Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 34
	OPINION OF LORD MALCOLM in the cause C.G. Pursuer; against GLASGOW CITY COUNCIL Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: J.J. Mitchell, Q.C., Stirling; Drummond Miller LLP

Defender: Peoples Q.C., G. Clarke

5 March 2009

[1] In this action I heard a debate on the procedure roll at the instance of the defenders. The defenders' position fluctuated during the hearing but ultimately Mr Peoples' submission was that there should be a preliminary proof, limited to whether it is or is not equitable to allow the pursuer to bring the action under and in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. It was said that there are no sufficiently relevant and specific averments in support of the pursuer's case under section 17 of the 1973 Act to allow that matter to proceed to probation. That submission could be given effect by repelling the pursuer's third plea in law and upholding in part the defenders' third plea in law. For the pursuer the submission was that a proof before answer should be allowed on all of the parties' averments and pleas.

The Averments

[2] At the outset it is appropriate to set out the case averred by the pursuer. She was born in 1978. In about 1992, when she was aged 13 years, she was sent to a residential care facility. The defenders, and before them their statutory predecessors, Strathclyde Regional Council, have administered and operated the school. The pursuer avers that throughout the period when she was resident at the school, namely from 1992 until 1995, she was subjected to brutal physical treatment and sexual abuse by adults employed at the school. She gives specific detail of the nature and extent of the abuse, and as to the identity of her alleged assailants. She told one of them that she wanted to report an incident to the police, but she was warned that if she did so, there would be repercussions for her from every other member of staff. In 2006 two of her abusers were convicted of several charges, including assault, indecent assault and lewd and libidinous practices and behaviour towards a number of children at the school in the period 1975 to 1995. Some of the charges related to the pursuer. In due course they were sentenced to lengthy periods of imprisonment.

[3] It is averred that the pursuer's loss, injury and damage was caused by the fault of her alleged abusers, for whose acts and omissions in the course of their employment with the defenders' predecessors the defenders are liable. Various averments of breach of duty are made which, in my view, serve only to complicate what is a relatively straightforward case. However that straightforward case was adhered to in the oral argument at the hearing. The pursuer has been injured by the traumatic treatment meted out to her. She felt terrified and helpless. She has suffered psychologically for a number of years, and after leaving the school she tried to cope with her experiences by "locking away memories of the abuse." She has abused a variety of drugs and she became addicted to heroin. In about August 2004 she was contacted by police officers who were investigating abuse at the school. Since that time she has required to confront the abuse and she now suffers repeated flashbacks and nightmares. She becomes severely distressed psychologically and physiologically when she is reminded in any way about what happened to her. Sometimes she feels as if the abuse is still happening. She avoids thinking or talking about the abuse, and tries to lock it away, but now with little success.

[4] Various other consequences of her experiences at the school are averred in detail. She states that her psychological problems have been ongoing for many years and that the abuse has had a marked impact upon her life. There have been several suicide attempts, self injury, and abuse of drugs in attempts to block out the memories. She has been homeless and involved in prostitution. She has lost contact with her family other than her mother. She has been diagnosed as suffering from severe depression and anxiety with an overall profile of chronic complex post traumatic stress disorder. She avers that it was the physical and sexual abuse perpetrated upon her at the school which has caused the pattern of her life to date and her current severe psychological distress.

[5] With reference to the defenders' averments concerning time bar, it is admitted that the present proceedings were not served on the defenders until 9 January 2007. She explains that at the time of the abuse she did not regard herself as being injured sufficiently seriously to justify bringing an action of damages. She was not physically injured to any material degree by the sexual assaults. Rather, they made her feel dirty. She was embarrassed to talk about what had happened and in any event she did not think that she would be believed. She regarded the physical assaults as a matter for the police rather than civil lawyers, but had been warned against contacting the police by one of her attackers. The physical injuries were painful but transitory. Once any bruises had healed there was no obvious lasting damage. Episodes of self harm while in the school were in response to immediate crises in her life, such as a problem with the pursuer's relationship with her mother. The pursuer suffered abuse within her own family. Her mother was an alcoholic who encouraged her and her brother to steal. The pursuer was in trouble with the police from early adolescence. She abused solvents and was sent to a number of residential institutions. When she left the school, she attempted to cope with her experiences by not thinking about them. She used drugs, in particular heroin, to block out memories of the abuse. This was largely successful. By blocking out the memories of the abuse, the pursuer protected herself from suffering or experiencing injury as a result of the abuse. It is averred that as a result she did not feel troubled by the abuse, thus she did not become aware that her injuries were sufficiently serious to justify bringing an action of damages. Her focus was on obtaining money for her next fix of heroin. She slept rough from time to time, was involved in criminal activity, and was imprisoned. She suffered mental health problems. She has been sectioned under the Mental Health Act. She deliberately harmed herself on a number of occasions. Again these were in response to an immediate crisis in her life and did not result in any prolonged stay in hospital or prescription of medication. Psychiatrists assessed her as feeling low but did not diagnose a depressive illness. She was noted to have limited insight into her condition.

[6] In about 2001 or 2002 the pursuer gave up drugs. She has had the assistance of support workers. In February 2001 she was raped while working as a prostitute. Between 2001 and 2004 she lived at a variety of homeless accommodation addresses. She continued to self harm and require medical attention. In about 2004 she mentioned to a support worker that she had been abused by one of the staff at the school, but did not disclose everything that had happened to her. In July 2004 police commenced an inquiry into abuse at the school. In August of that year she was contacted by police in this connection. She found it difficult to talk about the abuse and required to be interviewed on several occasions. Since she had a criminal record she did not think that she would be believed. However as a result of the police investigation she was forced to confront the abuse. Psychologically she has felt worse since the police came to see her. She did not think of herself as being injured by the abuse, but rather she wanted to stop staff from abusing others.

[7] Following the conviction of two of her abusers in 2006 the pursuer read an article in a newspaper about compensation claims arising out of the events at the school. She contacted solicitors who applied for advice and assistance from the Scottish Legal Aid Board and sought to recover relevant statements and records. In June 2006 a claim was intimated to the defenders. In August the pursuer's solicitors instructed an expert psychological report. It became available in October and the next month the pursuer's solicitors provided the defenders with the further information which had been requested. On 13 December 2006 the pursuer's solicitors sent completed legal aid forms to her for signature. A week later these forms were sent to the Scottish Legal Aid Board, together with a special urgency application and instructions to Edinburgh agents to instruct counsel to draft a summons. A draft summons was returned on 22 December 2006. The action was raised shortly thereafter.

[8] It is averred that, having regard to the terms of section 17 of the 1973 Act, the triennium did not begin until 2004 at the earliest. Before then the pursuer had largely blocked out memories of the abuse. In 2004 she was forced to confront the abuse, which made her psychological symptoms worse. She did not think of her psychological symptoms in terms of an injury of sufficient seriousness to justify raising an action of damages. She did not regard Glasgow City Council as being responsible. It was not until she attended solicitors in May 2006 that she had awareness "of all the statutory facts", nor was it reasonably practicable for the pursuer to have become aware of them before then.

[9] It is averred that the pursuer's response to the abuse is typical of many childhood abuse victims. Survivors of such abuse tend not to speak about it until well into adulthood. Many, like the pursuer, try to block out memories of the abuse, often by resorting to drugs and alcohol. Their reluctance to confront the abuse protects them from suffering the effects of the abuse, and stops them from acquiring knowledge of the statutory facts. They tend not to raise court actions until well into adulthood. The first such action was raised in Scotland in about 2000. It was not until July 2004 that the first criminal actions regarding the school began to be investigated. The disabling long term effect of the abuse should be acknowledged, accordingly the claim is not time barred.

[10] The averments continue that if the claim is time barred, it would be equitable to allow it to proceed in terms of section 19A of the Act for all the foregoing reasons. The pursuer could not reasonably have been expected to commence litigation before she was advised by her solicitors that she could do so. Furthermore the delay in raising the action was attributable to the pursuer's treatment by her abusers, for whom the defenders are vicariously liable. It would not be equitable to sustain the defenders' plea of time bar in circumstances where they are responsible for the delay.

[11] It is averred that the defenders would not be prejudiced if the claim was to proceed. They are able to defend the action. In June 2004 the defenders began to investigate complaints and concerns about abuse in the school. By August 2004 the defenders had established a joint investigation team. During the two year investigation, the defenders interviewed past and present employees, residents, parents and associated professionals. They obtained the relevant records. That investigation concluded that there was a longstanding failure within the school to provide safe, effective and appropriate care and education, and that some residents were subjected to sexual, physical and emotional abuse by certain members of staff. Thirty eight fact-finding investigations were carried out. Twenty three disciplinary hearings were held, which resulted in fourteen dismissals and seven other disciplinary outcomes. The investigations considered large numbers of complaints including assault, verbal abuse, inappropriate sexual behaviour, excessive restraint, and wide ranging mismanagement and misconduct issues. Investigations concluded that a significant number of staff, many in management positions, were involved in the physical abuse of young people, including physical assaults, excessive use of restraint outwith policy, inappropriate restraint, and a range of physically abusive and intimidating behaviour.

[12] The investigation concluded that young people had been sexually abused by certain members of staff, and that the culture at the school was characterised by a lack of appropriate professional boundaries between staff and young people, including inappropriate relationships and a chronic lack of privacy for young people. The investigation also concluded that there was a culture of physical and emotional abuse, where staff used their authority to deny basic rights to young people in their care. The investigation showed that there was a significant core of staff, of around forty individuals, who were directly involved in abuse, and that a far larger number of staff had knowledge and information about the abuse but were unable or unwilling to address it. Investigations found that there had been repeated complaints by children over the years.

[13] The pursuer avers that two of the abusers had a fair trial in 2006. A large number of witnesses were available for that trial (over 100 witnesses for the Crown and over 90 witnesses for the defence). There were over 100 productions. The pursuer has already given evidence in the criminal trial, an experience which she found upsetting. She faced hostile cross examination and was accused of lying. She is a vulnerable witness who will require to give evidence on sensitive matters. She was hospitalised in early 2007 and continues to commit acts of self harm. If the defenders seek to go to proof on the issue of time bar, it is averred that the proof should be a proof at large and not a preliminary proof on time bar. It would be unfair to require the pursuer to give evidence on two further occasions.

[14] In response to these lengthy and detailed averments the defenders answer to the effect that the extent of the pursuer's loss, injury and damage is not known or admitted. The rest is simply denied. The defenders aver that the pursuer's claim is barred by the passage of time. The present proceedings were not served until on or after 9 January 2007. Reference is made to section 17 of the 1973 Act. It is claimed that in any event the sum sued for is excessive. The defenders then call upon the pursuer to specify whether she submitted an application for criminal injuries compensation and if so what award was made. Having regard to factors such as the length of time since the alleged wrongful conduct; the inevitable prejudice to the defenders; changes in the law; absence of documents; non-availability of witnesses; prejudice due to press reporting; and disproportionality between the costs involved in defending the claim and the sum sued for, it is averred that it would not be equitable to allow the claim to proceed. It can be noted in passing that the remainder of the defences are skeletal. It seems likely that the main issues between the parties are whether the pursuer's claim is time barred, and, if not, quantum of damages.

The Submissions

[15] I intend no disrespect to Mr Clarke, who opened the debate for the defenders, if I focus on the submissions made by his senior, Mr Peoples Q.C. I do this because his submissions departed materially from the position adopted in the opening speech. In particular Mr Peoples did not renew Mr Clarke's motion to dismiss the case. Rather he moved for a preliminary proof limited to the averments concerning section 19A of the Act. He recognised that it would be difficult to persuade the court that the section 19A case could be determined without some form of inquiry. However, he did not concede that the same applied to the case under section 17, and he invited me to dismiss that element of the pursuer's case at this stage. The present action could be distinguished from Carnegie v The Lord Advocate, 2001 SC 802, in that there is no injury which is new and distinct from that suffered at the time of the abuse. It was submitted that at most the pursuer's averments are to the effect that she put the horrible events at the school to the back of her mind. It is not a case of medical intervention unlocking memories from deep in the subconscious. So even if the case of Carnegie was correctly decided, it does not apply to the present case. With reference to the case of B. v Murray, 2004 SLT 967, 2007 SLT 605 (IH) and [2008] UKHL 32, senior counsel submitted that the present is not a case of a distinct psychological injury. Rather, after the intervention of the police there was an aggravation of the pursuer's condition.

[16] It was suggested that it is clear that the pursuer knew from the outset that she had been subjected to wrongful treatment and that the ill effects commenced then. There is no scope for an assertion that at that time the effects were so minor or trivial as to be regarded as inconsequential. Mr Peoples submitted that there is no proper basis for invoking the terms of section 17(2)(b) of the Act. Under reference to the House of Lords' decision in A v Hoare [2008] 1 AC 844, it was submitted that from the outset the claimant knew that she had suffered an injury. She knew that she had been abused. The application of the relevant tests under section 17(2) do not turn on the specifics of the individual claimant. Once she knew that she had been abused, and adopting the reasoning of Lord Hoffman in Hoare at paragraphs 31-48, whether the pursuer should have realised that the matter was sufficiently serious to justify legal proceedings is a purely objective issue. Any remedy in the present case is to be found in section 19A. Finally it was submitted that the averments as to criminal convictions in article 8 of the condescendence are irrelevant if the pursuer is seeking to found on similar wrongs committed against other children at the school.

[17] In response Mr J. J. Mitchell Q.C. for the pursuer noted that the section 17 and section 19A cases are based upon the same averments. If a proof or preliminary proof is limited to section 19A, the judge hearing that proof might come to the view that section 17 was satisfied. With reference to the convictions, the issue is whether they are pertinent or relevant. This cannot be decided against the pursuer at this juncture. In submitting that there should be a proof at large, Mr Mitchell observed that the defences are lacking in candour. It is plain that the defenders fully investigated the matters at issue, yet most of the pursuer's averments are met with a bare denial. The time bar averments are intertwined with issues concerning quantum. Normally a preliminary proof would be justified because a short investigation might avoid a prolonged one. However, in the particular circumstances of this case there would be no such benefit from a preliminary proof on time bar. In exercising its discretion on the matter, the court should take the sensible course of allowing a proof before answer on all outstanding issues, especially when so many of them are intertwined.

[18] In relation to the attack on the relevancy of the pursuer's averments concerning section 17 of the Act, Mr Mitchell adopted the submissions of junior counsel for the pursuer. Her submissions in this regard can be summarised as follows. Under reference to section 17(2)(b) she stressed that the test relates to awareness of the extent or seriousness of the injuries sustained. The pursuer offers to prove that a psychological injury was not sustained until 2004. In any event, before that there was no real suffering and no awareness of the seriousness of the impact of the abuse. At the time it would not have been obvious to the pursuer that she could claim damages for the sexual abuse. There was no direct physical injury, so there could be no awareness for the purposes of section 17(2). Miss Stirling submitted that it would not be open to the court to decide on the pleadings that from an early stage the pursuer was aware that her injuries were sufficiently serious to justify bringing an action of damages. The question is whether it can be concluded that it would have been reasonably practicable for her to have been so aware more than three years before service of the summons. The pursuer offers to prove that the critical psychological symptoms did not occur until 2004. Under reference to the case of Carnegie, counsel submitted that this is an issue which requires to be resolved after proof.

[19] In the course of the debate, in addition to the cases mentioned above, I was referred to Cartledge v E. Jopling & Sons Ltd [1963] AC 758; M v O'Neil 2006 SLT 823; Godfrey v Quarriers [2006] CSOH 160; MCE v De La Salle Brothers 2007 SC 556; and JA v Glasgow City Council [2008] CSOH 27.

Discussion and Decision

[20] The pursuer's respective cases under section 17 and section 19A of the Act are based upon the same averments. The defenders' counsel conceded the need for probation in relation to section 19A, thus, whatever concerns there might be as to the relevancy of the section 17 case, there are obvious and powerful reasons for allowing the relevant facts and circumstances to be explored with both statutory provisions remaining on the table. However, given that the relevance of the section 17 case was explored before me, I will offer some comments in response.

[21] Mr Peoples invited me to apply the reasoning of the House of Lords in A v Hoare, and in particular that of Lord Hoffman. It is often said that it is of little utility to refer to or rely upon English authority, which is based upon different statutory provisions, but since there are many decisions north of the border where copious reference has been made to English authority, and given the similarities in the factual backgrounds of the present case and those considered by their Lordships in Hoare, I think it appropriate to examine the analysis in that case. It is, however, necessary to be clear as to the reasoning of their Lordships and the statutory provisions upon which it was based.

[22] In terms of section 11 of the Limitation Act 1980, an action must be brought within 3 years of (a) the date on which the action accrued, or (b) if later, the date of knowledge of the person injured. Section 14(1) provides that the references in section 11 to a person's date of knowledge are references to the date upon which he first had knowledge of certain specified facts, including that the injury was significant. Section 14(2) states that an injury is significant if the person whose date of knowledge is in question "would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment." Section 14(3) provides that for the purposes of section 14 it is to be assumed that a person has knowledge of all observable and ascertainable facts, including those obtainable from medical or other appropriate expert advice.

[23] Despite the terms of section 14(1), the judicial task does not turn on an inquiry into the claimant's actual knowledge, though plainly this might be relevant to the issue posed by section 14(2). Rather a judge must ask: when could the claimant, with the benefit of all the imputed knowledge, have reasonably formed the opinion that his injury was sufficiently serious to justify legal proceedings? On the face of it, it would be reasonable for anybody to consider sexual abuse as justifying legal proceedings from the outset, and, when considering the proper approach to section 14, in Hoare the House of Lords held that the personal circumstances and characteristics of the particular claimant, including any consequences of the injury, should be left out of account. The statutory formula in section 14 simply provides a method for assessing when the consequences of an injury first became significant. It is apparent that the possibility of delayed claims under section 14 of the 1980 Act is aimed at conditions which in practical terms could not have been known about until less than three years before the action was raised. The balance has been struck in terms which are relatively favourable to defendants, albeit hard cases can be addressed under the discretionary provisions in section 33 of the 1980 Act.

[24] A review of the English cases, including KR v Bryn Alyn Community Holdings [2003] QB 1441, shows that some judges have made the mistake of construing section 14(2) as allowing for the plaintiff who reasonably remained ignorant of the key facts, including the significance of his injury. An example of this approach is to be found in Geoffrey Lane LJ's question in McCafferty v Metropolitan Police District Receiver [1977] 1 WLR 1073, 1081: "Taking that plaintiff, with that plaintiff's intelligence, would he have been reasonable in considering that injury not sufficiently serious to justify instituting proceedings for damages?" It was this error which was corrected in Hoare. As Lord Hoffman explained, one should ask "whether a reasonable person with that knowledge (that is both actual and imputed knowledge) would have considered the injury sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment" (paragraph 34). His Lordship continued to the effect that the test for significance of an injury is an impersonal one, unaffected by the particular circumstances of the actual claimant, who simply "drops out of the picture". It matters not even if the claimant could not have been expected to raise proceedings until he did so. Section 14(2) "involves no inquiry into what the claimant ought to have done." Furthermore the effect of the claimant's injuries upon what he could reasonably have been expected to do is irrelevant (paragraphs 38-39). So issues of suppressed knowledge of sexual abuse and the like are relevant only to the discretionary powers under section 33.

[25] The question posed by Mr Peoples' submission is whether the same approach should be adopted in relation to section 17 of the 1973 Act. If the answer is yes, then clearly there is much to be said for the proposition that the scope of the proof concerning time bar in this case should be limited to the terms of section 19A of the Act.

[26] At this stage it is appropriate to set out the full terms of section 17 of the 1973 Act:
"17.-(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.

(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whatever is the later; or

(b) the date (if later than any date mentioned in paragraph (a) above) 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.

(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."

[27] In a comparison between section 17 of the 1973 Act and sections 11 and 14 of the 1980 Act, it can immediately be seen that there are significant differences in structure, concepts and wording. Under the first limb of section 17(2)(b) a Scottish judge must ask; when did this pursuer become aware of the statutory facts? That is an entirely subjective issue. The judge must also ask; when would it have been reasonably practicable for this pursuer in all the circumstances to become aware of, amongst other things, that the injuries were sufficiently serious to justify proceedings? If that date is earlier than the date of actual knowledge, then the limitation period will commence on that earlier date. It follows that ignorance of a key fact, even reasonable and excusable ignorance, cannot be relied upon by the pursuer, if it would have been reasonably practicable for him to discover that fact.

[28] For present purposes the question comes to be whether the reasonably practicable qualification in section 17(2)(b) operates in the same way as the reasonableness provision in section 14(2) of the 1980 Act. Does it import an objective impersonal standard of "sufficiently serious" equivalent to the English test of significance? Echoing Lord Hoffmann's explanation, does section 17 require the court to ask: when would it have been reasonable for the pursuer to regard the injury as sufficiently serious to justify proceedings? Alternatively, and acknowledging that it is implicit that the pursuer is curious and interested in finding out about things, does section 17(2)(b) focus on the date when steps were open to the pursuer which, if taken, would have filled in the gaps in his knowledge? Does it require the court to explore the reasonably practicable steps available to the pursuer concerned, taking into account any relevant characteristics of the pursuer, including the consequences of the injuries themselves?

[29] In both the 1980 Act and the 1973 Act (as amended in 1984) Parliament has attempted to strike a balance between the competing interests of the claimant in being allowed to pursue an action and the defender in not having to respond to stale claims. There is also a clear public interest in the outcome of this exercise. So far as relevant to the current discussion, in the 1980 Act the balance was struck on the basis of the clock running from the earliest date when, it being assumed that he knew all observable and ascertainable facts, it would have been reasonable for the claimant to conclude that his injuries were sufficiently serious to justify proceedings. The equivalent Scottish test resolves the issue in a different way, namely by reference to when it would have been reasonably practicable for the pursuer to become aware that his injuries were sufficiently serious to justify proceedings. In my view, the Scottish test does not raise issues of constructive or imputed knowledge, nor does it create a subjective/objective dichotomy. It simply requires a consideration of whether and when there were reasonably practicable steps available to the particular pursuer, whether by seeking advice or otherwise, which, if taken, would have alerted him to the statutory facts. It does not tell the court to proceed by reference to a hypothetical reasonable claimant as opposed to the actual pursuer in the case. On the contrary, section 17(2)(b) asks whether "it would have been reasonably practicable for him in all the circumstances to become aware of all of the following facts ..." (underlining added).

[30] Unlike section 14(2) of the 1980 Act, section 17 does not require the court to ask what a reasonable person would have made of the known and ascertainable facts. In the absence of actual knowledge, the test does not involve imputed knowledge, though such phraseology is sometimes used in substitution for the terms of section 17(2)(b). There is often much to be said for a straightforward application of the relevant statutory wording. Nonetheless it remains for the judge to decide what was and what was not reasonably practicable for the pursuer. Thus factors such as a pursuer's laziness, timidity, or a tendency to be neglectful in his personal affairs are unlikely to be relevant. But this is the result of an application by the court of the reasonably practicable test, not a consequence of replacing the claimant with a judicial construct. And, importantly in cases of the present type, I see no reason why any proven consequences of the abuse which are relevant to the reasonably practicable test must be excluded from the court's consideration. Equally, if the claimant suffers from a pre-accident disability unconnected with the defender's wrong, but which affects his ability to discover things, or to take steps which would otherwise be open to him, then again I see no basis for leaving this out of account. For what it may be worth, this is consistent with the common law rule that a wrongdoer takes his victim as he finds him.

[31] Reasonable practicability is a well understood concept in our law. Just as an employer cannot excuse failure to provide a safety feature because he gave priority to other matters, it is not a matter of whether a pursuer can put forward an explanation, reasonable or otherwise, for failing to take a reasonably practicable step which would have appraised him of the key facts, see Agnew v Scott Lithgow Ltd (No. 2) 2003 SC 448. Section 17 proceeds on the basis that once it is reasonably practicable for the pursuer to have the necessary awareness, the three year limitation period begins. Reasonableness enters the equation in a completely different way from the English provisions. "Reasonably" qualifies practicability, and so operates to the benefit of the pursuer. What is and what is not reasonably practicable is sensitive to the specific circumstances of the case, and is not decided on an objective state of affairs pertaining to a hypothetical reasonable man.

[32] No doubt from the outset the pursuer in the present action knew that she had been abused. However, she offers to prove that at that time, and thereafter, she failed to appreciate that her experiences justified seeking advice as to litigation with a view to compensation. In a case of historic sexual abuse the issues of actual awareness that the injuries were sufficiently serious to justify proceedings and the reasonable practicability of acquiring such knowledge at an earlier date may well become intertwined. It is I think widely understood that young people who suffer this form of ill treatment on a regular basis can come to regard it as almost part and parcel of their way of life, and that it can have devastating consequences thereafter which may make it difficult for them to appreciate or discover the significance of what had been done to them The pursuer offers to prove that until 2004 nothing occurred to prompt an alteration in her attitude to what had happened, nor in her awareness or potential awareness as to the legal possibilities. I have recounted the lengthy and detailed averments made by the pursuer. I consider that they are such as to make it very difficult to accept the invitation to exclude the pursuers case under section 17 simply from a consideration of her pleadings.

[33] In Hoare Baroness Hale observed that "the abuse itself is the reason why so many victims do not come forward until years after the event", and that the English legislation does not recognise "the reality of many sex abuse cases." If I am correct in the above analysis, a similar comment cannot be levelled at the Scottish legislation. It may be that the differences were intentional, given that in 1982 the Scottish Law Commission framed the Scottish provisions to allow the court to look into "the different circumstances of individuals and the differing nature of their injuries", whereas Lord Hoffman drew attention to the Law Commission's desire that the test of significance be entirely objective and based on the views of a reasonable person.

[34] Lord Hoffman balanced his decision regarding section 14 of the English Act by a more generous approach to the application of the discretionary terms of section 33 (the equivalent of section 19A of the Scottish Act). It might be said that the present discussion of the scope of section 17 is academic in the context of historic sex abuse claims since, if the cause of the delay can be blamed on the defenders or those for whom they are responsible, the court is likely to exercise its discretion under section 19A in favour of allowing the action to proceed. I would not agree with such a comment. There is a clear difference between a legal right to pursue an action and a discretionary judgment of the court. The proper approach to section 17 should not be influenced by any assumptions as to the likely outcome under section 19A, which in any event may turn out to be unfounded.

[35] There is a separate basis upon which a proof before answer on section 17 can be justified. Miss Stirling for the pursuer stressed that she offers to prove a psychological injury attributable to the abuse, but which did not occur until less than three years before service of the summons. She referred to the decision of an Extra Division in Carnegie v The Lord Advocate 2001 S.C. 802, which decided that, so long as only one action has been raised, a pursuer can sue for those of his injuries which are not time barred, provided they are distinct from the other injuries. While the decision in Carnegie has been the subject of critical comment and judicial calls for its reconsideration, it is binding upon me. Mr Peoples' submission is that in the present case there is no separate psychological injury, let alone one which occurred in the three years before the action was raised. However, in my view that is a matter for decision after proof. The pursuer has averred enough to go to proof on this issue.

[36] A number of other matters were discussed at the hearing. I shall deal with them briefly. Counsel for the defenders submitted that the averments as to criminal convictions in 2006 of two of the abusers for indecent assault at the school, including in respect of the pursuer, should be excluded from probation. Various cases were cited in support of this, including A v B, (1895) 22R 402, Inglis v National Bank of Scotland, 1909 SC 1038, Strathmore Group Ltd v Credit Lyonnais, 1994 SLT 1023, and Royal Bank of Scotland plc v Haughey and Others [2008] CSOH 142. The submission was that the convictions are collateral and irrelevant, at least if the pursuer seeks to found on them in respect of similar wrongs against other people. It was ultimately accepted that Lord Osborne in Strathmore Group and Lord Glennie in RBS were correct in expressing the test as being whether the matters averred are, in a reasonable sense, pertinent and relevant, and whether they have a reasonably direct bearing on the subject under investigation. I can conceive of a number of ways in which all or parts of the convictions might be pertinent to the issues in the present case, but suffice to say that I am not persuaded that the contrary can be concluded at this stage. I therefore reject the submission that I should exclude the averments as to the criminal convictions from probation. In the context of a proof before answer before a judge the matter can be renewed, if so advised, at a later stage once the evidence has been led and the issues have crystallised.

[37] Junior counsel for the defenders, and to a more limited extent Mr Peoples, criticised the pursuer's averments of breach of duty, especially those that appear to be directed at the defenders' predecessors. I have some sympathy with the proposition that the pursuer's averments in article 9 of the condescendence are capable of clarification and improvement. However, counsel for the pursuer explained that they are aimed at vicarious liability for the conduct of the staff, and I consider that the criticised averments can be interpreted as being related to such a case. In any event I am not prepared to exclude any of them from a proof before answer.

[38] Finally there is the issue of whether the time bar averments and pleas should be the subject of a preliminary proof, or whether, as the pursuer's counsel submitted, there should be a proof before answer on all averments and pleas. Several cases were cited, but they simply demonstrate that this is a matter for the discretion of the court, with each case depending upon its own facts and circumstances. Often there will be a clear advantage in a preliminary proof on time bar, especially if it is likely to be shorter than a proof at large. Counsel for the pursuer observed, in my view correctly, that the averments relating to time bar are also relevant to quantum. The two issues are intermingled. Further, it would appear that the defenders are simply putting the pursuer to her proof on the merits of the action. In all the circumstances I am not satisfied that there are material potential benefits in ordering a preliminary proof on time bar. In addition the pursuer has already given evidence in the criminal proceedings. It is undesirable that she should be required to face the possibility of two further such occasions. In all the circumstances I consider that the proper course is to allow a proof before answer in respect of all averments and pleas in law.