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Limitation Periods In Sexual Assault Cases
Personal injury claims arising out of sexual assaults give rise to particular limitation problems. Proving that a Claimant has been sexually assaulted would be straightforward in cases where the abuser has been convicted in a criminal court of assault, rape or buggery. The Claimant will be able to rely on the convictions pursuant to Section 11 of the Civil Evidence Act 1968 and will not need to prove the facts.
The problem that arises is that prosecution of the abuser may occur many years after the assault and after the primary limitation period for bringing a civil claim of 3 years has expired.
The Law Commission and the courts recognise that sexual abuse claims will frequently require to be brought many years after the event. As Lord Justice Sedley described in the case of Ablett v Devon County Council [2001] which arose in the Forde Park School litigation, Inevitably there is a problem of limitation in these proceedings. I say inevitablybecause it is in the nature of abuse of children by adults that it creates shame, fear and confusion and these, in turn, produce silence. Silence is known to be one of the pernicious fruits of abuse. It means that allegations commonly surface, if they do, only many years after the abuse has ceased
In the case of Stubbings v Webb [1993 AC498] the House of Lords held that the limitation period for deliberate assault was 6 years. A deliberate assault was found not to be characterised as negligence, nuisance or breach of duty and come outside the provisions of Sections 11, 14 and 33 of the Limitation Act 1980. Assaults were therefore found not to come within the provisions for extension of limitation for a later date of knowledge or in accordance with the courts discretion.
In the case of Lister v Hesley Hall [2001 2WLR1311] the House of Lords found that an employer can be found vicariously liable for assaults committed by his employee provided they were committed in the course of his employment or closely connected to it. If a teacher or care worker was employed to look after children, but whilst purportedly to care for the children, he sexually abused them, his employer could be vicariously liable.
The problem is therefore that under the present law claims for deliberate assaults against abusers must be brought within 6 years of the assault or within 6 years of the Claimant becoming an adult. The House of Lords have now given permission for Claimants to challenge the decision of Stubbings v Webb by way of petition to the House of Lords. However, Claimants and the courts continue to grapple with the problem of how to deal with sexual abuse claims brought many years after the event, therefore limitation present a particular problem in sexual assault cases. Claims are often brought many years after the event because the Claimant has been unable to discuss the abuse earlier.
Therefore as the law stands a Claimant is often precluded from bringing an action based on assault or vicarious liability for assault because of the non extendable limitation period determined by Stubbings v Webb. However, in some cases it may be possible to bring a claim in negligence against an employer or other individual who negligently failed to prevent the abuse. In this situation claims in negligence are covered by Sections 11, 14 and 33 of the Limitation Act 1980. The position is now that in the area of sexual abuse of children it is necessary to examine the date on which the Claimant was first able to appreciate the significance of what had happened to him/her as a child in the sense of when he appreciated the extent of the psychiatric damage that could be attributed to the events. The Court of Appeal specifically considered a number of actions by various Claimants which did not indicate a date of knowledge sufficient and these included:-
• Seeking social service files;
• Making a statement to the police about the abuse;
• The Claimant had made a claim to the CICA;
• The Claimant made a complaint at the time of the abuse to the social worker or to the police.
Should somebody find that the date of knowledge was relatively recent but more than 3 years before the issue of proceedings, a case heard by the Court of Appeal known as T v Girls and Boys Welfare Society 2004 [EWCA]1747 has had some impact. It was pointed out that when considering an extension of time under Section 33 the court will take into account the entire period of delay even if the period since the Claimant acquired the relevant knowledge is relatively short.
The effect of this decision is that once the Claimant is outside the 3 year period from the date of knowledge (actual or constructive) then the court will look at the whole period of delay since the primary period of limitation expired, on the Claimant's 21 st birthday and to consider the date at which the abuse occurred has become vital, therefore, to consider immediately a Claimant instructs a solicitor when his date of knowledge might have arisen. If the claim is not issued within 3 years from this date then an extension of time under Section 33 will be difficult to achieve, particularly if the claim relates to a date many years earlier.
Frequently the civil claim is precipitated by criminal proceedings brought many years after the event forcing the Claimant to give details of the abuse for the first time. The claim against the abuser himself or anybody vicariously liable for his actions is, at present, subject to a 6 year non extendable time limit. The unfairness and illogical position this creates is now recognised by:-
• The Law Commission report in 2001;
• The Court of Appeal in A v Hoare, H v Suffolk CC and X & Y v Wandsworth LBC;
• The High Court in Australia in Stingel v Clark.
The position is expected to be soon considered by the House of Lords.
Meanwhile claims arising out of sexual assaults that occurred more than 6 years ago (or more than 6 years from the Claimant's 18 th birthday) can only proceed by way of claim in negligence. If a claim in negligence can be brought the limitation period will run from the date on which the Claimant could first be expected to "turn his mind to litigation" or first understood the abuse had caused psychiatric damage experienced by the Claimant.
This has been kindly extracted from an article written by Liz Anne Gumbel QC and Henry Witcomb entitled "Limitation periods in sexual assault cases".