Scottish Court of Session Decisions

Pursuer: Stirling; Drummond Miller, W.S.

Defenders: Peoples, Q.C., Clarke; Edward Bain

14 February 2008

[1] In 1968 when he was a little boy, 3 years old, the pursuer was in a children's home in Glasgow which was managed by the defenders' predecessor. He lived there until he was sixteen and left in 1981. Since then he has grown up, had employment, married and had a family.

[2] However, he was not well treated in the home. When he was 9 he was sexually abused by a male member of the staff who has now gone abroad. He was threatened not to reveal the abuse and when he did so he was physically punished by two named members of staff. Many years later investigation into the home took place. The press and police became involved. There were prosecutions. The pursuer has raised the present action because he is suffering from Post Traumatic Stress Disorder. The defenders plead that the action is now time-barred absolutely, and that the actual knowledge provision (Prescription and Limitation (Scotland) Act 1973 sec 17(2)(a)) or the imputed awareness provision (sec 17(2)(b)) do not assist the pursuer. The defenders further argue that I should not operate the equitable relief provision (sec 19A) in favour of the pursuer. It is not necessary to quote these provisions at length for reasons which will appear later.

[3] I heard a procedure roll debate over four days from which it is clear that the law on this subject is not entirely clear. The decisions at first instance and on appeal do not always speak with one voice and two of the Scottish cases are presently subject of appeals to the House of Lords. They will not be heard until 2008.

[4] I should list at the outset the cases I was taken to viz: Carnegie v Lord Advocate variously reported 1998 SLT 872, 1999 SLT 521 2000 SLT 806 and 2001 SC 802; Dunlop v McGowans 1980 SC(HL)73, M v Hendron 2005 SLT 1122 2007 and SLT 467), B v Murray 2004 SLT 967, 2005 SLT 982 and 2007 SLT 605, Shuttleton v Duncan Stewart & Co 1996 SLT 517 (note), Hill v McAlpine 2004 SLT 736, Kelly v Gilmartin's Exec. 2004 SC 784, M v O'Neill 2006 SLT 823 L, Godfrey v Quarriers Homes [2006] CSOH 160, McCafferty v McCabe (1898) 25 R 872, Woodland v A.G. 2005 SCLR 163, Ablett v Devon County Council 4 December 2000 (unreported), Fleming v Strathclyde Regional Council 1992 SLT 161, Mackie v Currie 1991 SLT 407, Cartledge v Jopling [1963] AC 758. Given all that has been said in these cases about the subject, I doubt that it is wise for me to undertake my own analysis in depth. What does concern me is the procedure that has been adopted in the Scottish cases. They seem never ending. I suspect that whatever I do, one side will reclaim. As much was said at debate. Let me begin by briefly looking at some of the above.

[5] Carnegie in the Outer House is reported first in 1998 SLT 874. The case concerned bullying in the army. Lady Cosgrove taking a subjective approach allowed a preliminary proof before answer on the section 17 issues and refused to exercise discretion under section 19A. Per incuriam the case later underwent a correction of the interlocutor (1999 SLT 521). The preliminary proof was heard by Lord Osborne (2000 SLT 806). He took an objective approach, found the claim was not time barred and allowed a proof before answer. The defender reclaimed and the pursuer cross appealed. The Extra Division found that certain evidence should not have been considered; that the physical injuries were time barred but that the psychological injuries were separate and distinct, not time barred and the proof before answer on most of these was retained. It is the last part of this case which has caused most of the argument before me. It is self evident that the many procedures needed in this case caused complications.

[6] B v Murray concerned alleged bullying of girls in Nazareth House, Cardonald by the nuns in charge there. The case was pleaded in a way that clearly linked the physical abuse to the later psychological damage. The Lord Ordinary (2004 SLT 967) attached importance to that in refusing to allow inquiry into section 17. He allowed a preliminary proof into section 19A. This proof was heard by Lord Drummond Young (2005 SLT 982).

[7] In Godfrey v Quarriers the pursuer alleged abuse in a children's home between 1978 and 1984. In 2005 he sued for physical and psychological injuries. He said he had put the bad memories to the back of his mind. The injuries were not severable and he did have awareness (para. 74). The Lord Ordinary held the case to be irrelevant and no preliminary proof was allowed on section 17 or section 19A.

[8] M v Hendron  concerned sadistic abuse at an approved school. The abuse was in 1964. Thirty years later the abuser was sent to prison. An action was raised in 2004. By this time the limitation period had elapsed. Most of the opinion in the Outer House concerned liability and a preliminary proof was allowed on that. Further preliminary proofs were allowed on section 17 and section 19A. On appeal two of the defenders successfully reclaimed on liability and the action was dismissed. The Court did, however, consider the "so called" rule in Carnegie and whether a district and separate claim had been made thus allowing for a separate triennium. It was noted that in B v Murray such a distinct claim had not been relevantly averred (para. 163). It was held that no relevant averments had been made. The pursuer had reported what had happened to his mother and suppressed the memory of them. He thus had actual knowledge. Further, his claim was based on both the assaults and psychological consequences. The Court went on to hold that actual awareness cannot be affected by suppression of memory (para. 173 and 189). The decision on the section 19A preliminary proof was upheld only by a majority but was academic in the result. All three judges were aware of the problem posed by Carnegie and it was said that the case would benefit from reconsideration. That, I was told, will happen in 2008 when this area of law will be looked at by the House of Lords.

[9] Kelly v Gilmartin's Executrix was again a case involving abuse at school occurring over 30 years before any action was taken. A prosecution of the teacher reawakened the memories and the onset of psychological illness. The Lord Ordinary held that the claim had prescribed. The Inner House agreed. They expressed no view on Carnegie pointing out that it was a case on limitation only.

[10] Cartledge v Jopling in a case probably now only of historical interest. There had been a full trial of liability and damages before Glyn Jones J. He held all the claims barred. The law at the time was different from today but it is of interest to note the unanimous reluctance with which the Court found for the defendants. It is only necessary to add a word about some of the other cases. Woodland raised a different point about multiple delicts. In Fleming the facts were quite different from what is in issue here. Mackie concerned section 17. In Hill section 19A was operated to allow a proof before answer. M v O'Neill was a case where the action was dismissed after the assistance of a preliminary proof on both section 17 and 19A. The Lord Ordinary has provided a very full analysis of all of the issues arising under these sections.

[11] Junior counsel for the defenders asked me to sustain his first and second pleas in law. Given what the pursuer said about the abuse, by the time he was eighteen he would have understood the assaults were wrong, were a crime, and an injury to him. They were sufficiently serious to raise an action. By 1983 he was aware or was deemed to be aware of these matters. It was not enough to aver that he had blocked them out. The action was accordingly time barred on 14 January 1986 almost eighteen years before the date of citation, and the events in question went back about thirty years. That covered all consequences including distress later. Counsel then discussed the "one action" rule and referred to various passages in Dunlop v McGowans, Mackie v Currie and Shuttleton v Duncan Stewart & Co. The one exception was the case of Carnegie which itself had been the subject of adverse criticism. Counsel said that Hill v McAlpine proceeded on a concession. He looked next at Kelly v Gilmartin and the early stage of B v Murray where the pursuer knew what had happened was wrong. He said the facts of the present case were similar to Godfrey v Quarriers Homes (where Carnegie was criticised) and leaving out an element of damages did not surmount the pursuer's problems.

[12] Counsel spent some time discussing the various issues which arose in M v Hendron and the comments made therein about Carnegie. There had been a preliminary proof in B v Murray and the opinion in the reclaiming motion by implication meant that Carnegie was wrongly decided.

[13] It was plain from the averments that the psychological damage claimed resulted from the assaults. To block out was a thought process and an act of will. It was a decision, and was not amnesia. Even assuming that Carnegie was correctly decided, the averments here did not bring the case within the "so called" Carnegie rule.

[14] Counsel then argued that the averments in Cond. 5 were irrelevant. The convictions of other people were not relevant to this pursuer.

[15] He then said that no preliminary proof should be allowed under section 17 or 19A of the Act. There had to be a full explanation for the long time gap and the delay. (Hendron and B v Murray. It was a very high test. To say he was vulnerable, reluctant and ashamed was not enough. He did not have to wait to be told by a solicitor.

[16] Senior counsel following, added some further refinement which I can summarise thus. It was only Carnegie which allowed the present case not to be time barred. There had been damnum since 1974 and the pursuer had reported it. What was said in this case differed from Carnegie which was a much criticised case. The averments were of the assaults and the blocking out was a continuum not something suddenly new. Even if Carnegie was correct, the present case was different and must be time barred. There was no merit in having any preliminary proof. Though cases differed in detail, it has all been fully looked into in B v Murray. The claim was too old and too stale. There had to be some judicial consistency.

[17] In opening junior counsel for the pursuer referred me to her written submission and asked me to allow a proof before answer on all matters and not to allow preliminary proofs. Referring to the Record she argued that there had been no physical injuries from either the sexual abuse or the assaults or the punishment given to him for revealing it all. The claim was simply for psychiatric damage not physical injury. The former harm only arose in 2001. Before that he was not suffering and was getting on with his life. That was very clearly averred in the Condescendence Articles 4 and 6. From the response which the defenders had made and the matters they put in issue, it was quite clear that they knew what were the facts. Thus they were in no sense prejudiced.

[18] Whatever the pursuer knew when he was nine years old or sixteen, when he left, he could not sue for anything as he had no adverse symptoms. Since there was no damnum before 2001 section 17 of the Act did not apply. At no relevant time could he ever have had any direct or implied "statutory" knowledge.

[19] Counsel then took me to the authorities beginning with Carnegie which she looked at in great detail. The case was binding even if it did appear to create the possibility of a separate triennium. The starting point of the present case was 2001 and there was no damnum before that time. A proper analysis of the other cases showed claims for psychiatric or psychological damage going back over 40 years but only awareness in the 1990's. That was not this case, where the facts were quite different. Counsel told me that B v Murray and M v Hendron were to be heard later in 2008 by the House of Lords. The only progress in them so far had been a lengthy preliminary proof on section 19A. Dunlop v McGowans could be distinguished as it concerned prescription and not limitation.

[20] Counsel pointed to the difference between the present case and Carnegie. It was not clear in Carnegie what case was being made on the pleadings and two different types of symptoms were mentioned with a close link ie a continuum. That was absent from the present case.

[21] Miss Stirling then presented an alternative argument on the basis (not accepted by her) that section 17(2) of the Act was engaged. On a fair reading of the pleadings nothing was sustained until 2001 even if a diagnosis was made later. On the pleadings it could not be said that the pursuer did not fall within the first alternative in sub-section (2)(a). This was not a whole of life claim. It was a later life claim. Even if section 17(2)(a) did not apply then (2)(b) did on all of the statutory points. The date was the same, ie 2001 when the pursuer said he had actual awareness. Given that, it would be impossible to conclude that he had any earlier constructive awareness.

[22] Counsel then briefly addressed section 19A. She said there were some disputed factual issues but the reason for the delay was due to the defenders. There were no proper averments that evidence was lost. The early complaint by the pursuer was met with an assault. There had been trials and convictions. Enough was averred to apply section 19A although because of her earlier argument counsel said that ought not to be necessary. Ignorance of the law is an accepted factor in a section 19A case. It was not said that any important witness had died.

[23] Counsel ended by urging me not to encourage more than one proof as was happening in the other reported cases. Here a defence to challenge the only case made by the pursuer had been stated. It could not be said that the pursuer was bound to fail. All pleas should be allowed to stand.

[24] What then is to be done in this case. In my opinion on the matters averred on Record this case is not time barred and a proof before answer should be allowed. Whatever is said about the abuse in Article 4 it is clear that no claim is being made for the assaults which, given his age at the time, are serious enough. The only issue is the psychiatric damage suffered after about June 2001. In Article 6 considerable detail and fair notice is given about the effects of this. The defenders have been able to answer these averments. The present action, it is admitted, was raised in August 2003. It follows from what I have said that in my opinion neither section 17 nor section 19A of the Act are engaged, and I say no more about them.

[25] As I have already noted much was said in the debate before me about Carnegie and what Lord Johnston said in that case about the triennium. (2001 SC at 813). He held that where there was a wholly distinct injury arising from the same delict there could be a separate triennium. Carnegie is binding on me and I propose to follow it. Further in my opinion what Lord Johnston said is perfectly correct and sound in law. I am not impressed by the various criticisms of the case which have appeared in subsequent cases including from one judge who concurred in Carnegie. These criticisms are in my view unfocussed and amount to no more than a wish for a higher court to look again at the point. That has not yet happened and in the meantime the decision stands.

[26] I am confirmed further in my view by two other matters. Firstly the facts of the present case which I have mentioned fit the principle enunciated by Lord Johnston. Secondly there is already strong Outer House authority to support it in the case of Shuttleton v Duncan Stewart & Co a decision of Lord Prosser which I have not yet referred to. Speaking of asbestosis Lord Prosser had no difficulty in identifying separate diseases or impairments caused by the same delict and in consequence separate time bar periods (page 518). That seems to me, with respect, to be logical and correct. Cases involving deafness can be another example where the condition arises years later. The present case is not bedevilled with any suggestion of separate actions for separate matters flowing from the one delict. That would fall foul of Dunlop v McGowans.

[27] As I have said I will order proof before answer excepting therefrom the whole of Article 5. That does not relate to this pursuer and Miss Stirling made no issue of it. I shall repel the defenders' first plea-in-law. I sustain their second only to the extent of Article 5 and quoad ultra leave all other pleas standing (although the pursuer's fifth plea is largely now redundant).

[28] Since preparing this Opinion I became aware of the decision in the House of Lords in the case of A v Hoare and related cases. The decision was handed down on 31 January 2008. It is of course based on slightly different legislation but appears to encourage more cases being allowed to proceed under the discretionary provisions. I also note that awards already made in three cases were restored. It is my understanding that in England many cases proceed to full trial with limitation, or no limitation being decided at the end. (See Cartledge). It may be costly to do this but it does seem to be a neater procedure than in Scotland where many cases have to endure the preliminary proofs and appeals which I have outlined in the cases cited to me.