C.g. V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2009] CSOH 34 |
| Date | 05 March 2009 |
| Court | Court of Session |
| Published date | 05 March 2009 |
| OUTER HOUSE, COURT OF SESSION [2009] CSOH 34 | |
| OPINION OF LORD MALCOLM in the cause C.G. Pursuer; against GLASGOW CITY COUNCIL Defenders: ________________ |
Pursuer: J.J. Mitchell, Q.C., Stirling; Drummond Miller LLP
Defender: Peoples Q.C., G. Clarke
5 March 2009
[1] In this action I heard a debate on the procedure roll at the instance of the defenders. The defenders' position fluctuated during the hearing but ultimately Mr Peoples' submission was that there should be a preliminary proof, limited to whether it is or is not equitable to allow the pursuer to bring the action under and in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. It was said that there are no sufficiently relevant and specific averments in support of the pursuer's case under section 17 of the 1973 Act to allow that matter to proceed to probation. That submission could be given effect by repelling the pursuer's third plea in law and upholding in part the defenders' third plea in law. For the pursuer the submission was that a proof before answer should be allowed on all of the parties' averments and pleas.
The Averments
[2] At the outset it is appropriate to set out the case averred by the pursuer. She was born in 1978. In about 1992, when she was aged 13 years, she was sent to a residential care facility. The defenders, and before them their statutory predecessors, Strathclyde Regional Council, have administered and operated the school. The pursuer avers that throughout the period when she was resident at the school, namely from 1992 until 1995, she was subjected to brutal physical treatment and sexual abuse by adults employed at the school. She gives specific detail of the nature and extent of the abuse, and as to the identity of her alleged assailants. She told one of them that she wanted to report an incident to the police, but she was warned that if she did so, there would be repercussions for her from every other member of staff. In 2006 two of her abusers were convicted of several charges, including assault, indecent assault and lewd and libidinous practices and behaviour towards a number of children at the school in the period 1975 to 1995. Some of the charges related to the pursuer. In due course they were sentenced to lengthy periods of imprisonment.
[3] It is averred that the pursuer's loss, injury and damage was caused by the fault of her alleged abusers, for whose acts and omissions in the course of their employment with the defenders' predecessors the defenders are liable. Various averments of breach of duty are made which, in my view, serve only to complicate what is a relatively straightforward case. However that straightforward case was adhered to in the oral argument at the hearing. The pursuer has been injured by the traumatic treatment meted out to her. She felt terrified and helpless. She has suffered psychologically for a number of years, and after leaving the school she tried to cope with her experiences by "locking away memories of the abuse." She has abused a variety of drugs and she became addicted to heroin. In about August 2004 she was contacted by police officers who were investigating abuse at the school. Since that time she has required to confront the abuse and she now suffers repeated flashbacks and nightmares. She becomes severely distressed psychologically and physiologically when she is reminded in any way about what happened to her. Sometimes she feels as if the abuse is still happening. She avoids thinking or talking about the abuse, and tries to lock it away, but now with little success.
[4] Various other consequences of her experiences at the school are averred in detail. She states that her psychological problems have been ongoing for many years and that the abuse has had a marked impact upon her life. There have been several suicide attempts, self injury, and abuse of drugs in attempts to block out the memories. She has been homeless and involved in prostitution. She has lost contact with her family other than her mother. She has been diagnosed as suffering from severe depression and anxiety with an overall profile of chronic complex post traumatic stress disorder. She avers that it was the physical and sexual abuse perpetrated upon her at the school which has caused the pattern of her life to date and her current severe psychological distress.
[5] With reference to the defenders' averments concerning time bar, it is admitted that the present proceedings were not served on the defenders until 9 January 2007. She explains that at the time of the abuse she did not regard herself as being injured sufficiently seriously to justify bringing an action of damages. She was not physically injured to any material degree by the sexual assaults. Rather, they made her feel dirty. She was embarrassed to talk about what had happened and in any event she did not think that she would be believed. She regarded the physical assaults as a matter for the police rather than civil lawyers, but had been warned against contacting the police by one of her attackers. The physical injuries were painful but transitory. Once any bruises had healed there was no obvious lasting damage. Episodes of self harm while in the school were in response to immediate crises in her life, such as a problem with the pursuer's relationship with her mother. The pursuer suffered abuse within her own family. Her mother was an alcoholic who encouraged her and her brother to steal. The pursuer was in trouble with the police from early adolescence. She abused solvents and was sent to a number of residential institutions. When she left the school, she attempted to cope with her experiences by not thinking about them. She used drugs, in particular heroin, to block out memories of the abuse. This was largely successful. By blocking out the memories of the abuse, the pursuer protected herself from suffering or experiencing injury as a result of the abuse. It is averred that as a result she did not feel troubled by the abuse, thus she did not become aware that her injuries were sufficiently serious to justify bringing an action of damages. Her focus was on obtaining money for her next fix of heroin. She slept rough from time to time, was involved in criminal activity, and was imprisoned. She suffered mental health problems. She has been sectioned under the Mental Health Act. She deliberately harmed herself on a number of occasions. Again these were in response to an immediate crisis in her life and did not result in any prolonged stay in hospital or prescription of medication. Psychiatrists assessed her as feeling low but did not diagnose a depressive illness. She was noted to have limited insight into her condition.
[6] In about 2001 or 2002 the pursuer gave up drugs. She has had the assistance of support workers. In February 2001 she was raped while working as a prostitute. Between 2001 and 2004 she lived at a variety of homeless accommodation addresses. She continued to self harm and require medical attention. In about 2004 she mentioned to a support worker that she had been abused by one of the staff at the school, but did not disclose everything that had happened to her. In July 2004 police commenced an inquiry into abuse at the school. In August of that year she was contacted by police in this connection. She found it difficult to talk about the abuse and required to be interviewed on several occasions. Since she had a criminal record she did not think that she would be believed. However as a result of the police investigation she was forced to confront the abuse. Psychologically she has felt worse since the police came to see her. She did not think of herself as being injured by the abuse, but rather she wanted to stop staff from abusing others.
[7] Following the conviction of two of her abusers in 2006 the pursuer read an article in a newspaper about compensation claims arising out of the events at the school. She contacted solicitors who applied for advice and assistance from the Scottish Legal Aid Board and sought to recover relevant statements and records. In June 2006 a claim was intimated to the defenders. In August the pursuer's solicitors instructed an expert psychological report. It became available in October and the next month the pursuer's solicitors provided the defenders with the further information which had been requested. On 13 December 2006 the pursuer's solicitors sent completed legal aid forms to her for signature. A week later these forms were sent to the Scottish Legal Aid Board, together with a special urgency application and instructions to Edinburgh agents to instruct counsel to draft a summons. A draft summons was returned on 22 December 2006. The action was raised shortly thereafter.
[8] It is averred that, having regard to the terms of section 17 of the 1973 Act, the triennium did not begin until 2004 at the earliest. Before then the pursuer had largely blocked out memories of the abuse. In 2004 she was forced to confront the abuse, which made her psychological symptoms worse. She did not think of her psychological symptoms in terms of an injury of sufficient seriousness to justify raising an action of damages. She did not regard Glasgow City Council as being responsible. It was not until she attended solicitors in May 2006 that she had awareness "of all the statutory facts", nor was it reasonably practicable for the pursuer to have become aware of them before then.
[9] It is averred that the pursuer's response to the abuse is typical of many childhood abuse victims. Survivors of such abuse tend not to speak about it until well into adulthood. Many, like the pursuer, try to block out memories of the abuse, often by resorting to drugs and alcohol. Their reluctance to confront the abuse protects them from suffering the effects of the abuse, and stops them from acquiring knowledge of the statutory facts. They tend not to raise court actions until well into...
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