David Whelan V. Quarriers+john Porteous
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2006] CSOH 159 |
| Date | 10 October 2006 |
| Court | Court of Session |
| Docket Number | A569/04 |
| Published date | 10 October 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 159 | |
| A569/04 | OPINION OF LADY SMITH in the cause DAVID WHELAN Pursuer; against QUARRIERS First Defenders: and JOHN PORTEOUS Second Defender ________________ |
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 first defenders. He seeks damages in respect of physical and psychological injuries sustained as a result of and consequential upon assaults which he alleges he suffered in the home. The second defender was employed by the first defenders and the pursuer avers that he was one of his "house parents". He also avers that he was convicted, in 2002, of lewd, indecent and libidinous practices towards him and of conducting himself in a shamelessly indecent manner towards him. The case came before me on the procedure roll, along with six other similar actions. The pursuer and first defenders were represented.
Introduction
[2] Limitation is raised as an issue by the first 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 reached the age of majority on 27 September 1975. The present action was raised on 21 May 2004. The pursuer pleads that the action is not time barred but that if it is, it should be allowed to proceed nonetheless, under the equitable discretion available under section 19A of the 1973 Act. The first defenders do not accept that the pursuer has made relevant averments for a case under section 19A.
[3] The first defenders' motion was for dismissal of the action. The pursuer sought a proof at large, leaving all pleas standing.
Limitation
[4] The precise factual background against which, on the pursuer's averments, the action is brought is not easy to follow from the pleadings which are hampered in places by a lack of clarity and cogency but it would appear to be as follows: in about March 1969 when he was nearly 12 years old, the pursuer became a resident in the home at Quarrier's Village, run by the first defenders, and remained there as a resident until 6 June 1984. He was, it is averred, subjected to cruel physical assaults meted out as punishments, throughout that time, which caused him physical injuries. He also avers that he was subjected to sexual abuse by the second defender. He remained in the home until about 1975.
[5] The pursuer avers that he sustained physical injury at the time of the assaults, one of which was an ear injury and he avers:
"He continued to have problems with his ear."
He also avers:
"He has been confused about his sexuality. The pursuer lives his life as a gay man. The pursuer does not know whether he would be gay if he had not been abused by the second defender. In the 1970's and 1980's the pursuer abused alcohol. He attended Alcoholics Anonymous. He has suffered depression." (Closed Record p.20D - E)
and:
"On 10 April 2004, he was diagnosed as suffering from Post Traumatic Stress Disorder." (p.21D-E)
[6] Regarding his memories of the abuse alleged, the pursuer avers:
" ..the pursuer has repressed memories of some of the abuse. He has also actively avoided thinking about the abuse. His memories of the abuse are returning ...." (p.23C - D)
and in a passage in response to the first defenders' limitation averments, it is averred:
"In the 1970's and 1980's he drank alcohol to forget his troubles. He attended Alcoholics Anonymous. He had counselling. The Counsellor did not ask about the abuse. The pursuer consulted Dr Stoll in about 1984 and told him of the abuse. Dr Stoll advised the pursuer to go to the Police. The pursuer did not want to go to the Police. The pursuer's own family background had been one where the Police had frequently been involved. He did not want the second defender's children to be taken into care as he had been. No other remedy was suggested to the pursuer. The pursuer tried to put the experience behind him."
Thereafter, in March 2002, the pursuer was contacted by the second defender's wife who advised that allegations of abuse had been made against the second defender. Following that, the pursuer went to the police and subsequently gave evidence at the trial of the second defender in the Autumn of 2002. He goes on to aver:
"He did not know that he could make a claim for compensation until after the second defender was convicted. He contacted Ross Harper on 11 December 2002." (p.27A-B)
[7] In short, the pursuer avers that he was a resident in the home between 1969 and 1975 during which time he was physically assaulted and sexually abused, something of which he was aware. He sustained physical injuries, the effects of one of which (his ear injury) continued after he left the home. He sustained psychological injury in the form of depression and a Post Traumatic Stress Disorder ("PTSD") both of which commenced at an unspecified date thereafter. His PTSD was diagnosed in April 2004. He retained memories of what happened to him in the home although he suppressed some of them and actively avoided thinking of them, that is, by means of an act of his own volition, he put them to the back of his mind. He was not prompted to do anything about it though until after he had given evidence at the second defender's trial and found out that he could claim compensation.
[8] Regarding limitation, the pursuer avers:
"The present action was raised in May within the triennium........ Section 17(2) (the three year limitation) does not apply in the three year period after the pursuer attained his majority. The triennium does not begin until March 2002 at the earliest when the pursuer was contacted by the second defender's wife and his memories came flooding back. It was not until the Medical Report dated 10 April 2004 that the pursuer became aware that he had PTSD and that it was attributable to his time in the home. The pursuer did not become aware nor was it reasonably practicable for him in all the circumstances to become aware of the facts (i) that the injuries were sufficiently serious to justify him bringing an action of damages and (ii) that the injuries were attributable in whole or in part to an act or omission until March 2002 at the earliest. The pursuer experienced systematic childhood sexual and physical abuse. He suffers from severe mental illness. The reasonable man in the same position as the pursuer, namely having experienced systematic childhood sexual and physical abuse, would not have become aware of the statutory facts until 2004 at the earliest. The disabling long term effect of the abuse must be given effect to. Accordingly the claim has not time barred. Esto the claim has time barred (which is denied) it would be equitable to allow the pursuer's claim to proceed in terms of Section 19A of the Prescription and Limitation (Scotland) Act 1973 for the foregoing reasons. Furthermore the delay in raising the action is attributable to the pursuer's treatment by the second defender, for whom the defenders are liable. It would not be equitable to sustain the defenders' plea of time bar in the circumstances where they are responsible for the delay. The defenders would not be prejudiced if the claim were to proceed. Witnesses and documents were available for the Criminal Trial. Records of the pursuer's time in the home were available to the second defender during the Trial."
[9] Regarding the delay between the pursuer finding out, after the second defender's trial that he could claim compensation and the raising of the action, the chain of events seems to have been that he consulted a solicitor in December 2002, a claim was intimated in March 2003, pressure was put on the first defenders to admit liability given that the second defender had been convicted, which they resisted (and continue to resist - the second defender does not admit the conduct alleged), legal aid advice and assistance was applied for some time after 30 January 2004, the pursuer was seen by a psychologist on 31 March 2004 who reported with his diagnosis of PTSD on 10 April 2004 and the action was raised in May 2004, some fourteen months after the intimation of a claim.
Limitation:
Submissions for the Defenders
[10] 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. The tenor of his averments was that he had re-experienced the abuse that he suffered, all his life. He 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.
[11] 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...
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