Stephen Findleton V. Quarriers
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2006] CSOH 157 |
| Court | Court of Session |
| Docket Number | A82/05 |
| Published date | 10 October 2006 |
| Date | 10 October 2006 |
| Year | 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 157 | |
| A82/05 | OPINION OF LADY SMITH in the cause STEPHEN FINDLETON Pursuer; against QUARRIERS Defenders: ________________ |
Pursuer: McEachran, QC, Stirling; Drummond Miller, WS
First Defenders: Moynihan, QC, Dunlop; Simpson & Marwick
10 October 2006
Preliminaries
[1] This is one of a number of claims at the instance of an adult who, for a period during his childhood, was resident in a home run by the defenders. He seeks damages in respect of depression and a post traumatic stress disorder allegedly caused by the treatment he received there. The case came before me on the procedure roll along with six other similar actions.
[2] This action was raised on 17 December 2004. The pursuer reached the age of majority on 22 April 1976.
Introduction
[3] Limitation is raised as an issue by the defenders. They plead that the action is time barred under section 17 of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act"). The pursuer pleads that the action is not time barred but that if it is, the action should be allowed to proceed nonetheless, under the equitable discretion available in terms of section 19A of the 1973 Act.
[4] The defenders' motion was for a preliminary proof on the pursuer's application under section 19A, it being their position that the case was prima facie time barred. The pursuer sought a proof before answer, leaving all pleas standing.
Background
[5] The pursuer avers that he was a resident in the home between about 1965 and 1971 during which time he alleges that he was physically and mentally abused by a member of the defenders' staff. The physical abuse alleged is that he was beaten but he does not seek damages for any physical injuries. From the averments in article 6 of Condescendence, it is plain that he sues only in respect of depression and post traumatic stress disorder. He avers that he suffered depression "since his time under the care of the defenders". He adds:
"After leaving the care of the defenders, the pursuer was able to repress memories of his treatment at Cottages 20 and 34."
[6] At pages 10 -11 of the Closed Record, he avers that a BBC Frontline Scotland programme broadcast in May 2003 which "highlighted the abuse perpetrated on children by a member of the defenders' staff triggered memories in the pursuer of the abuse he had suffered" and had the effect of "re-traumatising" him. He indicates that he obtained his records from the defenders thereafter, in June 2003 and shortly after that, when he had just moved to Epsom, he attempted to commit suicide and was sectioned under the relevant mental health legislation for a period. He has, he avers, been receiving out-patient treatment since then. In response to the defenders' averments, he admits that he has a long history of psychiatric problems for which he has been seen by psychiatric services from the 1970's and has been diagnosed as having a personality disorder. At the end of Article 6, he avers:
"At no time was any causal connection made between these problems and the abuse he suffered at the Home. By suppressing the memories of the abuse, no causal connection could have been made."
[7] In Article 7 of Condescendence, the pursuer makes averments in response to the defenders' answer to the effect that the case is time barred. He explains that after leaving the defenders' home, he lived with his father, then carried out various forms of employment: he was an Apprentice Instrument Technician following which he was employed delivering electrical goods, he was an Apprentice Carpet Fitter from 1974 to 1978, was made redundant and then worked on and off as a carpet fitter for the next ten years following which, in 1988, he secured employment as a carpet fitter for three years, following which he had various carpet fitting jobs until he set up his own business as a carpet fitter which operated between 1995 and 1999. He then, it is averred, trained as a bus driver but continued to work at carpet fitting jobs until 2003, when he moved to Epsom. It would seem, accordingly, that there is no question of the pursuer having lacked capacity during that period. He then avers:
"During this time, the pursuer suppressed memories of the abuse that he had suffered at the defenders' Home as a way of coping with the demands of daily life."
and asserts that the present action was raised within the triennium under reference to section 17 of the Prescription and Limitation Scotland) Act 1973("the 1973 Act"). He avers that the time period set out in section 17(2) did not begin until either the date of the television broadcast (which, at page 17 of the Closed Record, is stated as having been 11 July 2004, contrary to what is averred at page 11 which is that the broadcast was in May 2003) or the date on which he became aware that he had PTSD and depression. No averment is made, however, of the date on which the pursuer first became aware that he suffered from PTSD. Regarding his depression, the only averment about that is that to which I have already referred, namely that the pursuer has suffered depression since he left the home in 1971. The pursuer continues, however, in Article 7, with an averment that he did not become aware nor was it reasonably practicable for him to have become aware of the statutory facts (that is, those specified in section 17(2)) until, at the earliest, the date of the television broadcast. He adds:
"The reasonable man in the same position as the pursuer would not have become aware of the statutory facts until at the earliest May 2003. Childhood abuse has an inhibiting effect on the ability of victims to bring the abuse into the public domain. As children, victims of childhood abuse cannot raise claims. As their lives develop, victims find it increasingly difficult to confront the abuse. Instead, the vast majority of abuse sufferers, including the pursuer, suppress the memories of abuse and get on with their lives. They do not have awareness of the statutory facts. Accordingly, the action is not time-barred."
[8] The essence of the pursuer's case is, accordingly, that he has been aware of suffering from significant psychological symptoms since 1971 but that he has, because he has found it difficult to confront what happened to him and wanted to get on with his daily life, of his own volition, suppressed his memories of the abuse. That being so, it was not until 2003 that he became aware of the causal link between his symptoms and the abuse he allegedly suffered in the home. Although it is not specifically averred, I infer from that that his position is that he made no enquiry of anyone as to whether or not it was possible that there was a link between the abuse and his symptoms, prior to then.
Limitation:
Submissions for the Defenders
[9] Counsel for the defenders submitted that the pursuer's pleadings indicated that he was plainly aware of problems which he related to being abused in the home, throughout. He had, on his own averments voluntarily suppressed memories. That was inconsistent with a lack of knowledge. It indicated that this was a case of a pursuer who was not incapable of remembering but chose to ignore. He had, though, on his own averments, been in regular contact with the psychiatric services since the 1970's in which case, why was it not reasonably practicable for him to have become aware of the relevant facts? Reference was made in support of that submission to Kane v Argyll & Clyde Health Board 1999 S.L.T.823 and the case of MP, hereinafter referred to. The pursuer was suing in respect of a continuum of events which had begun when he was a resident in the home. There was no question of him suing in respect of any separate or severable injury. In these circumstances, his case failed to meet the requirements of section 17 of the 1973 Act.
[10] Reference was made to the terms of section 17. It was submitted that it required a pursuer to show that he was not in fact aware and could not reasonably practicably have become aware of the relevant facts until a date within three years prior to the raising of the action. Account also required to be taken of the provisions of section 22(3). It was not relevant to ask into which category of case the action fell. Nor was it relevant to ask whether the pursuer was aware that he had a cause of action. What was relevant to ask was: what was the injury in question? when did the pursuer become aware of it? when did he become aware that it was sufficiently serious to justify a claim for damages? when did he become aware that it was attributable at least in part to an act or omission? when did he become aware that the defender was a person to whose act or omission the injuries were attributable in whole or in part? Then, one also had to ask when would it have been reasonably practicable for the pursuer to become aware of those facts, bearing in mind that once he was "on notice" of any one of the material facts, he had to take all reasonably practicable steps to inform himself. The statutory focus was on the nature of the injury as known to the pursuer.
[11] Reference was made to the cases of Cowan v Toffolo Jackson & Co Ltd 1998 SLT 1000, Nimmo v British Railways Board 1999 SLT 778, Carnegie v Lord Advocate 2001 SC 802, Agnew v Scott Lithgow 2003 SC 448, B v Murray 2004 SLT 967 and MP v Sister Zoe O'Neil & Ors 2006 CSOH 93. Two principal submissions were made on the basis of that review of Scottish authority. One was that the objectivity of the section 17 test was emphasised. The other was that, even if Carnegie was correct in holding that it was possible to have two different start dates for the running of the triennium if separate and distinct injuries though arising from a single delict were averred (and it was not accepted that Carnegie was correctly decided on that point) this was not such a case. Attention was drawn to the caveat set out in Agnew regarding the approach to English...
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