S v W and Another (Child Abuse: Damages)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE MILLETT,SIR RALPH GIBSON |
| Judgment Date | 28 November 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1128-1 |
| Docket Number | Case No.CCRTI 94/0327/F |
| Court | Court of Appeal (Civil Division) |
| Date | 28 November 1994 |
[1994] EWCA Civ J1128-1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(His Honour Judge Hague)
Before Lord Justice Russell Lord Justice Millett Sir Ralph Gibson
Case No.CCRTI 94/0327/F
MR P BENNETT QC and MR M BEDDOE (Instructed by Hegarty & Co. Peterborough, Cambs) appeared on behalf of the applicant/2nd defendant.
MR C CLARKE QC and MR M BEAUMONT (Instructed by White & Sherwin, Croydon CRO 1YB) appeared on behalf of the respondent/plaintiff.
The plaintiff, the respondent in this appeal, was born on 5 November 1965, and is now 29 years of age. She attained her majority on 5 November 1983. Until the age of 19, the plaintiff lived with her parents. The defendant, who is the appellant, is the plaintiff's mother.
The plaintiff alleges that from early childhood, and over a number of years until about 1983, she was subjected to repeated sexual and physical abuse by her father. This conduct came to the notice of the defendant at an early stage, although not every particular of it.
In 1985 the father admitted five counts of incest involving the plaintiff. He was sentenced to a term of four years' imprisonment. On 10 March 1992, some eight or nine years after she attained her majority, the plaintiff instituted proceedings in the High Wycombe County Court against both her father and the defendant, her mother. The claim was for damages for personal injuries, a medical report having been obtained which speaks of the psychological damage that has been occasioned to the plaintiff, so it is said, in consequence of her experiences which I have related.
As against the father, the claim was based upon the physical assaults to which he had subjected his daughter. It was plainly a claim alleging trespass to the person. As against the mother, the claim was based upon her breach of duty, as a parent, to protect her child in the circumstances from what was said to be a foreseeable risk of injury. In particular, paragraph 5 of the amended particulars of claim stated:
"In breach of the said duty of care, the defendant failed to procure the removal of the plaintiff from the home and/or failed to report the activities of the father to the police and/or social services and/or failed to take any step whatsoever to prevent the abuse of the plaintiff by the father."
Both claims against the father and the appellant were originally struck out by District Judge Western. He took the view that they were each an abuse of process because each was statute barred under the provisions of the Limitation Act 1980. The District Judge held that more than six years had elapsed after the plaintiff obtained her majority before the institution of proceedings, and that the appropriate period of limitation for this type of action against both the father and the mother, was that to be found in section 2 of the 1980 statute, namely, a period of six years from the date on which the cause of action accrued. That period has to be extended in the case of infants to a date six years after the child maintains majority.
The plaintiff appealed to his Honour Judge Hague QC, though no appeal was entered relating to the striking out of the father's action. On 18 February 1994, the learned judge allowed the appeal and restored the action against the mother alone. The defendant now appeals to this court.
She alleges that in her case, too, she is entitled to rely, as did her husband, upon Section 2 of the Limitation Act. The learned judge, however, found that in the case of the appellant the limitation period was that to be found in section 11 of the Act, namely, three years from the date when the accrual of the action took place, or from the date when majority was attained, with the prospect of further extensions being permissible pursuant to the provisions of sections 14 and 33 of the statute. Whether the plaintiff can avail herself of any of those extensions of time, has not been decided, and, if this appeal fails will no doubt form the subject matter of a later ruling by the trial judge.
I turn to examine the statutory provisions impinging upon this appeal. It turns very much upon the construction of section 11 which reads, so far as is material:
"1. This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) 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 the plaintiff or any other person."
Section 14 goes on to deal with the definition of the date when knowledge for the purposes of section 11 arises. Section 33 can be summarised by saying that it gives the court jurisdiction to extend a period of limitation indefinitely if it is equitable so to do.
Thus, it is plain that if this action is to proceed at all against the defendant, the plaintiff must show that her claim falls within section 11 with the advantages enjoyed by sections 14 and 33, as opposed to section 2 where no extension of time beyond the six year period was available to the plaintiff. In this context our attention was directed to a House of Lords authority Stubbings v Webb [1993] AC 498 upon which Mr Bennett, on behalf of the appellant mother, strongly relies. It was a case, as is the instant case, involving sexual abuse, but the cause of action in Stubbings v Webb was one of trespass to the person, where the plaintiff had...
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