Linda Jordan V. Quarriers+joseph Richard Nicholson
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2006] CSOH 155 |
| Court | Court of Session |
| Docket Number | A820/03 |
| Published date | 10 October 2006 |
| Date | 10 October 2006 |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 155 | |
| A820/03 | OPINION OF LADY SMITH in the cause LINDA JORDAN Pursuer; against QUARRIERS First Defenders; And JOSEPH RICHARD NICHOLSON Second Defender: ________________ |
Pursuer: McEachran, QC, Stirling; Drummond Miller, WS
First Defenders: Moynihan, QC, Dunlop; Simpson & Marwick
10 October 2006
Preliminaries
[1] This is one of a number of claims at the instance of an adult who, for a period during her childhood, was resident in a home run by the first defenders. She seeks damages in respect of physical injuries sustained as a result of and consequential upon the alleged assaults in the home and a post traumatic stress disorder allegedly caused by the treatment she received there. The second defender was employed by the first defenders and the pursuer avers that he was one of her "house parents". She also avers that he was convicted, in 2001, of lewd, indecent and libidinous practices towards her. The case came before me on the procedure roll, along with six other similar actions. The pursuer and first defenders were represented.
Introduction
[2] Limitation is raised as an issue by the first defenders. They plead that the action is time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). The pursuer reached the age of majority on 3 September 1970. The present action was raised on 10 March 2003. The pursuer pleads that the action is not time barred but that if it is, it should be allowed to proceed nonetheless, under the equitable discretion available under section 19A of the 1973 Act. The first defenders do not accept that the pursuer has made relevant averments for a case under section 19A.
[3] The first defenders' motion was for dismissal of the action. The pursuer sought a proof at large, leaving all pleas standing.
[4] Separately, they challenged the relevancy of a passage of the pursuer's averments to which I refer later in this opinion.
Background
[5] The precise factual background against which, on the pursuer's averments, the action is brought is not easy to follow from the pleadings which are hampered in places by a lack of clarity and cogency but it would appear to be as follows: in about 1959/60, when the pursuer was seven or eight years old, she became a resident in the home at Quarrier's Village, run by the defenders, and remained there as a resident until 1968. She was, it is averred, subjected to physical assaults which caused her physical injuries. Further, she avers that she was subjected to sexual abuse by the second defender between about 1962 and 1968. She avers that she complained to her welfare officer. The second defender was, she avers, convicted of the offence to which I have referred, in 2001. The conviction was after a trial in which she gave evidence. There are no averments as to when she first made a complaint to the authorities which led to the prosecution other than an indication it was not before 1999. She avers at p.21C-D of the Closed Record that she was interviewed by the police in September 1999.
[6] In Article 6, the pursuer sets out her averments of loss, injury and damage. They include a series of physical conditions which are not obviously capable of explanation by reference to the alleged abuse. She avers:
"In 1984 the pursuer was treated for a peptic ulcer. She also underwent a cholecystectomy. In 1988 she received surgical treatment for her chronic peptic ulcer. She developed dumping syndrome which made her feel faint and unwell after eating food rich in carbohydrate. She continued to attend surgical out-patients for persistent symptoms. In 1991 she underwent revision gastric surgery. In 1992 she developed a hernia. She also had a haemorrhoidectomy, an anal stretch, hysterectomy and bilateral salpingo-oophorectomy. In 1993 she underwent repair for her anal dilatation. In 1997 and 1999 she had lumpectomies for breast lumps. In 2001 she was treated for carpal tunnel syndrome. In 2004 she underwent laparoscopy and division of adhesions for persistent abdominal swelling and pain. She has had her appendix removed. She continues to suffer from bowel problems."
[7] She then makes various averments of psychological symptoms which are later referred to as a chronic form of PTSD which "she has lived with and continues to live with" (Closed Record p.17C-D). Her averments regarding her psychological symptoms include the following:
"The pursuer persistently re-experiences the abuse. She has vivid, recurring and distressing flashbacks and nightmares." ( p.16C)
"She tries to avoid thinking about the abuse but many memories return." (p.16D)
"She is preoccupied with the abuse ....." ( p.16D)
"She has lived with a high degree of distress since her teenage years." (p.16E)
"She became an alcoholic in an attempt to block out memories." (p.17B)
Specifically in response to the defenders' averments of time bar, she avers:
"Explained and averred that for decades the pursuer locked away the memories of the abuse as a way of coping. From time to time the pursuer's memories of the abuse surfaced but she deliberately put them to the back of her mind. She was disturbed by the memories and did not want to remember what had happened." (p.19A-B)
"The pursuer could not have complained to anyone while she was in the Home." (p.19C)
"...in about 1982 the pursuer ........began to think more about the abuse. She began to drink to block out the memories" (p.20E)
"[The police] interviewed the pursuer on 6 September 1999. Until that date the pursuer had not discussed in detail the abuse she had sustained with anyone, although she had mentioned it to her children and her sister was also aware, having been abused too. From that date it became more difficult for the pursuer to suppress memories." (p.21D-E)
[8] Regarding her decision to claim damages, the pursuer avers, at p.22 that it was not until after she had given evidence at the trial of the second defender that she considered making a claim. She avers:
"She felt very angry ......After the Trial a Court Official suggested to the pursuer that she could make a claim for criminal injuries compensation. Friends and acquaintances who became aware of the Trial suggested that she should consider making a claim for damages against the first defenders." (p.22C)
[9] In short, the pursuer avers that she was a resident in the home between 1959/60 and 1968, during which time she was physically assaulted and sexually abused, something of which she was clearly aware at the time. She suffered from psychological symptomatology, as averred, on account of the abuse in the home as from her teenage years and persistently thereafter. On her averments, they have had a devastating effect on her life. Her memories of what happened to her persisted although she sought to suppress them, of her own volition. She must have made a report of her experiences to the police in 1999. She decided, after the trial of the second defender in 2001, having been encouraged to do so by friends and acquaintances, to seek compensation.
[10] As regards the delay between 2001 and the raising of the action in March 2003, the pursuer avers that she first consulted a solicitor on 24 October 2001. He intimated a claim to the first defenders and there were some communications between them. The solicitor sought legal aid to instruct a psychologist in February 2002. It appears that the pursuer did not, however, attend a psychologist until 3 December 2002. He provided a report dated 10 December 2002 in which he concluded that she was suffering from PTSD attributable to her time in the home. The present action was raised three months thereafter.
[11] Regarding limitation, the pursuer avers:
"The triennium does not begin until Autumn 2001 at the earliest when the pursuer was first made aware that she could make a claim from criminal injuries compensation or for damages following the Trial. It was not until the medical report dated 10 December 2002 that the pursuer became aware that she had PTSD and that it was attributable to her time in the Home. The pursuer did not become aware, nor was it reasonably practicable for her in all the circumstances to become aware of the facts (i) that the injuries were sufficiently serious to justify him bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission until the Autumn of 2001 at the earliest. The pursuer experienced systematic childhood sexual abuse. The reasonable woman in the same position as the pursuer, namely having experienced systematic childhood sexual abuse, would not have become aware of the statutory facts until the Autumn of 2001 at the earliest. The disabling long term effect of the abuse must be given effect to. Accordingly the claim has not time barred. Esto the claim has time barred (which is denied) it would be equitable to allow the pursuer's claim to proceed in terms of Section 19A of the Prescription and Limitation (Scotland) Act 1973 for the foregoing reasons. Furthermore the delay in raising the action is attributable to the pursuer's treatment by the second defender, for whom the defenders are liable. It would not be equitable to sustain the defenders' plea of time bar in the circumstances where they are responsible for the delay. The defenders would not be prejudiced if the claim were to proceed. Records of the pursuer's time in the Home were available to the second defender during that Trial."
Limitation
Submissions for the Defenders
[12] Counsel for the first defenders submitted that the pursuer's pleadings indicated that she was plainly aware of problems which she related to being abused in the home, throughout. The tenor of her averments was that she had re-experienced the abuse that she suffered, all her life. She was suing in respect of a continuum of events which had begun when she was a resident in the home. There was no question of her suing...
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