Sf Against Quarriers
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2015] CSOH 82 |
| Court | Court of Session |
| Published date | 25 June 2015 |
| Year | 2015 |
| Date | 25 June 2015 |
| Docket Number | A82/05 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 82
A82/05
OPINION OF LORD BANNATYNE
In the cause
SF
Pursuer;
against
QUARRIERS
Defenders:
Pursuer: I Mitchell QC, Jamieson; Kennedys Scotland
Defender: Moynihan QC, Rolfe Solicitor Advocate; Simpson & Marwick
25 June 2015
Introduction
[1] The pursuer who was born on 22 April 1958 raised an action, which was signetted on 17 December 2004, against the defenders in respect of injuries allegedly sustained between 1965 and 1971 while he was a resident in a care home run by the defenders.
Procedural history of the action
[2] Following being signetted, by interlocutor dated 30 May 2006, the cause was appointed to the procedure roll on the defenders first and second pleas-in-law which were in the following terms:
“1. The action being time barred it ought to be dismissed.
2. The pursuer’s averments being irrelevant and lacking in specification, the action should be dismissed.”
[3] A procedure roll debate was heard on 23 June 2006 and the Lord Ordinary thereafter having resumed consideration of the cause on 10 October, 2006 issued the following interlocutor:
“Refuses the pursuer’s motion for a proof before answer leaving all pleas standing; allows the parties a preliminary proof of their respective averments on record in respect of the pursuer’s fifth plea-in-law only; appoints said preliminary proof to proceed on [ ]; grants diligence for citing witnesses and havers; reserves, meantime, the question of expenses.”
The pursuer’s fifth plea-in-law was in the following terms:
“Esto the action is time barred (which is denied), it being equitable in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to bring the action, proof should be allowed.”
[4] Section 19A of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”) provides as follows:
“(1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision.
(2) The provisions of subsection (1) above shall have effect not only as regards rights of action accruing after the commencement of this section but also as regards those, in respect of which a final judgment has not been pronounced, accruing before such commencement.
(3) In subsection (2) above, the expression “final judgment” means an interlocutor of a court of first instance which, by itself, or taken along with previous interlocutors, disposes of the subject matter of a cause notwithstanding that judgment may not have been pronounced on every question raised or that the expenses found due may not have been modified, taxed or decerned for; but the expression does not include an interlocutor dismissing a cause by reason only of a provision mentioned in subsection (1) above.
(4) An action which would not be entertained but for this section shall not be tried by jury.”
[5] After sundry procedure, including a reclaiming motion challenging, on behalf of the pursuer, the interlocutor of 10 October 2006, which was refused by interlocutor of 18 February 2010, a preliminary proof in respect of the fifth plea-in-law was again allowed in terms of an interlocutor of 7 November 2012.
[6] There was further sundry procedure involving the discharge of the said preliminary proof. Finally by interlocutor dated 31 January 2014 a preliminary proof in respect of the said issue was again allowed.
[7] Thus the present matter came before me for a preliminary proof in which the pursuer sought the court to exercise in his favour the said power in terms of section 19A of the 1973 Act.
[8] The question for the court is accordingly this: Is it equitable to allow the pursuer’s claim to proceed? The onus in relation to this issue rests with the pursuer.
The courts approach to the merits of the claim
[9] It was a matter of agreement between the parties that the correct approach for the court at a preliminary proof was adopted by Lord Johnstone in B v Murray 2004 SLT 967, namely: a preliminary proof was not an appropriate forum for ascertaining the truth and reliability of the averments which formed the basis of the pursuer’s substantive case. Rather it was parties agreed position that I should proceed on the hypothesis or assumption that the abuse complained of by the pursuer did in fact occur. The court should make no findings in fact in relation hereto. In light of the foregoing agreement there was little cross‑examination of the pursuer regarding the events which he spoke to as occurring while a resident in the defenders care. However, it was also accepted that the court would require to assess the cogency of the pursuer’s evidence.
The pursuer’s substantive case
[10] As a matter of background it is appropriate at this stage to set out the core elements of the pursuer’s substantive case as set out on averment and spoken to by the pursuer in evidence. The pursuer complained that while residing in cottage 20, between 1965 and 1971, within the defender’s home he was physically and mentally abused by the house parent in the said house a Miss D. In particular at night, if he was caught talking in his bedroom, Miss D would call him down and spank him on the bare bottom. He would then be put in a shed which was dark and left for periods of up to an hour. The shed was locked. This happened on numerous occasions. The spanking was very sore and he was terrified by being locked in the dark. Miss D was aware that he was particularly scared of the dark.
[11] Beyond the foregoing the pursuer also complained of what might be described as emotional abuse, namely: that on occasions he was made to call Miss D “mummy” and he did not like this as his own mother was alive at the material time.
[12] On occasions Miss D made him eat all the food that was served to him even if he did not like it. He had to finish everything on his plate.
[13] He had a problem with bed‑wetting and on occasions Miss D would humiliate the pursuer regarding this in front of other children who were residents in the home. He in particular referred to an incident which had occurred while he and other children from the home were on holiday at a house in Turnberry.
[14] The pursuer’s case against the defenders was founded on the defenders vicarious liability for the actings of Miss D. The pursuer’s pleadings were that Miss D had breached the following common law duties:
“to exercise the degree of skill and care to be expected of a reasonably careful parent in looking after children entrusted to her care, such as the pursuer. In particular it was her duty to take reasonable care for the safety and wellbeing of the children in her care. It was her duty to take reasonable care to employ a suitable discipline regime which did not involve excessive beatings. It was her duty to take reasonable care not to use as part of a discipline regime the repeated locking up of children who were afraid of the dark, such as the pursuer, in a dark room for long periods of time.”
[15] So far as loss, injury and damage is concerned the position averred and spoken to in evidence by the pursuer was of long term psychological damage resulting from the treatment he had received at the said time.
The pursuer’s core position on averment and in evidence regarding section 19A
[16] The pursuer’s position can be summarised as follows:
“When he came to leave the home at the age of 13 and reached a place of safety (he had returned to live with his father) he ceased to have any memories of the abuse he had suffered. The process by which that occurred was not a conscious decision on the part of the pursuer to avoid the memories of abuse or otherwise to put them out of his mind. It was an involuntary process known as dissociative amnesia.” (see: article 7 of the condescendence at p21 E to p22 B)
Evidence
The pursuer
[17] The pursuer gave evidence regarding the abuse he had been subjected to by Miss D during his time in Quarriers which evidence was in line with the averments on record. I do not detail his evidence on these matters as for the purposes of this proof I assumed he had been abused.
[18] As to his life after leaving Quarriers he said this: he was married in October 1980; he had five children; he had a number of jobs but was generally in employment; he described enjoying life and leading what might be described as an ordinary, unremarkable life.
2003
[19] His position was that until 2003 he had no memory of the abuse (hereinafter referred to as “the bad stuff”). He then described watching a Frontline Scotland programme about Quarriers. He then wondered if Quarriers had records about him. He obtained these (it was accepted at all hands that these were entirely anodyne in nature). He then went to Epsom on a training course for a job and read the records in his spare time and said the effect was: “as if opened door”. He described going up the M25 and intending to kill himself. He was at this point admitted to Penrith Hospital. He said he broke down crying and said that he had been abused at Quarriers. He then described that since that time there had been a big change in his life: he did not work; did not go out; he really did nothing. He described the abuse playing “like a video”.
Cross‑examination of the pursuer
[20] He described seeing the bad stuff constantly in Epsom. In cross‑examination he spoke of being sexually abused by another boy while at Quarriers (he had not mentioned this in examination in chief). When asked about not having memories pre 2003 he said:
“It was blocked out – when left Quarriers with father – all things shut out – all bad things.”
The pursuer’s medical records
[21] The pursuer was taken through his medical records in some detail by senior counsel for the defenders and entries put to him. He was asked about suicidal thoughts pre 2003: said...
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