Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 109
A1092/00	OPINION OF LORD DRUMMOND YOUNG in the cause B.D. Pursuer; against SISTER BERNARD MARY MURRAY AND OTHERS Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Party

Defenders: Sister Bernard Mary Murray and the Congregation of the Poor Sisters of Nazareth Duncan; Simpson & Marwick

Aberdeen City Council: R. Dunlop; Ledingham Chalmers LLP

29 June 2012

[1] The pursuer was born on 20 October 1967. He had five brothers and one sister. His parents were unable to care for him owing to mental health problems. Consequently the pursuer and his brothers and sister were received into care on 20 September 1974, and were transferred to a home run by the Poor Sisters of Nazareth at Nazareth House, Aberdeen. The pursuer left the home in about 1979.

[2] The pursuer avers that he was ill treated and abused throughout the period when he was resident in Nazareth House. His detailed averments are as follows. He states that he was abused by Sister Mary Margaret, a member of the order. She punched and kicked him on a regular basis, at least every week and sometimes several times a week, throughout the four year period when the pursuer was resident in the home. She hit him with a hairbrush with great force if he moved when she was washing his hair. She assaulted other children in the pursuer's presence, causing distress. She punished him by making him and others stand outside in a state of undress. On one occasion this had occurred when it was snowing. On many other occasions he was made to stand outside in cold weather with few clothes on. Sister Mary Margaret also punished him by shutting him in darkened rooms, including the laundry room, for several hours. On two occasions he was put in a small mortuary area. One night he was placed in a dark and disused part of the building. He was terrified by that and as a result he has had a fear of the dark in adulthood. He was force-fed Marmite as a punishment, which made him sick. Such punishments were standard in the home.

[3] In May 2000 the present action was raised against the Poor Sisters of Nazareth, who were responsible for running Nazareth House, and their Religious Superior, Sister Bernard Mary Murray, and against Aberdeen City Council, which was responsible for the supervision of the home and for placing the pursuer there. Damages are sought from both defenders on the basis that the pursuer has suffered loss, injury and damage through the fault of the defenders or the fault of persons acting under their management and control, and on the basis that staff at Nazareth had assaulted and ill-treated the pursuer. On the question of fault, the pursuer makes the following averments. He avers that it was the duty of the defenders to take care for the safety and welfare of children in Nazareth House. It was their duty not to assault children, including the pursuer. It was their duty to supervise the actions of the sisters in the home, including Sister Mary Margaret, and to take reasonable care to ensure that they did not assault and humiliate children such as the pursuer. It was their duty not to sanction the use of or to use excessive, cruel and unusual punishments of the sort used against the pursuer. It was their duty to use no more than reasonable chastisement. It is further averred that it was the duty of the defenders to keep the treatment of children in the home under regular review; to take reasonable care to ensure that children such as the pursuer were not left under the exclusive control of one nun for prolonged periods of time, and to take reasonable care that children such as the pursuer had an opportunity of speaking to a supervisor who would be receptive to their complaints. Further averments of fault are made as to a duty of the defenders to care for and nurture the residence of the home, to take reasonable care to ensure that the pursuer would not be placed in a situation where injury was likely to occur, to nurture the pursuer, to promote the pursuer's self-esteem, and to take reasonable care to ensure that the pursuer was not humiliated and ridiculed. Various averments are made about the defenders' state of knowledge in relation to matters that occurred within Nazareth House.

[4] Further averments are made about the steps taken by the pursuer to seek redress for his situation in Nazareth House. It is averred that while he was still in residence there he and his brothers complained to a trainee social worker about the home and Sister Mary Margaret in particular. The trainee social worker accepted that the pursuer's placement in the home was far from satisfactory, but did not remove the pursuer. The pursuer left the home in about 1979 and returned to his mother in Glasgow. He used solvent abuse to block his memories of the home when he returned to his mother. He was then sent to a boys' hostel in Glasgow. He had nightmares about the home throughout his teenage and adult life. He was diagnosed with PTSD by a consultant psychiatrist in 2004. Throughout his adult life he was preoccupied with his own problems and those of his parents, and in particular caring for his mother until her death in 2002. On 18 May 1997 the News of the World newspaper printed an article about children who were abused in homes run by orders of nuns. Other such articles were published in the press in the following months. The pursuer saw those articles. Until then he had not thought that anyone would listen to his complaints about the home. He had not considered making a claim for compensation until he saw the press coverage, which made him feel that the there was strength in numbers. He consulted solicitors in May 1998. The same firm had been contacted by many other potential claimants following the press articles in 1997. It is averred that settlements have been reached in other countries in similar cases against religious orders. The present action was raised in May 2000.

[5] The defenders have tabled pleas to the relevancy and specification of the pursuer's averments. They have also tabled pleas of time bar under section 17 of the Prescription and Limitation (Scotland) Act 1973. In relation to the plea of time bar, the pursuer avers that the present action was raised in May 2000 within the triennium specified in section 17. The triennium, it is averred, did not begin until 18 May 1997, when the first article appeared in the News of the World newspaper. It is said that the pursuer did not become aware, nor was it reasonably practicable for him to become aware, until May 1997 at the earliest of the facts (i) that his injuries were sufficiently serious to justify his bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission. It is further averred that the pursuer experienced systematic childhood abuse, and that a reasonable man in that position would not become aware of the statutory facts until May 1997 at the earliest. In the event that the claim is time-barred, the pursuer avers that it would be equitable to allow it to proceed in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. The pursuer could not reasonably have been expected to commence adversarial litigation before he read the press articles, and the delay in raising the action was attributable to the pursuer's treatment by Sister Mary Margaret.

[6] It is further averred that the defenders would not be prejudiced if the action were to proceed. In that connection, it is stated that the pursuer's social work records are available, that the records of his general practitioner and consultant psychiatrists are available, and that inspection records for the "Old Folks" section of Nazareth House dating back to 1956 are available. A number of witnesses are specified, including one who worked in the kitchens while the pursuer was in Nazareth House. Reference is also made to the trial in 2000 of Sister Alphonso, one of the nuns at Nazareth House, on an indictment containing charges of cruel and unnatural treatment of fifteen different children at the home in the period between 1965 and 1973. Sister Alphonso was convicted of three offences and was acquitted of other charges. It is said that she was able to defend herself on those criminal charges, which covered a period up to 1973. In that connection, she produced extensive witness lists. The conduct and punishment book for the period up to 1968 was available, as was the log book for the period up to 1967 and the visitors book for the period up to 1975. Certain reviews into abuse in children's homes are also referred to as potential sources of evidence, including the Institutional Child Abuse in Scotland Systemic Review of 2007 and the Independent Inquiry into Abuse at Kerelaw Residential School of 2009.

[7] The action was appointed to a discussion in the procedure roll, at which counsel for the first and second defenders and separately counsel for the third defenders argued their preliminary pleas. I should record at this point that at the outset of the hearing I drew attention to my involvement in an earlier decision in this area of law involving the first and second defenders, B v Murray (No 2), 2005 SLT 982. The pursuer, who represented himself, indicated that he did not object to my hearing the present action. As matters proceeded, when reference was made to the earlier case, the pursuer intimated that he would prefer that I should not continue to hear his action. Counsel for the defenders submitted that I should hear the present case, and that indeed it was my duty to do so; involvement in a previous analogous case does not debar a judge from hearing a similar case. The latter proposition is clearly correct, and I proceeded to hear the procedure roll discussion. In this opinion I propose first to deal with the arguments on time bar advanced by the first and second defenders; thereafter, to deal with the arguments on time bar advanced by the third defenders; and finally to consider the third defenders' plea to the relevancy of the action.

Time bar and the case against the first and second defenders
[8] The relevant statutory provisions are sections 17 and 19A of the Prescription and Limitation Act 1973. The material parts of section 17 are as follows:

"(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

(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 who 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".

Subsection (3) provides that, in computing the period specified in subsection (2), any time during which the person who sustained injuries was under legal disability by reason of nonage is to be disregarded. Section 19A(1), which is set out below at paragraph [16], confers power on the court, if it thinks it equitable to do so, to permit an action to be brought notwithstanding the provisions of section 17. In the present case the pursuer in his pleadings relies on both section 17 and section 19A.

[9] The pursuer, according to his averments, left Nazareth House in 1979 at the latest. He attained 18, then the age of majority, on 20 October 1985. Thus the triennium expired in October 1988, 12 years before the present action was raised. Consequently the pursuer must rely on either section 17(2)(b) or section 19A of the 1973 Act. Paragraph (b) of section 17(2) provides for a delayed start for the triennium in cases where, first, the pursuer is not aware of the facts specified in the three sub-paragraphs and secondly, it would not have been reasonably practicable for him to become so aware. Thus the paragraph requires that the pursuer should satisfy both a subjective element and an objective element; the latter is based on constructive knowledge in accordance with the test of reasonable practicability.

[10] The law in this area has been considered in a considerable number of cases in recent years, and the relevant principles are now reasonably clear. Consequently it is not necessary for present purposes to examine the cases in detail. In CG v Glasgow City Council 2011 SC 1, the pursuer claimed to have suffered prolonged physical and sexual abuse at Kerelaw Residential School. The summons was served 11 years after she left. The application of section 17(2) was thus relevant. Lord Eassie, delivering the opinion of the Court, stated (at paragraph [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".

The pursuer made averments to the effect that, at the time of the incidents, she did not regard herself as having been injured sufficiently seriously to justify her bringing an action of damages. On this matter, Lord Eassie commented (at paragraph [30]) that such an averment did not really address the collective protracted history of abuse which she averred. Furthermore, the fact that recovery from painful physical injuries was made did not mean that the injuries were insignificant. He continued (at paragraph [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 sec 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 .... 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".

In my opinion the foregoing principles are extremely pertinent in the present case.

[11] In AS v Poor Sisters of Nazareth 2007 SC 688; 2008 SC (HL) 146; sub nom B v Murray (No2), 2005 SLT 982, the pursuers alleged significant physical abuse sustained in a children's home that had been run by the defenders. It was argued for the pursuers (2007 SC [21] and [22]) that they belonged to a class of people who had certain homogenous characteristics which amounted cumulatively to what was described as "the silencing effect"; the pursuers came from poor family backgrounds, felt shame and embarrassment, lacked confidence and did not think that they would be believed. This argument was rejected. In relation to the pleadings in support of the foregoing argument, the court stated (at paragraph [28]):

"However, on examination of the pleadings is clear that they do not seek in any meaningful way to advance the case that until a date subsequent to May 1997 the respective reclaimers were unaware, and could not reasonably practicably have become aware, that the injuries which they have suffered were of sufficient gravity to warrant proceedings on the statutory assumptions. It is not said, for example, that damages for the physical injuries sustained at the time of the alleged assaults while in the respondents' care would have been of insufficient amount to justify proceeding at that time but that, subsequent to May 1997, a previously latent serious injury emerged which then rendered the taking of proceedings justified on the same statutory assumptions. Nor is it said that there was any unawareness of the extent of injury which could not be overcome by the taking of reasonably practicable steps. On the contrary, the averments for the respective reclaimers contend for an immediate and thereafter successive continuing injury in the shape of the initial alleged physical assaults and other deficits in the standard of care, leading to psychological difficulties; the loss of employment opportunities; and loss of earnings following their leaving Nazareth House".

Those remarks are in my opinion relevant to the present case. Subsequently, at paragraph [30], it was pointed out that the pursuers did not properly seek to raise any issue of constructive awareness; their pleadings disclosed circumstances of actual awareness of the statutory facts prior to the triennium antedating the commencement of proceedings. Once again, that is relevant to the present case.

[12] I was also referred to the English case of A v Hoare [2008] 1 AC 844, which deals with the equivalent statutory provisions that apply in England. It was pointed out there (at paragraph [34]) that the test for what counts as significant injury

"is an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings but whether he would 'reasonably' have done so".

That principle is also in my view significant in the present case.

[13] In the light of the principles laid down in the foregoing cases, I am of opinion that the pursuer's averments do not disclose a relevant case capable of engaging sub-paragraphs (i) and (ii) of section 17(2)(b). The pursuer avers that while he was still in Nazareth House he and his brothers complained to a named trainee social worker about the home and about Sister Mary Margaret in particular. He further avers that he had nightmares about the home throughout his teenage and adult life. His problem was not a lack of knowledge about what happened to him, nor about the seriousness of what had happened, nor about who was responsible, but because he had not thought that anyone would listen to his complaints about the home until he read the press articles during the summer of 1997. That does not, however, satisfy the criteria in section 17(2)(b). On the basis of the pursuer's averments, it can be said that he suffered injuries during his time at Nazareth House which were attributable in whole or in part to acts or omissions of employees of the second defenders or at least persons for whom the second defenders were responsible. Moreover, as they are described the injuries appeared to be serious, certainly sufficiently serious to justify bringing an action of damages on the assumptions in subparagraph (b)(i). The memory of those injuries clearly lasted into adult life; the pursuer avers that he had nightmares about Nazareth House throughout his teenage and adult life, and that throughout his adult life he was "preoccupied with his problems"; those problems are not further specified, but in the context of his earlier averments the pursuer appears to be referring at least in part to the problems that had begun when he lived in Nazareth House. Consequently, on the terms of section 17(2)(b), taken together with section 17(3), the triennium began to run on the date when the pursuer attained majority, which was 20 October 1985.

[14] The pursuer avers that until May 1997 (when the press articles began) he did not become aware, and it was not reasonably practicable for him to become aware, of the facts (i) that injuries were sufficiently serious to justify his bringing an action of damages and (ii) that injuries were attributable in whole or in part to an act or omission. Those averments, however, are not supported by averments of fact. Indeed, in view of the averments of fact discussed in the preceding paragraph, it seems clear that the pursuer had been aware of his injuries ever since he lived in Nazareth House, and that he was aware that those injuries were serious. Thus the averments as to lack of awareness until May 1997 are contradicted by other parts of the pursuer's pleadings. Moreover, all that the newspaper articles in 1997 are said to have done was to make the pursuer aware that his complaints might be taken seriously. That does not involve his discovery of knowledge relating to his ill-treatment in the home. Section 17(2)(b), however, relates to the pursuer's coming aware of certain specified facts which relate to his injuries, their attribution and the position of the defender; these do not include the proposition that the pursuer's complaints might not be taken seriously. The statutory facts set out in that provision are not concerned with knowledge of action ability, but only with the extent and seriousness of the injuries and the responsibility of the defender.

[15] The pursuer makes averments of constructive awareness, in the sense that until 1997 it was not reasonably practicable for him to become aware of the critical facts. In this connection, he avers that a reasonable man in the same position, having experienced systematic childhood abuse, would not have become aware of the statutory facts until May 1997 at the earliest; the disabling long-term effect of the abuse must be given effect to. This is, however, subject to the same criticisms as the averments of actual awareness, as set out in the two preceding paragraphs. On his averments, the pursuer had actual awareness of the critical facts, and thus the question of constructive awareness simply does not arise. Constructive awareness is only relevant in the absence of actual awareness. In this connection, too, it is pertinent to point out that, while under section 17(2)(b) there may be some room for consideration of personal characteristics, such as the significance of a particular injury to the pursuer's occupation, the overall judgment involved is objective: consequently reluctance to bring an action or lack of knowledge of the law is irrelevant.

[16] I am accordingly of opinion that the pursuer's averments do not satisfy the tests laid down in section 17(2)(b). It is then necessary to consider whether those averments might merit leave of the court to bring proceedings out of time in terms of section 19A of the 1973 Act. Section 19A(1) is in the following terms:

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

[17] This section has been the subject of considerable case law, and the approach that the court should take is now reasonably clear. The following principles are relevant. First, the section operates by way of exception to the general rule that the right to bring an action for personal injuries terminates on the expiry of the three year period specified in section 17. The three-year limitation period represents a decision by Parliament that the welfare of society is best served if causes of action are litigated within the specified period, even if in consequence good causes of action may be defeated. Secondly, because of the foregoing factor, the onus will fall on the pursuer to provide a relevant and cogent explanation for the delay up to the point at which the court's authorization is sought in terms of section 19A. Thirdly, if there is a likelihood of significant prejudice to the defender as a result of the delay, that will usually result in a decision in favour of the defender. Fourthly, the passage of time may in itself result in significant prejudice; as time passes, the memories of witnesses dim; evidence may disappear, and it may no longer be known that such evidence ever existed. Moreover, in many cases, especially those involving the physical abuse of children, a degree of physical punishment was normal practice more than 30 years ago, and it is unlikely that the details of particular beatings will stand out. Fifthly, it is not an explanation justifying the exercise of the court's discretion that the pursuer had not turned his or her mind to litigation.

[18] The foregoing principles are set out in AS v Poor Sisters of Nazareth, supra, where an application under section 19A was refused. In that case, in particular, it was stated (at 2007 SC [35]) that the court was "unable to accept the assertion of counsel for the reclaimers that there is a special class of abuse victims for whom it is to be taken as a matter of judicial knowledge that there is a 'silencing effect'". Thus it cannot be said in the present case that the pursuer belongs to a particular category of persons who might be taken to be "silenced" as a result of childhood abuse. A further point that emerges from the last case is that there is a distinction between not thinking about the question of litigation and thinking about litigation and deciding to take no action; the case for exercising the court's discretion is markedly stronger in the latter case than in the former: 2005 SLT [106]. Finally, I should mention that similar principles have been applied following a procedure roll discussion in Godfrey v Quarriers, [2006] CSOH 160, and in England in A v Hoare, [2008] 1 AC 844.

[19] On the pursuer's averments in the present case, the starting point must inevitably be that the three year limitation period is the norm, and the onus falls on the pursuer to demonstrate that the power in section 19A should be exercised in the circumstances of the particular case. In order to do so, the pursuer must provide a cogent explanation for the delay that has occurred. In the present case I am of opinion that no such explanation has been provided. The pursuer avers that, until he saw the press articles, he had not thought that anyone would listen to his complaints about Nazareth House, but that is a factor that was expressly rejected in AS v Poor Sisters of Nazareth, supra: see 2005 SLT [109]. The pursuer then avers that he had not considered making a claim for compensation until he saw the press coverage, but, for the reasons stated in AS, the fact that a pursuer did not turn his mind to the possibility of litigation is not a reason for exercising the discretion in his favour. It is then averred, with specific reference to section 19A, that the pursuer could not reasonably have been expected to commence adversarial litigation before he read the press articles, and that the delay in raising the action was attributable to the pursuer's treatment by Sister Mary Margaret, for whom the defenders are liable. These averments are of a very general nature, and would seem to lack sufficient specification to permit proof. In particular, nothing is said about the psychological processes whereby treatment at the hands of Sister Mary Margaret should cause the pursuer not to proceed with his action. Even if the averments were sufficiently specific, however, the decision in AS is firmly against the proposition that pursuers should be permitted to proceed while outwith the triennium merely because they were unaware of a right of action before reading press articles, or merely because they suffered psychological difficulties as a result of childhood abuse.

[20] The risk of prejudice is always relevant to the exercise of the court's discretion under section 19A. The pursuer obviously suffers prejudice through his inability to proceed with the action. On the defender's side, however, defending the action is likely to prove increasingly difficult as time passes, and especially difficult when many years have elapsed since the events complained of. The memories of witnesses dim and it may even be forgotten that particular evidence ever existed. Records may be lost or mislaid, and witnesses may be difficult or impossible to trace. In addition, over the period between the 1970s, when the pursuer was resident in Nazareth House, and the present, attitudes towards the physical punishment of children have changed dramatically, and that in itself lends a particularly difficult dimension to the assessment of events that happened more than 30 years ago. The present action was raised in May 2000, but the change in attitudes had occurred before then. Consequently, when it is sought to raise an action based on physical abuse decades after the events complained of, there is always a significant risk of prejudice to the defenders. In my opinion that risk is clearly present in this case, and it is an important factor that must be taken into account in determining whether the discretion under section 19A should be exercised.

[21] In relation to prejudice, the pursuer avers that a number of sources of information are available. The first of these is the pursuer's social work records, and also his general practitioners' and consultant psychiatrists' records. Nevertheless, while these may provide some information, they will certainly not provide details, far less a comprehensive view, of life in Nazareth House. It is averred that inspection records for the section of Nazareth House accommodating old people are available back to 1956. These, however, are plainly irrelevant to the present claim; it is a different part of Nazareth House that is involved, and looking after old people and young children are two very different matters. A number of witnesses are named, but it is obvious that these are not a comprehensive list, and in any event the memories of those individuals may well have faded. There are then averments about the trial in the autumn of 2000 of Sister Alphonso, one of the nuns who worked in Nazareth House. She was convicted of three offences, and was acquitted of other charges. It is said that she had been able to defend herself on criminal charges covering the period up to 1973, and that witnesses and documents were available to the criminal trial. It is also said that records for the pursuer's time in the home were available during the trial. I note, however, that the records that are specifically averred terminate in 1968 (conduct and punishment book), 1967 (log book), and 1975 (visitors book). The pursuer's period of residence began in 1974. Thus it seems unlikely that these will be of any significant assistance in relation to the period about which the pursuer complains. Further reference is made to the possibility of expert evidence from a member of the Scottish Human Rights Commission, to the Institutional Child Abuse in Scotland Systemic Review of 2007, and to an independent inquiry into abuse at Kerelaw Residential School and Secure Unit, completed in 2009. It is clear that the expert evidence cannot deal specifically with the pursuer's case, and must accordingly be of extremely limited value. The two documents relate to general issues, and the second one is about a different establishment entirely. For that reason they do not appear to me to be of any help whatsoever.

[22] In all the circumstances I am of opinion that the likelihood of significant prejudice to the defenders' conduct of their case is very clear indeed. Against that all that can be said is the fact that the pursuer cannot succeed unless the court exercises its discretion. The pursuer has failed to give any adequate explanation for the delay in raising proceedings, however, and in all the circumstances I am of opinion that the very clear result is that the discretion under section 19A should not be exercised in the pursuer's favour. I am of opinion that this conclusion may properly be reached following a procedure roll discussion; I have taken the pursuer's averments at their highest, and have come to the conclusion that they do not demonstrate a statable case for the exercise of the discretion.

Time bar and the case against the third defenders
[23] On the question of time bar, counsel for the third defenders adopted the arguments of counsel for the first and second defenders. He made an additional reference to the decision of an Extra Division in McE v De la Salle Brothers 2007 SC 556. In that case Lord Osborne specifically considered the suppression of memory (paragraphs [174]-[175]); he referred to section 17(3) of the Act, which excludes from the calculation of the period specified in subsection (2) any time during which the person who sustained the injuries "was under legal disability by reason of... unsoundness of mind", and concluded that, having regard to that provision, the running of time cannot be interrupted by a mental condition short of unsoundness of mind. In particular, it could not be interrupted by the development of suppressed or impaired memory or induced reticence. A similar point is made by Lord Clarke (paragraph [187]) and Lord Marnoch (paragraphs [190]-[191]). On the basis of the submissions for the first and second defenders, taken together with that case, counsel submitted that the claim against the third defenders was plainly time-barred, and that the court's discretion should not be exercised in the pursuer's favour.

[24] On the question of whether the time bar in section 17(2) operates, I am of opinion that the position of the third defenders is indistinguishable from that of the first and second defenders. The additional authority referred to, McE, is relevant, because the pursuer does not aver that any mental condition that he suffered from amounted to unsoundness of mind.

[25] On the question of the discretion under section 19A, the result must in my view be the same as in the case of the first and second defenders. No real explanation was given for the delay in raising the action (a delay of over 14 years after the pursuer attained majority). There was merely an assertion that the pursuer did not think about raising court proceedings until he saw the News of the World article. Even then, three years ensued before proceedings were raised, and no explanation was forthcoming for that gap of three years. The position of the third defenders is in one respect stronger than that of the first and second defenders. In his pleadings, the pursuer attempted to give some explanation as to why he did not raise proceedings earlier (see paragraph [21] above). That explanation was directed towards the first and second defenders, however; with the possible exception of the social work records it has no bearing on the position of the third defenders. Consequently it can be said that nothing in the pursuer's averments counteracts the very obvious prejudice to the third defenders in having to address very old claims. In the circumstances, even if the pursuer were to prove all of his averments, there would still be no basis for exercising the court's discretion in his favour.

Relevancy of the case against the third defenders
[26] Counsel for the third defenders also submitted that the claim made against them by the pursuer was irrelevant. In the pursuer's averments it was not stated that the third defenders were responsible for transferring the pursuer to Nazareth House. So far as his treatment there was concerned, no blame could be said to attach to the third defenders. Grampian Regional Council, their predecessors as the relevant local authority in the Aberdeen area, were not said to have been responsible for running the establishment, which was under the control of the second defenders. The statement of duties that are said to have been breached related to the second defenders, and not to the third defenders. There was no suggestion for example, that the third defenders employed Sister Mary Margaret, nor that their employees had assaulted the pursuer. The duties that are said to have been breached were incumbent on those running Nazareth House.

[27] I agree with these criticisms of the pursuer's pleadings. The detailed averments of fault all relate exclusively to the second defenders; nothing is said about the third defenders. The only averment that might also apply to the third defenders occurs at the beginning of the condescendence of fault, where it is stated that it was the duty of "the defenders" to take care for the safety and welfare of the children in Nazareth House. This is not further specified, however, and in my view it is not nearly sufficient to permit the case against the third defenders to go to proof. In this respect, some assistance is found in McE v De la Salle Brothers, supra, at paragraphs [134]-[142], a passage where Lord Osborne considered the case of fault made against the Lord Advocate as representing the statutory successors of the Social Work Services Group and the Scottish Education Department. In that case it was averred that it was the duty of those bodies to take reasonable care for the safety and welfare of children in approved schools such as the pursuer, to see that such children were not ill-treated, abused, harmed or injured, and to see that they were kept safe. It was further averred that there was a duty to take reasonable care to remove the pursuer from the school were it to come to the Department's notice that boys were being regularly and routinely assaulted. I observe that that duty goes well beyond anything averred in the present case. Lord Osborne stated (at paragraph [140]), that attention must be focused on the pursuer's averments regarding the state of knowledge of the Department. In this respect, the pursuer's averments were deficient, because nothing in the pleadings, if established, would give rise to actual awareness on the part of the Department that boys were regularly and routinely being assaulted. In that connection, averments that complaints or allegations were made were simply not sufficient. Lord Marnoch concurred with that view (at paragraph [203]). That criticism applies equally to the present case. The most that the pursuer says in this regard is an averment that, while he was still in Nazareth House, he and his brothers complained to a trainee social worker, who is named, about the home and Sister Mary Margaret in particular. The social worker's relationship to Grampian Regional Council is unclear, however and nothing is said about the detailed nature of the complaint or its seriousness. In my opinion it is impossible on the pursuer's averments to say that Grampian Regional Council had any knowledge to indicate that something was seriously wrong in Nazareth House, and without such knowledge the third defenders as their successors cannot be liable for breach of any duty of care. Consequently I hold the case against them to be irrelevant.

Conclusion
[28] For the foregoing reasons I will sustain the first and second pleas in law for the first and second defenders and the first and second pleas in law for the third defenders. I will repel the pursuer's pleas in law and dismiss the action. In conclusion, I should record that I was addressed by the pursuer on his

experiences in Nazareth House. He submitted that the action should be heard on its own merits, and that some witnesses, including Sister Mary Margaret, were still alive. I am, however, bound to apply the law, and on that basis I must conclude that the pursuer's case is plainly time-barred and that there would be no basis for the court's exercising its discretion under section 19A to allow the action to proceed notwithstanding the expiry of the time bar. I would emphasize that in so holding I am not expressing any view about the pursuer's underlying case. My criticisms go to the way in which that case is pled, which is in my opinion seriously inadequate.