A v Hoare and other appeals [2008] UKHL 6, [2008] All ER (D) 251 (Jan)
House of Lords
Lord Hoffmann, Lord Walker,
Baroness Hale, Lord Carswell and
Lord Brown
30 January 2008
Actions for personal injury deriving from intentional trespass to the person fall within s 11 of the Limitation Act 1980 (LA 1980) and therefore the court has a discretion in such cases under s 33 of LA 1980 to extend the time in the claimants’ favour.
Alan Newman QC and Paul Spencer (instructed by DLA Piper Rudnick Gray UK LLP) for A.
Nigel Cooksley QC and Stephen Field (instructed by BTMK Solicitors) for H.
Elizabeth-Anne Gumbel QC and Henry Witcomb (instructed by Griffith Smith Farrington Webb and Bolt Burdon Kemp) for X and Y.
Stuart Brown QC and Rosalind Coe (instructed by Sharpe Pritchard) for J.
Christopher Sharp QC and Andrew McLaughlin (instructed by Atkins Public Law Solicitors) for Mr Hoare.
Kate Thirlwall QC and Steven Ford (instructed by Crutes and Browne Jacobson) for Suffolk County Council and Wandsworth LBC.
Edward Faulks QC and Nicholas Fewtrell (instructed by Hill Dickinson LLP) for Catholic Care.
Nigel Wilkinson QC and Malcolm Sheehan (instructed by the Treasury Solicitor) for the Home Office.
Six appeals before the House of Lords concerned the question of whether or not claims for sexual assaults and abuse which took place many years before the commencement of proceedings were barred by LA 1980. The claimants sought to bring themselves within LA 1980, s 11 and argued that either their knowledge had not arisen within the relevant three-year period, or that the discretion under s 33 should be exercised in their favour. In the lower courts, all of the claims failed because the courts considered themselves bound by the decision of the House of Lords in Stubbings v Webb [1993] AC 498, [1993] 1 All ER 322, in which it was held that s 11 did not apply to a case of deliberate assault, including acts of indecent assault.
An action for an intentional trespass to the person was not an action for “negligence, nuisance or breach of duty” within the meaning of s 11. Therefore, a claim based on an intentional sexual assault was subject to a non-extendable six-year limitation period under s 2. The claimants all contended that Stubbings had been wrongly decided and that the House of Lords should depart from it.
They relied on the Law Commission’s report Limitation of Actions (Law Com No 270) which recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person.
LORD HOFFMANN:
Section 14 of LA 1980 provided, so far as material:
“(1) [Subject to subsection (1A) below,] In sections 11 and 12 of this Act references to a person’s date of knowledge are references to the date on which he first had knowledge of the following facts—(a) that the injury in question was significant...(2) For the purposes of this section 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. (3) For the purposes of this section a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—(a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek…”
His lordship traced the history of the provision in previous Acts and in previous decisions, including Stubbings. For some time after it was decided, Stubbings did not give rise to much difficulty in practice. That was because it was generally believed that an employer could not be vicariously liable for sexual assaults committed by his employee. The situation was radically changed when Lister v Hesley Hall Ltd [2002] 1 AC 215, [2001] 2 All ER 769 decided that sexual abuse was not necessarily outside the scope of an employment.
It depended upon whether or not there was a sufficiently close connection between the work which the employee had been employed to do and the acts of abuse. After that, claims against the operators of schools, detention centres and similar institutions for sexual abuse by employees came thick and fast. And those threw into relief the anomalies created by Stubbings.
Anomalies
Perhaps the most remarkable example of the anomaly was S v W (Child Abuse: Damages) [1995] 3 FCR 649, [1995] 1 FLR 862, in which the plaintiff sued her father and mother for sexual abuse by the father. The cause of action against the father was intentional assault and the claim was struck out on limitation grounds. The cause of action against the mother was negligent failure to protect the plaintiff against the father. That fell under LA 1980, s 11 and was subject to a discretionary extension under s 33.
The matter was considered by the Law Commission in its report. The effect of Stubbings was described as anomalous. The commission recommended a uniform regime for personal injuries, whether the claim was made in negligence or trespass to the person. There has not yet been any implementing legislation, possibly because the commission’s recommendations were not confined to the Stubbings anomaly.
His lordship noted that unsatisfactory decisions of the highest court could cause uncertainty because lower courts tended to distinguish them on inadequate grounds. Claimants who had suffered sexual abuse but need to seek the discretion of the court under s 33 were driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which could be brought within the language of s 11.
Thus, in addition to having to decide whether the claimant was sexually abused, the courts had decide whether or not that was the result of “systemic negligence” on the part of the abuser’s employer or the negligence of some other person for whom the employer was responsible. His lordship held therefore that it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper [1965] 1 QB 232, [1964] 2 All ER 929. The appeals would be allowed. Lord Walker, Baroness Hale, Lord Carswell and Lord Brown delivered concurring opinions.
