McDonnell v Congregation of Christian Brothers Trustees and Another
| Jurisdiction | England & Wales |
| Judge | LORD RODGER OF EARLSFERRY,LORD NICHOLLS OF BIRKENHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD BINGHAM OF CORNHILL,LORD STEYN |
| Judgment Date | 04 December 2003 |
| Neutral Citation | [2003] UKHL 63 |
| Date | 04 December 2003 |
| Court | House of Lords |
[2003] UKHL 63
HOUSE OF LORDS
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
(formerly Irish Christian Brothers) and another
My Lords,
The appellant seeks to recover damages against both respondents for physical, emotional and sexual abuse which he claims to have suffered at various times between 1941 and 1951. Under the statutory law in force at the time his claims became statute-barred on 6 January 1963. He contends that the effect of the Limitation Act 1963 or the Limitation Acts 1975 and 1980 was to remove that statutory bar to his claims. The issue at the heart of this appeal is whether that contention is in law correct or incorrect.
This issue has been determined adversely to the appellant by Mackay J and also the Court of Appeal (Ward, May and Kay LJJ) [2001] EWCA Civ 2095. No evidence has been called and no findings of fact made. The appellant's allegations are strongly contested. The issue has been decided on the respondents' applications to strike out, for which purpose the appellant's allegations have been assumed, but not found, to be true.
The appellant was born on 6 January 1936 and was shortly thereafter placed in the care of the London County Council. Between 1941 and January 1947 (aged 5-11) he was a boarding pupil at a school run by the second respondent. He complains that he was seriously abused, physically and emotionally, by members of the school staff during that period. Between January 1947 and 12 May 1951 (aged 11-15) he attended, again as a boarding pupil, a school run by the first respondent. During that period he complains of physical, emotional and sexual abuse by members of the school staff. He was not the subject of abuse after May 1951.
The appellant issued these proceedings on 9 August 2000. He says that it was only in October or November 1997 that he decided to investigate the possibility of making claims against the respondents. This was the result of reading a newspaper article. Up to then he had felt unable to make a statement to solicitors to discuss his position with anyone. His case is that, in addition to the injuries suffered at the time of the abuse, he has suffered chronic psychiatric damage. For purposes of the issue now before the House it has been assumed that the appellant may be able to bring his case within sections 14 and 33 of the Limitation Act 1980 if, as he contends, those sections are potentially applicable to it. No claim is made against any of the alleged abusers personally.
The statutory history
At the time of the alleged abuse, the governing statute was the Limitation Act 1939. Section 2(1) of that Act provided that an action founded on tort should not be brought after the expiration of six years from the date on which the cause of action accrued. But, by virtue of section 1 of the Act, that limitation had effect subject to the provisions of Part II of the Act providing for extension of the limitation period in case of disability. A person was deemed to be under a disability while he was an infant, that is, under the age of 21, then the age of majority. Section 22, in Part II of the Act, provided (so far as relevant for present purposes):
"22. If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which the last foregoing section applies, one year from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired:
Provided that - …
(d)this section, so far as it relates to the disability of infancy or unsoundness of mind, shall not apply to any action to which the last foregoing section applies, unless the plaintiff proves that the person under a disability was not, at the time when the right of action accrued to him, in the custody of a parent …."
The reference in (d) to "any action to which the last foregoing section applies" was to the time limit of one year provided by section 21(1) for actions against public authorities. This one year time limit replaced the six month time limit laid down by section 1 of the Public Authorities Protection Act 1893.
When the abuse of the appellant ceased in 1951, the cumulative effect of the provisions so far considered is plain. Any claim he had against the respondents lay only in tort and neither of them was a public authority. So the applicable limitation period was six years. But until 6 January 1957 he was an infant and time did not run against him. He was entitled to bring proceedings for six years after he ceased to be an infant, namely, at any time up to 6 January 1963, the date identified in paragraph 1 above.
Following reports of a Departmental Committee on Alternative Remedies under the chairmanship of Sir Walter Monckton (1946) (Cmd 6860) and a Committee on the Limitation of Actions under the chairmanship of Lord Justice Tucker (1949) (Cmd 7740), the Law Reform (Limitation of Actions, &c) Act 1954 was enacted. This Act had two main objects. One was to remove the protection hitherto enjoyed by public authorities: claims against them were to be subject to the same limitation period as applied to claims against other defendants. The second was to shorten from six years to three the limitation period applicable "in the case of actions for damages for negligence, nuisance or breach of duty … where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person" see section 2(1). Section 2(2) made a corresponding amendment to section 22 of the 1939 Act: where running of time was deferred on account of disability, the extension in the specified categories of case was to be for three years also. It was further provided that the onus on a plaintiff relying on an extension on account of disability to prove that he was not, when the cause of action accrued, in the custody of a parent was to apply in all claims and not only to claims against public authorities: this was a necessary amendment since the distinction between public authorities and other defendants had been abrogated. Finally, notice should be taken of the transitional provisions (so far as material) in section 7 of the Act:
"(1)The time for bringing proceedings in respect of a cause of action which arose before the passing of this Act shall, if it has not then already expired, expire at the time when it would have expired apart from the provisions of this Act or at the time when it would have expired if all the provisions of this Act had at all material times been in force, whichever is the later …
(3)Save as aforesaid, nothing in this Act shall affect any action or proceeding if the cause of action arose before the passing thereof."
The 1954 Act came into force on 4 June 1954, when the appellant was aged 18 and was therefore still subject to disability. His cause of action had arisen before the passing of the 1954 Act. It had not already expired because six years had not expired since his cause of action (in part) arose and he had the benefit of the six year disability extension from the age of majority under the unamended 1939 Act (and he had not, when his cause of action arose, been in the custody of a parent). If all the provisions of the 1954 Act had at all material times been in force his time for bringing proceedings would have expired three years after the age of majority. Thus the later of the alternative dates was applicable: his claims would still become statute-barred on 6 January 1963, and the 1954 Act thus made no difference to the time limit in his case.
While section 26 of the 1939 Act made provision for postponement of the running of time in the case of fraud, fraudulent concealment or mistake, the Act made no comparable provision for a case in which a potential plaintiff was unaware, at the time of suffering injury or before expiry of the limitation period, that he had suffered any injury, or any significant injury, or that any link existed between the suffering of injury and the conduct of another. Since, on accepted principles, a cause of action in tort accrues on the suffering of damage, the possibility existed that a claim would be statute-barred before the victim became aware that he had any cause of action on which he could sue. This feature of the law was highlighted by the House of Lords' decision, affirming the judge and the Court of Appeal ([1962] 1 QB 189), in Cartledge v E Jopling & Sons Ltd [1963] AC 758. The original plaintiffs in that action were steel dressers who, in the course of their employment, had inhaled quantities of noxious dust which had caused them to suffer from pneumoconiosis. They issued proceedings on 1 October 1956 but were unable to show any breach of duty by their employers which contributed to their condition after 1 October 1950. The defendants pleaded that the claims were barred by the six year limitation period applied by section 2 of the 1939 Act. Lord Reid made it clear that he would have wished to hold (p 772)
"that a cause of action ought not to be held to accrue until either the injured person has discovered the injury or it would be possible for him to discover it if he took such steps as were reasonable in the circumstances".
But the House unanimously held that the 1939 Act and established authority precluded it from so holding.
Even before the Court of Appeal decision in...
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