The big story of 2008 (so far) is the “lotto rapist” case or to give it the correct name: A v. Hoare.
The judgment is useful in that it completely changes the limitation landscape for abuse (and other) cases.

Invariably child abuse victims in what are often known as historic abuse cases are confronted with the time bar imposed by the Limiation Act 1980. This provides that a claim for compensation must be brought within a three year time period which runs generally speaking from the date complained of. Let us take a simple example by way of illustration a pedestrian crossing the street by means of a pelican crossing who is knocked down by a motorist who failed to observe the red light, and is injured a consequence. The victim has three years from the date of the accident to bring a claim for compensation before a court. If he/she fails to do so they are barred by the 1980 Act from bringing a claim before a court after that date, although there are limited exceptions.

Abuse victims frequently come forward many years after the primary limitation period has expired. In my experience this is because it takes many years, if ever at all, for a victim to find it in themselves to take legal advice. They have tried throughout their lives, perhaps, to block out very painful memories, and sometimes successfully, or not as the case may be. In a case called Ablett v. Home Office and Devonshire County Council a very wise and observant judge said that one of the pernicious fruits of abuse is silence.

Having come forward the victims are confronted with the time bar and it is probably correct to say when Parliament passed the 1980 Act child sex abuse cases were unheard off, and so the difficult question is how to achieve justice in these circumstances?

The courts tried to achieve justice by looking to see when the victim’s date of knowledge was? Was it when they were sexually assaulted, or when in later life they fully appreciated what had happened to them as a child? The court stated to apply the law on the basis that the three year period began when the victim appreciated what had happened.

Life for the victim was then made more difficult by the House of Lords in a case called Stubbins v. Webb. It ruled that a claim against an abuser for assault (physical or sexual) was not a personal injury and so there was a six year limitation period that ran from the date of the assault or in the case of a child his/her eighteenth birthday. There was no need to look to see when the victim appreciated what had happened. If the victim was aged over 24 and had not got a claim underway within six years they could not claim damages from the abuser.

Bizarrely though the victim might still have been able to sue say the abuser’s employer in negligence for personal injury because time ran from when he/she knew that they had been abused and harmed etc.

These contradictions with their attendant confusion came back before the House of Lords in A v. Hoare.

Stubbings v Webb has been overturned. An assault is a personal injury, and indeed this was the law until Stubbins v. Webb. The decision is in line with the Australian case of Stingle v. Clark in which the High Court declined to follow Stubbins v. Webb. This means that cases for intentional trespass will be treated as all other personal injury claims that is to say there is a 3 year limitation period, which is extendable by way of date of knowledge arguments (section 14, 1980 Act) and with discretion to disapply the limitation period (section 33, 1980 Act).

In every day language the door that was shut preventing abusers being sued because six years had passed since the abuse or the victim’s eighteenth birthday is now open. Abusers can be sued but the same rules apply as if say the abuser’s employer was being sued. The victim has in effect three years from the abuse or their eighteenth birthday, but the court has the discretion to disapply the limitation period.

Section 14 (2) of the Limitation Act 1980 (when a person would reasonably have the knowledge that an injury is significant) gets a restrictive interpretation: It is an objective test (the “reasonable man”) and the HL basically consider that anyone who has been subjected to sexual assaults should know within 3 years of the assault (or their 18th birthday, whichever is later) that they have suffered a significant injury. This is notwithstanding that there may be mental processes going on which effectively ‘block out’ the abuse, and which come to the fore later, unless of course the Claimant can show he/she is under a disability by his/her mental incapacity. This is a tough hill for victims to climb if they are to have any chance of pursuing a claim.

Note also that s. 14 (2) “knowledge” is the knowledge when a person would reasonably consider not only that his injury was significant but also serious enough to institute a claim for damages against a defendant “who did not dispute liability and was able to satisfy a judgment”. It is not expected that a claimant needs to issue proceedings against impecunious defendants in the hope that one day they may be rich enough to satisfy a judgment. This allows the appellant in A v Hoare to issue much later only when she knew that her attacker had won the lottery.

Section 33 on the other hand gets a much wider interpretation than it has done recently. Some guidance is offered in this judgment:
a) It is noted that if more cases are going to be brought against employers for vicarious liability, as opposed to systemic negligence, cases will be put on a much narrower factual basis so a fair trial is more likely to be possible.

b) The issues which have previously been recently taken into account by the courts when considering section 14 (2) as a subjective test (eg. the character of the claimant, the reasons for his delay, his inability to disclose the abuse due to psychiatric injury, the secretive nature of the abuse itself and threats if the claimant discloses etc etc) are to be properly considered on a section 33 (to persuade the judge to disapply the limitation period) application.

c) A fair trial is more likely if a complaint of abuse has been previously recorded, and in particular if the accused has been convicted of the abuse complained of.

d) A fair trial may not be quite as likely if the complaint has come out of the blue without support

e) The length of delay and the ability to have a fair trial at all remain key issues for judges in exercising their discretion (or not).

In practice for me this means for a claim to have any chance of success the victim must not be seen to have delayed, but once they appreciated that they ought to do “something” and they have sought legal advice, and there must be evidence to support their allegations of abuse, and the greater the length of time passed this gathers even greater importance.

Thought for the day: Don’t delay get legal advice.