Scottish Court of Session Decisions

This action in which the pursuer seeks damages against her father in respect of the results of his sexual misconduct towards her came before the Court at procedure roll. The action was only raised in March 1998, when the pursuer was 34 years of age, some considerable time after she had left home, married, had a child and been divorced.

She avers that between the ages of 9 and 17 years the defender carried out a systematic programme of sexual abuse against her in the family home in Aberdeen and thereafter an address in Aberdeen. She further avers that when she was 17 years of age she was raped on one occasion. She avers that after that incident he ceased his physical abuse of her but she says that he:

She avers two further incidents. When she was 19 years of age, shortly before she was due to be married, she alleges an indecent assault. Her averments continue:

and:

Said incident was alleged to have taken place in the pursuer's own home. That final incident is wholly denied by the defender and accordingly no explanation is proffered of the event.

She also avers in condescendence 3 that in March 1996 she spoke about her childhood experiences to the man she was then living with and with whom she says she was experiencing sexual difficulties in her relationship. Thereafter she consulted a doctor and a social work counsellor. After the incident in August 1996 she, on 14 October 1996, consulted an officer at the Police Female Enquiry Unit. She states that she gave a full formal statement to the police and the defender was arrested in November 1996. The defender was subsequently charged on indictment of an offence against the Sexual Offences (Scotland) Act 1976 section 5 for using lewd, indecent and libidinous practices towards the pursuer when she was above the age of 12 and under the age of 16 on various occasions in Aberdeen between 15 December 1976 and 31 October 1979 and also of one charge of incest between 1 August 1980 and 31 October 1980. The defender pled guilty to those offences and was sentenced to imprisonment from 24 July 1997. The pursuer also makes the following averment in relation to the latter incident:

Defender's counsel did not seek to found upon the inconsistency between that averment and an allegation of rape in relation to the incident of incest.

The pursuer's averments in relation to her loss, injury and damage are somewhat vague and inspecific. She might well have difficulty at a proof if the only incident which could be considered as not being subject to the limitation provisions hereafter mentioned, was that of 1996. Most of the averments of the pursuer about injury and damage relate back to the previous matters above noted.

The defender pleads that the pursuer's claim is time-barred; that the pursuer's averments are irrelevant and lacking in specification and, in response to the invocation by the pursuer of section 19A of the Prescription and Limitation (Scotland) Act 1973, pleads that it is not equitable to allow the action to proceed.

The relevant statutory provisions in the Prescription and Limitation (Scotland) Act 1973 are:

The defender's argument was that with the exception of the allegation relating to August 1996 all of the alleged abuse took place more than three years prior to the commencement of the action. The action avers a number of discrete incidents of abuse, not a single continuing act or omission. Accordingly it was contended section 17 of the Prescription and Limitation (Scotland) Act 1973 applies. Secondly, the pursuer's averments that she was not and that it would not have been reasonably practicable for her to have become aware that she had a right of action until October 1996 are irrelevant and lacking specification. The pursuer has failed to aver why she could not have found out between 1980 and 1996 that she had a right of action and in the absence of such averments she could not invoke the provisions of section 17(2)(b) of the said Act. Thirdly, in relation to the attempt at invocation of the Court's discretion under section 19A of the Act she gave no good explanation why it was equitable that she should be allowed to pursue an action relating to offences which go back to the early 1970s. In the note of arguments for the defender there appears the following passage:

The defender further argued that as the pursuer had made no relevant averments of having suffered as a result of the alleged assault in 1996 or of any loss thereafter and since the incident in 1996 is not relevantly averred in the action, the whole action should be dismissed.

In the present case the relevant age of majority was 18 and the period of limitation would have expired in 1984 or, in relation to the 1982 incident, in 1985. The pursuer did not state any damage due to any particular act nor when any particular damage or injury occurred. The averred act in 1996, fourteen years later, is plainly isolated and the averments made about behaviour in an inappropriate way and continuing so to behave were so lacking in specification that they should be deleted from the pleadings if any proof were to be allowed. They were not adequate to link up the 1996 incident with those of fourteen or more years earlier.

There were no relevant averments to show that it was not reasonably practicable for the pursuer to be aware that the injuries in question were sufficiently serious to justify bringing an action of damages. The pursuer's averments indicated a deliberate choice to take no action and there were no sufficiently specific averments to indicate the choice was other than a deliberate one.

In relation to section 19A the prejudice to the defender in requiring to investigate the circumstances of the new averments unrelated to his pleas of guilty were substantial and further, and even in relation to the pleas of guilty, the investigation of allegations of injury would be very difficult, particularly when there were no specific details as to any of the alleged injuries being related to any alleged assault.

Counsel referred to the undernoted authorities: Webb v BP Petroleum Development Ltd 1988 S.L.T. 775; Elliot v J & C Finney 1989 S.L.T. 208; Comber v Greater Glasgow Health Board 1989 S.L.T. 639; Clark v McLean 1994 S.C. 410; McCabe v McLellan 1994 S.C. 87; and McArthur v Strathclyde Regional Council 1995 S.L.T. 1129.

For the pursuer it was argued that the pursuer's averments were sufficient to link all the events up until 19 August 1996 as a continuous course of conduct. That was the pursuer's averment and so she was entitled to a proof on the matter. In the second place the pursuer conceded that a pursuer who did not wish to ask questions could not avoid prescription but in this case she does aver that she was unable to tell anyone until 1996. She had shut this matter away and never contemplated the appropriate question and the pursuer here goes further and says that she was unable to do so.

In relation to section 19A pursuer's counsel accepted the principles as set out in Craw v Gallacher 1988 S.L.T. 204 but said that the pursuer had averred sufficient when she said that she had no knowledge of the fact that she had a right of action, see Comber v Greater Glasgow Health Board. She gave an explanation and detailed the impact the conduct had had on her life.

In relation to the averment made at 16A-B "there is no other party from whom the pursuer can obtain reparation in respect of the acts of the defender", counsel informed the Court that the pursuer had in fact received payments from the Criminal Injuries Compensation Scheme. He declined to specify what these payments were but plainly departed from the position that the pursuer was wholly deprived of a measure of compensation if the action did not proceed.

Counsel also referred to Nicol v British Steel Corporation 1992 S.L.T. 141, and to the unreported decision of Lord Marnoch on 24 May 1996 in Kane v Argyll & Clyde Health Board. I note that at the preliminary proof allowed in that case the pursuer failed to persuade the Court that the action should proceed - see 1997 S.L.T. 965.

Both counsel also referred to Dr Johnston's recent scholarly work - Prescription and Limitation (1999) and in particular his discussion of limitation in relation to sexual offences at paragraph 10.66 and following.

In this case, at some stage it must become necessary to answer the questions posed by Dr Johnston and in particular to decide whether incidents of sexual misconduct can form a course of action, and as such constitute a continuing act of neglect or default.

In Clark v McLean 1994 S.C. 410, an action of reparation was brought in respect of injuries sustained in a road traffic accident where a pursuer asked for the discretion of the Court in terms of section 19A, the action being time barred. The temporary Lord Ordinary allowed a proof before answer leaving all pleas standing. On appeal it was said at page 413:

In the present case there was a measure of agreement between counsel that the case was exceptional and that the Court could allow proof before answer with all pleas standing if not satisfied that the action could either be dismissed or allowed to proceed at this stage. I have decided to allow a proof before answer with all pleas standing.

My reasoning for adopting this unusual and special course is that, on any view this is not a simple matter such as a road traffic accident. This case involves a number of complicated considerations. Part of the complication could be said to arise from the somewhat inspecific, and in relation to some crucial matters, slight nature of the pursuer's pleadings. It may well be that the pursuer might require to consider whether before a general proof she would require to give fuller notice of the matters of loss and damage upon which she hopes to rely in order to be allowed to lead evidence about some of them at all. In addition, the matter of compensation from the Criminal Injuries Compensation Scheme, it seems to me, should be disclosed, not only in relation to the principal action here, but also in relation to the continued receipt by the pursuer of legal aid following her being awarded some payment.

However, the principal reason for allowing a proof lies in the particular circumstances arising from the denied incident in August 1996. But for that incident it would have been my view that the action had no prospects of surviving the present debate. The sexual abuse averred while the pursuer was a minor on the pleadings ceased with the final incident involving incest. There are no sufficient averments to allow for a continuing course of conduct thereafter and I shall exclude from probation as being wholly inspecific the averments in relation to a continuation of behaviour in an inappropriate manner in the making of inappropriate comments between the time the pursuer reached the age of 19 and the raising of the action. Whether or not the sexual activities were a course of conduct while the pursuer was under age does not require to be answered in the present action although I would have been prepared to hold that it was such. The fourteen year gap between the last and the penultimate incident is too great to allow section 17(2) to be invoked. Therefore, in relation to all matters prior to 1996 the action is time barred.

However, the 1996 incident is not time barred and the pursuer is entitled to a proof on that matter if her averments are sufficiently specific as to loss. In my opinion it would be inappropriate to dismiss the action on the basis of lack of specification of damage in relation to the 1996 incident. In my opinion the pursuer has averred sufficient to entitle her to enquiry, even if the damages are confined to the insult she suffered.

Since the pursuer is entitled to an enquiry on that matter the fact of previous sexual abuse would be a matter for consideration in relation to quantum. A sexual assault upon a matron in her thirties, bearing in mind the somewhat insignificant assault averred, might be more likely to have a serious effect if that lady had been sexually assaulted while a child. That would apply whether or not the previous assaults had been perpetrated by the defender but in the present case there might be an argument that the previous assaults having been perpetrated by the defender he would be more likely to have knowledge or imputed knowledge of their effect.

In these circumstances, if the 1996 incident is established, and it is firmly denied by the defender, a Court might be persuaded to allow the action to proceed in relation to the previous matters averred and in particular those matters which resulted in conviction as a matter of equity. No doubt the pursuer will require to persuade the Court at proof that there were sufficient reasons to support her averment that she could not contemplate doing so earlier than 1996, but she has averred sufficient to entitle her to that enquiry.

Conversely, if at the proof, the pursuer fails to establish the 1996 incident as having occurred then it may well be considered that there are no grounds for the Court exercising its discretion under section 19A. The events which occurred fourteen years or more previously would not, in my opinion, be revived merely because the pursuer has chosen to tell somebody about it. I would have dismissed the action had the only averment been that the pursuer first spoke about the events in question in March 1996. Accordingly the last incident is critical.

It is in these special and unusual circumstances that I pronounce an interlocutor allowing a proof before answer with all pleas standing under deletion of the sentence "Thereafter the defender continued to behave in an inappropriate manner and to make inappropriate comments towards the pursuer" at page 6D-E of the closed record.