EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Bannatyne Lord Wheatley	[2010] CSIH 69 Case Ref: A197/07 OPINION OF THE COURT delivered by LORD EASSIE in the cause C.G. Pursuer and Respondent; against GLASGOW CITY COUNCIL Defenders and Reclaimers: _______

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

Alt: G Clark, Q.C., Pugh; G Lindsay, Solicitor

23 July 2010

Introductory

[1] In this action the pursuer and respondent, who was born in June 1978, seeks reparation in respect of certain wrongs which she avers were done to her while she was a schoolchild in Kerelaw Residential School, Stevenston, in which she was resident between about 1992 and 1995. During the pursuer's residence in Kerelaw the school was administered either by the defenders, or prior thereto, their statutory predecessors, Strathclyde Regional Council. The pursuer avers (Article IV of condescendence) that throughout the period during which she was resident in Kerelaw she was subject to brutal physical treatment and abuse, and thereafter, in her pleadings, she avers particular conduct by named members of the staff of Kerelaw which can shortly be described as physical or sexual abuse.

[2] The action was commenced on 9 January 2007 when the summons was served on the defenders. Given that the injuriae - the wrongs - of which the pursuer complained ceased in 1995, and given that she attained majority and ceased to be of nonage on 29 June 1994, it is evident that prima facie the action is time-barred in terms of the three year limitation period enacted under section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973, as amended - "the Act". But in response to the defenders' plea of time-bar, the pursuer invokes the provisions of section 17(2)(b) of the Act as delaying the inception of the running of time which would otherwise apply under section 17(2)(a) of the Act. For convenience, we set out at this point the terms of section 17 of the 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, whichever 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."

Of the three facts listed in section 17(2)(b), it is fact (i) - seriousness of the injuries - with which one is concerned in this action. In the event that her claim is time-barred, the pursuer invites the court to exercise the discretion given to it by section 19A of the Act nonetheless to allow the action to proceed if it is equitable to do so.

[3] The matter came before the Lord Ordinary on debate on the Procedure Roll respecting the time-bar issues. It appears that while the initial position advanced by junior counsel for the defenders was that the action should be dismissed, on the ground that no relevant averments had been made respecting either the pursuer's case under section 17(2)(b) of the Act or the exercise of the court's discretion under section 19A, in the course of the debate senior counsel for the defenders accepted that the pursuer's application for the exercise of the court's discretion under section 19A could not be determined without the hearing of evidence at a preliminary proof. Senior counsel however maintained that there was no relevant basis for the contention that the starting point for the running of time was postponed by reason of the pursuer's invocation of section 17(2)(b) to a date within the three year period terminating on 9 January 2007. He accordingly submitted that any proof should be a preliminary proof confined to the question whether the court might exercise its section 19A discretion favourably to the ex hypothesi time-barred pursuer.

[4] In the event, the Lord Ordinary declined to follow that course and acceded to the motion of counsel for the pursuer that there should be a proof before answer at large - that is to say on all issues, including ultimately liability and quantum of damages. In this reclaiming motion senior counsel for the defenders (who was junior counsel in the debate before the Lord Ordinary) argued that in doing so the Lord Ordinary had erred in various respects and that the proper course was to recall the interlocutor pronounced by the Lord Ordinary and allow a proof before answer on the single issue whether the court should exercise its discretion under section 19A.

The Lord Ordinary's opinion

[5] In his opinion, [2009] CSOH 34
[1] the Lord Ordinary sets out at paragraphs [2] ff the case averred by the pursuer. It is convenient to repeat in part the Lord Ordinary's narration of that case:

"[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."

Thereafter the Lord Ordinary narrates averments more specifically directed to the invocation of section 19A, which include averments relating to investigations which it is averred the defenders began to carry out in June 2004 respecting claims of abuse at Kerelaw and respecting criminal proceedings resulting in the conviction of two of the individuals alleged by to have sexually and physically assaulted the pursuer, but given the acceptance of the need for inquiry on section 19A it is not necessary to set out those averments.

[6] The Lord Ordinary then summarises the submissions of the parties.

[7] As respects the relevancy of the pursuer's averments concerning section 17(2)(b) the Lord Ordinary notes inter alia that senior counsel for the defenders relied principally on A v Hoare [2008] 1 AC 844, especially the reasoning of Lord Hoffmann at paras 31-48. Counsel for the defenders submitted to the Lord Ordinary that it was evident from the outset that the pursuer knew she had been abused and, given that knowledge, whether the injury to her was sufficiently serious to justify legal proceedings (against a solvent defender admitting liability) was a purely objective question.

[8] The position of counsel for the pursuer on the relevancy of the averments made in regard to the pursuer's reliance on the provisions of section 17(2)(b) of the Act is noted by the Lord Ordinary in para [18] of his opinion:

"[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
[2], counsel submitted that this is an issue which requires to be resolved after proof."

[9] In addressing those competing submissions the Lord Ordinary in para [20] of his opinion states first that the pursuer's respective cases under section 17 and section 19A of the Act are based upon the same averments and he then offers the view that because counsel for the defenders had conceded the need for (preliminary) proof in relation to section 19A, there were obvious reasons for allowing the relevant facts and circumstances "to be explored with both statutory provisions remaining on the table". However, the Lord Ordinary then proceeds to offer what he described as comments on the argument advanced by the defenders respecting the irrelevance of the pursuer's averments invoking section 17(2)(b) of the Act.

[10] Put very shortly, in those comments the Lord Ordinary proceeds to examine the speeches in A v Hoare, their review of English authority, and their conclusion that the test whether an injury (known, or constructively known, to the plaintiff) was sufficiently serious to warrant instituting proceedings - against a solvent defender, admitting liability - was an objective, impersonal one. At para [25] of his opinion the Lord Ordinary acknowledges that were the same approach to apply in Scotland respecting section 17 of the Act:

"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."

[11] The Lord Ordinary then proceeds upon a comparative examination of the terms of the pertinent provisions applying in England and Wales under the Limitation Act 1980 and the provisions in Scotland. Again put shortly, the Lord Ordinary appears to come to the conclusion that the Scottish legislation admits of a subjective view of the seriousness of the injury test. That conclusion, albeit reflected earlier in other parts of the Lord Ordinary's comments on the submission advanced on behalf of the defenders, is perhaps best exemplified in para [32] of his opinion:

"[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 pursuer's case under section 17 simply from a consideration of her pleadings."

[12] The Lord Ordinary then went on to deal with a number of other matters including the contention advanced on behalf of the pursuer that she had suffered a distinct psychological injury which justified a separate starting point for the running of time. The basis for that contention was of course the decision of the court in Carnegie v Lord Advocate 2001 SC 802. The existence of this contention is taken into account by the Lord Ordinary as a further factor justifying an all encompassing proof before answer.

Parties' positions at the Reclaiming Motion

[13] The decision in Carnegie v Lord Advocate to the effect that there were separate starting points for distinct injuries was overruled by a larger bench in Aitchison v Glasgow City Council [2010] CSIH 9. Parties were agreed that the Carnegie issue debated before the Lord Ordinary had been resolved adversely to the pursuer. It was also accepted by counsel for the pursuer that the need for inquiry, were the Carnegie approach sound, had played some rôle in the Lord Ordinary's decision to allow a proof at large on all matters.

[14] As respects the Lord Ordinary's approach to the test under section 17(2)(b) of the Act, counsel for the defenders submitted, in essence, that the decision of the First Division in AS v Poor Sisters of Nazareth [2007] CSIH 39: 2007 SC 688 settled that the question whether injuries known to have been suffered, or constructively known to have been suffered, were sufficiently serious to justify proceedings was to be judged objectively. The views expressed by the Lord Ordinary in his comments on the argument advanced by the defenders in respect of section 17(2)(b), particularly those set out in para [32] of his opinion were thus in error. Applying the proper test to the complaints advanced on averment by the pursuer, it was evident on any proper reading that they amounted to injuries which, objectively judged, would justify suing on the statutory assumptions of admitted liability and unquestionable solvency. There were therefore no relevant averments addressing the section 17(2)(b)(i) test and the action was thus plainly time-barred. As was set out in para [17] of the Opinion of the Court in AS v Poor Sisters of Nazareth, the usual practice of the court, where disputed issues of fact arose, was to have these decided by way of a preliminary proof. Counsel for the defenders therefore maintained the position that in respect that there were matters of fact pertinent to the section 19A application which were not agreed or accepted the appropriate course was to allow a preliminary proof before answer on the single issue of whether the court should exercise its power under section 19A to allow the action, although time-barred, to proceed.

[15] Counsel for the pursuer did not advance before us the submission inherent in the Lord Ordinary's note of the adopted junior counsel's submissions to him to the effect that the test under section 17(2)(b) was that the pursuer be aware that she "could claim damages for sexual abuse" and that the assessment of "sufficiently serious" was a matter of the subjective judgment of the particular pursuer. While not expressly conceding matters, he appeared to acknowledge that in light of what was said by the court on that question in AS v Poor Sisters of Nazareth, some of what the Lord Ordinary said in para [32] presented some difficulty. Counsel's approach rather was to focus on certain averments made on behalf of the pursuer in which she averred that she, herself, did not feel she had been injured sufficiently seriously to warrant proceedings and that she had "blocked out" memories. In essence, counsel contended that these averments were relevant to quantum, in the sense that the pursuer's contemporaneous appreciation of the effects upon her might be pertinent in the assessment of damages for psychological injury and trauma.

[16] But prior to that, and indeed underlying all of the detail of that submission, was the leading submission of counsel for the pursuer that in para [20] of his opinion the Lord Ordinary had reached a case management decision which, it was submitted, could only be attacked on the usual grounds of which such a discretionary decision might be attacked. The comments on the relevancy of the defenders' attack on the pursuer's case under section 17(2)(b) which followed in the succeeding paragraphs of the Lord Ordinary's opinion were comments and hence essentially obiter. The case management decision was essentially sound given the recognised need for inquiry on section 19A and the state of the parties' pleadings.

Discussion
[17] On one view of the Lord Ordinary's decision it may be possible to describe it as a case management decision, proceeding essentially on the view that the pursuer's cases under both section 17 and section 19A of the Act were based on the same averments, with the comments on section 17(2)(b) being obiter. However, we have come to the view that it would not be appropriate to treat the Lord Ordinary's comments on section 17 as being truly of the nature of obiter remarks. It appears to us that the views which the Lord Ordinary expresses in those comments affected, or may well have affected or coloured, his decision to allow inquiry on section 17(2)(b). We mention, for example, the views expressed by the Lord Ordinary in para [32] of his opinion indicating that it was sufficient to make good postponement of the running of time under section 17(2)(b) that the pursuer offered to prove - "... at that time, and thereafter, she failed to appreciate that her experiences justified seeking advice as to litigation with a view to compensation." or, later on, "... 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." These, and reference to other averments in a similar vein, indicate the Lord Ordinary's view that the test whether injuries were sufficiently serious was to be viewed subjectively through the eyes of the pursuer. They would also appear to underline his premise or understanding expressed in para [20] that the pursuer's respective cases under section 17 and section 19A were based on the same averments.

[18] In our view the proper interpretation of the provisions of section 17(2)(b)(i) of the Act was settled in the decision of the First Division in AS v Poor Sisters of Nazareth in paras [25] and [26] of the Opinion of the Court:

"[25] In our opinion the submission of counsel for the respondents on this branch of the argument is to be preferred. As was cogently pointed out by their senior counsel, subhead (i) of section 17(2)(b) requires one to assume that liability for the claim is not disputed and that the defender is able to meet the claim; and those two assumptions, together with the provisions of section 22(3) [absence of awareness of actionability irrelevant], reflect and illuminate the nature of this statutory fact. Since the fact is not concerned with liability or solvency (since both must be assumed), or with knowledge of actionability, the subhead is concerned only with the extent of the injury, in terms of quantum of damages. In other words, the actual or constructive awareness in relation to this subhead is awareness that injury has been suffered which is sufficiently serious to be above a minimum threshold in terms of quantum of damages. Time does not run against a claimant who lacks actual or constructive awareness that he has suffered injury or that the gravity of his injury is sufficient to bring it above the minimum - and quite low - threshold of justifying proceedings on the assumptions of admitted liability and a solvent defender.

[26] Whether the likely amount of damages would justify taking proceedings no doubt involves some element of judgment, particularly in marginal cases and, as Lord Caplan noted in Blake
[3], there are inevitably some inconveniences in taking legal proceedings, even if liability is admitted and the defender is good for the eventual decree. It will also be the case that, as was observed in Carnegie v The Lord Advocate 2001 S.C. 802, per Lord Johnston page 812, para. [16], some subjective, or perhaps more properly, individual personal features may enter into the assessment of quantum in that, by way of further exemplification of the instances mentioned by Lord Johnston, injury to a finger may be of much greater consequence to a concert pianist than to someone whose work and hobbies do not involve fine finger movements. But subject to those observations we consider that the statute can only be construed as intending subhead (i) to be concerned with quantum, an objective assessment having to be made whether the gravity of the injury to the pursuer in question was such that it would have justified proceedings on the statutory assumptions of undisputed liability and a solvent defender. The subhead is concerned with a single fact, namely the severity of the injury in so far as the pursuer was aware of it or could reasonably practicably have become aware of it. Having regard to the structure of the legislation we are unable to see that the draftsman's employment of the word "his" before the words "bringing the action" amounts to more than a careful attention to grammar, but if it is thought to import some personal element, that is accounted for by the fact that, as explained in Carnegie, the importance of the injury may import personal considerations applicable to the particular pursuer. We would add that all of the Scottish authorities to which we were referred in connection with this aspect of the case are consistent with the foregoing interpretation of subhead (i) of section 17(2)(b) head (i). Those authorities include Agnew v Scott Lithgow Ltd (No.2) 2003 S.C. 448; Carnegie; M. v O'Neill 2006 S.L.T. 823; and Godfrey v Quarriers Homes [2006] CSOH 160 (unreported)."

[19] That construction of those provisions was not questioned when AS v Poor Sisters of Nazareth came before the House of Lords. We would also observe that the result of that interpretation is consistent with the interpretation given to the broadly corresponding English provisions by the House of Lords in the later decision in A v Hoare by Lord Hoffmann at paragraphs 34-38.

[20] In these circumstances we consider that the views expressed by the Lord Ordinary on the interpretation of and approach to section 17(2)(b) of the Act are not consistent with the interpretation of and approach to that legislative text set out by the First Division in AS v Poor Sisters of Nazareth.

[21] In our view, what was necessary was to consider the nature and consequences of the wrongs averred by the pursuer to have been inflicted upon her and taking the averments respecting those matters pro veritate to decide whether, viewed objectively, they would have warranted taking proceedings on the statutory assumptions of admitted liability and guaranteed solvency of the defender.

[22] Before turning to that exercise, however, we find it convenient to mention the Outer House decision in Blake v Lothian Health Board, to which reference is made by the First Division in para [26] of its decision in AS v Poor Sisters of Nazareth. In his opinion in Blake v Lothian Health Board the Lord Ordinary observed, as respects the statutory assumptions of admitted liability and guaranteed insolvency, that litigation even on those assumptions has some inconveniences, which he exemplifies. Before us, counsel for the pursuer sought to submit that Blake v Lothian Health Board introduced a personal inconvenience factor into the equation. Counsel exemplified this by referring to a pursuer resident on St Kilda (presumably prior to the evacuation of the island) for whom litigation would entail enormous problems of travelling to the Scottish mainland. Thus, as we understood counsel, one should consider the likely advice which a solicitor might have given to the pursuer on leaving Kerelaw and which might have suggested that for personal reasons she should "get on with life" and ignore re-visiting her experiences through litigation.

[23] On our reading of the opinion of the Lord Ordinary in Blake v Lothian Health Board, we do not understand him to be saying that the particular inconveniences of litigation to the particular pursuer were to be considered. He was, in our view, endeavouring to identify the existence of some threshold - given the statutory assumptions of admitted liability and solvency - for the operation of the provision, a threshold which the First Division thus later recognised as low. Given the objective nature of the test for the seriousness of the injury, we would in any event conclude that such personal factors as was suggested by counsel for the pursuers in his admittedly extreme example of the St Kilda litigant, are plainly excluded just as much as the example of the employee reluctant to criticise, by way of claim, his employer with whom he has a continuing employment relationship.

[24] We turn now to consider more closely the pursuer's averments respecting her ill-treatment when resident in the school. As already mentioned, in article IV of condescendence the pursuer avers that "throughout the period" when she was resident in Kerelaw she was "subjected to brutal physical treatment and sexual abuse".

[25] In the succeeding article of condescendence the pursuer avers inter alia that on several occasions she was sexually abused by a named male member of staff, the abuse including handling of her breasts and private parts and digital penetration of those parts. She avers that he made her strip naked; that he masturbated in her presence; and that he forced her to perform fellatio on him. Additionally, the pursuer avers physical ill-treatment by the same individual in respect inter alia that he "hit her" and on several occasions grabbed her by the hair or clothing and forced her to the ground; that he forced her arms up her back, sat on her and removed her clothing.

[26] In article VI of the condescendence the pursuer avers that she was sexually abused on a number of occasions by another male teacher, both in the school and at his home. That sexual abuse similarly included digital penetration, masturbation in her presence, the forcing of her to masturbate the individual in question and the forcing of her to perform fellatio upon him. Again, it is averred that, in addition to that sexual abuse, the same teacher physically assaulted the pursuer. It is averred that on many occasions he "... grabbed the pursuer by her clothes, threw her against doors and walls, pushed her to the ground and knelt on her, forcing her arm up her back and hit her on her head with his open hand. On one occasion [the member of staff] bashed the pursuer's face against a radiator ...". The pursuer avers that she wished the last incident to be reported to the police but that she was dissuaded from doing so by another member of the staff on the grounds that if she did so there would be repercussions for her from other members of the staff.

[27] The pursuer also avers in article VII of the condescendence that she was physically ill-treated by a named female member of the staff "on several occasions". It is averred that the staff member "... used inappropriate methods of restraint on the pursuer, pinning her arms behind her for 20 or 25 minutes at a time. On one occasion [the staff member] stripped the pursuer in a bathroom. She stripped the pursuer by force."

[28] Article X of the condescendence begins with these averments:

"As a result of the abuse at Kerelaw the pursuer has suffered loss, injury and damage. She was injured by the treatment she received. The treatment she sustained was traumatic. She felt terrified and helpless. She has suffered psychologically for a number of years as a result of her treatment at Kerelaw. After leaving Kerelaw the pursuer tried to cope with her experience by locking away memories of the abuse. She abused a variety of drugs. She became addicted to heroin. She was addicted to heroin until about 2001 or 2002."

The pursuer goes on to aver that in August 2004 (that is to say within the three years preceding the commencement of the action) she was contacted by the police and since that time she has required to confront the abuse. There then follow a number of averments respecting her mental state thereafter, including averments to the effect that confronting the abuse in 2004 "made her psychological symptoms worse". Also within this article of the condescendence but advanced in response to the defenders' plea of time-bar are these averments:

"... at the time of the incidents the pursuer did not regard herself as having been injured sufficiently seriously to justify her bringing an action of damages. She was not physically injured by the sexual assaults. The sexual abuse made her feel dirty. She was embarrassed to talk about what had happened and she did not think that she would have been 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 [the member of staff referred to in the concluding sentence in paragraph [26] above]."

[29] We understood counsel for the pursuer to accept that the apparent purpose of the averments last quoted, namely to introduce as respects the invocation of section 17(2)(b)(i) the pursuer's subjective assessment of whether the injuries which she had suffered was sufficiently serious to justify raising proceedings was not relevant in light of the construction adopted by the decision of the First Division in AS v Poor Sisters of Nazareth. However, submitted counsel, the pursuer's subjective view might be relevant to the assessment of quantum, and to that limited extent might be relevant to the section 17(2)(b) test.

[30] While in principle the psychological reaction of a person to events may be relevant to the assessment of the mental harm consequentially suffered by him, we make these comments on that submission. First, on any view, to say that at the time of the separate incidents the pursuer did not regard herself as having been sufficiently seriously injured to warrant bringing an action of damages does not really address the collective protracted history of abuse which she avers. Secondly, sexual abuse is not really about physical injury. It is more about affront and degradation (the pleadings do and indeed the discussion before us did, not explore the jurisprudential basis of the claim for damages for deliberate physical and sexual abuse, and whether the claim might be related more to the actio injuriarum than the lex acquilia). Thirdly, the fact that recovery from painful physical injuries may be made obviously does not, by that fact, mean that the injuries were insignificant.

[31] Further, it has to be borne in mind that the claim advanced by the pursuer against the defenders concerns an accumulation of wrongs for which the defenders are alleged to be responsible and in our view it is the totality of the claim rather than the separate incidents viewed each in isolation, which must be considered in applying the provisions of section 17(2)(b)(i). On considering the claim on that basis, and applying the important statutory assumptions that the defenders admit liability and are able to meet any decree, we are unable to see any basis upon which the claim could properly and objectively be judged of insufficient worth to warrant proceedings on those statutory assumptions. In our view, it cannot be said that the catalogue of physical and serious sexual abuse of which the pursuer now complains would not have furnished, on her leaving the school, a claim of damages of sufficient magnitude to make worthwhile the raising of proceedings - again, of course, on the important statutory assumptions. In other words, it cannot be said that the damages which would be awarded to the pursuer in respect of that abuse would be so small as not to justify the taking of steps by way of litigation on those particular statutory assumptions.

[32] In these circumstances we have come to the conclusion that the pursuer's averments do not contain any relevant basis for postponing her awareness of the statutory facts in section 17(2)(b) until a date within the three years preceding the raising of the action on 9 January 2007. Her invocation of section 17(2)(b) is thus misconceived. The pursuer's third plea-in-law should be therefore repelled. The action is thus time-barred and the pursuer can only proceed with it if she can persuade the court, in terms of section 19A, that it is equitable for her to be allowed to do so. As was appreciated by the Lord Ordinary (Johnston) in rejecting the section 17(2)(b) argument there advanced but allowing inquiry on section 19A in the case of AS v Poor Sisters of Nazareth, much of that which the pursuer in this has advanced in what we see as a misconceived approach to section 17(2)(b) may be directly relevant to the application under section 19A.

[33] The acknowledgement by senior counsel for the defenders to the Lord Ordinary that proof before answer on the section 19A aspect of the case was appropriate was not departed from in the reclaiming motion. The question then arises whether the proof before answer should be confined to that issue or should be extended also to embrace the merits and quantum.

[34] In its opinion in AS v Poor Sisters of Nazareth the Court discussed briefly practice and procedure in dealing with time-bar pleas, including applications under section 19A to the court's discretion. Delivering that opinion the Lord President said in the course of para [17]:

"... it is the usual practice of this court, where issues of time-bar arise, to have these determined - when the parties are in dispute as to material facts - by way of a preliminary proof (Clark v McLean
[4] p 413E-G)."

While it will often, if not usually, be the case that the question whether it is equitable to allow a time-barred action to proceed should, both logically and practically, be decided as a preliminary matter, there are, and will be, cases in which practicalities may override strict logic and invite inquiry also on the merits. That possibility is indeed encompassed in the opinion of the Court in AS v Poor Sisters of Nazareth. Consistently with that, counsel for the pursuer referred to some instances in which a wider proof had been allowed, including A v N [2009] CS 1H 29; 2009 SC 449.

[35] In the present case we have ultimately come to the conclusion that the appropriate course for us to adopt is to allow a proof before answer on both the section 19A application and the merits (including quantum of damages). Among the factors prompting us to that ultimate conclusion are, first, the obvious point that the very passage of time incurs the risk of further diminution of memory. Secondly, there is the desirability of the pursuer (who has already given evidence at a criminal trial of the two male staff members) not having to give repeated testimony. Thirdly, but importantly, we have regard to the state of the defenders' pleadings. In response to the pursuer's substantive averments, the defenders make only bald denials. The position is strikingly the same respecting the averments made by the pursuer anent the absence of prejudice to the defenders in their ability to counter the pursuer's claims in light of the averred fact that from June 2004 onwards the defenders conducted an extensive investigation into events at Kerelaw and reached certain conclusions, which are broadly favourable to the pursuer's claims about her experiences in the school. Such averments as are made on behalf of the defenders in answer X in response to the pursuer's invocation of section 19A are entirely formalistic and lacking in specification. In other words, the defenders do not put in issue any particular difficulty respecting investigation of the pursuer's claims; any issue respecting the loss of particular documentary evidence; any issue respecting the death or unavailability of material witnesses. Accordingly, while we recognise the concession by counsel for the defenders that inquiry was necessary on the section 19A issue, we are not able to see on the basis of the pleadings that there is any discrete preliminary issue relating to the defenders' inability to defend these proceedings by virtue of the lapse of time which would preferably be resolved by way of a preliminary proof.

[36] Accordingly, we shall repel the pursuer's third plea-in-law and allow a proof before answer on (a) the question whether it is equitable under section 19A of the Act to allow the action to proceed and (b) the merits and quantum.