B Against The Congregation Of The Sisters Of Nazareth And W Against The Congregation Of The Sisters Of Nazareth
| Jurisdiction | Scotland |
| Judge | Lord Weir |
| Neutral Citation | [2022] CSOH 8 |
| Date | 14 January 2022 |
| Docket Number | PD379/20 & PD380/20 |
| Court | Court of Session |
| Published date | 26 January 2022 |
OUTER HOUSE, COURT OF SESSION
[2022] CSOH 8
PD379/20 & PD380/20
OPINION OF LORD WEIR
In th e cause
B
Pursuer
against
THE CONGREGATION OF THE SISTERS OF NAZARETH
Defender
and
W
Pursuer
against
THE CONGREGATION OF THE SISTERS OF NAZARETH
Defender
Pursuer: Hofford QC, Cowan; Digby Brown LLP
Defender: Brodie QC, Rolfe, Clyde & Co (Scotland) LLP
14 January 2022
Introduction
[1] In these two cases the pursuers allege that they suffered physical and emotional
abuse at a Home operated by the defender (“t he Home”) while living there between 8 July
2
and 12 August, both 1974. The defender was responsible for running the Home, which has
since closed. Bot h cases called before me for a preliminary proof on the defender’s
content ion that the actions ought not to be allowed to proceed in terms of section 17D(2),
which failing 17D(3), of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”).
Put broadly the defender submits that, by reason of the passage of time, a fair hearing
canno t take place. Alternatively, the defender submits that it would be substantially
prejudiced were the action allowed to proceed and that, having regard to the pursuer’s
interest in each of the two cases proceeding, the prejudice is such that neither should
proceed.
[2] There being no dispute between the parties that the onus was on the defender to
satisfy the court that the conditions in both section 17D(2) and 17D(3) (relating to
“substan tial prejudice”) were satisfied, the defender led at the proof. No oral evidence was
led and parties made submissions on the basis of affidavits and statements of various
witnesses and other documents lodged in process. What follows is my decision on the
application of both of those provisions to the circumstances of the two cases.
The statutory provisions
[3] Sections 17A, 17B and 17D of the 1973 Act provide as follows:
“17A Actions in respect of personal injur ies resulting from childhood abuse
(1) The time limit in section 17 does not apply to an action of damages if –
(a) the damages claimed consist of damages in respect of personal
inju ries,
(b) the person who sustained the injuries was a child on the date the act
or omission to which the injuries were attributable occurred or, where the act
or omission was a continuing one, the date the act or omission began,
(c) th e act or omission to which the injuries were attributable constitutes
abuse of the person wh o sustained the injuries, and
(d) the action is brought by the person who sustained the injuries.
3
(1) In th is section –
‘abuse’ includes sexual abuse, physical abuse, emotional abuse and abuse which
takes the form of neglect,
‘child’ means an individual under the age of 18.
17B Childhood abuse actions; prev iously accrued rights of action
Section 17A has effect as regards a right of action accruing before the commencement
of section 17A.
17D Childhood abuse actions: circumstances in which an action may not proceed
(1) The court may not allow an action which is brought by virtue of
section 17A(1) to proceed if either of subsections (2) or (3) apply.
(2) This subsection applies where the defender satisfies the court that it is not
possible for a fair hearing to take place.
(3) This subsection applies where –
(a) the defender satisfies the court that, as a result of the operation of
section 17B…the defender would be substan tially prejudiced were the action
to proceed, and
(b) having regard to the pursuer’s interest in the action proceeding, the
court is satisfied that the prejudice is such that the action should not
proceed.”
Allegations on record
[4] B’s allegations of abusive practices by staff at the Home, and grounds of fault, are
expressed in th e pleadings in the following terms:
“Durin g the period of her residence in th e Home the pursuer was subjected to
abusive practices perpetrated by Sisters who had responsibility for the care of the
children who resided in th e Home. Those practices were both physically and
emotionally abusive. Children who were bed-wetters were punished and
humiliated. The pursuer wet the bed every night. Sisters punished her for wetting
the bed. She was made to stand naked against the wall, or to sit naked on her bed.
She was then struck with a large wooden ruler. When she had wet the bed, the
pursuer would try to hide her bed sheets under her bed. Sisters would pull the
sheets from under the bed, and rub the urine-soaked sheets onto the pursuer’s face
and head. The pursuer would try to avoid falling asleep so as not to wet her bed.
She also tried to steal an additional bed sheet so that she could change the wet sheet
for a dry one. She was found out and physically beaten.
The pursuer was subjected to other abusive and degrading practices perpetrated by
the Sisters who had responsibility for the care of the children who resided in the
Home. Children in the Home, including the pursuer, were subjected to force-
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