SKX v Manchester City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cavanagh |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] EWHC 782 (QB) |
| Docket Number | Case No: QB-2017-002244 |
| Court | Queen's Bench Division |
| Date | 31 March 2021 |
[2021] EWHC 782 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Cavanagh
Case No: QB-2017-002244
Mr Philip Davy (instructed by Uppal Taylor) for the Claimant
Mr Steven Ford QC and Mr Nicholas Fewtrell (instructed by Manchester City Council) for the Defendant
Hearing dates: 24 and 25 February 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimant, SKX, claims damages against the defendant for personal injuries arising from childhood sexual abuse. The abuse was carried out in 1989 by the Chief Executive of the privately-run children's home to which the claimant had been sent at the age of 15, whilst in the defendant's care. The claimant does not seek damages on the basis that the defendant local authority was directly at fault for the abuse that he suffered. Rather, the claimant contends that that the defendant is liable on one of two alternative grounds, namely that the local authority is vicariously liable for the acts of the Chief Executive of the children's home, or that the local authority's duty to protect and to care for the claimant was a non-delegable duty, so that the defendant is liable even though the defendant was not itself at fault for the abuse suffered by the claimant.
Under section 1 of the Sexual Offences (Amendment) Act 1992, where a sexual offence has been committed against a person, no matter relating to that person shall during that person's lifetime be included in any publication of it if it is likely to lead members of the public to identify that person as the victim of that offence. I have, accordingly, referred to the claimant by letters, SKX, in the title to this judgment, and I will call him “the claimant” in the body of the judgment.
The parties have agreed that there should be a trial of three issues at this stage of the proceedings. These are:
(1) Whether the defendant is vicariously liable for the actions of the abuser?;
(2) Whether the duty of care owed by the defendant to the claimant is non-delegable?; and
(3) Given that the primary limitation period had expired by the time the claimant commenced these proceedings, should the claim be struck out as being out of time, or should the Court exercise its discretion under section 33 of the Limitation Act 1980 to extend time?
The claimant was born in 1974 and is now 47 years old. The claimant suffered a troubled childhood and was taken into care by the defendant local authority under section 2 of the Child Care Act 1980. Whilst the claimant was in its care, the defendant placed the claimant, successively, in three residential placements. These were at Buglawton School, Langport Children's Home, and the Bryn Alyn Community (“the BAC”). The BAC was a privately-owned children's residential community which operated a number of children's homes in North Wales and Shropshire. At any one time, well over 100 children were resident at BAC homes, and more than 70 local authorities in England and Wales placed children in BAC homes at one time or another during the 1970s to 1990s.
The claimant was placed in Bryn Alyn Hall, part of the BAC, in February 1989. He spent a total of 31 days in Bryn Alyn Hall between February and May 1989, interspersed by periods when he absconded from the home. Whilst the claimant was at Bryn Alyn Hall, he was subjected to serious sexual abuse from the Chief Executive of the BAC, John Allen, including forced masturbation and buggery. The claimant had previously been subjected to sexual abuse by fellow residents (not members of staff) at Buglawton School, but this claim relates solely to the abuse that he suffered at Bryn Alyn Hall.
John Allen has been convicted at three major criminal trials of numerous historic sexual offences, including rape and buggery of minors who were resident at the BAC. At the second of those trials, on 26 November 2014, Allen was convicted of 33 sexual offences, including one count of buggery and three counts of indecent assault against the claimant. The claimant gave evidence at the trial. John Allen was sentenced to a lengthy period of imprisonment. He was sentenced to a further lengthy period of imprisonment after a third trial in 2019.
The defendant accepts that the claimant suffered the sexual abuse that he alleges at the hands of John Allen. The abuse of children at BAC homes and at other homes in North Wales was the subject of a major public inquiry which was chaired by Sir Ronald Waterhouse and which resulted in a report, “Lost in Care”, which was published in February 2000.
The claimant has had a very troubled adulthood. He has lived with drug addiction and by the age of 21 had a substantial heroin and cocaine dependence. He has been convicted on numerous occasions of criminal offences and he has spent a large proportion of his adult life in prison. The claimant has found it very difficult to keep and form relationships.
This is not the first time that claimant has attempted to recover damages for the harm that he has suffered. Shortly after the Waterhouse Inquiry report, a large number of former residents of the BAC brought proceedings against the company which owned the BAC, Bryn Alyn Community (Holdings) Limited (“the Company”), for compensation. The claims were dealt with pursuant to a Group Litigation Order. The claimant was one such claimant, though he was not selected as a lead claimant. By the time the proceedings were commenced, the Company was in liquidation, and so took no part in the litigation. The claims were defended by the Company's insurers, Royal & Sun Alliance plc.
A trial involving the first tranche of 14 claimants took place in 2001, and on 26 June 2001 Connell J gave judgment in the claimants' favour. The defendants appealed on the issue of limitation and the claimants cross-appealed on the quantum of damages. The Court of Appeal gave judgment in the claimants' favour on 12 February 2003, in KR and others v (1) Bryn Alyn Community (Holdings) Limited (In Liquidation) (2) Royal & Sun Alliance Plc [2003] EWCA Civ 85; [2003] EWCA Civ 783; [2003] QB 1441.
The insurers then declined to pay the judgment sums, in reliance upon an exclusion clause in their contract of insurance with BAC. Simon J rejected the insurer's arguments, in KR and Others – v – Royal & Sun Alliance Plc [2006] EWHC 48 (QB). The insurers appealed and were partially successful, in that the Court of Appeal held that the exclusion clause excluded recovery in respect of abuse that was committed by the managerial employees of the Company, who included John Allen. This was because the deliberate acts of such managerial employees were to be equated with the deliberate acts of the Company itself, and such acts were excluded by the exclusion clause: see [2006] EWCA Civ 1454; [2007] Bus LR 139. An application by the claimants for permission to appeal to the Supreme Court was dismissed.
As the claimant in the present case had been abused by John Allen, this meant that his hopes of recovery from the Company or its insurers were at an end. There was no point in seeking damages from John Allen himself. Allen has now been in prison for many years and is likely to remain there for many years to come.
The claimant also sought compensation from the Criminal Injuries Compensation Authority, following the trial of John Allen in 2014, but his applications were rejected because he had unspent criminal convictions.
In December 2016, the claimant was contacted by his civil solicitors, who advised him that there had been changes in the law and that further proceedings were now being contemplated against local authorities who placed children in the BAC.
The claim herein was issued on 23 February 2017. This is approximately 28 years after the events to which the claim relates. Pursuant to the provisions of the Limitation Act 1980, the limitation period did not begin until the claimant's 18 th birthday, on 11 February 1992, and so the three-year primary limitation period expired on the claimant's 21 st birthday, on 11 February 1995, which was 22 years before the claim was commenced.
The claimant's claim is one of a number of similar claims which have been brought against local authorities by claimants who were abused at the BAC. These claims were stayed pending the outcome of appeal to the Supreme Court in the case of Armes v Nottinghamshire County Council [2017] UKSC 60, [2018] AC 355, a claim by a claimant who had suffered abuse after being placed in foster care by a local authority. The Supreme Court in Armes dealt with arguments based both on the non-delegable duty issue and vicarious liability. The Supreme Court handed down its judgment in Armes on 18 October 2017. In August 2018, the Court ordered that the claimant's claim in these proceedings would proceed as a lead claim, and the similar claims have been stayed pending the outcome of this claim.
It is impossible to examine the issues in this case without feeling great sympathy for the claimant. There is no doubt that he suffered serious sexual abuse, whilst a child, at the hands of John Allen. However, through no fault of his own, he has been unable to recover any compensation from the Company, because it is in liquidation, and he has been unable to recover any compensation from the Company's insurers because the contract between the Company and its insurers excluded liability for the deliberate actions of the Company itself or its managers. It is for that reason that he has turned his attention to a claim against the local authority which sent him to the BAC.
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DJ v Barnsley Metropolitan Borough Council
...Recorder directed himself on the legal principles by citing extensively from the judgment of Cavanagh J in SKX v Manchester City Council [2021] EWHC 782. That case considered the relationship between a tortfeasor, who was an employee of a children's home, and the local authority which had s......