KR and Others v Bryn Alyn Community (Holdings) Ltd ((in Liquidation)) and another
|England & Wales
|Lord Justice Auld
|12 February 2003
| EWCA Civ 783, EWCA Civ 85
|12 February 2003
|Case No: B3/2001/1558
|Court of Appeal (Civil Division)
 EWCA Civ 85
Lord Justice Auld
Lord Justice Waller and
Lord Justice Mantell
Case No: B3/2001/1558
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
(CHESTER DISTRICT REGISTRY)
Mr Justice Connell
Royal Courts of Justice
QUEEN'S BENCH DIVISION
Mr R F Owen QC & Mr P Turton (instructed by Uppal Taylor) for the Appellants
Mr E Faulks QC & Mr N Fewtrell (instructed by Hill Dickinson) for the Respondents
This is the judgment of the Court, to which we all have contributed. These are the appeals of fourteen adults all of whom claim to have suffered sexual and/or physical and/or emotional abuse between 1973 and 1991 while children in the care of the first defendant's children's homes in North Wales. In a consolidated action tried by Connell J. in early 2001 they claimed damages in negligence against the first defendant, which had gone into liquidation in 1997. The respondent, on its own application, was joined as second defendant in the action to enable it to protect its position as the first defendant's putative insurer. The claims were primarily for long-term psychiatric or psychological injury.
On 26 th June 2001, Connell J. found the first defendant liable in negligence in respect of all the claims, save that of the appellant, MCK, and part of those of JS and CD. The Judge held that all the successful claims were out of time and not saved by the "date of knowledge" provisions in sections 11 and 14 of the Limitation Act 1980. However, in all those claims, he exercised his discretion under section 33 of the 1980 Act to disapply the period of limitation. He said that he would have done the same in respect of MCK's claim if she had established a case in negligence. He awarded all the successful claimants damages for pain, suffering and loss of amenities and some of them for loss of earnings and cost of psychotherapy.
Each of the appellants, except KR, now challenges the level and/or make-up of the Judge's award of damages. MCK appeals against the Judge's dismissal of her claim and JS and CD appeal against the Judge's dismissal of part of their respective claims. Each of those three appellants also seek to overcome the Judge's related ruling, in the light of the House of Lords decision in section 33 of the 1980 Act to extend the limitation period to tortious conduct in respect of which the first defendant was vicariously responsible but which was not in itself negligent. , that he had no power under
The respondent, with the Judge's permission, cross-appeals the Judge's decision to disapply the limitation period under section 33 in the case of the thirteen successful claims in negligence and contingently in the case of MCK in the event of her overturning the Judge's dismissal of her claim in negligence. MCK, in her turn, seeks to rely on section 14 of the 1980 Act in the event of losing her contingent entitlement to proceed under section 33. Connell J. refused the other claimants' applications for permission to appeal the Judge's ruling against them on section 14 contingently on this Court upholding the respondent's cross-appeal on section 33. They did not renew the application in this Court until a late stage in the hearing of the appeal in circumstances that we describe below. The Court then granted permission and, accordingly, all the appellants now cross-appeal the Judge's ruling against them under section 14.
From about 1969 to 1990 John Allen operated a number of children's care homes in North Wales which became known, after the name of its first and main home, as "the Bryn Alyn Community". Throughout that period he controlled the affairs of the Community, assuming the role of chief executive on its transfer to the first defendant, a private company, in 1972. Although the Community ended in financial failure on the liquidation of the company in 1997, it operated successfully for over two decades, employing a large number of staff and in the mid eighties earning significant profits. Allen's stated aim and that of the Community was to provide an alternative to the strict discipline and training regimes of approved schools for children of both sexes who, for various reasons, were vulnerable and/or unruly and in need of care. He held out the Community as providing a flexible, family type environment, catering for the individual needs of each child.
The vast majority of the Community's charges were children who had been placed in the care of local authorities. However, it appears that it offered more in the way of care than it was equipped to provide. In particular, many of its staff had had little or no experience of residential care work with children before coming to Bryn Alyn or any formal qualifications for the work. And, as will appear, a number of them, including Allen, sexually and/or violently abused some of the children in their charge.
In 1995 Allen was convicted of six offences of indecent assault against young male residents of the Community between 1972 and 1983, for which he was sentenced to six years imprisonment. He and a number of other employees also became the subject of various allegations of abuse, some of which, in 1997 and 1998, were investigated by the Tribunal of Inquiry chaired by Sir Ronald Waterhouse into allegations of child abuse in a number of residential establishments in North Wales between 1974 and 1997 (1999–2001) HC 201. All but one of the claims the subject of these appeals, that of JS, were first made in 1998 or 1999, in the wake of the publicity given to the allegations investigated by the Tribunal.
The main issues in the trial material to this appeal were:
i) whether any of the claims were statute-barred after taking into account the claimant's "date of knowledge" under section 14, and, if so, whether the Judge should exercise his discretion under section 33 to disapply the limitation period;
ii) whether, in respect of the abusive conduct relied on, each claimant had proved a breach of the duty of care having regard to the standards applicable at the time;
iii) whether deliberately abusive conduct was in itself conduct for which the first defendant could be vicariously responsible in negligence and to which an extendable limitation period of three years under section 11, subject to disapplication under section 33 applied, or was conduct to which a non-extendable limitation period of six years under section 2 of the 1980 Act applied:
iv) whether such conduct for which the first defendant was responsible, and in respect of which the claim was not statute-barred, made a material and, if so, what, contribution to each claimant's psychiatric condition; and
v) the quantum of damages.
The conduct on which all the claimants founded their claims, calculated from the date they left Bryn Alyn, had occurred long before they made them. Remembering that in all cases they were still minors when they left, any limitation period (and in particular the three years time limit under section 11 if it applied) did not begin to run until they reached majority. The range of delay to issue of proceedings from the last abusive act and from expiry of the limitation period was respectively from about 24 and 20 years in the case of KR to about 8 years and 3 years in the case of CD. JS was the only claimant agreed between the parties to have been within the six years ordinary time limit in section 2 of the 1980 Act for actions in tort.
Each claimant gave oral evidence in support of his or her own claim. Mostly, there was no or little other confirmatory evidence of the abuse alleged. And, with some exceptions, there were few of the Community's records contemporary with the alleged abuse on which either side could draw as to the truth of the allegations and, if true, as to the Community's awareness of them. Many of its records had been destroyed in a warehouse fire in 1996, shortly before the first defendant went into liquidation.
The alleged abuse varied in form and in duration. But one common feature of all the claims, as Connell J. noted, was that all the claimants had suffered serious trauma before coming to the Community and:
"[e]ven if the care offered to them there had been all that it should have been, it is doubtful that any of them would have escaped significant difficulties in coping on a day to day basis with adult life."
The first defendant played no part in the trial. The respondent, through counsel, contested each claim, advancing no positive case, save in the claim of JS (where there were more contemporaneous records than usual), and, save for a few concessions, required each claimant to prove his or her claim. It was not able to call much evidence of its own. Some witnesses had died; others had gone abroad or were untraceable; some were in prison; and some, no doubt, were too old or ill or were reluctant to co-operate in connection with allegations of such unpleasant matters so long before. It called only four former employees of Bryn Alyn, namely Keith Evans, Peter Steen, John Jeffreys and Dafydd Vevar, and otherwise limited itself to medical evidence, which was mostly agreed. Two of the principal players, John Allen and David Stanley, had in the meantime been convicted of serious sexual offences involving children in the Community. Allen was concerned in seven of the...
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