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Judgments - A (Appellant) v Hoare (Respondent), C (FC) (Appellant) v Middlesbrough Council (Respondents), X (FC) and another (FC) (Appellants) v London Borough of Wandsworth (Respondents) (Conjoined Appeals), H (FC) (Appellant v Suffolk County Council (Respondents),Young (FC) (Appellant) v Catholic Care (Diocese of Leeds) and others (Respondents)

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 6

on appeal from: [2006] EWCA Civ 395

[2006] EWCA Civ 1746

   [2006] EWCA Civ 1534

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

A (Appellant) v Hoare (Respondent)

C (FC) (Appellant) v Middlesbrough Council (Respondents)

X (FC) and another (FC) (Appellants) v London Borough of Wandsworth (Respondents)

(Conjoined Appeals)

H (FC) (Appellant v Suffolk County Council (Respondents)

Young (FC) (Appellant) v Catholic Care (Diocese of Leeds) and others (Respondents)

APPELLATE COMMITTEE

Lord Hoffmann

Lord Walker of Gestingthorpe

Baroness Hale of Richmond

Lord Carswell

Lord Brown of Eaton-under-Heywood

Counsel

Appellants:

A: Alan Newman QC

Paul Spencer

(Instructed by DLA Piper UK LLP)

C: Elizabeth-Anne Gumbel QC

Henry Witcomb

(Instructed by Griffith Smith Farrington Webb)

X: Elizabeth-Anne Gumbel QC

Henry Witcomb

(Instructed by Bolt Burdon Kemp)

H: Nigel Cooksley QC

Stephen Field

(Instructed by BTMK LLP)

Young: Stuart Brown QC

Rosalind Coe

(Instructed by Sharpe Pritchard (for Jordans))

Respondents:

A: Christopher Sharp QC

Andrew McLaughlin

(Instructed by Atkins Law)

C: Kate Thirlwall QC

Steven Ford

(Instructed by Crutes)

X: Kate Thirlwall QC

Steven Ford

(Instructed by Browne Jacobson)

H: Kate Thirlwall QC

Steven Ford

(Instructed by Browne Jacobson)

Catholic Care: Edward Faulks QC

Nicholas Fewtrell

(Instructed by Hill Dickinson LLP)

Home Office: Nigel Wilkinson QC

Malcolm Sheehan

(Treasury Solicitors)

Hearing date:

1, 5, 6 & 7 NOVEMBER 2007

ON

WEDNESDAY 30 JANUARY 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

A (Appellant) v Hoare (Respondent)

C (FC) (Appellant) v Middlesbrough Council (Respondents)

X (FC) and another (FC) (Appellants) v London Borough of Wandsworth (Respondents)

(Conjoined Appeals)

H (FC) (Appellant v Suffolk County Council (Respondents)

Young (FC) (Appellant) v Catholic Care (Diocese of Leeds) and others (Respondents)

[2008] UKHL 6

LORD HOFFMANN

My Lords,

1.  These six appeals all raise the question of whether claims for sexual assaults and abuse which took place many years before the commencement of proceedings are barred by the Limitation Act 1980. The general rule is that the period of limitation for an action in tort is six years from the date on which the cause of action accrues. This period derives from the Limitation Act 1623 and is now contained in section 2 of the 1980 Act. All the claimants started proceedings well after the six years had expired. It follows that, if section 2 applies, their claims are barred. But sections 11 to 14 contain provisions, first introduced by the Limitation Act 1975, which create a different regime for actions for “damages for negligence, nuisance or breach of duty", where the damages are in respect of personal injuries. In such cases the limitation period is three years from either the date when the cause of action accrued or the “date of knowledge” as defined in section 14, whichever is the later. In addition, section 33 gives the court a discretion to extend the period when it appears that it would be equitable to do so. The chief question in these appeals is whether the claimants come within section 2 or section 11. In the latter case, the claimants say either that the date of knowledge was less than three years before the commencement of proceedings or that the discretion under section 33 should be exercised in their favour.

2.  In Stubbings v Webb [1993] AC 498 the House of Lords unanimously decided that section 11 does not apply to a case of deliberate assault, including acts of indecent assault. An action for an intentional trespass to the person is not an action for “negligence, nuisance or breach of duty” within the meaning of section 11(1). The lower courts are bound by this decision and have therefore held that the claimants are statute-barred. But the claimants submit that Stubbings was wrongly decided and that the House should depart from it in accordance with the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

3.  In the context of limitation of actions, the phrase “negligence, nuisance or breach of duty” made its first appearance in the Law Reform (Limitation of Actions, etc) Act 1954. The background to this enactment was the Report of the Committee on the Limitation of Actions 1949 (Cmd 7740) under the chairmanship of Lord Justice Tucker. The committee was particularly concerned with the fact that, as the law then stood, the general limitation period for tort actions (including claims for personal injuries) was six years but claims against public authorities had to be brought within one year. The committee thought that the first period was too long and the second too short. It recommended a period of two years for all personal injury claims, with a judicial discretion to extend it up to six years. In para 23 they said:

“We consider that the period of limitation we have recommended should apply to all actions for personal injuries, whether the defendant is a public authority or not. We do not think it is necessary for us to define ‘personal injuries,’ although this may possibly be necessary if legislative effect is given to our recommendations. We wish, however, to make it clear that we do not include in that category actions for trespass to the person, false imprisonment, malicious prosecution, or defamation of character, but we do include such actions as claims for negligence against doctors.”

4.  There are minor puzzles about why malicious prosecution or defamation of character were thought capable of causing personal injury or why doctors were singled out for mention, but the committee certainly seems to have intended to exclude actions for trespass to the person from their proposal. They did not explain why. The reason they gave for adopting a short period for personal injury claims (“the desirability of such actions being brought to trial quickly, whilst evidence is fresh in the minds of the parties and witnesses": para 22) would seem equally applicable to cases in which the cause of action is trespass. Perhaps they had in mind only intentionally inflicted injuries and thought that a defendant who caused deliberate injury should not have the benefit of a short limitation period.

5.  When some years later Parliament implemented the report, it accepted the general principle of a single period of limitation for personal injury claims, whether against public authorities or private bodies. It also accepted that it should be shorter than six years. It did not however accept either the period of two years or the possibility of extension. Instead, it adopted a fixed period of three years. This was provided by section 2(1) of the Law Reform (Limitation of Actions, etc) Act 1954:

“At the end of subsection (1) of section 2 of the Limitation Act 1939 (which subsection provides, amongst other things, that there shall be a limitation period of six years for actions founded on simple contract or on tort) the following proviso shall be inserted - ‘Provided that, in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years.”

6.  It will be seen that in defining the actions to which the three year period was to apply, Parliament adopted neither the simple concept of an action for personal injury (for which, as the committee had suggested, the Act provided a definition) nor the specific exclusions mentioned by the Tucker Committee, but spoke of “actions for damages for negligence, nuisance or breach of duty…where the damages claimed…consist of or include damages in respect of personal injuries".

7.  The phrase “negligence, nuisance or breach of duty” was not entirely new. It had appeared in the Personal Injuries (Emergency Provisions) Act 1939, which had given the Minister power to make a scheme for making payments of compensation in respect of “war injuries” irrespective of fault. As the other side of the coin, section 3(1) extinguished common law claims for compensation or damages for such injuries when they were:

“on the ground that the injury in question was attributable to some negligence, nuisance or breach of duty for which the person by whom the compensation or damages would be payable is responsible.”

8.  The meaning of these words was briefly considered by the Court of Appeal in Billings v Reed [1945] KB 11, in which the plaintiff’s wife had been killed by a negligently piloted RAF aeroplane. It was argued that, although this was a war injury, the language of section 3(1) did not exclude a claim based on trespass to the person. Lord Greene MR said, at p 19:

“It seems to me that in this context the phrase ‘breach of duty’ is comprehensive enough to cover the case of trespass to the person which is certainly a breach of duty as used in a wide sense.”

9.  Thus when Parliament used this phrase in the 1954 Act, it had already been judicially construed as having a wide meaning. Furthermore, Parliament added the parenthetical words “(whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision)” which seem to stress its breadth.

10.  A provision in words materially identical with those of section 2(1) of the 1954 Act was adopted by the legislature of the State of Victoria: see section 5(6) of the Limitation of Actions Act 1958 (Victoria). In Kruber v Grzesiak [1963] VR 621 Adam J had to consider whether the section covered an allegation of unintentional trespass to the person. The plaintiff, who had issued a writ claiming damages for personal injuries caused by negligent driving more than three years after the accident, wanted to amend the writ by adding a claim for trespass to the person based on the same facts. The judge said, at p 623:

“I would see no sufficient reason for excluding an action for trespass to the person] from the description of an action for damages for breach of duty, especially when it is provided that the duty may be one existing independently of any contract or any provision made by or under a statute. After all, do not all torts arise from breach of duty - the tort of trespass to the person arising from the breach of a general duty not to inflict direct and immediate injury to the person of another either intentionally or negligently in the absence of lawful excuse? The substance of the matter appears to be that section 5(6) is intended to provide a special limitation period of three years for actions in which damages for personal injuries are claimed. No doubt, as was pointed out in argument, this intention might have been achieved by the use of other and perhaps simpler and more direct language, but that does not seem to be a sufficient reason for not giving to the language chosen its full meaning.”

11.  The reasoning in Kruber v Grzesiak was gratefully adopted by the Court of Appeal in England when the same point arose in Letang v Cooper [1965] 1 QB 232: see Lord Denning MR at p 241F and Diplock LJ at p 245E. In addition, the Court of Appeal found further support in Billings v Reed [1945] KB 11, which had not been cited to Adam J. Diplock LJ noted the prolixity of the statute but said, at p 247F, that “economy of language is not invariably the badge of parliamentary draftsmanship.” The fact that negligence and nuisance were specifically mentioned was not enough to give rise to an inference that the wide general words:

“were not intended to cover all causes of action which give rise to claims for damages in respect of personal injuries; particularly when the same combination of expressions in a similar context had already been given a very wide interpretation by the Court of Appeal.”

12.  Letang v Cooper [1965] 1 QB 232 was concerned with an unintentional trespass to the person (the defendant had negligently driven his car over the plaintiff’s legs) but, in view of the reasoning of the Court of Appeal, it is unsurprising that in Long v Hepworth [1968] 1 WLR 1299 Cooke J decided that section 2(1) of the 1954 Act also applied to intentional injuries (the defendant had deliberately thrown cement into the plaintiff’s face). That was the state of the authorities in 1975, when the Limitation Act 1975 introduced the radical changes into the law of limitation which are now contained in sections 11 to 14 and 33 of the 1980 Act.

13.  These changes may be summarised as (1) postponing the date at which time starts running from the date of accrual of the cause of action to the “date of knowledge” and (2) creating the section 33 discretion. These were both reforms intended to improve the position of plaintiffs who would otherwise be time-barred. But for the purpose of defining the class of actions to which they applied, Parliament used the same language as it had used when it passed section 2(1) of the 1954 Act to cut down the limitation period from six to three years.

14.  This seems to me a highly significant circumstance. When the 1954 Act was passed, it could have been argued that the exclusion of intentionally inflicted injuries reflected a moral policy of denying the shorter limitation period to an intentional wrongdoer. Such an argument did not find favour in Kruber v Grzesiak [1963] VR 621 or Letang v Cooper [1965] 1 QB 232, but I should have thought that, given the terms of the Tucker Committee Report and the obscurity of the Parliamentary language, it was seriously arguable. But there could be no moral or other ground for denying to a victim of intentional injury the more favourable limitation treatment introduced by the 1975 Act for victims of injuries caused by negligence. The inference I would draw is that in using the same form of words in the 1975 Act, Parliament must have intended them to bear the meaning which they had been given in the uniform line of authority in England and Australia to which I have referred.

15.  There is a good deal of authority for having regard, in the construction of a statute, to the way in which a word or phrase has been construed by the courts in earlier statutes. Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402 is a well known example. The value of such previous interpretations as a guide to construction will vary with the circumstances. But the circumstances of this case seem to me to have much in common with the decision of the House in Lowsley v Forbes [1999] 1 AC 329. In that case, the Court of Appeal in 1948 (W T Lamb and Sons v Rider [1948] 2 KB 331) had given a provision of the Limitation Act 1939 an interpretation which the House thought was probably wrong. But Parliament had then enacted the Limitation Amendment Act 1980 in terms which made sense only on the basis that it was accepting the construction which had been given to the Act by the Court of Appeal. The House decided that it was therefore too late to overrule the decision: see Lord Lloyd of Berwick at p 342.

16.  There is a further indication to the same effect in the Twentieth Report of the Law Reform Committee (Cmnd 5630) which was published in May 1974 and to which the 1975 Act gave effect. It is plain from that report that its members thought they were dealing generally with personal injury actions: see, for example, the summary of recommendations in para 69. There is no discussion of an exclusion of intentionally inflicted injuries from the benefit of the proposed reforms.

17.  That brings me to the decision in Stubbings v Webb [1993] AC 498. The main criticism which I would respectfully make of the reasoning of the House, as contained in the speech of Lord Griffiths, is that it decided the case as if the 1954 Act had just been passed. I must admit that even if the case had arisen at that time, I would have been inclined to take the same view as Adam J in Victoria and the Court of Appeal in Letang. The decision in Stubbings seems to me to have put more weight upon the report of the Tucker Committee and Hansard than they could properly bear. The language of section 2(1) of the 1954 Act is not traceable to anything said by the Tucker Committee but appears to derive from the language construed by the Court of Appeal in Billings v Reed [1945] KB 11. Parliament did not adopt all the Committee’s recommendations and it is quite impossible to say whether section 2(1) was intended to give effect to the last sentence of para 23 of the Report or not. (See the discussion of what the Committee may have meant in Mason v Mason [1997] 1 VR 325,327-328). As for Hansard, Lord Griffiths relied upon a very general statement that the bill was intended to give effect to the recommendations of the Tucker Committee by Mr Peyton (who was not a lawyer), when moving the second reading in the House of Commons (Hansard, HC Debates 4 December 1953, col 1545), but said nothing about the speech of Viscount Hailsham, moving the second reading in the House of Lords (Hansard, HL Debates 20 May 1954, col 812), who said that a main object of the bill was:

“ to reduce from six years to three years the period of limitation for actions in which a claim is made for damages for personal injuries.”

18.  Having said that, I would certainly not suggest that the opposite view was not tenable as a construction of the 1954 Act and if matters had rested there, I do not think it would have been right to depart from the decision. Where I must respectfully disagree with Lord Griffiths is in relation to the effect of the 1975 Act. He drew attention to the origins of the 1975 Act (and its unsuccessful predecessor, the Limitation Act 1963), which were to “meet the problem of the insidious onset of industrial disease", and said:

“In my view no light is thrown on the true construction of section 11(1) by this sequence of Acts which were passed to deal with a very different problem.": [1993] AC 498, 506-507.

19.  But the fact that the later Acts were passed to deal with a different problem was exactly the point. Although claims in respect of insidious diseases, as in Cartledge v E Jopling & Sons Ltd [1963] AC 758, formed the background to the 1963 and 1975 Acts, the legislation was not confined to insidious diseases. The problem was perceived as applicable to personal injuries generally. It was because Parliament used the language of the 1954 Act to deal with that very different problem, where no rational explanation existed for treating victims of injuries caused intentionally worse than victims of injuries caused negligently, that one was driven to the conclusion that it must have intended to adopt the construction given to the 1954 Act in Letang.

20.  In Stingel v Clark (2006) 80 ALJR 1339 a majority of the High Court of Australia declined to follow Stubbings and adhered to the construction of the Victorian statute which had been adopted by Adam J in Kruber v Grzesiak [1963] VR 621. I find the reasoning compelling and therefore consider that Stubbings was wrongly decided. But that is not in itself a ground for departing from it. The Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 was intended, as Lord Reid said in R v National Insurance Comrs, Ex pp Hudson [1972] AC 944, 966, to be applied only in a small number of cases in which previous decisions of the House were “thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy.” Lord Reid also observed, at p 966:

“It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that overruling such a decision will promote and not impair the certainty of the law.”

21.  For some time after it was decided, I do not think that Stubbings gave rise in practice to much difficulty. That was because it was generally believed, on the authority of cases like Trotman v North Yorkshire County Council [1999] LGR 584, that an employer could not be vicariously liable for sexual assaults committed by his employee. They were inherently outside the scope of his employment. Only the abuser himself could be liable. But people who commit sexual assaults are seldom worth suing. In the appeal before the House of A v Hoare [2006] 1 WLR 2320, the claimant decided to sue only when she heard that the defendant had won the lottery. In Stubbings, where the plaintiff wanted to sue her adoptive father and step-brother for sexual abuse more than 20 years earlier, Lord Griffiths observed, at p 501, that neither of them appeared to “have the means to satisfy any significant award of damages.” The fact that the motive for the proceedings seemed to be something other than the recovery of compensation may have influenced the construction which the House gave to the statute.

22.  The situation was radically changed when the House of Lords decided in Lister v Hesley Hall Ltd [2002] 1 AC 215 that sexual abuse was not necessarily outside the scope of an employment. It depended upon whether there was a sufficiently close connection between the work which the employee had been employed to do and the acts of abuse. A company which owned and operated a school boarding house was held liable for sexual abuse of pupils by a man employed as warden. After that, claims against the operators of schools, detention centres and similar institutions for sexual abuse by employees came thick and fast. And these threw into relief the anomalies created by Stubbings.

23.  Perhaps the most remarkable example of the anomaly was S v W (Child Abuse: Damages) [1995] 1 FLR 862, a pre-Lister case, in which the plaintiff sued her father and mother for sexual abuse by the father. The action was commenced nearly 10 years after the last act of abuse. The cause of action against the father was intentional assault and the claim was therefore struck out. The cause of action against the mother was negligent failure to protect the plaintiff against the father. This fell under section 11 of the 1980 Act and was subject to a discretionary extension under section 33, which the judge granted and the Court of Appeal affirmed. The action against the mother was therefore allowed to proceed. Sir Ralph Gibson commented, at p 867, that the result was “illogical and surprising” and deserving of the attention of the Law Commission.

 
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