In October 2007 I had the honour and pleasure of addressing the National Australian Lawyer’s Association conference in Hobart. My subject was “Limitation Hotspots” and this is what I had to say:

LIMITATION HOTSPOTS - WHAT’S HAPPENING IN HISTORIC ABUSE CASES

Introduction

The inherent problem with historic child sex abuse cases is that there is invariably a significant time gap between the abuse complained of and the victim initiating proceedings.

The usual scenario is that the victim was abused as a child, when vulnerable in every sense of the term, who then suppresses their memories of what happened. There are invariably feelings of guilt, shame and embarrassment. The history of abuse is often kept hidden from spouse and family. Their memories of the abuse are suppressed and often very effectively. The mask, however, sometimes slips through what we call the triggering of memories. A common experience is for the unpleasant memories to be rekindled as a consequence of watching a television programme, or reading an article in a newspaper or, perhaps, through being contacted as a result of a police investigation.

The “triggering” can have a dramatic effect. A victim may actually suffer a nervous breakdown and become very ill. Against such a background a victim will seek advice which culminates in them consulting a solicitor.

As a result of this rather circuitous route the solicitor has to form an opinion as to whether there is a viable case to pursue. Leaving to one side the issues of liability and causation, the question every lawyer has to ask him/herself is if a claim is going to be made will it fail because it is “statute barred”?

Two recent cases, one Australian and the other English, bring sharply in to focus the inherent limitation difficulties abuse cases face, and I propose to examine, from the practitioner’s perspective, two particular aspects, or hotspots, which can make the difference between success and failure.

I have used the term plaintiff throughout this paper as opposed to the “modern” claimant, save where for ease of reference where I have considered the latter more appropriate.

Knowledge

My first hot spot concerns “knowledge” – that is the plaintiff’s date of knowledge. To put it simply when did he/she puts join dots up, or as we shall see when should they have done? The English case of Young –v- Catholic Care and the Home Office [2006] EWCA Civ. 1534 is not an untypical case where the Court of Appeal determined how that question should be answered.

In Ablett & Others –v- Devon County Council and the Home Office (December 2000) Sedley L.J. said:
“ Inevitably there is a problem of limitation in these proceedings. I say “inevitably” because it is the nature of abuse of children by adults that it creates shame, fear and confusion and these in turn produce silence. Silence is known to be one of the most pernicious fruits of abuse. It means that allegations commonly surface, and they do, only many years after the abuse has ceased”.

Against that recognition of reality Sedley LJ went on to say: where a defendant pleads limitation as a defence: “…In consequence two main groups of issues will form part of litigation. First, what was the date of each claimant’s knowledge for the purposes of Section 14 of Limitation Act 1980? Second, if that date of knowledge fell beyond the limitation period, ought the time bar to be lifted by virtue of Section 33 of the Act[should time be extended] ?”.

The section 14(1) question is to put it simply when did the claimant or plaintiff acquire the requisite knowledge?

Until the Court of Appeal decision in Young it was considered that the Section 14 (1) question had to be answered subjectively. In other words when did the plaintiff realise they were suffering from a psychiatric injury which could have been caused by the abuse? This was the test laid down by the Court of Appeal in K R & Others –v- Bryn Alyn Community (Holdings) Limited [2003] EWCA Civ. 85. It held that in cases of psychiatric injury the time when the injury became significant to the plaintiff was when he/she realised they were suffering from a psychiatric condition which could have been caused by the abuse that they suffered in childhood.

The Court of Appeal in Young said that that is the wrong approach. The Section 14 (1) question must be answered objectively.

To refresh our memories to establish the date of knowledge for when the three year limitation period is to run Section 14 (1) says:

“….references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts –

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty; and

(c) the identity of the defendant, and

(d) (which we can ignore for our purposes)
(2) [The] injury is significant if the person whose date of knowledge is in question would have reasonably been considered sufficiently serious to justify the institution of proceedings for damages against a defendant who did not dispute liability and was able to satisfy judgment.

(3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire –

(a) from facts observable or ascertainable by him, or

(b) from facts ascertainable by him with the help of a medical or other appropriate expert advice which it is reasonable for him to seek;

In Young Dyson LJ said:

“The standard that has to be applied is that of the reasonable behaviour of a victim of child abuse who has suffered a degree of injury suffered by the claimant in question and of which he has knowledge”.

What does this mean in practice? It means when was it reasonable for the plaintiff to have put two and two together and made four. That is the “trigger” date when they would have been expected to have initiated proceedings.

So what happened in the Young case?

Mr. Young who was born in 1959 had the misfortune to be sexually abused having been taken into care, placed in a boarding institution, and then subsequently in a young offenders’ institution. Much to his credit on release he made something of his life and became apparently a successful businessman. Unfortunately in 1996 he had a chance encounter with one of his abusers, and this had the effect of “triggering” his memories of the abuse which he had successfully suppressed. His whole world fell apart and according to the medical experts during the initial years following release from the young offenders’ institution he had suffered post traumatic stress disorder. He nevertheless successfully got on with his life until as the court put it the PTSD was “rekindled in 1996 as a result of the chance encounter”.

In 1999 Mr Young was contacted by the police who were investigating allegations of abuse, but he did not respond. In December 2000 he was visited by them, but it was not until January 2001 that he gave his first statement to them. The first reference to abuse in his medical records was in March 2001. In September of that year he consulted solicitors, and proceedings were issued in April 2003. Although in the meantime two abusers had been convicted, and so there can be no doubt that he was the victim of sexual abuse, his claim nevertheless failed in the Court of Appeal, but why was this?

The Court of Appeal concluded that in applying an objected test to the Section 14 questions it would have been reasonable for Young to have initiated proceedings within three years of 1996. The chance meeting was the crucial point, because it was then that his world fell apart that Young appreciated that the abuse had caused him damage. It was not when he consulted his general practitioner or when he saw psychiatrists, but as the trial judge said:

“Within months of that chance meeting, the claimant’s world collapsed around him, and he knew why. He is now suffering a cluster of serious psychiatric symptoms because of being in care…”.

The Court of Appeal held that the recognition of the symptoms and their cause were sufficiently serious for the claimant to have initiated legal proceedings within three years. He was, therefore, out of time and so the case failed.

Unless Young is overturned subsequently in the House of Lords, or the UK Parliament amends the Limitation Act 1980, practitioners need to be very alive to the test as set out in Young which I repeat:

“The standard that has to be applied is that of reasonable behaviour of a victim of child abuse who has suffered a degree of injury suffered by the claimant in question of which he has knowledge”.

Here lies in a solution to escaping the fatal clutches of Young and this is convincing the court a reasonable victim of child abuse would not put two and two together, and make four, until the same time as the particular plaintiff did. Can it really fairly be said that Mr. Young knew that he was suffering a significant psychiatric injury in 1996 when his world fell apart? It seems to me that his “behaviour” following the chance encounter was not untypical of abuse victims.

Plaintiffs are going to be very dependent on the evidence that their expert psychiatrist gives to the court as regards the behaviour of the typical child sex abuse victim. A Plaintiff will have to prove in a case such as Young, where there are various potential trigger dates which are outside the pleaded limitation window, that the reasonable child abuse victim would have initiated proceedings at the same time that he or she did.

The expert psychiatrist when instructed must be properly advised of the limitation question, and reminded of the law. Good practice I would suggest is that in the letter of instruction he/she is asked:

“When would an abused person in the position of the plaintiff have been capable of assessing whether recourse to the courts was justified?”

Young is clearly problematical in England, but may also be here in Australia because the various State Limitation Acts reformed and pre-reformed use that word “knowledge” or phrases such as “ought to” know. If Young is followed it makes it obviously much harder for a Plaintiff. The case is being appealed to House of Lords and so the argument may continue to run.

Breach of duty

It is unfortunate that the Court of Appeal in Young was not referred, so it would seem, to the Australian High Court decision in Stingle –v- Clark [2006] HCA 37 [20.7.06], and this leads me on to my second hot spot.

In Stingle the High Court reversed the decision of the Court of Appeal of the Supreme Court of Victoria. This was a breach of duty case where the plaintiff had alleged that she had been raped by the defendant, and had instituted proceedings some thirty years after the event following the development of PTSD. Having been born in 1955 and allegedly abused in 1971, she recognised the causal link between her PTSD and the abuse in 2000, and commenced proceedings in 2002.

Australian limitation laws are not dissimilar to those in England (although I am being a little generalistic here, and one must recognise and be conscious of State variations), but the Australian High Court decided not to follow the House of Lords decision in Stubbings –v- Webb [1993] AC 498, in which it was held that sexual assault be a trespass to the person, and was not a breach of duty, and consequently the subject of the non-extendable six year limitation period. The consequence being a child sex abuse victim has to bring, in the ordinary course of events, a claim based in trespass within six years of their attaining their majority in other words by the age of twenty four. Practitioners, in my experience, have very few sex abuse clients under the age of twenty four.

The Australian High Court faced similar legislative provisions to those found in England and stated the obvious:
“There is no discernible difference, and point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting perpetrators of intentional torts in a better position than the perpetrators of unintentional torts”.

The High Court ruled that trespass to the person was an action for breach of duty, and based their reasoning on English authority pre-dating Stubbings –v- Webb. It had been settled law that intentional assault constituted a breach of duty (see Letang v Cooper [1965] 1QB232). After all abusing someone is a breach of a duty not to do so. To argue otherwise:

“….the statute extends the limitation period in the case of a person who was neglected as a child, but not one who was sexually abused. It is difficult to understand why the policy of the Act would be to discriminate in that fashion”.

For the Plaintiff the decision was vital in order to find that she was not time–barred. The application of the Limitation of Actions Act 1958 (Vic) required a differentiation between the general non-extendable six year limitation period for tort, which runs form the date of accrual (the date of the trespass), and the comparable period for “personal injuries” arising from negligence, nuisance or breach of duty, which runs from the date the plaintiff knows-
(a) that he has suffered those injuries; and
(b) those injuries were caused by the act or omission of the defendant.
The case is also important for the liberal interpretation of the words “disease” and “disorder” so as, for example, to embrace PTSD.

Mr. Young was precluded from suing his abusers because of the non-extendable six year rule given the decision in Stubbings –v- Webb. The irrationality of the law is amply demonstrated by the Australian High Court where Gleeson C J said:

“There is no discernible difference, and point of legislative policy, between victims of intentional and unintentional torts. No legislative purpose is served by putting perpetrators of intentional torts in a better position than the perpetrators of unintentional torts”.

What if?

If Mr. Young’s case had been tried by the Australian High Court, applying Victorian law, would he have succeeded?

Presumably it would not have followed Stubbings –v- Webb, but the previous English and Australian case law and accepted that this was a breach of duty case. Like Mrs. Stingle who had developed PTSD some thirty years after the event, and only appreciated the causal link sometime thereafter, Mr Young also experienced a lengthy pause before the onset of symptoms in 1996 when he had what appears to be a “breakdown”. Mrs Stingle commenced proceedings within two years, whereas Mr Young waited seven. This was fatal in the Court of Appeal’s eyes:
“He was seen by [the psychiatrist] on 10th June 2003. …His conclusion was that the claimant was suffering from a complex form of PTSD and other significant health problems such as tendency to depression and anxiety all of which were directly attributable to his experiences of sexual, physical and emotional abuse. The Claimant told the judge that this was an awakening for him. It was only after reading the [psychiatric] report that he knew what had happened to him. He felt empowered with that knowledge”.

The Appeal judges noted when giving evidence that the Claimant said:
“Q. I am asking you, first of all did you realise in 1997, that you were not the man you had been in 1996?
A. Of course I did, from everything else happening around me.
Q. You realised?
A. Slowly, yes.”
The Court went on to find that whilst the Claimant had been in denial this did not excuse the delay “But that means no more than he was unable or unwilling to face up to the fact that. As he well knew, he was ill. …the Claimant conceded in his evidence that he knew shortly after December 1996 that he was suffering a serious… psychiatric injury”.
In other words two and two were put together in 1996, and not in 2003 when the psychiatrist was seen, or when he decided to talk to the police in 1999, or when he spoke to his doctor, or instructed solicitors.

Assuming the High Court accepted that it was in December 1996 or shortly thereafter that Mr Young knew that he had suffered those injuries then time will run and he would have had six years to get proceedings underway, and so he may have just scraped home.

If we ignore for the sake of argument the various dates in Young what would the position be under the latest amended legislation in the various jurisdictions?

In Victoria from 1st October 2003 we have the two limitation periods: a three year period running from the date that on which the cause of action was discoverable by the plaintiff and a twelve year long stop running from the date of the act or omission. A cause of action is discoverable by a person on the first date that the person knows or ought to have known of all of the following facts:
(a) that the personal injury occurred;
(b) that the personal injury was caused by the fault of the defendant;
(c) that the personal injury was sufficiently serious to justify proceedings.
A person ought to know a fact if the fact would have been ascertained by that person had he taken reasonable steps to ascertain that fact.

In my opinion this has shades of the Court of Appeal in Young about it. The test is objective. Mr Young it would be argued no doubt knew or ought to have known in 1996 that he had an injury attributable to the abuse he had experienced in his childhood. Further the defendant would argue that it would have been reasonable for the reasonable man in the months following December 1996 to appreciate the significance of his injury and to take the appropriate action. If the test is applied objectively Mr Young would surely fail, unless he can obtain an extension?

Extensions are never given lightly, and the greater the time gap between the alleged abuse and commencement of proceedings the greater the risk of prejudice, and a number of States cap possible extensions. I appreciate that the provisions for extensions vary from State to State and so this is, perhaps, a subject of its own, but as a practitioner I would not want to run a case dependent on being granted an extension. If Mr Young was in Victoria or New South Wales he would have to run the just and reasonable argument, and would probably have no chance at all in Queensland, although he might have just squeeked home in ACT without worrying about an extension! In Western Australia under the Limitation Act 2005 time would run when he became aware of having sustained a significant personal injury, or the first symptom, clinical sign or manifestation occurs. Using the Court of Appeal’s analysis this is likely to have been in 1996/97. He might again just have scraped home.

What would be Mrs Stingel’s position if she came forward now? It would probably be even less straightforward than it was already, and under the amended Limitation Act 1958 (Vic.) she would need to argue that it was just and reasonable to extend.

A lesson to be learnt

For me the lesson learnt from the cases of Young and Stingle are when contemplating taking on an abuse case is to thoroughly risk assess limitation. The following checklist might assist when doing so:
• When and where did the abuse occur, and who were the abusers?
• Why have you come forward now? (Be careful not to lead or suggest possible reasons for delay).
• Have the police been involved? Did the police mention compensation? This might be date of discoverability.
• Are records available e.g. social services? Records can undermine prejudice.
• Has the client sought legal advice before, and what were they told?
• At the first interview try and establish that date of knowledge. At the very least obtain medical records.
• Get the client to explain how they have come to the decision to seek compensation. It might be shrewd as well as wise to explain the law of limitation after they have told their story first…

Your risk assessment might also include questions to enable to evaluate liability, causation and quantum, but the above might help you to home in on limitation.

If the case is taken on it should be pursued as expeditiously as possible, and it is common practice in England to try and agree with the Defendant a limitation “holiday” so as to stop the clock running whist the case is investigated. If this cannot be achieved protective proceedings have to be issued to safeguard the client’s position.

There is nothing as amusing as turning the tables on the defence and particularly so when they cry prejudice. How often have I heard that the abuser or a witness is dead/ missing? It is surprising who turns up with just a little bit of time searching on the internet, for example, genealogy websites. Having found the abuser you can then offer them to the defence…

This is a unique area of law that requires lawyers, if nothing else, to be accomplished jigsaw puzzle enthusiasts.

The thoughts and comments expressed in this paper are of course entirely my own.
Some suggested further reading:
• Limitation of Actions – The laws of Australia 2nd Ed Peter Handford (Thomson)
• Civil Procedure 3rd Ed Colbran et al (Butterworths)
• Child Abuse Compensation Claims Gumbel et al (The Law Society (England))
• Civil Procedure “The White Book” 2007 (England) (Thomson)

Postscript

What I had to say is now somewhat out-of-date given that the House of Lords in A v. Hoare has overturned Stubbins v. Webb which had caused the bizarre contradictions that I spoke of. Nevertheless the objective test for “date of knowledge” has come to pass, and is a significant hurdle for victims to overcome, and sits neatly with the Australian provisions of “ought” to know.

Victims need to appreciate that their lawyer when deciding to take their case on (or not) will be risk assessing, and when doing so will be very alive to the objective test, because he/she will need to be satisfied that the victim will pass it. In doing so I will also be examining the potential evidence that is needed to support the claim so as to overcome defendants’ complaints of prejudice.

The overturning of Stubbins v. Webb opens the door for many potential victims to sue their abusers, but we have to be sure on risk assessment that this is going to be worthwhile in every sense because there is no point in suing a “man of straw”.