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Cite as: [2004] ScotCS 194, 2004 SLT 967

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Spence v. Murray & Ors [2004] ScotCS 194 (30 July 2004)

OUTER HOUSE, COURT OF SESSION

A1135/00

OPINION OF LORD JOHNSTON

in the cause

ADELINE SPENCE or BOWDEN (AP)

Pursuer;

against

SISTER BERNARD MARY MURRAY and OTHERS

Defenders:

________________

Pursuer: McEachran, Q.C., Stirling; Drummond Miller, W.S.

Defenders: Cullen, Q.C., Duncan; Simpson & Marwick, W.S.

30 July 2004

[1] This is one of a considerable number of actions brought by inmates of care homes run by the religious order represented by the defenders, alleging ill-treatment at their hands during the periods of their residency. In the case of the pursuer she was resident in the relevant home at Cardonald in Glasgow for about thirteen years from 1966 to 1979. Her averments disclose allegations of an appalling catalogue of treatment over that time amounting inter alia to assaults and other forms of physical and mental ill-treatment. Suffice it to say that the averments, if proved, base a relevant case in delict against the defenders. The issues debated before me at procedure roll were four in number, namely, firstly and secondly whether or not the pursuer's case was time barred in two particular respects, firstly whether or not the pursuer could avail herself of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973 as amended so as to avoid the three year limitation period, and secondly, whether or not the pursuer could avail herself of the relief offered by section 19A of the same Act, thirdly and quite separately, whether a case made by the pursuer under the Administration of Childrens Homes (Scotland) Regulations 1959 was relevant and fourthly, whether or not the pursuer's averments were sufficiently relevant and specific at common law to allow inquiry.

[2] With regard to the fourth element it is sufficient at this stage to refer to the Note of Argument presented by the defenders' counsel raising certain pleading points and to indicate my view that at the present time all other things being equal, there is sufficient specification in the averments to allow an inquiry at some stage if such is to be admitted in relation to limitation. I therefore concentrate on the first three issues and I will deal with each in turn.

The issue under section 17

[3] Section 17(2)(b) is in the following terms:

"(2) ... no action to which this section applies shall be brought unless its commencement in a period of three years after -

.....

(b) the date on which the pursuer in the action of became or on which in the opinion of the Court would have been reasonably practicable for him in all the circumstances to become aware of all the following facts

(i) that injuries were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;

(ii) that the injuries were attributable in whole or in part to an act or omission and

(iii) the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person".

[4] In this respect parties referred me to the following authorities: Stubbings v Webb &c 1992 1 Q.B.197; Stubbings &c v United Kingdom 1996 23 E.C.H.R. 213; Dunlop v McGowans 1980 S.C.(H.L.) 73; Shuttleton v Duncan Stewart & Co Ltd 1996 S.L.T.517; Stevenson v Pontifex & Wood 1887 S.C.125; Kiz and others v Bryn Alyn Community (Holdings) Ltd (in liquidation) 2003 Q.B. 144; M(K) v M(H) 1992 96 D.L.R. 289; Carnegie v Lord Advocate 2001 S.C. 802.

[5] In essence the position adopted by counsel for the defenders was focused on the general principle that in any delictual claim for damages only one claim can be made (Stevenson) and must be made within three years of the first conjunction of damnum and injuria (Dunlop). The only relief that was available against this strict rule in terms of section 17(2)(b) set out above was based upon ignorance on the part of the potential pursuer either whether he or she had suffered an injury or that such was attributable to an act or omission of the potential defender. Counsel were at pains to emphasise that the statute specifically assumed that liability and solvency of the potential defender was not an issue. The matter was to determined, it was submitted, against the knowledge or lack of it on the part of the potential pursuer. Counsel recognised that in the case of Carnegie the Extra Division had determined that provided that only one action was brought in respect of the original wrong relating to a particular identifiable and specific form of injury developing years after the event which may have caused it, such could have commenced a three year period from the date of discovery of its existence in appropriate circumstances. However, the important point, it was submitted, in this case was that the pursuer was seeking to claim damages for everything she alleges happened to her while she was in the home and that furthermore on her averments she knew during that time that what was happening to her was wrong and attributable to the defenders. A Carnegie type case was accordingly not open. Upon that basis it was submitted section 17(2)(b) could not operate in favour of the pursuer by reason of the fact that putting aside any question of minority, no attempt was being made to raise an action in respect of the initial injuries until well after the three year period had expired.

[6] The response to this from counsel for the pursuer was heavily, if not wholly dependent on the case of Bryn Alyn. In that lengthy judgment it was submitted the Court of Appeal had allowed a potential pursuer to sue within three years of becoming aware of the existence of, in this case, psychological damage attributable to acts many years before on the part of the defenders. The whole issue was tied up with the development of social justice in the last decade or so particularly in relation to child abuse and indeed was focused on the fact that by the very nature of the potential injury the potential pursuer or plaintiff might either block out the memories or fail to attribute the notion of wrongdoing to what had happened to them. On her averments the pursuer did not become aware of any entitlement to sue until newspaper articles appeared in the mid-1990s and she had raised the action within three years of becoming so aware. In any event a Carnegie type case was open to her, it was submitted, on the averments inasmuch as the psychological injury was wholly separate and specific from the original assaults and could therefore found an action provided it was the only action being raised which was the case here.

[7] In seeking to resolve this issue I recognised at once that section 17(2)(b) clearly offers some relief from the absolute terms of the three year rule where the claimant did not know or could not reasonably practicably have known he or she was suffering from an injury which, assuming, and this is very important, an admission of liability and a solvent defender would have produced a successful action. This is of course all subject to the de minimis rule which offers further relief in appropriate circumstances, but it is important to recognise at once that what matters in terms of section 17(2)(b) is not whether the potential claimant knew she could succeed at law as the assumptions are designed to render that unnecessary but simply that she was aware of the existence of injury which was attributable to the act or omission of the potential defender. I therefore consider the analyses of counsel for the defenders on this question to be correct. I also recognise that in Bryn the Court of Appeal introduced into the equation the notion that psychological injury not identified by reason of its very symptoms in a potential claimant for years after the events which have given rise to it may allow a limitation period not to start until that issue has been identified. However in this case what would be required in that context is a clear, separate and distinct identification of a new type of injury from the original wrong, if there was going to be relief from the absolute nature of the otherwise three year limitation applying in Scotland as opposed to England where there is a five year limitation for intentional injury, but raising the same questions.

[8] I confess that I do not find the case of Bryn easy, nor am I satisfied that it is going to be simple to apply as was done in the case despite the length of the judgment. What however is conclusive to my mind in the present case is the pursuer does not make a distinct and separate claim as was done in Carnegie in respect of her psychological problems within three years of them manifesting themselves. She makes a claim going right back to a time in the home covering everything that happened to her and is seeking damages in respect of those elements. Secondly, and even more importantly, her own averments disclose that at least some stage during the home period she came to realise that what was happening to her and her fellow inmates was wrong and attributable to the Nuns who were running the home. It accordingly seems to me that by her own averments she is contradicted any way that she can invite Bryn to apply to the present case and no amount of proof will alter that position. There might have been an issue to try at least on a preliminary basis in the present case if the pursuer had averred clearly and succinctly that once PTSD was diagnosed that was the first time that she realised that she had suffered a wrong all those years ago which was attributable to the home. I repeat that the notion of success at law is assumed by the statute to be present.

[9] What therefore we have in my opinion with regard to the position under section 17 is a classic Dunlop v McGowans position where one sub-element of loss has occurred which is known to the claimant, and thus the period of limitation must start to run even if there are additional or separate elements that can be added to it since there must be only one action in respect of one wrong. The reason that I give in the Opinion of the Extra Division in Carnegie enabling me to distinguish Dunlop was that no attempt was made in that case to pursue any claim for what had happened physically in Northern Ireland. There was therefore a distinct and separate injury, albeit stemming from the same wrong being pursued in the only action in relation to the claim. Rightly or wrongly that seemed to me, and still seems to me, to be a distinction which admits the different limitation period. In the present case the pursuer makes no such distinction and goes right back to the initial problems and events. In my opinion therefore the application of section 17(2)(b) is inappropriate.

[10] I should add that the amendment proposed by the pursuer in the course of the debate which I allowed under reservation of its relevance is in my opinion so lacking in specification as to the reasons why the pursuer remained unaware of the position until the time she alleges that it would be quite unfair to the defenders to force them to meet that issue on these pleadings.

[11] For these reasons it is my opinion that the pursuer's attempt to rely upon section 17 of the Act is irrelevant and should not proceed any further.

The issue in respect of section 19A of the Act

[12] In this respect counsel referred me to the following authorities: Cowan v Toffolo Jackson & Co Ltd 1998 S.L.T.1000; Nimmo v British Railways Board 1999 S.L.T.779; Donald v Rutherford 1984 S.L.T.70; Forsyth v A F Stoddard & Co Ltd 1985 S.L.T.51; Comber v Greater Glasgow Health Board 1989 S.L.T. 639; McLaren v Harland & Wolff 1991 S.L.T. 85.

[13] In this respect counsel for the defenders accepted that the Court had to apply a totally different approach to that dictated by section 17. The matter was one of discretion but counsel emphasised that the primary purpose of the legislation was to protect defenders against stale claims and where claims were as stale as these in the present case, making investigation virtually impossible, particularly if some of the potential defenders were dead it rendered, it was submitted, the exercise at the discretion in favour of the pursuer almost impossible on grounds of equity. Furthermore, it was strongly submitted on behalf of the defenders that the pursuer's averments indicated unreasonable delay from the time when it was alleged she first discovered or learned that she may have a potential claim which further compounded the problem and increased the prejudice to the defenders.

[14] Counsel for the pursuer's approach was entirely different. Relying again upon the circumstances disclosed in Bryn it was argued that the very factors that influenced the Court of Appeal to allow relief, albeit not in respect of the equivalent section in the English legislation with regard to discretion, were relevant to the present issue in respect of lack of knowledge, psychological disruption and the symptoms that it created not least in relation to what could be described as "blocking out", and the reasons given by the pursuer for not moving more quickly on her averments once the matter had been put in the hands of a solicitor were all relevant features, it was submitted, to the consideration whether or not the exercise of the discretion should be permitted in her favour.

[15] In seeking to resolve this issue I consider it raises a wholly separate question from that raised by section 17, which is dictated by the particular facts of this case. As I have indicated, counsel referred me to a number of decisions of the Outer House where the discretion had been exercised but I do not consider them to be relevant to the present issue. As again I have indicated, I regard the question raised by section 17 as essentially a matter of law and consequently relevant averments. When it comes however to the exercise of the section 19A discretion, the Court may range over many factors which could be said to be relevant to any relevant legal issue and I therefore accept that the general observations, albeit made in relation to the English equivalent of section 17, in Bryn Alyn with regard to psychological damage occurring years after an event or series of events which are linked can, and should be, relevant to the issue under section 19A. By "relevant legal issues" I mean a relevant action in delict as described by the pursuer's averments taken pro veritate. I am impressed by the argument that the nature of the treatment alleged in this case can render persons who are seriously vulnerable in society in general terms even more vulnerable are even less likely to be able to appreciate their rights. While I myself sustain certain reservations about the extent to which the Court of Appeal in Bryn were interpreting a statute by reference to judicial or social engineering, I consider when it comes to an exercise of discretion under section 19A, however cogent the discussion by Lord Justice Auld in respect of the equivalent section 33 of the English legislation may be, it is entirely relevant to consider the points made by counsel for the pursuer in relation to vulnerability, her concerns, ignorance and general non-legal disability. Counsel for the defenders quite properly emphasised that the real prejudice that his clients will suffer in seeking to meet these claims, not least in the context of requiring effectively to prove a negative, namely that nothing happened, is cogent. On the other hand what must bear equally strongly in the mind of the Court exercising discretion is the substance of the allegations being made. I recognise it seems extraordinary in the context of physical abuse that somehow the matter was not brought to the attention of somebody prepared to do something about it until, according to the averments, the matter was raised in a national Sunday newspaper. On the other hand I equally recognise that it may affect the state of mind of these people, including the pursuer, as a consequence of what has happened to them, and that is what Lord Justice Auld is looking at in the context of the English absolute legislation, albeit rather less absolutely when it comes to the discretion available in that legislation.

[16] Counsel for the defenders criticised the various averments made by the pursuer in the context of what she did and why after the "discovery" and not least in the question of candour when it came to the various averments about consulting doctors and indeed a newspaper. I consider there is force in that position but I also consider that it once again indicates how inappropriate would be for me to decide this matter on pleading without evidence. The reason I am fortified in this position is that the evidence needs only to relate to the attitude of mind of the pursuer and why she did or did not do things well after the period she left the home. In my opinion the averments that matter in this context are in Condescendence 6 and Answer 6 of the pleading and I do not consider it appropriate for me to determine an exercise of discretion without evidence being led in that respect.

[17] However I am equally satisfied that a proof at large which the pursuer's counsel argued was appropriate, is wholly inappropriate. To go into the merits at this stage of the claims made by the pursuer in terms of what happened could result in much unnecessary and expensive process if at the end of the day the limitation position is decided in favour of the defenders after such a full proof. The principle counter to this by counsel for the pursuer was that the length of time that had elapsed, the nature of the allegations and the vulnerability of the pursuer rendered it quite unreasonable to require her to give evidence twice. That in my opinion is a powerful point but it is outweighed at this stage of the process by the equal potential prejudice to the defenders and which had been identified. It thus seems to me that neither of these questions can be decided without some form of investigation.

[18] In this respect therefore I propose to order a preliminary proof restricted to the pleas relating to time bar and the discretion under section 19A and the averments thereanent. It seems to me that that proof should proceed on the basis that the pursuer's averments as to what happened to her in the home should be taken pro veritate and the issue to be judged on a preliminary basis being entirely directed to whether or not it is appropriate in the circumstances to exercise the discretion under section 19A. I shall accordingly so order.

The Administration of Childrens Homes (Scotland) Regulations 1959

[19] These Regulations stemmed originally from the Children and Young Persons (Scotland) Act 1937, sections 96 to 99 and were thereafter dependent upon the Children Act 1948 and in particular section 15(4) of that Act which inter alia empowers the Secretary of State to make regulations for securing the welfare of children in the homes.

[20] The particular Regulations founded upon by the pursuer are as follows:

"1. The administering authority for any home shall make arrangements for the home to be conducted in such a manner and on such principles as will secure the well-being of the children in the home.

2. The administering authority for any home shall arrange for the home to be visited at least once in every month by an authorised visitor who shall satisfy himself that the home is conducted in accordance with Regulation 1 of these Regulations, shall report to the administering authority on his visit and shall enter in the log book ...his name and the date of his visit.

4. The administering authority for any home shall appoint a person to be in charge of the home ...

6(1) The administering authority for any home shall appoint a Medical Officer for the home.

(2) ...the duties of any Medical Officer appointed under this Regulation for any home shall include -

(a) the general supervision of the health of the children accommodated in the home;

(b) the general supervision of the hygienic condition of the premises, and the health of the staff, of the home;

(d) attendance at the home at regular intervals and with sufficient frequency to ensure that he is closely acquainted with the health of the children ;

(e) the examination of each child on admission to the home, thereafter at intervals not exceeding 12 months and immediately before discharge;

(f) the provision for the children accommodated in the home of such medical attention as may be necessary ....

(g) the supervision of the compilation of a medical record for each child accommodated in the home containing particulars of the medical history of the child before admission, so far as it is known, his physical and mental condition on admission, his medical history while accommodated in the home and his condition on discharge from the home;

(h) the preparation and submission to the administering authority of such reports in relation to the duties prescribed in this sub-paragraph as may be required by the administering authority.

10(1) The general discipline of the children accommodated in a home shall be maintained by the personal influence of the person in charge of the home.

(2) Except as provided in Regulation 11 a child whom it is necessary to punish for misconduct shall be punished only by a temporary loss of recreation or privileges.

(3) A record of any punishment administered to any child shall be made in the log book ....

(4) Any case in which a child is punished with abnormal frequency shall be reported by the person in charge of the home to the administering authority who shall arrange for an investigation of the child's mental condition.

11. Corporal punishment may exceptionally be administered to a child accommodated in a home: Provided that:

(a) such punishment shall not be so administered otherwise than -

(i) by a person specifically empowered by the administering authority for the home to administer such punishment; and

(ii) in accordance with such rules as to the manner and limits of administering such punishment as may be made by that authority;

16(1) The person in charge of any voluntary home shall be responsible to the administering authority for the conduct of the home."

[21] The debate before me in this respect was wide ranging in respect of the general principles in law governing whether or not regulations made under a statute could provide a civil remedy to individuals affected by them.

[22] The following authorities were referred to: Cutler v Wandsworth Stadium Ltd 1949 A.C. 398; Lonrho &c v Shell Petroleum Co Ltd &c 1982 A.C. 173; Pickering v Liverpool Daily Post 1991 2 A.C. 370; R. v Deputy Governor Parkhurst &c ex parte Hague 1992 1 AC 58; X (Minors) v Bedfordshire County Council 1995 2 AC 633; Clunis v Camden & Islington Health Authority 1998 QB 978; Barrett v Enfield London Borough Council 2001 2 AC 550; Phelps v Hillingdon London Borough Council 2001 2 AC 619; Cullen v Chief Constable RUC 2003 UKHL 39; Gorringe v Calderdale Metropolitan Borough Council 2004 2 All ER 326; Whaley v Lord Watson 2000 SC 340; Black v Fife Coal Co 1912 SC (HL) 33; Reefell v Surrey County Council 1964 1 W.L.R. 358.

[23] It was common ground between counsel that the issue was essentially dependent upon the determination of the intention of Parliament which had to be divined if there was no express right declared. It was equally not disputed that certain statutes involving health and safety plainly contemplated a civil right to sue whatever other penalties were imposed for breach (Black supra) but where the statute was created for the purpose of general welfare or administration, in that respect civil rights to sue did not arise (eg Hague).

[24] Counsel further agreed that the locus classicus in this respect was to be found in the speech of Lord Simonds in Cutler where he says at page 408:

"It was argued that the rule has no application where the statutory remedy was by way of criminal proceedings for a penalty but I see no ground in this distinction. The implication is if anything in the opposite direction. For the sanction of criminal proceedings emphasises that statutory obligation like many others which the Act contains is imposed for the public benefit and the breach of it is a public not a private wrong".

[25] Counsel for both parties referred to various cases said to support the respective positions, that of the defenders being that this particular set of regulations was designed for the public benefit and administration of general welfare rather than to confer specific private rights, while counsel for the pursuer's position was that the reference to welfare and the securing of it in the enabling Act meant that the particular regulations were capable of admitting a private right. There is to be noted that there is a power to impose certain criminal penalties within the enabling legislation although the Secretary of State has not so done in the present case. However, it was submitted by counsel for the defenders, the existence of that power supports the position of a public rather than private benefit being conferred.

[26] It is sufficient for me to declare at this stage as far as my own opinion is concerned that if the matter was material at this stage I would have decided that the case under the Regulations was irrelevant upon the basis that it does not meet the test of specific health and safety benefit such as to be found in Black. To my mind both the enabling legislation and the Regulations are clearly designed to be administrative in the interest of public welfare rather than health and safety. The English authorities in this respect seem to me to be persuasive of the notion that administration in general terms and welfare provisions in particular laid down either by statute or regulation do not in themselves admit a private remedy. The case Reffell seems to me to be special and distinguishable from the general rule. Accordingly if I had been required to do so I would have determined the case under the Regulations to be irrelevant.

[27] There was a subsidiary issue raised by counsel for the defenders in this respect that there was no sufficient causative connection between any breach of the regulations and damage suffered by the pursuer. If I had considered there was a case under the Regulations to be relevant, I would not have determined that point at this stage without evidence.

[28] In these circumstances at this stage I shall sustain the defenders' plea to the relevancy to the extent of excluding all reference to section 17 of the Act from further consideration. For completeness I shall exclude from further consideration the averments in Condescendence 4. Quoad ultra at this stage I shall allow a preliminary proof on the issues focused in Condescendence 6 and Answers 6 in relation to section 19A of the Act.