sensitive question that needs to be considered on a case by case basis. I have already observed that the need for evidence relating to the particular case was recognised by Lady Paton in M v. Hendron at paras. [132]-[135].
[45] The second point, which I assume is also uncontroversial, is that although in two places the Court of Appeal poses the question of knowledge by reference to the date when the claimant comes of age, in truth the question is one that requires to be asked in respect of any date more than three years prior to the action being brought. Events may happen, on a personal or public level, at some later date than his or her coming of age, which may make the pursuer aware of the statutory facts or put the pursuer on notice so that it becomes reasonably practicable for him or her to become aware of those facts.
[46] The third point, which arises in particular from the passages cited from Stubbings v Webb, is the formulation of the question of awareness by reference, inter alia, to a consideration of whether the pursuer would have been unreasonable not to have considered recourse to the civil courts for damages, whether a person in the position of the pursuer "would reasonably turn his mind to litigation as a solution to his problems". In other words, it is said to be a relevant consideration that the possibility or desirability of making a legal claim "might reasonably never occur to him".
[47] Mr. McEachrean urged me to adopt this approach. He submitted that the pursuer in this case was not aware "in the Bryn Alyn sense", nor, in that sense, was it reasonably practicable for her, in all the circumstances, to have become aware that her injuries were sufficiently serious to justify her bringing an action of damages (even on the statutory assumptions). She did not know that she was suffering from high levels of anxiety, severe clinical depression and post traumatic stress disorder until her solicitor received the report from Valerie Gray Taylor in June 1998. He said that a subjective approach should be applied to section 17(2): "was it reasonably practicable for her to come forward earlier?" By posing the question in this way, I took him to refer to the Bryn Alyn approach, which takes into account the question whether the particular pursuer could be expected even to think of litigating. No abuse victim came forward until May 1997.
[48] Mr. Duncan submitted that the Court of Appeal in Bryn Alyn took a much more subjective approach to the question of constructive knowledge than is revealed by the other cases. He submitted that in this respect the decision should be treated with caution. It was out of line with the Scottish authorities, as summarised in Carnegie v Lord Advocate. The question whether the pursuer's thoughts would turn to litigation did not reflect the wording of section 17(2). Further, he submitted that it may be that Bryn Alyn does not properly reflect the law in England. The decision of the House of Lords in Adams v. Bracknell Forest Borough Council, decided after Bryn Alyn, re-emphasised the objective nature of the test for constructive knowledge and, in particular, disapproved the test adumbrated in Nash v Eli Lilly & Co. upon which the Court of Appeal in Bryn Alyn had relied. The pursuer knew well before 1997 that she had been abused. She knew that she was suffering distress, which she linked to that abuse. The newspaper articles which began to appear in 1997 did not tell her anything about her injuries or their seriousness. All she learned from those articles was that there might be a possibility of making a claim. On the statutory test, this was irrelevant. She could only have decided to see a solicitor in October 1997 because she already knew of the abuse and that she was suffering distress in her mind as a result of it. The newspaper publicity simply gave her the insight and the encouragement to come forward. Without that existing knowledge, the newspaper article would have told her nothing. She could have come forward earlier. A reasonable person would have done so, and would thereby have acquired at an earlier date the knowledge - of attribution (in so far as there was any doubt about it), of diagnosis, and of the possibility of raising an action -which she in fact acquired in 1997-8. The explanations given for not coming forward earlier - fear of not being believed, reticence, embarrassment, low intelligence, or simple reluctance to come forward - are not relevant to the statutory test. Such characteristics are personal to the pursuer, are not shown to have been caused by the alleged abuse, and are irrelevant to the objective nature of the test laid down in the statute.
[49] As Lord Johnston observed in B v Murray, Bryn Alyn is not an easy case. Having read and re-read the judgment in that case, I am not convinced that these passages in Bryn Alyn go further than the approach accepted by Inner House in Carnegie v Lord Advocate. The Court starts from the proposition, which it emphasises will have to be proved by evidence on a case by case basis, that the claimant's reluctance to come forward is a feature or a consequence of the psychological damage caused to him by the abuse; and it explains how this is so. In such circumstances the failure to come forward earlier to acquire knowledge or to commence proceedings may be regarded as reasonable. It will be a material consideration in an assessment of the date for constructive knowledge of the statutory facts. In other words, the Court is taking the particular claimant in the circumstances in which he or she is placed, with such "personal characteristics" (to use the phrase in Carnegie v Lord Advocate) as are shown to have been caused by the abuse.
[50] Even if this were not so, however, I consider that there is a danger in seeking to apply Bryn Alyn uncritically to the legislation in Scotland. In respects which, so it seems to me, are directly relevant to the issue presently before the Court, the legislation is different. Part of the English legislation is set out in Bryn Alyn at para.22. I will not set it out here. It may be that s.14(2) of the English Limitation Act 1980 focuses attention more on the claimant's reasonable assessment of the seriousness of the injury than on the question of when it was reasonably practicable for him to have become aware that it was sufficiently serious. Section 14(3), which sets out the test for constructive knowledge, is not quoted in Bryn Alyn, but it is to be found at para.21 of the speeches in the House of Lords in Adams v Bracknell Forest Borough Council, to which I shall refer in a moment. For present purposes it is sufficient to observe that it states that a person's knowledge "includes knowledge which he might reasonably have been expected to acquire". It appears to me that that may be a somewhat different test than the "reasonably practicable" test in section 17(2)(b) of the Scottish Act, as is indicated in Agnew v Scott Lithgow and Elliot v J & C Finney, cases to which I have already referred. The approach in Bryn Alyn may fit easily into the English test, but less easily into that obtaining in Scotland. The fact that a pursuer might reasonably not "turn his mind to litigation as a solution to his problems", or that the possibility or desirability of making a legal claim "might reasonably never occur to him" may be relevant to a test of reasonableness; but they are not relevant, in my opinion, to a test of whether it was "reasonably practicable" to become aware.
[51] In the context of the discussion about Bryn Alyn, I was referred by Mr. Duncan to the decision of the House of Lords in Adams v Bracknell Forest Borough Council. In that case the claimant, who was aged 30 at the time of bringing proceedings, sued the defenders for having failed properly to assess the educational difficulties he had experienced at school, claiming that a proper assessment could have revealed that he was suffering from dyslexia (as was in fact the case) and could have led to treatment to ameliorate the consequences of that dyslexia. He had always experienced difficulties with reading and writing, and believed them to be the cause of depression, panic and low self-esteem from which he suffered. He had consulted his doctor about the depression, panic and low self-esteem, but had been too embarrassed to tell him about his literacy difficulties. It was only sometime later, when aged 27, that he met at a dance an educational psychologist who suggested that he might be dyslexic, and this condition was subsequently confirmed. He then brought proceedings. The issue of time bar focussed upon when he could be said to have constructive knowledge, within section 14 of the English Limitation Act, that he suffered from a significant injury attributable to the acts or omissions of the defenders. The question involved a consideration of the extent to which his reluctance to come forward because of embarrassment was a relevant matter to take into account. The House of Lords held, reversing the Court of Appeal and the Judge at first instance, that the claim was time-barred. In particular, it held (taking the summary from the headnote) that in determining whether a claimant had the relevant constructive knowledge, the court was to consider how a reasonable person in the situation of the claimant would have acted, and had to disregard aspects of character or intelligence peculiar to the claimant.
[52] The leading speech was given by Lord Hoffman. He pointed out that the law had been recast substantially in accordance with the recommendations of the Law Reform Committee by the Limitation Act 1975, subsequently consolidated in the 1980 Act. He went on to consider the subjective/ objective balance to be applied.
"42 In recent years the courts have tended to emphasise the objective element in the constructive knowledge test and to reduce what Lord Macmillan in Glasgow Corpn v Muir [1943] AC 448, 457 called 'the personal equation'. In Forbes v Wandsworth Health Authority [1997] QB 402 the question was whether the plaintiff, who had a history of circulatory problems in his legs, ought to have sought advice as to why an attempted bypass operation had resulted in one leg having to be amputated. When he did inquire, some ten years after the event, he was told that it was because the operation had been unsuccessful and resulted in a loss of blood supply which threatened gangrene. This was not in itself alleged to be negligent, but the surgeon had made a second unsuccessful attempt to operate on the following day and the plaintiff was advised that he would have had a better chance of success if he had tried again earlier.
43 The judge found that the plaintiff (who had since died) did not have constructive knowledge that the loss of his leg was caused by any act or omission on the part of the surgeon. He trusted the surgeon (who had performed two previous successful operations on his legs) and thought he had simply suffered a misfortune. Stuart-Smith LJ was prepared to accept that one might not be able to say that such an attitude was unreasonable, but thought that section 14(3) would fail in its purpose unless it was assumed that a reasonable victim of an injury such as the loss of a leg will display some curiosity about why it should have happened. He pointed out that otherwise the limitation period could be indefinitely extended. Until three years after the date of knowledge was found to have been passed, the plaintiff had an absolute right to sue. This could be unjust to defendants who, contrary to the policy of the Act, would be vexed with stale claims. On the other hand, tightening up the requirements of constructive knowledge need not involve injustice to a plaintiff because the discretion under section 33 gave the court power to allow him to sue when it was equitable to do so. But section 33, unlike section 14, allowed the court to consider fairness to both sides. So Stuart-Smith LJ said, at p 413:
"In my judgment, a reasonable man in the position of the deceased, who knew that the operation had been unsuccessful, that he had suffered a major injury which would seriously affect his enjoyment of life in the future, would affect his employability on the labour market, if he had any, and would impose substantial burdens on his wife and family in looking after him, if he was minded to make a claim at any time, should and would take advice reasonably promptly."
44 Evans LJ, at p 422, likewise relied upon the policy and scheme of the Act as a whole:
"Since there is a wide discretionary power to extend the period in circumstances which Parliament has defined in section 33, there is no clear requirement to construe the knowledge provisions in section 14 narrowly or in favour of individual plaintiffs. I therefore consider that they should be interpreted neutrally so that in respect of constructive knowledge under section 14(3) an objective standard applies."
45 I find this reasoning persuasive. The Court of Appeal did not refer to the decisions on the 1963 Act which had taken a more subjective view. While it is true that the language of section 7(5) of the 1963 Act was not materially different from that of section 14(3) of the 1980 Act, I think that the Court of Appeal in Forbes was right in saying that the introduction of the discretion under section 33 had altered the balance. As I said earlier, the assumptions which one makes about the hypothetical person to whom a standard of reasonableness is applied will be very much affected by the policy of the law in applying such a standard. Since the 1975 Act, the postponement of the commencement of the limitation period by reference to the date of knowledge is no longer the sole mechanism for avoiding injustice to a plaintiff who could not reasonably be expected to have known that he had a cause of action. It is therefore possible to interpret section 14(3) with a greater regard to the potential injustice to defendants if the limitation period should be indefinitely extended.
46 I therefore think that Lord Reid's dictum in Smith v Central Asbestos Co Ltd [1973] AC 518, 530 that the 'test is subjective' is not a correct interpretation of section 14(3). The same is true of a dictum of Purchas LJ in Nash v Eli Lilly & Co [1993] 1 WLR 782, 799:
"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."
47 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."
[53] Lord Phillips (at para.58) agreed with Lord Hoffman that the standard of reasonable behaviour for the purpose of section 14(3) of the Act was "one which does not have regard to aspects of character or intelligence which are peculiar to the claimant". Lord Scott also agreed. He said (at para.71):
"The reference in section 14(3) to 'knowledge which he might reasonably have been expected to acquire' should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, ie an adult who knows he is illiterate, could reasonably be expected to acquire. 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."
and again (at para.73):
"Statutory provision for constructive knowledge in the context of limitation of actions must strike a balance between the interests of claimants and those of defendants. There may seem to be an unfairness to claimants in banning them on lapse of time grounds from bringing actions that they did not know they could bring. But there is also an unfairness to defendants in allowing actions to be brought after a lapse of time that has seriously prejudiced their ability to refute the claims made against them and for which they are in no way responsible. In my opinion, the approach to section 14(3) constructive knowledge should be mainly objective. What would a reasonable person placed in the situation in which the claimant was placed have said or done? If the result of applying the mainly objective test would seem unfair to a particular claimant, the issue of fairness, as between claimant and defendant, can be considered under section 33."
Lord Walker was cautious about adopting any simple formula to cover every case which might occur, but agreed on the facts with Lord Hoffman that s.14(3) "required the court to assume that a claimant in the respondent's position, suffering from the disability and the resultant misery which he said he had suffered, would have sought medical advice much sooner."
[54] Baroness Hale advanced a different interpretation of the correct approach to the question, though she agreed in the result. However, she wondered (in para.88) how much difference there was in practice between the two approaches. She continued:
"We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection."
She addressed the facts of the case before the House at para.90:
"90 In cases of educational failure (like the present) or child care failure (as in Barrett v Enfield London Borough Council [2001] 2 AC 550), there may be no dramatic trigger such as an amputation. But there will often be enough in what the claimant does know to make it reasonable for that claimant to make further enquiries. This case is a good example. Mr Adams knew that he was experiencing serious problems in his life as a result of his difficulties with reading and writing. He felt himself to be of normal intelligence. He knew that his education had not equipped him with reading and writing skills commensurate with his intelligence. He was consulting his doctor about his problems, yet he did not tell his doctor about his difficulties with reading and writing. He clearly had good reason to seek such advice yet he failed to do so: he 'did not want to go there'. On the test proposed by the Law Commission, section 14(3) would have applied to him.
91 In my view, all the cases to which we have been referred are explicable on the basis that the law expects people to make such inquiries or seek such professional advice as they reasonably can when they have good reason to do so. Their motive for not doing so will generally be irrelevant. But I would not want to rule out that their personal characteristics may be relevant to what knowledge can be imputed to them under section 14(3). There is a distinction between those personal characteristics which affect the ability to acquire information and those which affect one's reaction to what one does know. A blind man cannot be expected to observe things around him, but he may sometimes be expected to ask questions. It will all depend upon the circumstances in which he finds himself. As McGee and Scanlan have suggested, in an attempt to reconcile the authorities, a factor or attribute which is connected with the ability of a claimant to discover facts which are relevant to an action should be taken into account; but a factor in his make-up which has no discernible effect upon his ability to discover relevant facts should be disregarded: see 'Constructive knowledge within the Limitation Act' (2003) 22 CJQ 248, 260. They go on to suggest that qualifications, training and experience may have such an effect, while intelligence may not. It will all depend upon the facts of the case."
[55] The clear ratio of the majority of their Lordships was, therefore, to the effect that the personal characteristics of the claimant - such as character and intelligence - are not relevant in determining whether her failure to acquire the relevant statutory knowledge is unreasonable. The test is that of the reasonable man in the position of the deceased. It is to be noted that the majority of the House specifically disapproved the statement in Nash v Eli Lilly & Co to the effect that the situation, character and intelligence of the claimant must be relevant.
[56] The issue in Adams v Bracknell Forest Borough Council was as to knowledge of attributability, but I find it difficult to conceive of any reason why the test of constructive knowledge should differ according to which of the various statutory facts required to be known. To my mind, therefore, Adams v Bracknell Forest Borough Council is clear authority for the proposition that in so far as earlier authorities suggest that the character and intelligence of the claimant are relevant to a consideration of whether it was unreasonable for him not to have acquired the statutory knowledge, they are no longer good law. Although the facts are far removed from the case of historic child abuse, the approach to the construction of the relevant legislation seems to me to apply across the board. It may be that the passage in Carnegie v Lord Advocate, in which reliance is placed on McCafferty and the test of "that plaintiff with that plaintiff's intelligence", will require to be reconsidered. But, as I have already indicated, I am not persuaded that, properly understood, Lord Johnston was in fact suggesting that it was permissible to take account of subjective characteristics such as intelligence. The reason for adopting a more objective approach to this question than may earlier have been adopted is apparent from the reasoning in the passages quoted above: see in particular at para.45 where Lord Hoffman makes the point that since the introduction by statute of the discretion to disapply the time bar (section 33 in the English legislation, section 19A of the Scottish legislation) "the postponement of the commencement of the limitation period by reference to the date of knowledge is no longer the sole mechanism for avoiding injustice to a plaintiff who could not reasonably be expected to have known that he had a cause of action"; and that it is therefore possible to interpret the constructive knowledge provisions of the legislation with a greater regard to the potential injustice which may be caused to defendants if the limitation period should be indefinitely extended. It seems to me to follow that the reliance by the Court of Appeal in Bryn Alyn (at para.32) upon the statement of Geoffrey Lane LJ in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081G-H about the necessity of "taking that plaintiff, with that plaintiff's intelligence" must now be treated with some care. That is not to say that the decision in Bryn Alyn should be taken to be impliedly overruled, as Mr. Duncan suggested. As I have said, the Court in Bryn Alyn appears to have proceeded upon the assumption, subject to proof of the facts, that the characteristics giving rise to the reluctance to come forward were themselves caused by the abuse; and much of the discussion in that case focused on issues of public awareness and the general understanding of the availability of recourse to the civil courts in cases of abuse, factors which seem to me to go to the question of the reasonable person in the position of the claimant rather than to his or her particular character and intelligence. I note, for what it is worth, that a petition in Bryn Alyn by one claimant for leave to appeal to the House of Lords was refused (see [2004] 1 WLR 1394); tough the issues sought to be raised in that petition are unlikely to have been issues with which I am here concerned. It is also to be observed there was no adverse comment about Bryn Alyn in the speeches of the House of Lords in Adams v Bracknell Forest Borough Council.
[57] In the event, therefore, I see nothing in the case of Bryn Alyn which leads me to conclude that I should depart from the guidance given by Carnegie v Lord Advocate as clarified, so it seems to me, by Agnew v Scott Lithgow. The question to be asked is whether, at some time more than three years before proceedings were commenced (i.e. by mid-May 1997 at latest), the pursuer was aware of the statutory facts, or, if not, whether it was reasonably practicable for the pursuer to have become aware of those facts by that time. In making an assessment on the question whether it was reasonably practicable for her to have become so aware, I must disregard issues relating to her intelligence or personal characteristics, except to the extent caused by the alleged abuse, and ascertain whether it was reasonably practicable for a reasonable person (with such characteristics, if so caused) placed in the situation in which the pursuer was placed to have become so aware.
The evidence
[58] In the course of her proof, the pursuer herself gave evidence and also led evidence from Mr. Cameron Fyfe, her solicitor, and from Valerie Gray Taylor, a clinical psychologist. The defenders led evidence from Mr. O'Donnell, their solicitor, and Sister Sarah King-Turner, and also put in evidence, by agreement, part of the contents of a report from Dr. Boakes, a psychiatrist and psychotherapist. The parties helpfully agreed that various chronologies, reports and other documents could be treated as evidence. This resulted in a significant saving in time and expense.
[59] Counsel were in agreement that, for the purpose of the preliminary proof, the pursuer's averments on Record as to the abuse she suffered should be taken pro veritate, though I shall have to say something further about this in the context of the argument under section 19A of the Act. Mr. Duncan for the defenders suggested that the question of diagnosis was not one on which he ought to have to reach a decision. I took this to mean that evidence of the psychological injury from which the pursuer claimed to be suffering, and as to it being caused by the alleged abuse, should also be taken pro veritate. The focus of the evidence before me, therefore, was as to when and in what circumstances the pursuer gained an awareness of her injuries, of their connection to her experiences at the Home, and of the possibility of bringing civil proceedings in respect of them.
[60] The pursuer was born on 16 January 1963 and therefore reached the age of 18 on 16 January 1981. She told me that she has been married twice. Her two children by her first marriage, a boy and a girl, are both now grown up. She has two children of her second marriage, twins born in December 1992. They have cerebral palsy and she told me that she looks after them with no social work support. She works as a full time carer at a special needs school. She said that she went to the Home when she was about two years old. She was there for five years. Her brother and sister, both older than her, were also there. She said that she was treated "wonderfully" at the beginning. But then Sister X and Y came along. By reference to a "Client Questionnaire" she completed with her solicitor, Mr. Cameron Fyfe, in October 1997, she gave me an account of her treatment at the Home after that, broadly in accordance with the passages quoted from Article 2 of the Record. Since it is agreed that for this purpose I should treat those averments pro veritate, it is unnecessary to recite her evidence on these matters. She explained in evidence that her parents would, at first, not believe her about what had happened at the home. When they did come to believe her, they took it badly. Her mother's reaction was one of guilt that they had been put in the Home, while her father started drinking heavily. The pursuer, and her sister and brother, also felt guilty and ashamed. They thought that what had happened to them must have happened as a result of their fault. She was ashamed of what had happened, scared to tell people because they would not believe her. "You keep it in you", she said, "unless you've been in that situation you don't understand, you don't tell people, I'm still scared". She had now been to see Valerie Gray Taylor and Dr. Boakes and had given them accounts of what had happened.
[61] The pursuer said that when she left the Home she went to live with her mother. She had no problems at primary school but was bullied at her secondary school. She appeared once before the Children's Panel because her mother could not cope. She was sent to a hostel run by nuns. They were the best three years of her life - she did not want to leave. She continued her schooling whilst living there at the hostel. At the age of sixteen she left the hostel and went to live with her father. She became a window designer for nine months before she was paid off. She took other jobs. Her first child was born when she was eighteen. She married his father later. It was, she said, a terrible marriage. When she told him about what had happened to her in the Home, he started abusing her, shutting her in a cupboard, beating her up, threatening to put her daughter in a Home.
[62] In her evidence in chief, she was taken through her social work records. She agreed that a Report dated 19 December 1978, which spoke of a poor upbringing and some six years in care (a reference to her time at the Home, though the Home was not named), but made no mention of abuse, was a fair summary of what she had told them. In early 1977 she, with her mother, was taken to an educational psychologist, apparently because of a failure to attend school. She said she did not recall that. The brief report of that meeting describes her variously as "of low average intelligence" and "a very strong-willed girl", but makes no reference to events at the Home. She explained: "you don't tell people" and "my parents told me not to mention it". She was shown letters that she wrote on 5 May and 26 October 1979 to her social worker when she had no one else to turn to. She said she never even told him about the problems at the Home, because he probably would not have believed her and she felt ashamed and guilty. However, she accepted in cross-examination that she had told her second husband about her experiences, well before the newspaper articles were published, and he believed her.
[63] On 21 December 1988, when the pursuer was 25 years old, she saw a psychiatrist at Gartnavel Royal Hospital. The background to that appointment was that the pursuer had been in tears for weeks and had attempted to slash her wrists. The Report from the Hospital, in the form of a letter to her General Practitioner dated 28 January 1989, shows that she did not tell the psychiatrist whom she saw there anything about her experiences at the Home. The pursuer gave the same reasons for not having mentioned them: she would not have been believed, she was ashamed, "you don't tell anyone".
[64] The pursuer said that it was only in 1997 that, for the first time, she told anyone outside the family about what had happened. She told two girls at Ross Harper, solicitors. That came about because her father had seen an article in the News of the World. She thought that it was her sister who phoned her. She met her sister and they looked at the paper together. They read a couple of lines and cuddled. One of them said: "at least someone is coming forward". She did not read the whole of the article. It was an article about children's Homes. Then she realised it was about Smyllum Park. She could not remember what the article said: "it was about some stuff that had happened there". She was relieved that someone had stood up and said what had happened. It brought back memories, so she went with her sister to see the solicitors. When pressed in examination in chief as to why she had not approached a solicitor 20 years ago, she repeated that it was something they never spoke about. She was ashamed. Her life was all mixed up. She did not know how to make a legal claim in court.
[65] Sometime after March 1998, the pursuer was sent by Ross Harper to see Valerie Gray Taylor, a psychologist working at the Keil Centre. She saw Ms. Gray Taylor on 7 May 1998 and the latter produced a Report on 17 July of that year. For reasons which, to my mind, were convincing, it was thought to be inappropriate for the pursuer to see the Report at the time. Accordingly, she only saw it the day before she gave evidence in court. The Report was put to the pursuer in the course of her evidence in chief. The Report says that the pursuer's symptoms fulfil the criteria for post traumatic stress disorder ("PTSD"). The pursuer said in evidence that the first time that she had heard that she might have PTSD was when she went to see Ms. Gray Taylor. Before that she had thought PTSD was something to do with the Gulf War. The Report refers to the pursuer suffering from severe clinical depression. In her evidence the pursuer said that that had to be explained to her by Ms. Gray Taylor. When asked in her evidence in chief: "were you previously aware that this was all associated with your experiences at the Home?", she responded: "I did not know that until she [Ms. Gray Taylor] said something that day, then it all clicked together - she had to explain it."
[66] Much later, on 4 November 2005, not long before the preliminary proof, the pursuer was seen by Dr. Boakes, a Consultant Psychiatrist and Psychotherapist until she retired in mid-2005, who was instructed on behalf of the defenders. Dr. Boakes produced a Report two days later. The pursuer was cross-examined on a number of details from the accounts which she had given to Ms. Gray Taylor and to Dr. Boakes of her time at the Home. The pursuer was also cross-examined about certain passages in the expert Reports prepared by Ms. Gray Taylor and Dr. Boakes which dealt with the period after leaving the Home. This was in part, as I understood it, in an attempt to undermine her credibility; and in part with a view to suggesting that her psychological difficulties may have had other causes. The latter was not relevant in light of the parties' agreement, and the former was unsuccessful since I formed a favourable impression generally of the pursuer - she appeared to be giving her evidence honestly, though I felt it was difficult for her to disentangle what she had known or believed at different times and I did not accept, uncritically, everything she said. But that cross-examination was also directed to identifying the pursuer's own assessment of the importance in her life of her experience at the Home; and the extent to which she herself had linked it with her psychological problems.
[67] Thus, Ms. Gray Taylor's Report records the pursuer's account that: "she drives to [the Home] from time to time. She sits outside and weeps." She explained in cross-examination that the first time she went back was in 1991. Her brother wanted to go. He needed closure. She went with him. She had done it a few times since then. Ms. Gray Taylor's Report also contains the following passage:
"[the pursuer's] reported symptoms fulfil the criteria for [PTSD]. Specifically, she has such a high level of intensity in terms of intrusive thoughts about events at [the Home] that she is unable to sleep. On one distressing occasion in 1988, her sister found her crawling round the carpet in hysterics, in an effort to shut out the memories. She slashed her wrists and required to be hospitalised. ... Her sleep pattern is very poor and she blames this directly on experiencing intrusive thoughts about her time in [the Home]. She regularly experiences nightmares about incidents which occurred there."
The pursuer was referred to this passage in cross-examination. She said she could never shut out memories of the Home. In re-examination, she suggested that the reference to shutting out memories referred to memories of her first husband and of what he had done to her. She said that he had tried to throw her in front of a tube train. Whether or not her first husband tried to do this, I do not accept the pursuer's evidence that the references in that passage are to do with her husband's behaviour. It seems to me that they cannot relate to anything other than the pursuer's experiences at the Home. Ms. Gray Taylor, in her evidence, confirmed that the reference was to shutting out memories of her experiences at the Home.
[68] This is, to my mind, confirmed by the pursuer's own statement, in the Client Questionnaire, that one of the long-standing psychological effects of the cruelty was that she tried to kill herself on three occasions and had been on anti-depressants since she was sixteen. It is to be stressed that the Client Questionnaire was completed before any interview with solicitor or psychologist; and therefore must be taken to reflect the pursuer's own perceptions before she had any discussions with professionals. In cross-examination she said that she in fact tried to kill herself only once and thought about it twice more. This is a matter of detail which does not affect the conclusion that she perceived her experiences at the Home to have been part of the cause.
[69] The pursuer was asked about Dr. Boakes' assessment that she had for many years believed herself and her siblings to have been the victim of cruelty and neglect at the Home and that her life long problems, including anxiety, panic attacks and startle reaction, stemmed from being in the Home. The pursuer accepted this as a fair assessment. She also said, by reference to that Report, that the nightmares and flashbacks she had had throughout her life were "mostly", or "sometimes", about the Home. In re-examination she sought to suggest that the linkage in her mind between symptoms such as anxiety and her treatment in the Home was something she had only started to understand fairly recently. It may well be true that the appreciation of a link was not immediate, and developed slowly. However, to my mind, it is abundantly clear that for a long time before the newspaper articles appeared she was linking her problems to her experiences at the Home.
[70] Mr. Cameron Fyfe, a partner in Ross Harper and the pursuer's solicitor, gave evidence. He said that in May 1997, after the first article appeared in the News of the World, about 20 would-be clients came forward. The numbers increased. By summer 1998, it was about 300. It was now about 450 between Nazareth House and Smyllum Park alone. Before that he had had no historic abuse cases concerning institutions to deal with. Now he had about one thousand. He put it down to the press coverage. He explained that 111 Summonses had now been issued. Most were sisted. Legal aid had so far only been given for a few of them. From his point of view, this case was a test case, though there had been no agreement with the defenders about identifying this case as appropriate for that.
[71] Mr. Fyfe explained the need to obtain a psychological report for the client. It was beyond the remit or competence of a solicitor to make a judgement on whether the alleged abuse had led to problems of health. Without a psychological report he could not go further. He would not have obtained Legal Aid without a report. He accepted in cross-examination that if he was still just within a three year time bar he could have issued a Summons very quickly and obtained a Report later, but since he was well outside the initial three year period it was not so urgent and he could take time to get the Report. In answer to a question in chief about what would have happened if the pursuer had come to him complaining of such abuse back in 1981, when she reached her majority, he said that as far as he was aware, she would have been the first person making a complaint about abuse at an institution. He was not aware of any others. It would have been pretty unusual.
[72] I heard evidence from Valerie Gray Taylor. It was agreed that her Report could be relied upon as part of her evidence. Her oral testimony was limited in its ambit, because it was agreed that the question of diagnosis was not one upon which I required to reach a decision. For that reason, the defenders did not call Dr. Boakes though it was agreed that parts of her Report could stand as her evidence. Standing the agreement that the pursuer's averments of psychological injury and causation should be taken pro veritate, it is unnecessary to go into Ms. Gray Taylor's Report in any detail. I have referred to some passages from that Report already. However, there was one passage in her evidence to which I should refer at this stage, since it was relied upon by Mr. McEachran at the forefront of his submissions. At the end of her examination in chief, she was asked: would a person in the position of the pursuer, at the age of eighteen to twenty-one, be likely to know that her experiences at the Home could have long term effects on her health? Mr. Duncan objected, on the grounds that the witness had no qualifications to give evidence on this matter and, further, that the negative answer which the question was designed to elicit did not reflect the pursuer's own evidence. I allowed the question under reservation. Having heard the evidence, I consider that I should repel the objection based on Ms. Gray Taylor's qualifications. Mr. Duncan's second point really seemed to me to go to the weight to be attached to her answer. The answer given by Ms. Gray Taylor was that it would be difficult for such a person to sum up her experience and link it to long term psychological effects on her life - she was not sure how she would make that link. I can fully understand this. But I have already heard evidence from the pursuer, adduced partly by reference to Ms. Gray Taylor's own Report, which persuades me that over a significant period, long before the articles in the newspapers began to emerge, the pursuer was directly linking her distressed mental state to her experiences at the Home. She might not have been able to articulate that link in psychiatric or psychological terms, but the link was clear to her nonetheless.
[73] I was referred also, by agreement, to certain parts of a Report by Dr. Tierney, a chartered clinical psychologist at the Kiel Centre. He had been asked to consider the cases of eleven individuals (one of whom appears to have been the pursuer, although none were named in the Report) who had been resident in Homes such as Nazareth House and Smyllum Park, to see whether there were common elements in their personal and psychological histories. Ms. Gray Taylor was asked to comment upon the Report. I did not find the Report particularly helpful in this case. In so far as it went to the question of diagnosis, this was not in issue in the preliminary proof. Nor was it easy to extrapolate any pattern of behaviour applying to all eleven individuals.
[74] Dr. Boakes was not called as a witness, but it was agreed that certain chapters of her Report could be taken as her evidence. Again, since diagnosis is not in issue, I do not propose to go into this in any detail, save to mention some passages which did touch upon the issue before me. Dr. Boakes said that the pursuer reported to her that she had had nightmares about Smyllum Park throughout her life, and sometimes flashbacks. She also recorded her opinion, presumably based on what the pursuer had told her, that the pursuer had for many years believed herself and her siblings to have been the victims of cruelty and neglect at the Home, and had dwelt upon it. She also reported that the pursuer described long standing anxiety, panic attacks, and startle reaction, and believed that those stemmed from being in the Home. The pursuer in her evidence agreed that she had given these accounts to Dr Boaks, and, as I understood her evidence, that these accounts were true.
Findings on the evidence
[75] I am satisfied on the evidence that long before 1997, the crucial year in terms of time-bar, the pursuer was aware that she was having problems which, in her mind, she associated with the abuse at the Home. She clearly was aware of the alleged abuse from the time it happened, and was aware from very early on that it was something that troubled her. She clearly linked her difficulties to this period at the Home. Her account, given to Ms. Gray Taylor, of driving to the Home and sitting outside and weeping, confirms this. So too does her account to Ms. Gray Taylor of crawling around on the carpet trying to shut out the memories; and her accounts of anxiety, nightmares, panic attacks and flashbacks. She was aware that it troubled her parents to think that they had exposed her to it. She told her second husband about it.
[76] She was sufficiently upset by the experience to know that it was something she would not talk about to others. That fact serves only to confirm that she was, from that early stage, on notice that she had a complaint in respect of which, if she wanted to pursue it, she could ask pertinent questions. I accept her evidence as to the reasons she gave for not coming forward. Nor do I find them surprising. It would have been understandable that she should not have gone and sought help. But, to my mind, it is quite different when she was in fact seeking help in respect of her mental and psychological difficulties. She had specific opportunities of raising these matters with professional people. She saw, variously, in addition to her general practitioner, an educational psychologist, a social worker and a psychiatrist, all in connection with psychological difficulties she was experiencing, which she attributed, at least in part, to her experiences at the Home. She could have told them about her problems at the Home - indeed, it would have been helpful to them if she had told them - but she did not. In the case of the psychiatrist, she saw him when she was about 25 years old, against a background of having been in tears for weeks and having attempted to slash her wrists. She knew in her mind that she attributed this to the abuse at the Home, but she did not tell him anything about it. I am unable to find that that failure was reasonable, even having regard to the various factors that I have described.
[77] In those circumstances I find that, long before 1997, the pursuer was aware that the injuries in question in this action, i.e. the psychological injuries which she claims to have suffered, were attributable in whole or in part to an act or omission of the defenders, i.e. to her time in the Home and the abuse allegedly suffered there. If it is necessary to pin this to a date, I find that she was aware of this from the late 1970s at the latest. I have more difficulty in determining whether, and if so when, she was aware that the injuries in question were sufficiently serious to justify bringing an action of damages on the statutory assumptions. I do not suppose she ever addressed this question in those terms. However, it seems to me clear from the account of her problems in the late 1980s, as described to Ms. Gray Taylor, that she knew by then that the psychological difficulties from which she was suffering were very significant. What she did not know then was that there was a possibility of bringing an action against the defenders. This is not a material consideration in terms of the section.
[78] I have so far addressed the question in terms of actual knowledge. In my opinion, if there were any gaps in her actual knowledge before the relevant date (at latest the beginning of 1997), and I do not think there are, they are amply filled by constructive knowledge in terms of the statute. She had every opportunity of explaining her problems to the professionals with whom she was put in touch. I consider it fair to assume that, had she done so, she would have been given appropriate help and referred, as necessary, to others who could help. I cannot, of course, say whether this would have led her to become aware of the possibility of legal proceedings. But that is not required. In so far as she did not have actual awareness of material facts, it is perfectly plain that it was reasonably practicable for her to have obtained it.
[79] Even if I were to have accepted the Bryn Alyn approach, as Mr. McEachran invited me to do, I would have held that the pursuer failed. Whilst I can accept that it is reasonable for many persons in the position of the pursuer to be very hesitant about coming forward, out of shame, or embarrassment or for fear of being disbelieved, I cannot accept that such hesitancy provides the same excuse in circumstances where the pursuer is seeking help from professionals about the very difficulties which, according to her, result from her time at the Home. If the question is: "was it reasonable for this pursuer, with the difficulties which she was experiencing as a result of the abuse, not to come forward at an earlier date?", the answer can only be, for the reasons I have given: No.
Decision on section 17(2)(b) issues
[80] Accordingly, I hold that the pursuer has not made out grounds under section 17(2)(b) entitling her to say that when she brought the action in May 1997 it was not time-barred. The question of whether I should grant relief under section 19A therefore arises for decision.
Discretion - section 19A Prescription and Limitation (Scotland) Act 1973
The statutory provisions
[81] Section 19A provides as follows:
"(1) Where a person would be entitled, but for any of the provisions of section 17 ... of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.
(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement".
Submissions for the pursuer
[82] Mr McEachran invited me to exercise my discretion in favour of the pursuer by allowing the action to proceed notwithstanding that it was otherwise time-barred. He submitted that the exercise to be carried out under this section was one of balancing the equities: Johnston, Prescription and Limitation, 2nd Ed. para.12.07. He recognised that there were factors which could be relied upon by the defenders, such as delay, though he did not accept that the delay in this case caused significant prejudice to the defenders since they had witnesses and records to meet a claim which involved a course of behaviour over a number of years. In this respect he contrasted the position here with a "single conversation case" such as was under consideration in Brisbane Regional Health Authority v Taylor [1996] 186 CLR 541, a decision of the High Court of Australia, referred to extensively by Lord Drummond Young in AB v Sister Bernard Mary Murray.
[83] A much more powerful factor, however, and one which told strongly in the pursuer's favour, was that the delay in bringing the action stemmed from the abuse of which she complains. It is that abuse which prevented her, and countless others, from coming forward at an earlier stage to tell her story and make a claim. He criticised the approach in AB v Sister Bernard Mary Murray for, amongst other reasons, making no proper allowance for the "effect of abuse" factor. He submitted that a party relying on the equities of the matter, as both parties did in any exercise under section 19A, must come to the matter with "clean hands". In this context he referred me to Hawkins v Clayton [1988] 164 CLR 539 at 509-590, in which Deane J construed the relevant section of the New South Wales Limitation Act as "excluding any period during which the wrongful act itself effectively precluded the institution of proceedings". Although the remarks in that case were not directed to any balancing of the equities, and therefore any consideration of "clean hands", Mr McEachran submitted that such an approach was directly relevant to that exercise. Were it not so, the result would be that the wrongdoer would benefit from the effects of his own wrongdoing.
Submissions for the defenders
[84] For the defenders, Mr Duncan submitted that I should refuse to grant relief under section 19A of the Act. At risk of doing his detailed submissions an injustice, I summarise them in this way. First, he emphasised, under reference to Brisbane Regional Health Authority v Taylor and AB v Sister Bernard Mary Murray, that the limitation period is the general rule, not merely a "point of reference", to which the provision for allowing the pursuer to bring the action notwithstanding the time bar is an exception, designed to deal with the justice of individual cases. The onus was on the pursuer to establish that the discretion should be exercised in her favour: Forsyth v A F Stoddart 1985 SLT 51, Elliott v J C Finney 1989 SLT 605.
[85] Under reference to the Opinion of Lord Ross in Carson v Howard Doris Limited 1981 SC 278 at 282, he submitted that, as a "helpful initial structure" the Court should consider (i) the conduct of the pursuer since the events, including any explanation for not having brought the action sooner, (ii) any likely prejudice to the pursuer if the discretion were not exercised in his favour and (iii) any likely prejudice to the defender if the action were allowed to proceed, albeit time barred. He noted that in Kane v Argyll & Clyde Health Board 1999 SLT 823 at 828, the Court laid stress on the third of these factors:
"If there is material prejudice to a defender in having to go to proof, it is difficult to see how, even if there was a reasonable explanation for the delay, the action could reasonably be allowed to proceed".
This approach was supported by the decision in AB v Sister Bernard Mary Murray and the cases referred to therein.
[86] Next, under reference to Bryn Alyn, he pointed out that the exercise under section 19A was to be carried out in circumstances where the Court had already made full allowance, or at least such allowance as it considered appropriate, for the pursuer's ignorance of the facts. This was part of the exercise to be carried out under section 17(2) of the Act. There was no room for it to come in again under section 19A.
[87] Fourth, he submitted that the reason for limitation was, in part, to protect a defender from the injustice of having to meet stale claims. The mere fact that the claim was brought so long after the events may give rise to the likelihood of prejudice, in that there was an inherent difficulty in meeting claims made about events alleged to have occurred many years before. He referred me in this context again to Bryn Alyn and to the case of T v Boys & Girls Welfare Service (unreported [2004] EWCA Civ.1747). He also drew my attention to the discussion about the "losing" of evidence and the decline in the quality of evidence to be found both in the judgment of McHugh J in Brisbane Regional Health Authority v Taylor and in Lord Drummond Young's Opinion in AB v Sister Bernard Mary Murray at paragraphs [22]-[24].
[88] Mr Duncan also took from the judgment of Latham L J in T v Boys & Girls Welfare Service (at paragraph 13) the important remark that it was no answer for a pursuer to say that the prejudice to a defender had been only marginally increased by the fact that the claim was made after the expiry of the limitation period. In a case such as the present, where the events occurred when the pursuer was very young, it is very likely that by the time a case comes to Court, even if brought within the triennium, whether or not an extended triennium under section 17(2) of the Act, the matters to which the claim relates will be stale so far as the defender is concerned. The defender in such a situation is very likely to be prejudiced. But that does not provide the pursuer with an argument that any further prejudice is minimal and should not be taken into account. The provisions of the Act for extending the limitation period so that it starts from the date of knowledge have themselves provided the limit of "permissible prejudice" save in special cases. Any further prejudice is material. The same point is made in Brisbane Regional Health Authority v Taylor (at pages 554-555) and in McCabe v McLellan 1984 SLT 346 at 354.
[89] Finally, Mr Duncan submitted that the Court should not take into account the suggestion that the defenders had, by abusing the pursuer, caused this delay in bringing the action. He submitted that there was no evidence on which to make any finding of causation. The matter proceeds upon averments taken pro veritate. This simply meant that the time to challenge those averments was not at this preliminary proof but later, if the occasion arose. He also submitted that the proposition advanced by Mr McEachran had less force in a case where the claim was not being brought against the individual abuser.
Discussion
[90] The proper approach to the exercise of the Court's discretion under section 19A has been considered extensively by Lord Drummond Young in AB v Sister Bernard Mary Murray. I am not persuaded by Mr. McEachran's submissions that I should adopt a different approach. I will not attempt to summarise those principles fully. I propose simply to set out the general approach to the exercise of discretion under the section and to identify briefly the main factors in the present case which appear to me to be most relevant.
[91] The starting point is that the action is time-barred. It is, of course, wrong to say that the exercise of the discretion in favour of the pursuer deprives the defender of an accrued time-bar defence, since any time-bar is not absolute but one which is subject to the Court's exercise of discretion under s.19A: see Hill v McAlpine at para. [12]. However, it is equally wrong to argue from that that the time-bar is, in some way, neutral or simply a "point of reference". The time bar is the general rule, and the onus is on the pursuer to justify the exercise of the Court's discretion under section 19A.
[92] The exercise involved is one of balancing the equities, as Mr. McEachran put it. In so doing, the Court will take account of the matters referred to by Lord Ross in Carson v Howard Doris Limited. But it is not limited to such matters. It seems to me that it may, in some circumstances, be relevant to consider the conduct of the defenders, for example (to the extent not within the factors considered under section 17(2) of the Act), where the defender may have misled or otherwise prevented the pursuer from bringing a claim within time. I agree with Mr. McEachran's submission that it would be highly material if the pursuer could show that her failure to bring the action in time was caused by the abuse, in the sense that the abuse resulted in, or contributed to, her reluctance to come forward. In some, perhaps most, historic abuse cases, as Bryn Alyn shows, it may be possible to show this. But I do not think such an argument can succeed in the present case for the reasons I have already given. The pursuer sought help for her psychological problems, but did not tell the relevant professionals anything about what she thought was the real cause, namely the abuse. I do no accept that that reticence in such circumstances can be said to result from the defenders' alleged actions.
[93] There is no other relevant prejudice to put in the scales for the pursuer. I think it is right to discount, as a point in her favour, the fact that she will lose the possibility of bringing her claim, since that cancels out with the fact that, if the discretion is exercised against them, the defenders will lose a prima facie time bar defence.
[94] On the other hand, the potential prejudice to the defenders is very great indeed. I do not propose to list every matter relied on. The defenders will be faced with having to defend an action brought in respect of events that are alleged to have taken place over a period of five years some thirty five years ago. In some types of case, where the allegations can be cross-checked against documents, this may be less of a disadvantage, though I would hesitate before saying there could be no prejudice even in such a case. In a case such as this, documentary evidence will seldom be central to the issues. In so far as it may have existed, I am satisfied that it is no longer available in any meaningful or helpful sense. The Home closed down over twenty two years ago. I heard evidence that various books and ledgers were still available, containing records of personnel at the Home. If there was a punishment book, or a diet book, as there probably were, both would be germane to the pursuer's complaints, but they have disappeared. It is possible, though I think unlikely, that there might have been doctors' records relevant to the pursuer's complaints. We cannot now be sure, since any records pertaining to the period she was at the Home are no longer available. In so far, therefore, as documents might once have assisted in ascertaining the truth, for example, by use in cross-examination, that possibility no longer exists.
[95] However, it has to be recognised that this type of case is unlikely to turn on documents. It will turn upon an assessment of the credibility and reliability of the principal protagonists, namely the pursuer and, if available, Sister X and the lay helper, Y. Even if all three individuals were available to give evidence, it is difficult to see how a Court could approach the task of making that assessment with any degree of confidence. But, although this is not accepted on behalf of the pursuer, I accept that Sister X is dead. So only two of the principal characters are available to give evidence. I heard evidence about the availability of other witnesses. I am satisfied that some other former residents might be able to give evidence, but how many can be contacted and what they are likely to remember is unclear. The pursuer's brother has died. Her sister could give evidence, but (I am told) sat through the pursuer's evidence during this preliminary proof. One difficulty is that the Home was divided into individual houses, and Roncalli (where the pursuer was looked after) was run almost as an autonomous unit. This limits the number of former residents who might be available to assist. It also means that, on the defenders' side, there will be little direct evidence that they can lead from other staff: no sister or lay helper from other houses will be able to help. The two Mothers Superior, who might have given evidence as to the policies adopted at the Home in respect of discipline or food, or in respect of visits, are both dead.
[96] Ultimately the case will turn, therefore, on the word of the pursuer against that of the lay helper, Y. Neither side will be able to support their case by as much evidence as they would wish. But this is not something which balances out. The relevant question, to my mind, is whether the defenders would be prejudiced in their defence of a case such as this brought against them in such circumstances. I am satisfied that they would be severely prejudiced. The assessment of credibility, which is crucial, in a case such as this, is inevitably hampered by the passage of time. I
accept the analysis, in the cases to which I was referred, about the inevitable loss of evidence and decline in the quality of evidence after so long a delay: see in particular T v Boys & Girls Welfare Service, Brisbane Regional Health Authority v Taylor and AB v Sister Bernard Mary Murray. I do not consider that it would be possible to have a fair trial of the issues raised by the pursuer at this far removed from the events which she alleges took place. Whilst it might be said that the defenders would have suffered prejudice even if the case had been brought within time, i.e. by 16 January 1984, I consider that I am entitled to assume that the passage of a further sixteen years before proceedings were brought has increased that prejudice.
Decision on section 19A issues
[97] I therefore decline to exercise my discretion under section 19A in favour of the pursuer, since it would not be equitable to allow the cause to proceed at this late stage.
Disposal
[98] I shall therefore repel the fourth and fifth pleas-in-law for the pursuer and sustain the first plea-in-law for the first and second defenders. The pursuer's sixth plea-in-law was not insisted upon. I shall accordingly dismiss the action.