Joseph Philip Mcgrath Kelly (ap) V. (first) Mrs Mary Cox And (second) Glasgow City Council
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Date | 20 May 2002 |
| Court | Court of Session |
| Published date | 20 May 2002 |
| OUTER HOUSE, COURT OF SESSION | |
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| OPINION OF LADY PATON in the cause JOSEPH PHILIP McGRATH KELLY, (A.P.) Pursuer; against (FIRST) MRS. MARY COX (SECOND) GLASGOW CITY COUNCIL Defenders: ________________ |
Pursuer: O'Brien Q.C., J.A.P. Moir; Balfour & Manson
First Defender: R.W. Dunlop; Drummond Miller, W.S.
Second Defenders: A. Smith; Edward Bain, Solicitor
20 May 2002
[1]The pursuer was born on 1 May 1950. In this reparation action, he avers that he was sexually abused by a teacher named Edward Gilmartin during 1955 to 1961. As the pursuer grew up, he suppressed all memories of the abuse. However in the 1990s he was contacted by police who were investigating similar allegations against Mr. Gilmartin. Their investigations triggered memories. Ultimately, in a criminal trial in 1996, the pursuer gave evidence against Mr. Gilmartin. Mr. Gilmartin was convicted of lewd, indecent and libidinous practices and behaviour. He was sentenced to imprisonment.
[2]The pursuer claimed criminal injuries compensation, but was unsuccessful as the offences had occurred before the Criminal Injuries Compensation Scheme came into existence. The pursuer then raised the present action, seeking to recover damages firstly, from Mr. Gilmartin, and secondly, from the education authority. The summons was served on the defenders in December 1998. Mr. Gilmartin died on 3 March 1999. His sister and executrix, Mrs. Mary Cox, was sisted in his place.
Pleas of prescription and limitation
[3]At a debate, each defender argued that any right of action which the pursuer might have had was extinguished by, at the latest, 31 December 1981 as a result of the operation of the long negative prescription (section 7 of the Prescription and Limitation (Scotland) Act 1973). Each defender sought absolvitor.
[4]Alternatively, the defenders submitted that, even if the pursuer's right of action had not been extinguished by prescription, the pursuer's action was time-barred in terms of the limitation provisions of the 1973 Act (section 17). Quoad ultra the defenders initially accepted that the pursuer was entitled to a preliminary proof before answer on averments relating to the court's equitable power to allow time-barred actions to proceed (section 19A of the 1973 Act). However, as the debate proceeded, counsel for the defenders also attacked the relevancy and specification of the pursuer's section 19A averments, and moved that the action be dismissed in terms of the limitation pleas.
Prescription
[5]Defenders' submissions: Counsel for the first defender argued that the long negative prescription had extinguished any obligation to make reparation to the pursuer. Counsel for the second defenders adopted that argument.
[6]Counsel for the first defender pointed out that the sexual abuse had taken place during 1955 to 1961. The latest possible date of any abuse was 31 December 1961. The long negative prescription as defined in section 7 of the Prescription and Limitation (Scotland) Act 1973 applied to obligations to make reparation, including obligations to make reparation in respect of personal injuries: sections 7 and 11(4). The quinquennial prescription in section 6 did not apply: Schedule 1, paragraph 2(g); nor was a claim for personal injuries imprescriptible: Schedule 3, paragraph 2(g). Section 7 had come into effect on 25 July 1976: section 25(2)(b). Accordingly, section 7 applied to any obligation to make reparation to the pursuer as a result of Mr. Gilmartin's actions during 1955 to 1961. The latest date from which the long negative prescription could begin to run was 31 December 1961. In terms of section 14 of the 1973 Act, the twenty-year period terminated on 31 December 1981. Accordingly any claim which the pursuer might have had was extinguished by the long negative prescription on 31 December 1981. In contrast with the quinquennial prescription, the 1973 Act expressly excluded any allowance in respect of legal disability (by reason of nonage or unsoundness of mind) or lack of knowledge: sections 7, 11, 14(1)(b); Johnston, Prescription and Limitation (1999), paragraph 7.15 et seq., Beard v. Beveridge, Herd & Sandilands, W.S., 1990 S.L.T. 609. It was irrelevant therefore that the pursuer had been underage for the initial part of the twenty-year period, or that he may have been unaware that he might have a claim for personal injury.
[7]Counsel accepted that the enactment of the Prescription and Limitation (Scotland) Act 1984 had made a significant change in the context of claims for personal injuries. The 1984 Act amended section 7(2) of the 1973 Act such that obligations to make reparation in respect of personal injuries were no longer affected by the long negative prescription, but only by limitation The law of limitation incorporated equitable provisions which gave the court some discretion to permit otherwise time-barred actions to proceed: sections 17 and 19A of the 1973 Act. The significant change brought about by the 1984 Act was made on the recommendation of the Scottish Law Commission, in their Report on Prescription and Limitation No.74 at paragraph 2.8. However counsel pointed out that the change took effect only on 26 September 1984. The amended legislation was not retrospective in effect: section 5(3) of the 1984 Act. Accordingly the amended legislation could not assist the pursuer, whose right of action, if any, had prescribed in 1981.
[8]Counsel therefore invited the court to sustain the first defender's third plea-in-law and the second defenders' second plea-in-law, and to assoilzie the defenders.
[9]Pursuer's submissions: Under reference to Dunlop v. McGowans, 1980 S.C. (H.L.) 73, Brown v. North British Steel Foundry Ltd., 1968 S.C. 51, Strathclyde R. C. v. W.A. Fairhurst and partners, 1997 S.L.T. 658, Strathclyde R.C. v. Borders Engineering Contractors Ltd., 1998 S.L.T. 175, and Paterson v. George Wimpey & Co. Ltd., 1999 S.L.T. 577, senior counsel for the pursuer submitted that the necessary concurrence of damnum and injuria had not occurred until 1995, when the pursuer developed a psychiatric illness. In this action, the pursuer sought damages only in respect of his psychiatric injury, not in respect of any physical injury. In Carnegie v. Lord Advocate, 2001 S.C. 802, the Inner House recognised that a claim for a later-developing psychiatric illness could properly be regarded as a separate injury which was not time-barred by the relevant limitation provisions of the 1973 Act, although any claim arising in respect of physical injury suffered earlier was time-barred. The pursuer's psychiatric injury was quite distinct from any physical injury suffered during 1955 to 1961. In Shuttleton v. Duncan Stewart & Co. Ltd., 1996 S.L.T. 517, Lord Prosser viewed the development of asbestosis as an injury quite distinct from pleural plaques and pleural thickening: even if the latter were time-barred, the former was not. Similarly in the present case, the pursuer had developed the psychiatric illness in respect of which he was suing in 1995, and the action had been raised in 1998.
[10]Response by the defenders: Counsel for the first defender (whose response was adopted by counsel for the second defenders) submitted in reply firstly, that the pursuer had indeed suffered "loss, injury and damage" within the terms of section 7 of the 1973 Act during 1955 to 1961 when he was being subjected to enforced sodomy and other behaviour all as outlined in the Closed Record at page 6C-E. Secondly, both the Inner House and the House of Lords in Dunlop v. McGowans emphasised that the law of prescription was quite distinct from the law of limitation. In the law of prescription, there was one single indivisible obligation to make reparation, with the prescriptive period beginning as soon as injuria had caused any damnum.
Non valens agere cum effectu
[11]Defenders' submissions: Counsel for the defenders submitted that the pursuer could not avoid the consequences of the long negative prescription by his plea of non valens agere cum effectu. That plea was rarely used, although it probably still existed. For the plea to be effective in suspending the running of the long negative prescription, there had to be some sort of legal bar, or legal impediment to the protection of a person's rights: Harvie v. Robertson (1903) 5 F. 338; Campbell's Trs. v. Campbell's Trs., 1950 S.C. 48; Pettigrew v. Harton, 1956 S.C. 67; Hastie's J.F. v. Morham's Exrs., 1951 S.C. 668; Napier, Prescription (1854); Miller, Handbook of Prescription (1893), Chapter X; Johnston, Prescription and Limitation (1999), paragraph 7.18 et seq.
[12]Counsel submitted that the pursuer's averments were insufficient to found the plea, for several reasons: (i) The circumstances did not amount to an impedimentum juris. Nothing, as a matter of law, had stopped the pursuer suing at any time after the assaults had taken place. (ii) The Lord Justice-Clerk in Pettigrew v. Harton, cit. sup., made it clear that the doctrine of non valens agere cum effectu should not be extended beyond its present boundaries. (iii) To allow the plea in the present case would be to subvert the express wording of the 1973 Act. That Act stated in terms that, so far as the long negative prescription was concerned, the court should ignore unsoundness of mind, lack of knowledge, and minority: sections 7 and 14(1)(b) (in contrast with, for example, the quinquennial prescription: section 6(4)). Counsel referred to Johnston, Prescription and Limitation; and Beard v. Beveridge, Herd & Sandilands W.S., 1990 S.L.T. 609. At best for the pursuer, the averments disclosed minority and repressed memory syndrome - a psychiatric condition short of insanity, which led to lack of knowledge of the right to claim damages. To allow such circumstances to found a plea eliding prescription would be to re-write the 1973 Act.
[13]Pursuer's submissions: Counsel for the pursuer submitted that, esto the long negative prescription began to...
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