Stubbings v Webb
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BINGHAM,LORD JUSTICE NOLAN,THE VICE-CHANCELLOR |
| Judgment Date | 27 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0327-3 |
| Docket Number | 91/0282 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 March 1991 |
and
[1991] EWCA Civ J0327-3
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson
Lord Justice Bingham
and
Lord Justice Nolan
91/0282
1987 S NO 5165
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE (QUEEN'S BENCH DIVISION)
Royal Courts of Justice,
MR. R. GREY (instructed by Messrs. Fisher Jones, Colchester) appeared on behalf of the Respondent/Plaintiff.
MR. L. WEST (instructed by Messrs. Birkett, Westhorp & Long, Colchester) appeared on behalf of the First Appellant/First Defendant.
MR. R. WARNE (instructed by Messrs. Greenwood Page & Ward, Colchester) appeared on behalf of the Second Appellant/Second Defendant.
( )
This appeal against a decision of Potter J. given in chambers on the 28th February 1990 concerns the interpretation and application of sections 11, 14 and 33 of the Limitation Act 1980. The question at issue is whether the plaintiff is entitled, or should be permitted, to pursue an action for damages for personal injuries despite the lapse of many years since the acts on which the claim is founded.
The facts giving rise to the action are, we understand, without precedent. The plaintiff claims damages for mental illness and psychological disturbance allegedly caused by sexual abuse to which she says she was subjected as a child. The effective defendants are her adoptive father, Mr. Webb, and her adoptive brother, Stephen.
The plaintiff made additional claims based on physical violence and mental cruelty against Mrs. Webb, her adoptive mother, but the judge held that those claims (so far as sustainable in law) were long since statute-barred and he made no order under section 33 of the Act in respect of them. There is no appeal against that decision. So the appeal only concerns the plaintiff's claims against Mr. Webb and Stephen, to whom together I shall hereafter refer as "the Webbs".
In a personal injury action (the meaning of which expression I consider below) the standard period of limitation under section 11(4)(a) of the Act is 3 years from accrual of the cause of action. If the plaintiff is under the disability of infancy when the cause of action accrues, time does not start to run until the plaintiff reaches the age of majority. That is the effect of sections 28(1) and (6) and 38(2). Here, the acts alleged by the plaintiff against the Webbs occurred before she reached her majority on the 29th January 1975. Prima facie, therefore, time began to run against her on that date and the claims became statute-barred 3 years later on the 29th January, 1978. Her writ was not issued until 9 years after that, on the 18th August 1987.
The plaintiff seeks to overcome that problem by contending that she did not have the requisite knowledge as defined in section 14 of the Act until a date less than 3 years before the issue of the writ. More specifically, she relies on section 11(4)(b) to contend that she did sue within 3 years of acquiring the requisite knowledge. That is a contention which Master Topley rejected but the judge (with the benefit of further evidence) accepted. Alternatively, if the plaintiff did have the requisite knowledge more than 3 years before the issue of the writ, she invites the Court to direct that the action may proceed under section 33(1) of the Act. That is an invitation which the master declined and the judge, if necessary, accepted. Counsel for the Webbs contend on appeal that the master was right on both points and the judge wrong.
The master and the judge decided the case on affidavit evidence and the documents without cross-examination. This produces an unusual situation, since the facts pleaded by the plaintiff cannot for purposes of this proceeding be assumed to be true, and they are not common ground. In particular, and this must be emphasised, the Webbs deny the allegations against them. We must, it would seem, like the judge, draw such provisional inferences from the evidence before us as appear to be fair.
The plaintiff was born on the 29th January 1957 and is now 34. She was placed by a local authority with Mr. and Mrs. Webb when she was nearly 2 and was adopted by them when she was just 3. Mr. and Mrs. Webb had 2 older children, both sons, of whom the elder was Stephen, born on the 21st July 1952. They later had another, younger, child.
The plaintiff alleges that she was sexually assaulted by Mr. Webb and committed acts of indecency at his instigation on a number of occasions during her minority, beginning in December 1959 before her adoption. She alleges that these assaults and acts continued until the end of 1971 when she was 14. The particulars of these assaults and acts are pleaded in the amended statement of claim. They were of a serious nature, although falling short of full intercourse.
The plaintiff also alleges that in 1972 when she was aged 15 Mr. Webb punched her about the face and body, causing her nose to bleed more than once.
The plaintiff further alleges that Stephen forced her to have sexual intercourse with him. She places the first incident in 1969 when she was about 12 and he 17. She says that this act was repeated on a later occasion in 1969.
At the end of January 1974 the plaintiff, then aged 17, left home and worked as a nanny. She became 18, as already noted, on the 29th January 1975. On the 18th December 1976, aged 19, nearly 20, she married Keith Stubbings whom she had met some 4 years earlier. Shortly before this she consulted her general practitioner who described her as "tense and agitated" and recorded "had sexual interference during childhood". It seems she had taken a small overdose of Librium shortly before "while in a tense state".
The plaintiff had a son and a daughter in 1979 and 1981 respectively, but her marriage was not a success and ended in divorce in March 1983. Before this, the plaintiff had suffered mental illness. She had seen a number of doctors, who had made a variety of diagnoses. She had been treated as an in-patient in a psychiatric hospital for some weeks in 1978, and more briefly in 1982. In December 1982 her general practitioner had noted that she "was humiliated and beaten and put down by adopted mother…..Father had relations with her".
On the 20th March 1984 the plaintiff saw a television programme on Incest in the Family. The programme ended by giving a telephone number for an Incest Crisis Line. She telephoned the number and spoke to a Mr. Johnson, who ran an Incest Crisis Group. Mr. Johnson was not medically qualified, but had himself been the victim of abuse as a child. The plaintiff found it possible to talk to him. She deposes: "…. I gradually began to tell him what had happened to me, and about the psychiatric problems I had developed in later life. Mr. Johnson did mention to me the possibility of a link between the childhood abuse and my psychiatric problems, but I did not, at that time, understand how [there] could be a connection. My understanding [grew] with the passage of time, but it was a very gradual process. It was certainly not the case that on one day I did not know of the connection, but the next day I did."
During one of these conversations Mr. Johnson gave the plaintiff the telephone number of a television producer, Lynn Gamble, who in August 1984 telephoned the plaintiff and they met and talked. Lynn Gamble was making a television programme about child abuse, which was filmed in October and broadcast in December 1984. The plaintiff appeared in the programme.
Lynn Gamble introduced the plaintiff to Dr. Baker, a psychiatrist specialising in child abuse, whom she first met on the 14th September 1984. He believes that at this consultation he gave the plaintiff the first indication that her psychological problems might be linked with the sexual abuse which she claimed to have suffered during her minority. On the 25th September 1984 he saw Mr. Webb who, according to the doctor, admitted indecent acts with the plaintiff as a child. At the end of 1984 the plaintiff was referred to a psychiatrist in Ipswich with a view to counselling of herself and the Webb family, but they did not attend and this initiative came to nothing.
During 1985 the plaintiff's energies were absorbed in a battle with her former husband over the custody of the two children, which was granted to her in April 1986. She then consulted solicitors and the Citizens' Advice Bureau about redress against the Webbs, but she obtained no effective help until, on the advice of the Law Society, she consulted her present solicitors. They acted with commendable expedition, with the result that the writ was issued on the 18th August 1987, as soon as legal aid was obtained.
On behalf of the Webbs a submission was made to us, not made to the master and the judge, that sections 11, 14 and 33 of the Act do not apply to the plaintiff's claims, with the result that they are subject to a non-extendable 6 year limitation period which irretrievably expired in January 1981, 6 years after the plaintiff reached her majority. The grounds of this submission were (1) that the plaintiff's claims were of battery, i.e. intentional trespass to the person; (2) that such a cause of action does not fall within the reference in section 11(1) of the Act to "any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of 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...
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