C G V. Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne,Lord Eassie,Lord Wheatley |
| Judgment Date | 23 July 2010 |
| Neutral Citation | [2010] CSIH 69 |
| Court | Court of Session |
| Date | 23 July 2010 |
| Docket Number | A197/07 |
| Published date | 23 July 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Eassie Lord Bannatyne Lord Wheatley | [2010] CSIH 69 Case Ref: A197/07 OPINION OF THE COURT delivered by LORD EASSIE in the cause C.G. Pursuer and Respondent; against GLASGOW CITY COUNCIL Defenders and Reclaimers: _______ |
Alt: G Clark, Q.C., Pugh; G Lindsay, Solicitor
23 July 2010
Introductory
[1] In this action the pursuer and respondent, who was born in June 1978, seeks reparation in respect of certain wrongs which she avers were done to her while she was a schoolchild in Kerelaw Residential School, Stevenston, in which she was resident between about 1992 and 1995. During the pursuer's residence in Kerelaw the school was administered either by the defenders, or prior thereto, their statutory predecessors, Strathclyde Regional Council. The pursuer avers (Article IV of condescendence) that throughout the period during which she was resident in Kerelaw she was subject to brutal physical treatment and abuse, and thereafter, in her pleadings, she avers particular conduct by named members of the staff of Kerelaw which can shortly be described as physical or sexual abuse.
[2] The action was commenced on 9 January 2007 when the summons was served on the defenders. Given that the injuriae - the wrongs - of which the pursuer complained ceased in 1995, and given that she attained majority and ceased to be of nonage on 29 June 1994, it is evident that prima facie the action is time-barred in terms of the three year limitation period enacted under section 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973, as amended - "the Act". But in response to the defenders' plea of time-bar, the pursuer invokes the provisions of section 17(2)(b) of the Act as delaying the inception of the running of time which would otherwise apply under section 17(2)(a) of the Act. For convenience, we set out at this point the terms of section 17 of the Act:
"17.-(1) This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, being an action (other than an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.
(2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after-
(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; or
(b) the date (if later than any date mentioned in paragraph (a) above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become, aware of all the following facts-
(i) that the injuries in question were sufficiently serious to justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii) that the injuries were attributable in whole or in part to an act or omission; and
(iii) that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.
(3) In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind."
Of the three facts listed in section 17(2)(b), it is fact (i) - seriousness of the injuries - with which one is concerned in this action. In the event that her claim is time-barred, the pursuer invites the court to exercise the discretion given to it by section 19A of the Act nonetheless to allow the action to proceed if it is equitable to do so.
[3] The matter came before the Lord Ordinary on debate on the Procedure Roll respecting the time-bar issues. It appears that while the initial position advanced by junior counsel for the defenders was that the action should be dismissed, on the ground that no relevant averments had been made respecting either the pursuer's case under section 17(2)(b) of the Act or the exercise of the court's discretion under section 19A, in the course of the debate senior counsel for the defenders accepted that the pursuer's application for the exercise of the court's discretion under section 19A could not be determined without the hearing of evidence at a preliminary proof. Senior counsel however maintained that there was no relevant basis for the contention that the starting point for the running of time was postponed by reason of the pursuer's invocation of section 17(2)(b) to a date within the three year period terminating on 9 January 2007. He accordingly submitted that any proof should be a preliminary proof confined to the question whether the court might exercise its section 19A discretion favourably to the ex hypothesi time-barred pursuer.
[4] In the event, the Lord Ordinary declined to follow that course and acceded to the motion of counsel for the pursuer that there should be a proof before answer at large - that is to say on all issues, including ultimately liability and quantum of damages. In this reclaiming motion senior counsel for the defenders (who was junior counsel in the debate before the Lord Ordinary) argued that in doing so the Lord Ordinary had erred in various respects and that the proper course was to recall the interlocutor pronounced by the Lord Ordinary and allow a proof before answer on the single issue whether the court should exercise its discretion under section 19A.
The Lord Ordinary's opinion
[5] In his opinion, [2009] CSOH 34[1] the Lord Ordinary sets out at paragraphs [2] ff the case averred by the pursuer. It is convenient to repeat in part the Lord Ordinary's narration of that case:
"[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...
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