A.s. Or B.+d.m.+j.p. Or W. V. Sister Bernard Mary Murray And Others+sister Bernard Mary Murray And Others+sister Bernard Mary Murray And Others
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Abernethy,Lord Eassie |
| Neutral Citation | [2007] CSIH 39 |
| Court | Court of Session |
| Published date | 04 June 2007 |
| Year | 2005 |
| Date | 06 June 2007 |
| Docket Number | A1135/00; |
AB, DM, and JW
v
Sister Bernard Mary Murray and Others
SUMMARY
6th June 2007
The First Division of the Inner House of the Court of Session today refused the appeals (reclaiming motions) in these three cases. The appeals were against a decision of Lord Drummond Young not to disapply the time-bar.
The pursuers claim damages for injuries allegedly suffered when, as children, they were resident in Nazareth House, Cardonald, a children's home run by the Congregation of the Poor Sisters of Nazareth for various periods between 1961 and 1979. The pursuers claim that they suffered physical abuse and lack of care which has also led to psychological damage continuing into adult life.
The proceedings were not instituted until May 2000. In view of the passage of time since the pursuers had left Nazareth House the defenders pled that the claims were time-barred under the Prescription and Limitation (Scotland) Act 1973 (as amended). At an earlier hearing a judge in the Outer House, Lord Johnston, upheld the defenders' contention that in light of what was said in the written pleadings for the pursuers the claims were time-barred. However, section 19A of the 1973 Act gives the court discretion to allow a time-barred claim nonetheless to proceed if "it is equitable to do so". Lord Johnston decided that there should be a further hearing, at which evidence would be led, on whether the court should exercise its discretion under section 19A in the pursuers' favour. That hearing took place before Lord Drummond Young who heard evidence, including expert evidence from psychologists, over several weeks. (A copy of the summary issued with the Opinion of Lord Drummond Young in June 2005 is attached).
In the reclaiming motions the First Division was invited first to reconsider Lord Johnston's decision in so far as it held that the claims were time-barred, even though the pursuers' advisors had chosen not to appeal that decision when it was given. The court has decided that it would not be appropriate to open up Lord Johnston's decision; but in any event Lord Johnston's decision was not flawed, since it is clear from what is said on behalf of the pursuers in the pleadings that prior to May 1997 (ie three years before the actions were commenced) the pursuers knew that they had suffered physical and psychological damage which they attributed to the nuns' treatment of them. What is stated in the pleadings in this respect had been confirmed by the evidence before Lord Drummond Young. Section 22(3) of the Act makes clear that lack of awareness that the injury suffered gives rise to legal liability does not postpone or delay the time-bar. But the fact that a claimant did not appreciate that he could claim against a defender and the reasons for which he lacked that appreciation may be taken into account by the court if, as in these cases, it is asked to exercise its discretion under section 19A and allow the action to proceed.
In considering whether these actions should be allowed to proceed Lord Drummond Young was provided with evidence of the pursuers' reasons for not taking proceedings earlier than they did. In very brief summary, he concluded that each of the pursuers suffered from personal and psychological problems which would have tended to inhibit them from raising court proceedings; that they thought that their accounts would not be believed; and that until 1997 they did not consciously realise that they might start court proceedings because they had not given thought to that course.
However, other factors in the case weighed against giving permission to proceed. Two heads or factors were decisive. Again, in brief summary, the first of these was that the lapse of time was very substantial and that in itself made a decline in the quality of justice inevitable. It would, for example, be very difficult to assess matters in the very different social attitudes of the time and against other aspects of the personal history of the pursuers. Secondly, it was clear from the hearing before Lord Drummond Young that substantial amounts of evidence had been lost. Important witnesses had died or were very old and unable to give evidence; and many contemporary documents were no longer to be found. Apart from those decisive factors, there were other factors potentially relevant to the exercise of his discretion and on a consideration of these Lord Drummond Young found them to be supportive of refusing permission.
In the appeal a number of criticisms of the Opinion of Lord Drummond Young were advanced on behalf of the pursuers, but these criticisms are rejected by the appeal judges. The criticisms were in the event essentially directed to the other, additional factors which Lord Drummond Young found to support his decision to refuse leave and not to the two principal considerations which he had found decisive. The decision which Lord Drummond Young had to take was a discretionary decision and the appeal court finds that he was not only entitled to come to the decision which he did, but was correct to do so.
NOTE
This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.
The full opinion will be available on the Scottish Courts website at 12.00 today at this location: http://www.scotcourts.gov.uk/opinions/2007CSIH39.html
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION
| ||
Act: McEachran, Q.C., Miss Stirling; Drummond Miller, W.S. (for Ross Harper, Solicitors, Glasgow)
Alt: Moynihan, Q.C., Duncan; Simpson & Marwick, W.S.
6 June 2007
[1] This is the Opinion of the Court to which all of its members have contributed substantially.
Introductory
[2] The pursuer and reclaimer in each of these three actions of damages for personal injury was, as a child, for some years resident in a children's home, Nazareth House, situated at Cardonald, Glasgow and run by the second defenders and respondents, a congregation or order of nuns. The first defender and respondent is the current Religious Superior of that congregation or order. Mrs. B was resident in that home between 1966, when she was 3 years old, and 1979, shortly after she attained the age of 16. Mr. M was resident in the same home from 1975, when he was 6 years old, until 1978 when he was 9 years of age; thereafter he spent the remainder of his childhood in other children's homes. Mrs. W was resident in the same home from about 1961, when she was 7 or 8 years old, until 1969, soon after she attained the age of 16.
[3] All the reclaimers come from family backgrounds which would now be described as disadvantaged. Mrs. B was the second youngest of a family of four children. Her mother apparently left home. Her father then enlisted the assistance of his sister but she did not provide appropriate care for the children. Their situation having been reported by a neighbour to the local authority, all the children were taken into care and placed in Nazareth House. Mr. M was the eldest of a family of ten children. Both his parents had problems with alcohol and were unable to cope with their family responsibilities. As a result Mr. M and two of his brothers were taken into care. After a brief period during which they were fostered, all three were placed in Nazareth House. Mrs W was the eldest of a family of five children, one of whom had died in infancy. Her mother, who apparently had problems with alcohol, was unable to cope with bringing up the surviving children. All four children were taken into care by the local authority and placed in children's homes, Mrs. W and her sister being placed together in Nazareth House.
[4] In these actions the reclaimers each seek damages from the respondents for loss, injury and damage which they aver they sustained in and consequential upon their time as residents in Nazareth House. Although there are some differences among the averments made by the reclaimers, the pattern is the same. They maintain that they were regularly assaulted by the nuns in charge of them, that is to say, beaten or struck in a manner which, even by the standards of the time, could not be regarded as reasonable chastisement; that they regularly witnessed assaults perpetrated against other children in the home; and that they were regularly subjected to humiliating experiences. No affection was shown to them; no praise given to them; they were not treated with dignity. Apart from the immediate pain and distress of their experiences, each reclaimer maintains she or he has suffered and continues to suffer from long-standing psychological or psychiatric problems. In the case of all of the reclaimers a consequence of their experiences has been, they aver, that they have suffered from chronic or repeated bouts of depression. In the case of the male reclaimer, Mr. M, he attributes to his childhood experiences, among other consequences, his resort as a youth to criminal behaviour and to the abuse of alcohol. Both female reclaimers, Mrs. B and Mrs. W, maintain that their experiences have led to disadvantages in the workplace, with consequential financial loss. These consequences they attribute to delictual acts or omissions of the second respondents or of the individual nuns for whose acts and omissions they are vicariously responsible.
[5] Each of these actions was commenced in May 2000. We understand that several hundred other actions have...
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