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Cite as: [2004] ScotCS 175

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Kelly v. COX & Anor [2004] ScotCS 175 (08 July 2004)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Hamilton

Lord Menzies

A805/01

OPINION OF THE COURT

delivered by THE LORD PRESIDENT

RECLAIMING MOTION

in the cause

JOSEPH PHILIP McGRATH KELLY (A.P.)

Pursuer and Reclaimer;

against

(FIRST) MRS. MARY COX; and (SECOND) GLASGOW CITY COUNCIL

Defenders and Respondents:

_______

Act: O'Brien, Q.C., Young; Balfour & Manson (Hunter & Robertson, Paisley) (Pursuer and Reclaimer)

Alt: Dunlop; Drummond Miller (First Defender and Respondent): Smith, Q.C.; Edward Bain (Second Defender and Respondents)

8 July 2004

[1] In this action the pursuer, who was born in 1950, seeks an award of damages on averments that between 1955 and 1961 he was physically, mentally and sexually abused at school by a teacher Edward Gilmartin. The first defender is the sister and executrix of Mr Gilmartin. She was sisted in his place following his death after the action was raised in December 1998. The second defenders are the successors to the education authority whom the pursuer maintains are vicariously liable for the actions of Mr Gilmartin.

[2] The pursuer avers that for many years he was unable to tell anyone about the assaults, due initially to his fear of the deceased and subsequently his own humiliation. He responded to the trauma of the abuse by actively putting it to the back of his mind. As an adult when he finally realised that he had been sexually abused, he suppressed all thoughts of what had happened to him as any attempt to recollect what had taken place was extremely painful and distressing.

[3] It appears that in early 1995 he was contacted by the police who were investigating other similar allegations about the conduct of the deceased. In the following year the pursuer gave evidence against the deceased when he was tried and convicted of lewd, indecent and libidinous practices and behaviour, and sentenced to imprisonment. These investigations, it is averred, reawakened the pursuer's memories of the abuse. Since then he has suffered from various forms of anxiety and depression for which he has received medical treatment.

[4] The pursuer avers that the deceased knew or ought to have known that his sexual abuse of the pursuer would cause physical and psychological harm to him, as in fact happened. It may also be noted that, while the pursuer avers that his loss injury and damage was caused by the deceased's fault and negligence, his first and second pleas-in-law are framed on the basis that the deceased "assaulted and humiliated" him.

[5] Before the Lord Ordinary a number of issues were debated. However, the only issue with which this reclaiming motion is now concerned is whether, as both defenders maintain, any right of action against them has been extinguished by the operation of the long negative prescription of 20 years. The defenders maintain that any obligation to make reparation for personal injuries suffered by the pursuer should be regarded as having been enforceable as at the end of 1961, and accordingly that this obligation was extinguished at the end of 1981. This contention implies the concession that, for the purposes of section 11(2) of the Prescription and Limitation (Scotland) Act 1973 (the "1973 Act"), the pursuer's loss, injury or damage occurred as a result of a continuing act of the deceased which ceased at the end of 1961, so that it should be deemed to have occurred at that time.

[6] In terms of section 7(2) of the 1973Act, as originally enacted, the long negative prescription applied to, inter alia, "any obligation to make reparation in respect of personal injuries within the meaning of Part II of this Act" (cf. paragraph 2(g) of the First Schedule). According to section 22 (1) the expression "personal injuries" included "any disease and any impairment of a person's physical or mental condition". Section 11 provided:

"(1) Subject to subsections (2) and (3) below, any obligation (whether arising from any enactment, or from any rule of law or from, or by reason of any breach of, a contract or promise) to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 of this Act as having become enforceable on the date when the loss, injury or damage occurred.

(2) Where as a result of a continuing act, neglect or default loss, injury or damage has occurred before the cessation of the act, neglect or default the loss, injury or damage shall be deemed for the purposes of subsection (1) above to have occurred on the date when the act, neglect or default ceased.

......

(4) Subsections (1) and (2) above (with the omission of any reference therein to subsection (3) above) shall have effect for the purposes of section 7 of this Act as they have effect for the purposes of section 6 of this Act; and in the said subsections (1) and (2), as they have effect for the purposes of the said section 7, "injury" includes personal injuries within the meaning of Part II of this Act".

Part I of the Act, which included both section 7 and section 9, came into force on 25 July 1976 (cf. section 25(2)(b)). Separate provision was made for the limitation of actions. Section 17 provided for a three year limitation period in regard to any action of damages where the damages claimed consisted of or included damages or solatium in respect of personal injuries.

[7] The 1973 Act was passed in order to implement, subject to minor modifications, the recommendations of the Scottish Law Commission in their report on the Reform of the Law relating to Prescription and Limitation of Actions in 1970 (Scot. Law Com. No.15). In paragraph 23 they referred to the explanation of the basis for the long negative prescription given by Napier, The Law of Prescription, page 15 as follows: "Ut aliquot finis litium esset- to prevent the immortality of actions - there is a period, to be fixed by positive law, at which a right of action, or of pursuing a claim in a court of law, must lose its vitality, simply in consequence of that claim having been dormant so long". In paragraph 34 the Commission recommended that the long negative prescription "should run from the date when the right of action actually accrued and that the starting point should not be related to the aggrieved party's knowledge, actual or constructive, of the accrual". Among the reasons which they gave for this view was that it was undesirable that there should be a class of claims where the application of prescription might be indefinitely deferred.

[8] It should be added for completeness that the 1973 Act was amended by the Prescription and Limitation (Scotland) Act 1984 (the "1984 Act") in a number of respects, including the amendment of section 7(2) so as to exclude from the long negative prescription any obligation to make reparation in respect of personal injuries (cf. the 1984 Act, Schedule 1, paragraph 2). This provision was not made retrospective.

[9] Counsel for the pursuer did not dispute that as at the end of 1961 he had a right of action against the deceased and the second defenders in respect of the physical injuries suffered by him as a result of the abuse. In any event he had at that time a cause of action by reason of the affront caused by that abuse. It was not asserted that what he had suffered by then should be disregarded as de minimis. Counsel also accepted that, subject to the opportunity to claim provisional damages which had been afforded by section 12 of the Administration of Justice Act 1982, a pursuer had to sue in one action for all loss, injury or damage suffered by him as the result of a wrong, and that the judicial determination or settlement of such an action would be treated as exhausting his claim in respect of that wrong.

[10] However, counsel submitted that where a person sustained a personal injury which was separate and distinct from a previous injury but was caused by the same original wrong, a new prescriptive period began on the date when the second injury occurred. The present action was concerned, not with damages for any physical or emotional injury which had been suffered by the pursuer during the period up to the end of 1961, but with damages in respect of the psychological illness which the pursuer had suffered in 1995 and thereafter. That illness was a recognised condition which was different in kind from what the pursuer had suffered many years before. Counsel insisted that this submission did not challenge the principle that in the law of prescription the concurrence of injuria and damnum started the running of the prescriptive period. What was challenged, on the other hand, was the insistence that in claims relating to personal injuries there could only be a single point of concurrence. There was no reason why there could not be different dates at each of which there was a concurrence between the injuria and a separate and distinct damnum. While eschewing any argument that the operation of the long negative prescription could be affected by the state of knowledge of the pursuer, counsel emphasised that in the case of childhood abuse the child did not understand that he or she had been abused. Furthermore, medical research into the repressed memory syndrome was relatively recent. If the defenders were correct, the right of action which the pursuer sought to enforce was time - barred before he knew that he had such a right.

[11] Counsel sought to support their submissions by relying on two cases which were concerned with the limitation of actions in respect of personal injuries. In Carnegie v Lord Advocate 2001 SC 802, Lord Johnston expressed the opinion at page 813 that psychological injuries which had developed some years after the alleged mistreatment of the pursuer were separate or distinct from the pain and anguish which he had suffered at the time of the mistreatment. In doing so he followed the approach which Lord Prosser had adopted in the Shuttleton v Duncan Stewart & Co Ltd 1996 SLT 517 at page 518 in considering evidence relating to the development of asbestosis. Counsel accepted that there was a conceptual difference between prescription and limitation. However, they operated in a similar way, and they were covered by the same Act. The starting point for a period of limitation in accordance with section 17 was similar to the starting point in respect of section 11. There was no good reason for not reading across the approach which had been adopted in the case of limitation of actions.

[12] Reference was also made to Article 6(1) of the European Convention on Human Rights. Counsel accepted that it could not be claimed that the Convention had retrospective effect for the purposes of the present case. However, it was claimed that the meaning of section 11(1) of the 1973 Act was ambiguous. Hence, in accordance with the decision in T, Petitioner 1997 SLT 724, it was appropriate to have regard to the Convention in order to resolve that ambiguity, and adopt a meaning which would not be in conflict Article 6 (1). As we understood the submission, as developed by senior counsel, it was that the subsection was ambiguous as to whether or not the obligation to make reparation in respect of personal injuries was in all circumstances single and indivisible. Where a person had sustained at different times distinct personal injuries, the words "any obligation...." should be understood as referring to the obligation which was relevant to the distinct personal injuries to which the claim related. The meaning of section 11 which the defenders had adopted constituted, in effect, a procedural bar to the pursuer's right of action. The classification of the effect of statutory provisions was a matter for determination in accordance with the European jurisprudence. As Lord Hope of Craighead pointed out in Matthews v Ministry of Defence [2003] 1 AC 1163 at paragraph 49, Article 6(1) guaranteed to each individual a right of access to a court for the determination of his civil rights. If an individual had a claim for the infringement of a civil right, "the limitations applied by the state must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired" (paragraph 50). Counsel emphasised that in the present case, unlike that of Z and Others v U.K. (2002) 34 EHRR 3, there had been a cause of action from the outset.

[13] We consider that the pursuer's submissions are not well-founded, and that there is no answer to the operation of the long negative prescription in the present case. The alleged abuse of the pursuer by the deceased gave rise to a single obligation to make reparation. As soon as that obligation was enforceable, through the concurrence of injuria and damnum, the prescriptive period began to run. It is not in dispute that as that the end of 1961 the pursuer had an enforceable right of action. It follows that this right of action was extinguished at the end of 1981. The later development of a psychological illness which was caused by the abuse cannot be regarded as a separate damnum or as giving rise to a separate obligation to make reparation. (Cf Dunlop v McGowans 1980 SC(HL) 73; and Stevenson v. Pontifex & Wood (1887) 15R 125, especially per Lord President Inglis at page 129 and Lord Adam at page 130, where the underlying common law rule was said to apply in actions for injury to the person).

[14] Whatever room there may be for treating the later development of an illness as a separate matter for the purposes of the statutory rule relating to the limitation of actions - as to which we do not require to express any view - the difference between the operation of prescription and that of the limitation of actions is clear. Prescription operates to extinguish the obligation to make reparation, whereas the expiry of the period of limitation takes effect only as a procedural impediment which may be waived by the opposing party.

[15] We consider that the meaning of section 11 of the 1973 Act is not ambiguous. Subsection (1) makes provision as to the date when any obligation to make reparation is to be regarded for the purposes of prescription as having become enforceable. The expression "any obligation" does not involve that there could be a number of separate obligations arising out of a single act, neglect or default. It refers to the obligation created by the resulting of loss, injury or damage from an act, neglect or default. The decisions relating to Article 6(1) to which we were referred do not assist the pursuer. The expiry of a limitation period provides a defender with a defence to the raising of an action against him. The expiry of a prescriptive period is a matter of substantive law which directly affects the rights and obligations of the parties inter se. At that point the pursuer no longer has a claim for the infringement of a civil right. While that has a consequential effect on his entitlement to sue the defender, the basis for that is entirely different. Even if we were wrong about that and it were the case that both limitation and prescription fell to be regarded, for the purposes of Article 6(1), as affecting a pursuer's right of access to a court, we do not consider that this would lead to a different construction of section 11(1). The decision of the European Court in Stubbings & Others v United Kingdom (1996) 23 E.H.R.R.213, which has some similarities in its facts to the present case, shows that a restriction on the right of access to a court will not fall foul of the Article where it is in pursuit of a legitimate aim and there is a reasonable relationship of proportionality between it and the aim sought to be achieved. We consider that these requirements would be satisfied in the present case if section 11(1) were to be construed in the way that we have done.

[16] In these circumstances we shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.