"The defenders knew the pursuer was a vulnerable child. Initially the pursuer was under the care of Sister A. Sister A was very kind to the pursuer. Sister A was replaced by Sister X and a lay helper called Y shortly after the pursuer arrived at the Home. Sister X and Y were in charge of the pursuer until she left the Home. They were very unkind to her. The pursuer was not aware of anyone being in charge of Sister X or Y. She does not know whether there was a Mother Superior. The Home had its own School, staffed by nuns. It had its own Chapel. There was no opportunity for the pursuer to have contact with persons outside the Home. She does not recall being visited by social workers. There was no-one to whom she could have complained. The pursuer was subjected to the standard regime in the said Home. Children including the pursuer in the said Home were regularly subjected to assaults and cruel punishments. The pursuer slept in a dormitory containing seven girls or thereby. In a cell adjacent to the dormitory slept one of the nuns, Sister X, and a lay helper by the name of Y. Children who wet their beds were punished severely: they were placed in cold baths with their soiled bed-sheets and thereafter made to lie on their beds with no bed-sheets. The pursuer witnessed such events on a nightly basis. She herself did not wet her bed. Nonetheless she was subjected to unwarranted punishment by Sister X and the lay helper, Y. Water was sprinkled on her bed by these individuals and she would be told that she had wet her bed. She was then subjected to the same punishment as genuine bed-wetters, as before condescended upon. Such happened to the pursuer around twice per week throughout her time at the Home. Towards the end of her time in the Home, in or around 1969, a stranger attempted to abduct the pursuer outside the Home by enticing her and her sister into his motor car. They refused to go with him. The pursuer, on telling Sister X of the incident, was told that 'it was your sister's fault'. The pursuer was thereafter beaten by Sister X and the lay helper, Y, each of whom pulled her hair and punched her on the back of her head. Towards the end of her time at the Home, in or around 1969, the pursuer was having her hair washed in one of the bathrooms. Uninvited by the pursuer, one of the boys entered the bathroom. Sister X accused the pursuer of immorality and pushed a bar of soap into her mouth. They were not provided with adequate food in that it was poorly cooked and unappetising. Children, including the pursuer, were made to eat all food which was placed before them. When children, including the pursuer, were unable to eat their food, they would be hit with a wooden spoon, a hairbrush or bare hands. Sister X and the lay helper, Y, beat the pursuer on a routine basis throughout her time at the Home for failing to eat food. Her brother and sister were made to watch her being forced to eat her food and being beaten if she was unable to do so. Any uneaten food was served up at the next mealtime. The pursuer was likewise made to watch her brother and sister when they were being beaten for failing to eat their food. She was made to watch this on a routine basis throughout her time at the Home. She was made on occasion to eat her own vomit. Hygiene and medical care were neglected. Baths were given no more than once per week. The pursuer was made to share the bathwater with the other girls in her dormitory, that is to say with another six girls or thereby. Accordingly, if the pursuer was last in the bath (as she frequently was) the water would be cold and dirty. She was given only one change of clothing per week. Such lack of attention to hygiene was unreasonable, even judged against the prevailing standard of the time. She was never seen by either a Doctor or a Dentist during the whole of her time at the Home. Children, including the pursuer, were assaulted and humiliated in front of other children and in front of other nuns and staff. They were slapped about the head and face, hit with implements including rulers and pulled by various parts of the body including the ears. The other nuns and staff did not intervene. Sister X and Y were able to assault and humiliate the pursuer and others with impunity. Such assaults took place on a daily basis. They often occurred at meal times. The pursuer seldom saw her siblings except on occasions when she was being beaten and they were summoned to watch and vice versa. Contact with families was discouraged. The pursuer's grandfather was the only member of her family who routinely visited. He was not always allowed to see his grandchildren. No explanation would be given to the pursuer when her grandfather was not admitted. Gifts he brought to the Home for her on the occasions of his visits were confiscated and not returned. Christmas presents from family members were confiscated and not returned to the pursuer each Christmas during her time at the Home. The pursuer ran away from the Home on approximately four occasions. She was returned to the Home by the Police. The Police did not ask her why she had run away. The nuns were polite to the Police. Once the Police left, the nuns and staff punished the pursuer by stripping her and putting her in a cold shower and separating her from the other children. Said treatment was systematic and regular. ... It occurred throughout the time the pursuer was a resident in the said Home. The punishments inflicted upon the pursuer were excessive, random and constituted assaults. They were frequently administered for no reason at all. They were cruel and unusual. The regime condescended upon was harsh and cruel. The treatment condescended upon was not the treatment reasonably to be expected of those acting in loco parentis."

It will be noted that the alleged abuse is of a non-sexual nature. Nonetheless, since the allegations are disputed, I have omitted the names both of the pursuer and of the individuals alleged to have committed the abuse.

The background

"[43] On Sunday 18 May 1997 an article appeared in the News of the World newspaper, under the headline 'Nazareth', dealing with events that were said to have taken place many years previously in Nazareth House, Cardonald. The article began:

'A home for orphans was turned into a house of horrors by depraved nuns who delighted in making the kids' lives hell.

Youngsters were dragged from their beds and BEATEN, made to clean their teeth with CARBOLIC SOAP and forced to drink MOULDERING milk'.

The article went on to allege that some of the victims had been tracked down, and that many were still suffering mental torment. A number of individuals were named, and the events that were said to have happened to them were set out in some detail; these included beatings and punishment for bedwetting. A further article appeared in the News of the World the following Sunday, 25 May 1997, under the headline 'Wicked nuns left us scarred for life'. This contains a number of other detailed allegations made by named individuals who had been resident in Nazareth House.

'Lawyer Cameron Fyfe believes it could lead to claims for compensation of up to £100,000. He said: They might well have a case. They would have to prove there was negligence on the part of the organisation responsible for employees working in the house. But they could claim for the anxiety, stress and anguish they suffered. If they could show a long-term effect that would boost the compensation into very high figures. For example, 10 or 20 years of psychological damage and you are into the £50,000 plus mark. If you could show any wage loss because of the effect, it could take the figure to £100,000. I have dealt with many similar cases and I would be delighted to help'.

Mr Jarvis stated that the figures mentioned in the article were obtained from Mr Fyfe on the basis of a 'theoretical' quotation. Mr Fyfe also gave evidence; he stated that the quotation attributed to him was exaggerated. He had been asked by Mr Jarvis if the claims could be worth as much as £100,000, and he said that that was possible. He had also been asked if he was willing to act for claimants, and he replied that he was. I accept Mr Fyfe's evidence on this matter. ... A further, much shorter, article appeared on Sunday 8 June 1997, under the headline 'Cops step up probe on abuse'. This stated that police investigations had begun. It also stated that 'Glasgow lawyer Cameron Fyfe is handling claims for compensation'; he was quoted as saying that he had been told 'absolutely horrendous stories' and that the treatment 'amounted to just sadism'. A further article appeared on 29 June 1997, under the headline 'Church's secret fund for abuse'. A subheading stated 'Nazareth House victims hope for £100,000 payout'. The article began

'A secret Catholic Church slush fund may be used to compensate victims of Scotland's Nazareth House orphanage scandal. Lawyer Cameron Fyfe, representing 30 inmates abused by nuns as children, believes they could get up to £100,000 each'.

I was shown two newspaper articles along similar lines, published in October 1997, relating to Smyllum Park.

The issues

Time-bar - section 17 Prescription and Limitation (Scotland) Act 1973

The statutory provisions

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

(i) that the injuries in question 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) that 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."

Although sub-paragraphs (i) - (iii) require to be read together, the submissions before me concentrated particularly on the terms of sub-paragraph (i).

Submissions

"As a result of the treatment at the said Home, the pursuer has suffered loss, injury and damage. The pursuer was injured psychologically by said assaults and by the cruel regime. The pursuer has suffered trauma and damage. The treatment inflicted has affected the pursuer's ability to lead a normal life. Her time at the Home has left her with numerous sequelae. ..."

Later in the same Article (at p.29), in addressing the question of limitation, the pursuer pleads:

"The triennium does not begin until October 1997 at the earliest, when the pursuer was first made aware that she could make a claim following an article in a newspaper. It was not until the medical report dated 17 July 1998 [a report by Valerie Gray Taylor, the psychologist to whom the pursuer was referred after she contacted solicitors in October 1997] that the pursuer became aware that she had high levels of anxiety, severe clinical depression and PTSD and that this was attributable to her time in the Home. The pursuer did not become aware, nor was it reasonably practicable for her in all the circumstances to become aware of the facts (i) that the injuries were sufficiently serious to justify her bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission until October 1997 at the earliest. ..."

Whatever the position when the proceedings were first raised, he said, the allegations on which the pursuer now seeks to proceed to trial are allegations only of psychological injury.

Discussion

"This test is not in my judgment hard to apply. It involves ascertaining the personal injury on which the claim is founded and asking when the claimant knew of it".

Later in the same passage he says:

"Time does not begin to run against a claimant until he knows that the personal injury on which he founds his claim is significant ..." (my emphasis in both passages).

In the present case the pursuer now claims damages only for psychological injuries. I accept Mr. McEachran's submission that the psychological injuries are "the injuries in question" to which the subsection refers. To my mind it matters not that she may have suffered other, perhaps physical, injuries or that the assaults are themselves actionable without proof of damage. Nor does it matter that at one point she may have included other injuries within her claim; the rules of pleading allow adjustment or (with leave) amendment to identify the real issues in dispute between the parties. The pursuer took advantage of the adjustment period to confine her claims to psychological injuries. These are "the injuries in question".

"In so far, therefore, as the pursuer makes a claim for injuries in respect of individual assaults as separate delicts, such, in my opinion, is clearly time-barred. ... The question remains, however, whether the pursuer has averred a relevant case of having sustained psychological injury within the triennium. It is well recognised, of course, that in relation to a single wrong only one action is competent, and losses, both past and future, must be claimed for in that action (Dunlop v McGowans 1980 (per Lord Keith at p 81)). However, as counsel on both sides came to realise, it is an entirely different question whether, in the only action raised, the pursuer can sue for only some of his injuries, namely those which are not time-barred. For this to happen the later injuries must, of course, be distinct as, otherwise, they will fall to be seen as a simple continuation or exacerbation of those which are time-barred. ... [For] purposes of the 1973 Act as amended a wholly distinct injury, albeit arising from the same delict, can be sued upon in a separate claim and therefore can create a separate triennium not starting from when there was original awareness of the original symptoms which are distinguishable but rather from when at the earliest, the injury basing the action emerged to the knowledge of the pursuer."

His Lordship is there emphasising that it is the injury sued upon which is relevant to the identification of the relevant triennium.

"Attributable to", he says, was construed by May L.J. [in Davis v Ministry of Defence (unreported 26 July 1985)] to mean 'capable of being attributed to' and not 'caused by', and I see no reason to question that conclusion. ... Time starts to run against the claimant when he knows that the personal injury on which he founds his claim is capable of being attributed to something done or not done by the defendant whom he wishes to sue. This condition is not satisfied where a man knows that he has a disabling cough or shortness of breath but does not know that his injured condition has anything to do with his working conditions. It is satisfied when he knows that his injured condition is capable of being attributed to his working conditions, even though he has no inkling that his employer may have been at fault."

The reference in that passage to time starting to run is, of course, subject to the claimant's knowledge that the injury is sufficiently serious. It must be remembered that, in terms of the statute, the pursuer need only be aware that the injury is "in part" attributable to what happened at the Home. At the end of the passage cited from Dobbie, it is also made clear that the claimant need not be aware that the acts or omissions to which he attributes his injury involve any fault on the part of the person whose acts or omissions they were. This represents the law in Scotland as well: the pursuer need not be aware that the acts or omissions of which she complains are actionable: section 22(3) of the Act. So the awareness needed to start time running in this case, subject to the points discussed below, is an awareness on the part of this pursuer of a disturbed mental state amounting to psychological injury (though she might not recognise it in those terms) which is, in part at least, attributable to her experiences at the Home.

"[15] It was not disputed from the authorities, and in particular the cases of Blake and Ferla that an objective assessment had to be made by the court to determine the question under section 17(2)(b)(i) but the real issue is what factors should be put into that equation beyond the existence of the injuries in question themselves, which is the obvious starting point. Until the injuries have occurred no time can run and furthermore the pursuer must either be aware of their existence or should, with reasonable practicability, have become aware before time can run in terms of subsection (b)(i). Although the wording of the English Act is slightly different I consider that the dictum of Geoffrey Lane L.J. in McCafferty is apt to cover the point where he says:

'It is clear that the test is partly a subjective test, namely "would this plaintiff have considered the injury sufficiently serious?"and partly an objective test, namely "would he have been reasonable if he did not regard it as sufficiently serious?". It seems to me that the subsection is directed at the nature of the injury as known to the plaintiff at that time. Taking that plaintiff with that plaintiff's intelligence would he have been reasonable in considering the injury not sufficiently serious to justify instituting proceedings for damages. I do not think that it is permissible under this section to look into such problems as whether it is or would have been politic in the circumstances for the plaintiff to sue his employers at that time for fear of losing his job.'

The Master of the Rolls, Sir Thomas Bingham (as he then was) said something to the same effect in Dobbie v Medway Health Authority where, at p.1241, he refers to the comparable English provisions being directed solely at the "quantum of the injury".

He went on to say that the Lord Ordinary was correct to regard as irrelevant the fact that the pursuer was a soldier fearful of jeopardising his career in the army if he took legal action while he was still in it. This passage has to be read with the submissions recorded in para.[8]. I have some doubt as to whether, despite citing with approval the passage from McCafferty, Lord Johnston was, in fact, accepting that passage to its full extent. It is not clear what exactly Lord Johnston had in mind when he referred to "personal relevant characteristics in relation to the actual injury". I understand him to be differentiating between, on the one hand, a case where the "personal characteristic" causing the pursuer's failure to come forward was caused or brought on by the injury; and, on the other hand, one where the characteristic was not so caused. In the former case it is relevant; in the latter it is not.

"In my opinion it would be reasonably practicable for a pursuer to become aware of necessary information if he would be able to do so without excessive expenditure of time, effort or money. I do not consider that the mere fact that he did not feel like asking these questions can in any way render the acquiring of the information not reasonably practicable."

I agree. I do not take Lord Sutherland to be using the word "mere" in a pejorative sense, to draw a distinction between the disinclination being based on whim, as opposed to being due to some underlying upset or depression; the distinction is between, on the one hand, not asking questions which one could ask; and, on the other, it not being reasonably practicable to ask them.

"In my view the same applies to a young person who knows that he or she has been assaulted on a regular basis; or has been buggered, masturbated or fondled in an inappropriate way. Of course, the realisation of the extent of the injury may grow with time, as may the injury itself; but in every case I conclude that these unhappy victims had the relevant knowledge before they left the community".

The Court of Appeal (at paras.26-30) criticised the judge's concentration on the immediate effects of the abuse rather than on the long term, post-traumatic, psychiatric injuries, which was what the case was all about. He ought to have asked when the claimants had knowledge of that psychological injury, and had knowledge that that psychological injury was significant. In asking this question, the test to be applied was the partly subjective partly objective test adumbrated by Geoffrey Lane LJ in McCafferty v. Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081G-H - which I have already set out from the Opinion of Lord Johnston in Carnegie - followed in Nash v Eli Lilly & Co. [1993] 1 WLR 782, 791.

"Whether a particular injury would reasonably be regarded as significant by a particular plaintiff, as the person whose date of knowledge is in question, is a very highly judgmental question. The education of public opinion over the last five years or so, both as to the prevalence of child abuse within families and as to its serious long term consequences, might well mean that almost any plaintiff would now reasonably regard such conduct (if other than very trivial) as significant in the statutory sense. But before the publicity given to the Cleveland inquiry the level of public (and even professional) understanding was much lower and claims by children on reaching their majority against parents and siblings were unknown. Recognition that these acts had caused her serious long term mental impairment could reasonably be seen by the plaintiff as importing a new order of gravity. To distinguish between the immediate impairment of the plaintiff's mental condition caused by these acts, apparently minor and transient, and the much more serious long term impairment of the plaintiff's mental condition, the attributability of which to the Webb's conduct was appreciated later, is not in my judgment to defeat the intention of the legislature but to promote it."

"40 Section 14(2) was designed principally to provide for cases of late diagnosis of physical diseases, such as asbestosis or byssinosis, the deadly development of which may be unknown until their symptoms eventually appear. At first sight, it does not fit so readily the circumstances of abused children who, because of their immaturity and vulnerable position, might never consider or seek advice about suing their abusers, or those responsible for them, for damages. The test, properly interpreted, is likely to be somewhat unrealistic in many child abuse cases when applied to claims for immediate injury. Such injury is likely to include, in addition to any physical injury, a mix of emotions and other mental effects, for example, humiliation, distress, shame, guilt and fear of being disbelieved or of disclosure. In such circumstances, depending on the severity of the victim's condition and the dates of the abuse, it could have been unreasonable and unreal to have expected him, as he moved from childhood to three years beyond majority, to consider recourse to the civil courts for damages for something he just wanted to put behind him. Given the circumstances of the abuse and his subsequent way of life, making such a claim, or seeking advice about it, might reasonably never occur to him. He might have known at the time of the abuse that it was wrong; he might have harboured resentment, great grievance, or even a desire for revenge, perhaps even a wish to report it to the police, but not necessarily to litigate for damages.

"The reference in section 14(3) to 'knowledge which he might reasonably have been expected to acquire' should, in my opinion, be taken to be a reference to knowledge which a person in the situation of the claimant, ie an adult who knows he is illiterate, could reasonably be expected to acquire. Personal characteristics such as shyness and embarrassment, which may have inhibited the claimant from seeking advice about his illiteracy problems but which would not be expected to have inhibited others with a like disability, should be left out of the equation. It is the norms of behaviour of persons in the situation of the claimant that should be the test."

and again (at para.73):

"Statutory provision for constructive knowledge in the context of limitation of actions must strike a balance between the interests of claimants and those of defendants. There may seem to be an unfairness to claimants in banning them on lapse of time grounds from bringing actions that they did not know they could bring. But there is also an unfairness to defendants in allowing actions to be brought after a lapse of time that has seriously prejudiced their ability to refute the claims made against them and for which they are in no way responsible. In my opinion, the approach to section 14(3) constructive knowledge should be mainly objective. What would a reasonable person placed in the situation in which the claimant was placed have said or done? If the result of applying the mainly objective test would seem unfair to a particular claimant, the issue of fairness, as between claimant and defendant, can be considered under section 33."

Lord Walker was cautious about adopting any simple formula to cover every case which might occur, but agreed on the facts with Lord Hoffman that s.14(3) "required the court to assume that a claimant in the respondent's position, suffering from the disability and the resultant misery which he said he had suffered, would have sought medical advice much sooner."

"We are not here concerned with knowledge that the claimant might reasonably have been expected to acquire from facts observable or ascertainable by him. We are concerned with knowledge he might reasonably be expected to acquire with the help of medical or other advice which it is reasonable for him to seek. The question is when is it reasonable to expect a potential claimant to seek such advice? Objectively it will be reasonable to seek such advice when he has good reason to do so. This will depend upon the situation in which the claimant finds himself, which includes the consequences of the accident, illness or other injury which he has suffered. Rarely, if ever, will it depend upon his personal characteristics. If, faced with a situation in which it is reasonable to seek advice, a person fails to do so, then the fact that he was reluctant to make a fuss, or embarrassed to talk to his doctor, while understandable, does not take him outside the subsection."

The evidence

"[the pursuer's] reported symptoms fulfil the criteria for [PTSD]. Specifically, she has such a high level of intensity in terms of intrusive thoughts about events at [the Home] that she is unable to sleep. On one distressing occasion in 1988, her sister found her crawling round the carpet in hysterics, in an effort to shut out the memories. She slashed her wrists and required to be hospitalised. ... Her sleep pattern is very poor and she blames this directly on experiencing intrusive thoughts about her time in [the Home]. She regularly experiences nightmares about incidents which occurred there."

The pursuer was referred to this passage in cross-examination. She said she could never shut out memories of the Home. In re-examination, she suggested that the reference to shutting out memories referred to memories of her first husband and of what he had done to her. She said that he had tried to throw her in front of a tube train. Whether or not her first husband tried to do this, I do not accept the pursuer's evidence that the references in that passage are to do with her husband's behaviour. It seems to me that they cannot relate to anything other than the pursuer's experiences at the Home. Ms. Gray Taylor, in her evidence, confirmed that the reference was to shutting out memories of her experiences at the Home.

Findings on the evidence

Decision on section 17(2)(b) issues

Discretion - section 19A Prescription and Limitation (Scotland) Act 1973

The statutory provisions

"(1) Where a person would be entitled, but for any of the provisions of section 17 ... of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.

(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement".

Submissions for the pursuer

Submissions for the defenders

"If there is material prejudice to a defender in having to go to proof, it is difficult to see how, even if there was a reasonable explanation for the delay, the action could reasonably be allowed to proceed".

This approach was supported by the decision in AB v Sister Bernard Mary Murray and the cases referred to therein.

Discussion

accept the analysis, in the cases to which I was referred, about the inevitable loss of evidence and decline in the quality of evidence after so long a delay: see in particular T v Boys & Girls Welfare Service, Brisbane Regional Health Authority v Taylor and AB v Sister Bernard Mary Murray. I do not consider that it would be possible to have a fair trial of the issues raised by the pursuer at this far removed from the events which she alleges took place. Whilst it might be said that the defenders would have suffered prejudice even if the case had been brought within time, i.e. by 16 January 1984, I consider that I am entitled to assume that the passage of a further sixteen years before proceedings were brought has increased that prejudice.

Decision on section 19A issues

Disposal