England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/07/2010

See: Schedule to Order and Order (at bottom)

The Honourable Mrs Justice Thirlwall DBE:

1. This is a claim by a 32 year old man against his mother for damages for personal injury. He claims that during his childhood his mother:-

i) assaulted him;

ii) was responsible jointly with his father for assaults upon him by his father;

iii) negligently failed to protect him from his father.

2. As a result he suffered physical injury and long term psychiatric damage. In addition to general and special damages he seeks aggravated damages.

Background

3. There is no argument about the background to this case. The claimant, XA, is 32 (DOB 4.2.78). He is one of 5 children born to ZA and YA who were married in August 1969. The children were born between 1970 and July 1983. YA, the defendant, is the claimant's mother. It is the claimant's case that his father assaulted him (and his siblings) throughout their childhood.
4. In recent years one of his brothers WA and one of his sisters VA have brought actions against their father for damages for personal injury caused to them by his assaults upon them during their childhood. Both have obtained awards of damages.
5. ZA took no part in those proceedings. He lives in Ireland. I was told that he had attempted to divest himself of his property to avoid having to meet the judgments. There is, however, a charging order on one property that he owns and enforcement proceedings are being pursued in Ireland.
6. The claimant in these proceedings provided an affidavit in support of an application by his brother WA for a freezing order against his father's assets. He provided statements in support of both his brother and sister in their actions against their father. He gave evidence at the hearing of his sister's action before HH Judge McKenna in 2008.
7. The Claimant has not taken proceedings against his father notwithstanding his own view and that of his siblings that his father beat him more frequently than he beat the rest of the family.
8. He sues his mother. In evidence he gave two reasons for that: first because it would be easier to enforce any judgment against her since she lives in England and second because he now considered that she was at least as responsible as his father, if not more so, for the beatings he received during childhood. Having heard the evidence I find this a surprising view.

Family History

9. This is not in dispute. Both mother and father were practising Catholics. They attended mass regularly, as did their children. Family prayers were said every evening. When young the boys were altar servers at the local church.
10. Father worked hard. He drank a lot. When he was unemployed, which happened from time to time, he was particularly irascible. He attended mass during the week at a different church so that his own parish would not know that he was out of work. The defendant did not and does not drink.
11. Father was brought up in Ireland, one of several children. At the age of 5 his mother put him and his sister into the care of the Christian Brothers in Artane. He stayed there until the age of 15 when he left school, left Ireland and moved to England. He told his children over the years, and I have no difficulty in accepting, that the regime of the Christian Brothers was one of harsh physical punishment which the Christian brothers believed maintained discipline. They believed that caning children ensured that they behaved. They also believed it caused them to learn. The claimant's father believed this was entirely acceptable and normal. So did many others of his generation and generations before that. I remind myself that as recently as the 1960s the use by teachers of a stick or cane (or a plimsoll or a board rubber) to strike pupils was not unusual in schools (including primary schools) in England to punish bad behaviour and to encourage rote learning, particularly of spellings and multiplication tables.
12. The defendant was brought up in poverty in Ireland. Her mother spent most of her life in bed "with her nerves". The defendant and her siblings were left to fend for themselves while their father was at work. He too believed in the importance of physical punishment to maintain discipline and beatings were a feature of life in that household, mostly for the defendant's brothers.
13. It appears that the father's attitudes never changed. Far from rejecting the treatment inflicted upon him by the Christian Brothers in Ireland he adopted it within his own home. It is common ground between the parties in this case that he frequently repeated the phrase "Spare the rod, spoil the child". He was of the view that the teachings of Jesus Christ as set out in the New Testament entitled him to rule the household, quoting part of the bible quotation which begins "wives, give way to your husbands". As the defendant put it, "he didn't ever remember the other part"
14. It is plain from all the evidence I have heard that ZA was the uncompromising head of the household, whose word was law. Contravention led to physical punishment. For the most part his wife and children accepted that.
15. It is agreed that over many years ZA struck his children, usually with the back of a clothes brush but also with a stick, or a cane or a belt. The frequency and severity of the beatings is in dispute as is the length of the period over which they occurred and the extent to which ZA used implements.

The Action

The claim is brought in assault and negligence, as follows:-

16. Assault by mother jointly with father

It is the claimant's case that many of the assaults by his father were committed with the defendant's agreement and often at her instigation. (see paragraphs 4 and 5 of the Re amended particulars of claim). It was the claimant's case that the defendant was a joint tortfeasor.

17. Assault by mother directly

This is the simplest part of the claimant's case. In paragraph 6 of the Reamended particulars of claim it is pleaded that the Defendant would "assault the Claimant by beating him with a clothes brush". This was developed in oral evidence and I deal with it below.

18. Negligence by mother

The claimant's case was set out initially in paragraph 8 of the reamended particulars of claim. "in breach of the duty of care that the Defendant owed the Claimant she:

i) failed to protect the Claimant from harm and in particular the assaults committed by his father

ii) failed to keep the Claimant safe from harm

iii) failed to remove the Claimant from harm and/or to a place of safety".

19. In the Reply the following was added "failed to protect the Claimant against the harm caused by witnessing his father's assaults against the Claimant's siblings
20. In response to a request for further particulars of what action the defendant should have taken it is pleaded "not abusing me herself; not reporting misbehaviour to my father in the knowledge that he was likely to assault me".
21. In opening Mr Levinson submitted that the defendant was under a common law duty of care to her son which he defined thus: "a duty to take reasonable steps to keep the Claimant safe from injury". The standard to be applied to the duty would be, he said, the standard expected of a reasonable parent judged by the standards of the day. It is his submission that this is a well recognised duty, described by Russell LJ in the case of S v W [1995] PIQR 470.
22. It was initially asserted in the skeleton argument on behalf of the claimant that it was not averred that mother was under a duty to separate from father. It was his case that she should not have left the children unsupervised with him. In opening it was conceded that in practical terms separation of children and father (and probably therefore of father and mother) was required. That would have brought with it, presumably, a requirement that father should have no unsupervised contact with the claimant.
23. In closing it was the claimant's case that mother was negligent in:-

i) failing to obtain effective injunctive relief to keep father away from the family home, and the children

ii) failing to leave the family home with the children

iii) failing to have the children looked after under a private family arrangement

iv) failing to have the children taken into care.

24. It is the defendant's case, advanced through Mr Roche that:-

i) She did not encourage or instigate assaults by her husband. She tried to protect the children.

ii) She did not assault the claimant. She struck him on occasions but that was lawful chastisement

iii) She owed no common law duty of care to her son. The duty contended for is novel. Whatever the position at law she did her best for her children and was not in breach of any duty to them

iv) the case is statute barred by operation of s11 of the Limitation Act.

25. Section 11 of the Limitation Act 1980 provides that the relevant period of limitation in personal injury claims is 3 years. This includes the claims in assault (see A v Hoare [2008] UKHL 6). The claimant accepts that his case was brought outside the primary limitation period of 3 years prescribed by section 11 of the Limitation Act 1980. He also accepts that he had the requisite knowledge within the meaning of section 14 of the Limitation Act 1980 at the time of his majority i.e. on 4 February 1996. Given the clarification of the nature of the test of date of knowledge set out in A v Hoare that was an inevitable concession. The 3 year limitation period therefore expired on 4 February 1999 when he was 21. Proceedings were issued in 2009. The claimant invites me to disapply the time bar in the exercise of my discretion under s 33 of the Limitation Act 1980.
26. I am reminded by both counsel that where, as here, the court determines the Section 33 issue along with the substantive issues in the case, the Judge should take care not to determine the substantive issues before determining the issue of limitation and in particular the effect of delay on the cogency of the evidence: see KR v. Bryn Alyn Community (Holdings) Ltd [2003] QB 1441; EWCA Civ. 85; at para. 74(vii). That part of the decision of the Court of Appeal in Bryn Alyn survived the decision of the House of Lords in A v Hoare. I have also considered the decision of the Court of Appeal in AB & ors v Nugent Care Society [2009] EWCA Civ 827 at paragraphs 10-27.
27. I shall set out the evidence and consider the issue of limitation before turning to the substantive issues where appropriate.

THE PARTIES

Claimant

28. The claimant gave evidence. He was composed throughout. He is an intelligent man. He is currently studying for an Open University Degree. His evidence was considered and measured. He had provided a detailed statement dated 14th January 2010 upon which he was cross examined. It became clear that several paragraphs in the statement recounted what he had been told rather than what he recalled, particularly in relation to matters early in his life. It was also clear that reading contemporaneous documents had prompted memories of some events and altered his memory of others. That seems to me inevitable when people recall matters that are many years old. I bear it in mind when assessing the accuracy of recollections.
29. It is the claimant's case that until 2007 he considered that his mother was as much a victim of his father as her children. At paragraphs 64 to 67 of the statement he sets out what is headed "My changed feelings towards my mother". This change seems to date from 2008. It is the result, in part at least, of counselling he has received. He has also focussed on parts of an entry in notes from Great Ormond Street Hospital of a consultation with him and his mother in October 1997. He says "I believe that the account recorded by the nurse at Great Ormond Street is a true reflection of the role she played as a mother. That she did not care for me as a proper mother should have. She allowed and contributed to the assaults and abuse meted out to us. She had many opportunities to stop our father abusing and assaulting us, but for her own reasons chose not to do so. Moreover she encouraged and contributed to the assaults and abuse meted out." I shall return to the detail of the note later in this judgment
30. At paragraph 67 he writes "She has never expressed regret or apologized for the suffering she has caused her children. I have nothing but contempt for her and do not regard her as a mother. I should have been removed from my father at birth and I firmly believe that had I been, my life now would be totally different" In evidence to me he said that he considered the claimant at least as responsible for what had happened to him as his father, if not more so.

Defendant

31. The defendant is in her late 60s. She seemed to me older than her years. She had provided a lengthy statement, some 25 pages. When she began giving evidence she appeared genuinely bewildered and perplexed by perfectly reasonable questions which arose from the contents of the statement. I granted her time to read the statement again. It took some time. She told me (and this became obvious in any event), that a lot of the content of the statement derived not from her own knowledge at all but from having spoken to her other children, principally her son TA and her daughter VA. It became plain that although the statement gives the impression that the claimant has a good memory of many events she clearly does not. In closing submission Mr Levinson, for the claimant, characterised the defendant's memory as "patchy". Even that description overstates the quantity and quality of her recollection.
32. That is not to say that she could remember nothing. She has a number of snapshot memories; apparently clear memories of single events – e.g. her recollection that the boys has been beaten by her husband because VA had not fastened her shoelace and might have fallen. I shall deal with those memories in more detail later. What she plainly lacked was any ability to give a coherent account of the years in which she was bringing up her children. On occasion she plainly had no recollection at all of significant incidents that undoubtedly occurred. By way of example I note that in December 1979 she went to court to obtain an injunction against her husband. The records show that her husband gave an undertaking to the court. He must have been at court for the undertaking to be taken, as Mr Levinson put to the defendant. The defendant plainly had no memory of her husband being at court at all. "I vaguely remember going to court, Brentford, I don't think my husband was there at all." She was asked more questions about it and eventually said, very firmly, "he never went to any court, ever." She was plainly convinced about that, and indeed convincing. She must have been wrong about it.
33. It was plain to me that she is extremely bitter towards the claimant. Her response to him was not unlike his to her in that she dismissed his statement as "all lies" and "terrible lies", even though she did in fact accept the truth of some of what appears there.
34. I should add that at the time she was giving evidence, and for some time before that the defendant has been responsible for looking after her daughter VA's children. VA has serious mental health problems. The claimant was plainly very distracted by her concern about their (and VA's) immediate welfare.
35. My overwhelming impression of the defendant was of a woman who was genuinely baffled and distressed by these proceedings. At one point she observed that if she was in the witness box (or the dock as she called it) she couldn't see why half the mothers in the country wouldn't be there with her, if what she had done was so wrong.

The Records

36. There are available some social services records covering the period 14th August 1978 to 6th December 1979 and from 25 August 1993 to 6 September 1993. It is likely that these events mark periods of crisis within the family. They provide detailed information about the family during those periods.
37. There are also the claimant's medical records which contain some useful contemporaneous information, particularly in relation to his teenage years.
38. I have also considered a number of court documents relating to an application for an injunction by the defendant and, later, a petition for judicial separation dated 10 February 1993. In addition there are some family photographs.

Other Witnesses

39. WA, the claimant's brother, provided a statement dated 14 January 2010. He did not attend to give evidence.
40. TA, the eldest brother provided a statement, dated 9 March 2010, and gave evidence.
41. I have also seen the statements provided by VA and WA to the county courts that dealt with their claims.
42. I have read the judgment of Judge McKenna in VA's case and a note of the judgment of DJ Manuel in WA's case.

The Medical Evidence

43. The claimant obtained a helpful report from Professor Anthony Maden, Professor of Forensic Psychiatry at Imperial College, a highly experienced expert witness. Its contents were not challenged.

Events in the A Household

44. I now set out the evidence of relevant events in the A household about which there is disagreement.
45. The claimant recalled that throughout his childhood, from about his fifth birthday, he had been the subject of frequent beatings from his father, save for periods when his parents were separated when the frequency would be reduced. He said that the beatings occurred between 2 and 3 times a day and on some days occurred between 8 and 10 times a day. He suggests that I should take an average figure of 4 times a day. The beatings were often brutal; his father would use a belt, or a stick or a cane or the back of a clothes brush which, for many years, was kept on top of the television where it could easily be found.
46. The claimant told me that when his father came in from work he would ask his mother whether the children had behaved. If she told him they had not then the children would be beaten. If she told them they had he would go round the house looking for fault and, having found some perceived fault, he would beat the children in any event.
47. In the statement he wrote in 2006 for use in his sister's claim the claimant said this "the beatings were random and unpredictable. There would be any number of triggers. My father blamed problems he was going through on us, accusing us of causing trouble by not attending mass on weekdays. I remember he struck me and TA across the head for this."
48. He also said in that statement "My mother would object to the beatings on occasion but he told her that she had no authority to get involved." When dealing with his father's return from work he said "When he first came in from work within the first minute he would ask my mother what had happened during the day and he would ask if we had misbehaved. He would then ask us if we had said our prayers and then find a reason to beat us. There was never a period that he did not beat us. My mother would not always tell him whether we had misbehaved."
49. In his statement for these proceedings he said "My father's beatings were ongoing and unavoidable. They were typically for any random reason of his choosing. He would strike us with a belt, stick, wooden brush, cane or electric lead. This happened very day, often several times a day and some night when we would be called or dragged out of bed to be beaten. We were also routinely forced to come to the living room to watch our siblings being beaten and often all beaten together (in turns). My mother was usually present in the room but even when not, she was fully aware of what was being done to us. It was not a quiet affair and so she would have heard what was taking place. Sometimes she would object but it was rare for her to do so. If she objected our father would continue nevertheless, and tell her not to question [his] authority. I can recall no time when she actually prevented him from administering a beating".
50. The defendant accepted that her husband struck the children with the clothes brush on many occasions but she did not accept that it was nearly as frequent as the claimant said. She said that once the children had been punished they would behave for a while so that punishment was not needed for a while and weeks would go by without a beating. She accepted that her husband also used a cane that he had bought for the purpose of striking the children. She had objected to the use of the cane but he had taken no notice of her. She thought this was before 1978.
51. She did not accept that the claimant was beaten any more than his siblings. She said that when he was very young he was given more lee way, notwithstanding that he misbehaved more than the others because he had a medical condition (phenylketonuria). She refuted the account of his fifth birthday party given in his statement. She remembered a particularly harsh beating that WA had received and gave details of that.
52. She said that she did report the children to their father when he came in if they had been particularly badly behaved. She did not do so every day or as a matter of course. Even when she did not do so her husband would find a reason to complain and punish the children if he was inclined to do so. She did not accept that the children were forced to watch their siblings being beaten.
53. Her attention was drawn to the note written by a doctor at Great Ormond Street on 26th October 1987. The claimant relies on this note. At this time the claimant was 9 years and 8 months old. When the claimant read it in 2007 he changed his view of his mother, as I have explained earlier in this judgment. I do not reproduce the whole note. It records the defendant asking for help with the claimant. It begins thus "Mother asking for help because XA so difficult – won't do as he is told, gets angry with mother and siblings, always on the go. Father very strict and XA always in trouble. Gets spanked with a hair brush most days". It records that "mother mentioned the possibility of XA going into care because she cannot manage him". It also records "actually said she doesn't like him."
54. The doctor described the defendant as "cold, angry and very critical of XA". The defendant did not remember much of this incident but she was adamant that she was not cold and angry towards XA. She refuted that she had said she did not like XA. The note goes on to record that XA was distressed by his move to a new school where he had few friends. The consultation continued with both mother and child weeping. The defendant told the doctor that she was depressed and had been for years. The doctor decided that the claimant ought to be admitted to hospital for assessment. He and his mother left with the intention of returning later on.
55. They did not return. The defendant rang the next day to say that she had been very tired and that all was now well. She agreed to have a visit from the health visitor and to take the claimant to the GP, which she did. A social worker also attended to check on the family.
56. When the claimant recalled this incident for the purposes of his sister's claim in a statement he made in 2006 he said "the first time I remember Social Services becoming involved was when my mother broke down at Great Ormond street and asked for help. She was afraid that my father would hurt us and do serious harm." Having read the note for himself he no longer has that view.
57. What the notes show is a mother at the end of her tether, concerned for the welfare of her child, concerned about her husband's reaction to him, her own feelings for him and asking for help. Whilst the claimant's upset in 2007 at reading that his mother said she didn't like him in 1987 is understandable he was obviously wholly unaware of this at the time. The defendant denies saying this to the doctor. She seemed appalled by the suggestion. I am not surprised by that. It is likely that she cannot now believe that she said such a thing. I find that she did say it. This was the utterance of a depressed exhausted mother. It did not mean that the defendant did not love her son, nor that she would not do her best for him. That, I find, was the reason she sought an appointment at Great Ormond Street in the first place. I also find that she was reporting at that time that the claimant's behaviour was more difficult than that of her other children.
58. TA provided a statement in support of the defendant's case and gave evidence. He said that he and his two brothers were always fighting. They were, he said "wild". XA was the wildest of the three, he said. His mother could not control them and she did report them to their father. He said, "She had no option. She knew she had no option. We would have done the same thing every day. We were all wild, XA in particular" He said that his father did "go over the top from time to time". He accepted that in his statement he had said that this happened often.
59. He was asked how often his father beat him. He said "one week it could be 5 days, the next week nothing, then 3 times". He was asked to average out the beatings over a month. He said, "I'd be hit probably twice a week. XA was very wild for whatever reason. He got the brunt of it, naturally. It may have been every day for a week but not every day for a month."
60. He considered that the claimant was beaten more often and more harshly than he was. He recalled one occasion when the claimant was particularly harshly treated. His father hit him "with a great number of blows", he said. His father regretted it and took the claimant to McDonalds the following day. He recalled that the episode began because the claimant said to his father something like "you're not a good worker", and his father's temper flared. He recalled that the father had hit him with the clothes brush on his buttocks and his hands. He recalled that the claimant was then roughly between 10 and 12 years old, though he was not sure.
61. "I remember mother reporting us to father. The majority of the time we would be fighting - myself and my 2 brothers, physical fights. In general he would hit us with the clothes brush…It was certainly a good whack when he hit us". I remember it happening. It stopped when I was a teenager."
62. When asked about his mother's influence on his father TA said this "She had some power, very limited. She would be appealing to his heart. She had little sway with my father. He is a very forceful character. He is very opinionated. She had very little influence on him. She would appeal to his human nature. If she objected to a particular incident she raised those objections. In general he took no notice".
63. All the family members agree that the defendant asked priests to the house to talk to her husband about his behaviour. According to the claimant "My father told the priests that he had authority to hit his children. I remember another time the Police were called to the house and threatened to arrest my father after my mother called them because of his violence but no action was taken"

Social Services Records

64. The social services records for the period August 1978 to 6^th December 1979 provide cogent evidence of what was happening in the household at that time. Although they predate the claimant's complaint they are of some assistance in illuminating how the family was then functioning.
65. I should make clear that when the defendant was asked about these records she had virtually no memory of many of the matters there set out. She rarely remembered what was attributed to her. I considered whether she was being evasive. I am quite satisfied that she was not, not least because she had no better memory of events that reflected well on her than she did of others that did not. That may not be surprising 30 years later, after a life which, on any view, has been extremely difficult.
66. It is clear from the documents (although the defendant did not really remember it) that during 1978 there were serious difficulties within the household. Social Services record that on 14th August 1978 the defendant telephoned Ealing Social Services to say she had left her husband. Her 4 children were still at home. She went into the social services offices and asked that the children be taken into care. She told them that she had been married for 9 years and her husband has always been the same. "He apparently nags her and threatens her but has never actually hit her. He takes it out on the children, especially SA, the eldest. He hits her with a belt when she does not know her tables. She says she will never go back home again and want a divorce". In fact in these proceedings the defendant acknowledged that by this time ZA had been physically violent towards her (YA), on one occasion striking her to the face and causing her to lose teeth. There were further incidents of violence over the years.
67. Social services visited the home and took the view that the children were afraid of their father. She saw marks from the belt on SA and also on WA. The claimant's father was upset that his wife had gone. He said that she had left several times before and he thought she would come back.
68. The defendant was advised to see a solicitor and arrangements were made for her to do so the next day. In the mean time social services spoke to the health visitor who knew the family well. The health visitor opined that YA was "a truthful woman and it is out of character for her to have walked out and left her children".
69. According to the record the defendant's solicitor stated, on the same day (14^th August), that she was going to start injunction proceedings in connection with divorce proceedings, asking for interim custody. 10 days later the records show that the Defendant had returned to her husband. A month later the defendant reported that the home situation has improved a great deal since she returned. "The [defendant]'s husband has admitted his behaviour has been unreasonable. The [defendant] had decided to give him another chance. She told the social worker that he was still slapping the children but it was happening less often and he was not using sticks or leather straps. A month later when the social worker visited the A household and saw ZA and YA she noted that "YA's loyalties were with the children rather than with her husband." It is quite clear from the record that the social worker had been given a detailed account of father's treatment of his children. The defendant had confronted him about his unreasonable behaviour, the social worker has recorded. She went on to write "ZA believes in strict discipline of his children but knows no way of enforcing this than by slapping and hitting them His views are very rigid…In his eyes he is only "slapping" his children even when he causes bruising, and he sees nothing wrong in this and has no regrets. He is in fact proud of never hitting them in temper and of never hitting hard enough to cause fractures. ZA says he believes in rewarding and punishing his children according to their behaviour, but beatings have undoubtedly been administered more often than rewards. He refuses to see that e.g. a slap is a too severe reaction for not closing a door. He expects his children to respond to instructions in an adult way… In spite of ZA's severe treatment of his children I am left with the impression that he is fond othem. . He says he cuddles them quite often and his wife confirms this. He worries about them growing up delinquent and without decent jobs and consequently he sees education as important. To make them do their homework he uses threats and slaps and he will also set them work to do at home…It is worrying that ZA punished his children so cold bloodedly. His wife tells me that he has even chosen a new spot to hit each time to make it hurt more and at time she has had to put long sleeves on SA before going to church or school to cover up bruises."
70. On 25 September 1978, the social worker told the defendant that she would be contacting the school. Although the defendant was upset she told the social worker that she must do what she thought was right. The same month the social worker noted "YA is a caring, capable mother but her influence on her husband is limited." She added that "ZA is trying alternative forms of punishment and that he had been made aware by his wife and SSD that his disciplinary methods are unacceptable." The social worker noted that by 12^th January 1979, ZA "has agreed to modify his behaviour in a number of areas including not using a stick or belt on his children. Hits 2 eldest less frequently - about once a fortnight".
71. When she was asked about the records in 1978 which show that in August she went to stay with her sister she said "I couldn't remember which sister I went to, but I see that I did. My nerves were in such a state I had to leave the house. I can't remember what it was about, but whatever is down here must be right… My nerves had gone. I couldn't stay in the house. I couldn't go back. I had to get the children out. I can't remember why. The social worker spoke about putting him out and me going back. I don't know what happened then". The defendant was extremely distressed as she endeavoured to remember these events. She was asked about going to a solicitor. She was very confused about this. She could not remember seeing the female solicitor. She could not remember why she had gone back to her husband. In her statement at paragraph 15 she said "I always wanted the best for my children and tried to raise them to the best of my ability in very difficult circumstances. I find it difficult to believe that I was obliged to separate from or divorce my husband when I was simply following the teachings of my church about the sanctity of marriage".
72. The records continue but with fewer entries. By 15^th March 1979 YA told social services that her husband "rarely hits the children and controls drinking but there is still a marital problem which she feels she can cope with. ZA complains that wife blackmails him by threatening to leave."
73. In April 1979 social services agreed to stop visiting. The defendant said that she would let the department know if her husband started hitting the children excessively.
74. In November 1979 the records show that the defendant asked to see SSD. "Says she has had a row with husband and locked him out. She will not allow him back for the children's sake". She had arranged an appointment with solicitors and DHSS.
75. The records show a home visit by a social worker in December 1979. "[Defendant] has obtained an injunction and is contemplating separation proceedings. Does not feel she requires further help. The social worker recommended that the case be closed. "
76. Mr Levinson asked her about these records. He pointed out to her that she had been to a solicitor for a second time within a year of the first visit. She said "within a year I went again, did I?" She seemed completely at sea. She appeared to have no memory of it at all. She simply said that it must have been very bad if she had gone to the solicitor because she would only go if things were "very bad". She was asked about the circumstances in which she eventually allowed her husband to return. Again she could not remember "he must have come back. Maybe things were all right for months. I couldn't cope without him. I was trying to do my best with 5 children."
77. In 1992, by which time the claimant was 14, the records show that she was seeking judicial separation. The particulars of behaviour suggest that the catalyst had been her husband striking SA in the street; SA was now independent and working. He had also grabbed TA by the throat. The particulars do not contain violence of the same type or frequency as appear in the early records. In evidence the claimant said, "I think my husband had a lot of mental stress at that point, he was behaving very strange, out of character." She then endeavoured to give evidence about the comings and goings of her older children at that time. Her recollection was muddled and incorrect. She agreed that she had given her husband lots of chances over the years and she agreed that his behaviour must have had a detrimental effect on the children, as the petition said. She was asked why she did not see the separation through "I can't tell you exactly. I presume he said he would change. Something must have made me go. Then it all calmed down. I knew I couldn't manage. Teenage boys would have been wild. Drinking drugs. They wouldn't do anything I told them" It is not disputed that during one long period of separation, of about a year, the claimant, then a teenager, took to drinking and staying out late at night, ignoring his mother's requests that he should come home.
78. Even with the limited assistance of the records it is not easy to establish how often the defendant separated from her husband or for what periods of time.
79. The defendant was asked again by Mr Levinson why she returned to ZA or why she permitted him to return to the household. She found it difficult, if not impossible, to recall particular incidents and particular returns. She could respond only in general, and often hypothetical terms. She said, repeatedly, words to the effect of "things must have calmed down. He must have said he would behave. I couldn't control the children on my own. I was far too soft. I couldn't cope physically or financially. So things must have calmed down. And I suppose later they started up again." I do not believe I have understated the detail of her evidence. It was plain that the defendant could not retrieve any better memories of why there had been reconciliations.
80. The claimant relied in particular on a record made in 1993, when he was around 15. It is his case that a social worker was called to the house by his father. He said he remembered his father saying on the telephone "I don't want to hurt the lad but there's only so much a man can endure" He said that his father told him that the social workers would come and get him from school.
81. The social workers note of this visit is extremely detailed. In particular she records that the claimant was openly challenging his father. The picture is not of a child cowed by his father. I note also that the social worker records that the defendant supported the claimant's version of events against his father. When giving evidence the claimant did not remember this was the case. Nor did he remember that his father had apologised to him (he said "really? Let me read it"). He seemed surprised when it was pointed out to him, even though he is clearly very familiar with the documents in the case. He said "I do remember him saying, "I love my son but I expect him to do whatever I say""
82. The claimant contended that his parents had lied to the social worker on this occasion about whether there was violence in the home. He had not said that in statements provided in proceedings in relation to his brother. Given the detail in the notes I am quite satisfied that if the social worker had asked about violence and received answers she would have recorded them. I consider that the notes are likely to give an accurate account of what was said on that occasion. It follows that the claimant's memory in this regard is unreliable. The defendant did not have a clear memory of this incident at all.
83. In early 1995 the claimant told his GP that he was not going to school "as not able to speak out in classroom (gets panic attacks). He described his every day activities. The following then appears in the record "Father, prone to violence. Had angry outburst (pulled patient's hair, and threatened patient). Outbursts occur especially during the holiday, usually over trivial matters. The patient has been punched and has been held by the throat. Before disciplined patient with a belt" That is clear evidence of a complaint of violence when the claimant was 17. It appears to be a single incident but he is plainly referring to other incidents, and to the fact that in the past his father used a belt on him.
84. During the latter part of the 1990s there are several references in the claimant's GP records to the defendant attending the GP on the claimant's behalf. On one occasion in November 1995 the GP record reads as follows "Mother came about patient. She attributes most of his problems to her husband's behaviour in the past". There is also evidence of her buying alcohol for her son, apparently to help him with his anxiety.
85. In February 1996 a doctor wrote "I understand that XA was referred for counselling in May 1995 but the line taken by the counsellor was that XA's father was a monster and although there is a good deal of fault there this approach was not really acceptable to XA or is mother…XA is one of five children all of whom seem to have suffered from their father's obsessionality and his views of strict upbringing…Mother agrees that his behaviour has been difficult for her and her children to cope with…" It is plain from these and other entries that the defendant supported the claimant through his teenage years with frequent visits to the doctor and counsellors.
86. The records show that as late as 1996 and 2000 the Claimant told professionals that he had a good relationship with his mother. In 1996 he described her as "religious, busy, sociable, easy to talk to if she has the time." When ZA left the Defendant in 2003, the Claimant moved back in with her.
87. I record that the defendant remains married to the claimant's father, notwithstanding that he sold the house from underneath her, took the proceeds of sale and went to Ireland. She told me that she is a Catholic and she had married for life.
88. Until 2007 the Claimant thought that his mother had done her best in difficult circumstances to protect him. He had regarded her as one of "six victims". To me he said that until he read the hospital record in 2007 his remembered experience of events was that the Defendant had done her best. I agree with Professor Maden's view of the doctors who dealt with the family at the time "Doctors who saw her at the time appear to have formed the view that she was doing her best in difficult circumstances in light of her own limited psychological resources".
89. The claimant obtained 10 GCSEs at grades ranging from A to C. His older brother WA had gone to university. The claimant hoped to do the same but was suffering increasingly from panic attacks. He developed a phobia about school, as had his sister before him.

Evidence of assaults by the defendant on the claimant

90. There is no record of any allegation of assault by the defendant on the claimant or any of her children. In none of his statements in support of his siblings' claims does the claimant refer to assaults by his mother. They do not feature in the letter of claim.
91. In his statement for these proceedings the claimant says "on occasion my mother also beat us with the wooden brush and I remember being made to stand in front of her by my father while she did so." In the course of his oral evidence he said that sometimes his mother struck him on the back with the wooden brush as he ran out of the room. This detail, which he mentioned for the first time in May 2010, chimed with something set out in the statement of WA to which I refer at paragraph 93 below. It is difficult to accept that this memory is accurate, arising so late, and after the defendant has read his brother's statement, even if it may be genuine. In answer to questions from me as to the circumstances in which his mother struck him the defendant said it was when he was misbehaving. She did not strike him gratuitously.
92. There is no evidence, from any source, of any injury to the claimant as a result of his mother striking him.
93. The defendant said in her statement at paragraph 6, "sometimes I would slap them on the spur of the moment. I would smack them on their buttocks or legs." TA said, "She gave us no more than a slap on the arm." The defendant also said in evidence that when the boys were misbehaving she would rattle the wooden spoons in the drawer, and they would run off. "I'm not saying I never hit them with the wooden spoon", she said.
94. In the statement prepared in his own action WA wrote, "my mother would not discipline us". In these proceedings he says "I recall that my father said he didn't want to have to do "all of the disciplining" of his children and he invited my mother to take the clothes brush and use it to hit myself, TA, and XA…I recall this because my mother was striking us across the base of the back rather than only on the buttocks and legs which caused excruciating pain". WA did not attend to give evidence at this trial. I was provided with a letter from his GP dated 20 May 2010 which said that WA had attended the surgery that day "WA has been registered with us since January 2009. We have not had an occasion to see him until this visit. He reports extreme distress at the prospect of testifying in court. The anxiety of the proceedings has cause him to be unable to work and also he is finding it difficult to control his alcohol intake.….He fears he may break down or have an angry outburst…My assessment is that WA seems to be remarkably fit mentally given the stress of the current situation. However I feel that the anxiety associated with testifying will compromise this and put his mental health at risk. I feel he should not be required to testify in person". It is not apparent that the GP was told he has given evidence in his own proceedings.
95. In any event Mr Roche had no opportunity to cross examine on the allegation against the defendant. I attach limited weight to it in the light of the other evidence.

Injury

96. As I have already said, there is no evidence of any injury arising out of the alleged assaults upon the claimant by his mother.
97. In respect of the beatings from his father, there is no evidence of any physical injury to the claimant (as opposed to his siblings at an earlier stage) but I infer that being struck repeatedly with a wooden brush, or a cane or other implement would often be very painful and would cause some physical injury. The lasting and most damaging injuries however were psychological, arising to a considerable degree from the fear and anxiety he experienced. These are set out in Professor Maden's report.
98. The claimant's life has been characterised by disabling anxiety which, according to Professor Maden has had a severe effect on all aspects of his functioning. He cannot sustain intimate relationships and his social life is very restricted. He cannot hold down employment. He is an alcoholic. Professor Maden says "He suffers from dependence on alcohol which is secondary to his anxiety. Since becoming involved in this litigation he has developed symptoms of post traumatic stress disorder. Professor Maden notes that both parents have had mental health problems and that his father has a drink problem so hereditary factors cannot be discounted. Nonetheless it is Professor Maden's view that "the abuse by his father played a major part in the causation of his psychological problems. There is an obvious parallel between the fear generated in him from an early age by his father's behaviour and the anxiety that has dominated his adult life."
99. He also opines "his mother's behaviour did not have a direct causal role". There is no reference in the report to any allegations of assault by the defendant. The claimant told me that Professor Maden had his statement. It is common ground that there is no evidence therefore of any psychiatric injury arising out of the alleged direct assaults by the defendant upon the claimant.

The Issues

Whilst there are some common issues each limb of the claim is different.

In the claim for joint enterprise assault the issues are:-

i) Did the claimant's father strike the claimant? This is not really in issue.

ii) If yes, was it lawful chastisement or assault?

iii) If there were assaults, were any of them committed jointly with the defendant?

iv) If yes, how often did those joint assaults occur, over what period

v) what damage did the claimant suffer as a result?

vi) quantum of damages

100. The issues in the claim arising out of the allegations of assault by YA on the claimant are very straightforward:

i) Did she strike him?

ii) If yes, was it lawful chastisement or assault?

iii) If it was assault over what period did the assaults occur?

iv) what, if any, injuries were caused?

v) quantum of damages
I bear in mind that there is no need to prove injury in a claim for assault.

101. The issues in relation to the negligence claim are more complex:-

i) was there a duty of care?

ii) if yes, did the defendant breach that duty? If yes, when and how?

iii) did the claimant's father assault him as a result of the negligence?

iv) if yes, how often and over what period?

v) what damage did the claimant suffer as a result?

vi) quantum of damages

102. Corporal punishment was lawful in schools in England and Wales until the 1980s.
     
103. The defence of lawful chastisement was available until Section 58 of the Children Act 2004 came into force. Section 58 provides that in relation to a number of offences (including assault occasioning actual bodily harm contrary to Section 47 of the Offences Against the Persons Act 1861, or offences under sections 18 and 20 of the same act (wounding with intent or causing grievous bodily harm with intent) battery of a child cannot be justified on the grounds that it constituted reasonable punishment. The section also prohibits the use of the defence in civil actions for battery of a child. This legislation was passed in the light of jurisprudence arising out of the Human Rights Act 1998. Lawful chastisement was a defence to an allegation of assault, including serious assaults on a child, for a parent or someone in loco parentis.
104. The common law position as to lawful chastisement prior to the Human Rights Act 1998 was summarised in R v. Hopley: see R v. H [2002] 1 Cr App Rep 7 at para. 16 :

"By the law of England, a parent or a schoolmaster (who for this purpose represents the parent and has the parental authority delegated to him (may for the purpose of correcting what is evil in the child) inflict moderate and reasonable corporal punishment, always, however, with this condition, that it is moderate and reasonable. If it be administered for the gratification of passion or of rage, or if it be moderate and excessive in its nature or degree, or if it be protracted beyond the child's powers of endurance, or with an instrument unfitted for the purpose and calculated to produce danger to life or limb; in all such cases the punishment is excessive, the violence is unlawful, and if evil consequences to life or limb ensue, then the person inflicting it is answerable to law, and if death ensues it will be manslaughter."

105. In the case of R v. Mackie (1973) 57 Cr App Rep 453 Stephenson LJ stated at page 460:

"The defendant was in the position of a parent, which may have entitled him to "assault" the child by smacking or threatening him without breaking the law, and it was not every act which might be expected to cause slight harm to the boy that would be unlawful for a man in his parental position; he might have to do some such act in the interest of the boy's own safety, for instance, to keep him away from the upstairs window. The purpose of correcting the child – and perhaps the sole justification for correcting a young child – is to deter; how else can the kind parent of a nervous child save it from danger than by in some degree hurting or frightening it?"

106. The reasonableness of the force used during chastisement is judged by the prevailing standards of the time.

Limitation

107. Having reviewed the evidence and identified the issues I turn now to section 33 of the Limitation Act 1980 which, provides, so far as is relevant to this case

"(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which –

(a) the provisions of Section 11 … prejudice the claimant…; and

(b) any decision of the court under this subsection would prejudice the defendant …;

the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates...

(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –

(a) the length of, and the reasons for, the delay on the part of the claimant;

(b) the extent to which having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by Section 11


(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d) … not relevant.

(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert and the nature of any such advice he may have received."

108. I am also directed to the observations of Lord Brown in A v Hoare at paragraphs 84 to 87. Those observations are directed to claims of historic sexual abuse, principally to the situation where claims are brought on the basis of vicarious liability for the acts of employees (or others) but they underline the importance of considering i) whether the effect of abuse is to inhibit the claimant from bringing a claim and ii) that a fair trial must include a fair opportunity for the defendant to investigate the allegations. In many cases, Lord Brown said, that may be impossible after a long delay.
109. The correct approach to Section 33 following A v Hoare was considered by the Court of Appeal in AB & ors v Nugent Care Society [2009] EWCA Civ 827 at paragraphs 10-27. I have had particular regard to paragraph 13. I remind myself that the Court of Appeal were dealing with precisely the sort of case envisaged by Lord Brown: claims for damages for sexual abuse on the basis of vicarious liability. That said the Court of Appeal's approach underlines the importance in the exercise of my discretion of taking into account the reasons for the delay and the effect of the delay on the defendant's ability properly to defend the claim. In this case that effect, together with all the other matters set out in section 33, is being considered not at some preliminary stage where a decision not to disapply the time bar would obviate the need for a trial. I am considering them with all other matters having heard all the evidence and can assess the extent to which, if at all, the delay has affected the defendant's ability properly to defend the claim
110. I turn now to the matters set out in section 33 in so far as they are relevant.

(a) The length of, and the reasons for, the delay on the part of the claimant;

111. The period of delay is 10 years from the expiration of the limitation period to receipt of the letter of claim and 13 years from the date upon which the claimant reached his majority. I accept that the claimant could not have been expected to issue proceedings while still a minor, nor would anyone have done so on his behalf. Whilst Mr Levinson is right to say that in many cases of child abuse the period of delay is longer I must consider the reason for the delay in this case (and the effect on the evidence in this case of the delay, as to which see below) whatever the position may be in other cases.
112. The claimant was a child at the time of the events of which he complains. He was suffering at the hands of his parents, on his current account, but at the hands of his father in any event. From his mid teens he was suffering from anxiety and other mental health problems. According to Professor Maden he now "describes typical feelings of shame and embarrassment associated with memories of the abuse. They would have acted as a powerful deterrent to a complaint as evidenced by the deterioration in his mental state since he has become involved in the litigation. The situation was complicated by his ambivalence towards his mother who was sometimes his ally and protector. He first consulted a solicitor about 10 years ago but did not take action because he had too many other problems to deal with. These observations suggest psychological factors could account for any delay in making a claim." I accept this analysis. I also accept that the claimant has had significant mental health problems since his teenage years. These too were part of the reasons for the delay and I take them into account in the exercise of my discretion.
113. It is submitted on behalf of the claimant that for much of the period his claim was statute barred. That is true of the claims in assault. It is not true in the case of the negligence claim. That was always available to the claimant. The reason he did not act is as I have set out above, not because of the limitation period.
114. It is submitted on the claimant's behalf that the reading of the Great Ormond Street Hospital notes and the counselling led the claimant "to become free of his understandable desire not to take the significant step of suing his mother". I disagree with this. Until he read the notes and had counselling he had no thought of suing his mother. Whilst he has now recast his history and changed his opinion of his mother, the counselling did not free him of a desire not to sue his mother. His changed view is part of the reason he is now suing her.

(b) the extent to which having regard to the delay, the evidence adduced or likely to be adduced by the claimant or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by Section 11

115. Professor Maden is confident that his ability to determine causation and damage is not compromised. He says "the delay has not caused any insurmountable problems for the expert as a consequence of deterioration over time in the cogency of the evidence available, in so far as I comment on the relationship between the abuse and his psychological problems." I accept that the psychiatrist was able to carry out an acceptable analysis of the relationship between the abuse alleged and the claimant's problems, notwithstanding the passage of time since the events with which I am concerned.
116. It is plain from my account of the evidence that the delay has had an adverse effect on the cogency of the factual evidence on both sides in respect of all three limbs of the claim but to differing degrees. I consider my analysis under this heading therefore by reference to the issues (other than causation of injury and quantum).

Was the claimant assaulted by his father, with what frequency and over what period?

117. There is available a significant quantity of cogent evidence from a number of sources. It comes from the claimant, his siblings, the social services and medical records and, to a limited extent, the defendant. It is not possible at this distance of time to establish the frequency, duration and seriousness of all (or even nearly all) the beatings nor to establish with great accuracy which beatings were assaults rather than reasonable chastisement. However that would have been the position to some extent even 10 years ago, given the long period over which the incidents are said to have occurred (roughly 10 years). The passage of another 10 years has further blurred the detail but the broad sweep of father's conduct is sufficiently well described in my view. The evidence remains sufficiently cogent on both sides, not least because the defendant has the evidence of TA in this regard.

Was the defendant party to the assaults upon the claimant by his father?

118. There is a modest body of evidence about the defendant's behaviour at the relevant times from the claimant and his siblings. Whilst the defendant can remember very little detail she was able to assist on the central question of whether or not she reported the children to their father when he came in from work. The evidence on that issue remains cogent in my view, notwithstanding that difficulties arise (as they would have done in any event) in attempting to assess the precise circumstances of particular incidents.

Did the defendant assault the claimant?

119. There is available to me on this issue evidence from the claimant, his siblings and the defendant. Its cogency has not been significantly compromised by the passage of time.

The claim in negligence
The issues in respect of which I have not already dealt with the evidence are:-

i) was there a duty of care?

ii) if yes, did the defendant breach that duty? If yes, when and how?

The issue of whether father assaulted the claimant as a result of the negligence does not require separate consideration here.

120. There was significant legal argument as to the existence of a duty of care. At this stage the issue to which the evidence principally goes is that of breach and I shall focus on that. As I have set out it is the claimant's case that the defendant should either have had him (and his brothers and sisters) accommodated with other members of the family, or had them put into care, or achieved permanent separation from her husband. The records show a number of separations and a number of reconciliations. The number is unclear as is their duration. It is the claimant's case that reconciliations effectively represent breaches of duty.
121. There is some cogent evidence as to the reasons for such separations as are recorded in the documents. The evidence as to the reasons for reconciliation comes principally from the defendant.
122. What was clear to anyone hearing the defendant's evidence was that she simply could not help about how many times they had been separated, let alone give any detailed or coherent explanations, beyond the hypothetical, of the reasons for reconciliation. This is plain from my account of her evidence earlier in this judgment.
123. I have considered whether, rather as Mr Levinson suggested, that whatever she had said she had no defence to negligence. I cannot accept that. Human relationships are complex. The orthodoxy is that children are best brought up in their families. It is plain that Catholicism was a major factor in this family's life. It seems to be accepted by all that the father loves his children. He seems to have promised to behave better and it appears he has done It may well be that she acted reasonably in accepting his promises. He may even have kept them for long periods. I simply cannot tell. It is far from certain that an adverse finding on negligence would be inevitable.
124. Mr Levinson submitted that the defendant should not be permitted to say that she had been hampered in her investigation of events by the passage of time when she had not troubled to obtain her solicitors records from her visits in the 1970s and 1990s. I was assured by Mr Roche that the issue of disclosure had been considered at a CMC when the defendant's solicitors said that all proper disclosure had been given. No application for specific disclosure was made by the claimant. It seems to me therefore that I derive no assistance from this. As it happens some original documents were available and I have adverted to them.
125. As to subparagraphs (e) and (f) of Section 33 I consider that the delay in taking legal advice and failing to act promptly is explained by the reasons for the delay as set out above.

Decision on Limitation

126. I turn then to exercise of my discretion. In relation to each claim the central issues are the reasons for the delay and the effects the delay has had on the cogency of the evidence and I consider those matters along with the observations of Lord Brown to which I have already referred. I have found that the claimant has a good reason for delay. I have analysed the quality of the evidence. As was envisaged in AB v Nugent (paragraph 22) the oral evidence has shed considerable light on the question of the extent to which the defendant has been prejudiced.
127. I am quite satisfied that in relation to the claims in assault the cogency of the evidence on behalf of both parties is such that I may consider those claims without unfairness to the defendant. Taking into account the reasons for the delay I am satisfied that I ought to exercise my discretion under section 33 in favour of the claimant.
128. The position is different with regards to the claim in negligence. The defence depends almost entirely on the evidence of the defendant. The defendant is, as I have found, genuinely bewildered and quite unable to help beyond generalities. Her position is hopelessly prejudiced. I would add that irrespective of the prejudice to the defendant the quality and quantity of the evidence is simply not sufficient for me to come to any secure conclusions on the question of breach of duty.
129. Accordingly pursuant to Section 33 of the Limitation Act 1980 I exercise my discretion in favour of the claimant in respect of the claims in assault (i.e. as set out at paragraphs 4 to 6 of the Reamended Particulars of Claim) and disapply section 11 of the Act. I do not exercise my discretion in favour of the claimant in respect of the claim in negligence (as set out at paragraph 8 of the Reamended Particulars of Claim) and that claim is statute barred.

Substantive Claims

Mother's Joint Responsibility for Father's Assaults

130. I am quite satisfied that over a period of about 10 years the defendant suffered beatings from his father, sometimes several times a week. I am particularly helped by TA's evidence in this regard and I accept what he says about frequency and seriousness. Some of those beatings may have constituted lawful chastisement. I am quite satisfied on the whole of the evidence that on many occasions over many years the punishment went beyond what was lawful and reasonable. Its consequences are set out in Professor Maden's report to which I have already referred.
131. I do not accept that the beating of the children by the father was part of a "joint enterprise" as Mr Levinson put it or that it achieved a common purpose. It is plain that there was little that was "joint" in this marriage. The household ran in the way the father wanted. Mother's views were plainly irrelevant about most things most of the time.
132. I find that when the claimant misbehaved as a child the defendant often told her husband about it when he got in from work. The pattern of a mother telling father of the bad behaviour of their children at the end of the working day was not uncommon then. It is not uncommon now. I find that the defendant expected that her husband would punish the claimant. She considered physical punishment acceptable; it was part of her upbringing. I have already set out what was acceptable at that time. I find that she did not ever seek or encourage brutal or excessive punishment for any of her children. The fact that she reported her husband's behaviour to the priests, the social services, Great Ormond Street, the police, demonstrates that she objected to it. She left ZA or excluded him from the household from time to time because she would not tolerate it. I am quite sure that she never encouraged it.
133. All the witnesses agreed it did not matter whether or not the defendant told ZA of their behaviour or not; he would always find a reason to beat the children. Even when the defendant appealed to her husband's heart, as TA put it, it had little effect. In addition she was herself subjected to violence at the hands of her husband.
134. In any event it is quite impossible at this distance of time to establish whether the occasions when ZA went beyond lawful chastisement were the occasions when the defendant had reported the claimant, or the other, far more numerous occasions, upon which the claimant was beaten.
135. The defendant's conduct was not part of a concerted action towards a common end. On the contrary, so far as her husband, the principal tortfeasor was concerned, she was irrelevant. "The underlying concept for joint tortfeasance must be that the joint tortfeasor has been so involved in the commission of the tort as to make himself liable for the tort" – See Sabaf SPA v MFI [2002] EWCA Civ 976 at paragraph59, a case on very different facts in a very different context but the principle is clear and I apply it here.
136. I reject this part of the claim.

Assaults upon the claimant by the defendant

137. I have set out the evidence already. I am quite satisfied that the defendant did strike her children from time to time when they were growing up. There were five of them. As TA put it, the boys were "wild". As I have set out in my review of the evidence she acknowledges that she smacked him, and may have hit him with a wooden spoon. She did so, as the claimant acknowledged, when he was naughty. I do not accept that the defendant ever hit the claimant with the clothes brush. Even if I am wrong about that I am satisfied that the defendant never caused any injury of any sort to the claimant. Having regard to the authorities I am quite satisfied on all the evidence about how this family related to each other, and how the defendant treated her children, that when she did strike the claimant what she did was very minor. At most it was lawful chastisement. As she put it, and I accept "My children were never afraid of me"
138. Accordingly I dismiss the remaining claims in assault against the defendant.

Duty of Care

139. I have already decided that this claim is statute barred. Nonetheless out of deference to the extensive and careful argument I heard I make some limited observations on the issue of the existence of a duty of care.
140. It is contended that the defendant owed to her son a duty of care at common law, breach of which sounds in damages. Mr Levinson contends that the duty owed by the defendant was no different from the duty owed by a parent when driving a car in which his or her child is a passenger. I disagree. The duty to a child passenger is owed by the driver of a car, whatever the relationship between the child and the driver. The fact that the driver is a parent matters not. Mr Levinson also relies on the decision in Carmarthenshire CC v Lewis [1955] AC 549. In that case the claimant was the widow of the driver of a car who had collided with a tree and died, having swerved to avoid colliding with a very young child. The child had been able to leave his nursery school unattended because a teacher had left him alone while she attended to another child. The Court of Appeal held that she had been negligent. The House of Lords decided that the teacher was not negligent but found that the local authority had been negligent in failing properly to secure the gates of the nursery school. It was said that the teacher was in loco parentis and thus owed the same duty as a parent. I was directed to the speech of Lord Reid at 566 "There is no absolute duty; there is only a duty not to be negligent and a mother is not negligent unless she fails to do something which a prudent or reasonable mother in her position would have been able to do and would have done." Mr Levinson relies on this as support for the existence of a duty in this case. But the question of negligence was there being considered in a wholly circumscribed context – where a mother (or indeed any other adult) is physically looking after a child on a given occasion. The same is true in the case of Surtees v The Royal Borough of Kingston Upon Thames [1992] PIQR p101 and I note the observation of Sir Nicholas Browne Wilkinson at p583 "the court should be wary in its approach to holding parents in breach of a duty of care owed to their children".
141. In this case the context is that of family life and the relationships between parents and between parents and their children. If one looks at how the duty was to be discharged the reality of its scope becomes clear; as I have set out earlier in this judgment it would be discharged by the mother leaving father, and taking the children with her, the father being permanently removed from the family home, the children being looked after under a private arrangement, the children being taken into care. Unlike the situations where the duty could be imposed upon and discharged by others in loco parentis e.g. the car driver, the school teacher, the foster mother the practical reality of the duty contended for goes to the heart of family relationships. To discharge the duty involves, effectively, the break up of the family by one route or another. In my view the duty contended for here should be treated with caution. It is, in my view, novel.
142. Mr Levinson relies also, as I indicated at the beginning of this judgment, on the decision of Russell LJ in S v W. As Mr Roche pointed out Russell LJ's observations were considered by Woolf LJ when the Court of Appeal considered the case of Barrett v Enfield in which a Local Authority was seeking to strike out a claim brought on the basis of a duty of care owed by it to a former child in care. He said "The point was not argued in S v W .and this court in that case was solely concerned with the limitation point". Although the House of Lords overturned the Court of Appeal decision and reinstated the claim in respect of the duty of care owed by a Local Authority the observations of Woolf LJ in respect o the duties owed by parents were not criticised. Lord Hutton said "I agree that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong. He also agreed with the following observations of Sir Nicholas Browne Wilkinson in that case "There are very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings are to be brought into family relationships"
143. Mr Roche conceded that the first two limbs of the Caparo test for the imposition of a duty of care are met here (proximity and reasonable foreseeability of damage) - see Caparo Industries Plc v Dickman & Others [1990] UKHL 2. It was his submission that it is not fair just and reasonable to impose a duty of care in this situation. There is merit in that submission for the reasons set out above and for the following reasons:-
     i) there was in this household a history of violence to mother as well as to children. Mother was depressed with psychological limitations, as Professor Maden observes. The courts have come a long way in acknowledging the effects of domestic violence upon family life. If the duty of care contended for here is correct it would be imposed on the most vulnerable mothers in very difficult situations. I doubt that the imposition of a common law duty of care would improve the lives of children within the home.
     ii) it is no easy task for the Family Courts within the framework of the Children Act 1989 to make decisions about the care of children. It is, I believe, undesirable for the ordinary civil courts to have to judge, retrospectively, the decisions of a mother about how best to ensure a secure upbringing for her children in the context of a claim for damages for negligence.
144. I await submission on the appropriate order.

Schedule to Order dated 30^th July 2010

1. Reasons for costs order

On behalf of the defendant it was submitted to me that costs should follow the event. On behalf of the claimant it was submitted that the defendant should not receive the whole of her costs because

a) she had succeeded in respect of limitation which had been added as a late amendment

b) in March 2010 she refused the offer of ADR

c) the claimant succeeded in respect of some issues.

In my judgment the claimant should pay the whole of the costs. Save for a short section in Professor Maden's report there was no evidence heard that was unique to the issue of limitation. Very little additional cost resulted. The matter was dealt with in submissions.

The defendant succeeded in respect of the claimant's substantive claims in assault.

In the unusual circumstances of this case I do not criticise the defendant's refusal to engage in ADR. She has plainly suffered a great deal as a result of this litigation.

Whilst it is correct that the claimant established that his father had assaulted him and that he had suffered injury as a result, all his claims against his mother failed.

2 Reasons for refusing permission to appeal

a) The proposed appeal does not have real prospects of success and there is no other compelling reason why it should be heard.

b) There is nothing novel in the decision not to disapply the provisions of section 11 in respect of a claim in negligence but to disapply in respect of claims in assault.

c) The decision not to disapply the limitation period in respect of the claim in negligence was within my discretion under section 33 of the Limitation Act 1980.

d) My decisions in respect of the claims in assault were justified on the facts and law.

Order

It is ordered that:-

1. The claims are dismissed.


2. The claimant do pay the defendant's costs.


3. There be a detailed public funding assessment of the defendant's costs.


4. The claimant's application for permission to appeal is refused for the following reasons:-

a) The proposed appeal does not have real prospects of success and there is no other compelling reason why it should be heard.

b) There is nothing novel in the decision not to disapply the provisions of section 11 in respect of a claim in negligence but to disapply in respect of claims in assault.

c) The decision not to disapply the limitation period in respect of the claim in negligence was within my discretion under section 33 of the Limitation Act 1980.

d) My decisions in respect of the claims in assault were justified on the facts and law.

Mrs Justice Thirlwall