Non-Recent Abuse: Limitation, Vicarious Liability And Standard Of Care Defences Succeed

A recent decision of the High Court in England has provided a stark illustration of the difficult and complex questions which can arise in cases of non-recent abuse. It will provide useful guidance for courts in Scotland in assessing the statutory defences available under the Limitation (Childhood Abuse) (Scotland) Act 2017.

Background

The Claimant was a pupil at the Defendant's school. In 1991, at the age of 14, she was groomed and had sexual relations on numerous occasions with "Hughes", a kitchen porter employed by the school.

Unbeknown to the school, Hughes had a criminal record which included two counts of unlawful sexual intercourse with underage girls. In 1992, Hughes pled guilty to three counts of unlawful sexual intercourse with the Claimant. EXE brought proceedings against the school for damages.

Limitation

EXE's claim was statute-barred under the Limitation Act 1980. The limitation period for the claim was three years from EXE's 18th birthday and expired in August 1997.

In considering whether to exercise its discretion under s.33 of the Limitation Act the court concluded that the delay in bringing proceedings was due to EXE's sense of shame. That delay had caused the evidence to be less cogent than if the action had been brought within the time allowed. There were discrepancies in the Claimant's evidence, in addition to a lack of witnesses able to speak to the events, and a lack of records.

There were difficulties in assessing the relevant standard of care, issues surrounding consent, causation and vicarious liability. The court concluded that the delay had not only given rise to the possibility of significant prejudice but had caused very significant prejudice to both sides. However the prejudice to the school was greater. In the circumstances the court was not satisfied that a fair trial was possible. As such, the court refused to extend the limitation period under section 33 of the Limitation Act.

Consent

The court considered the difficult area of consent. The Claimant's evidence that she had been "brainwashed" or coerced by Hughes was rejected. Instead whilst acknowledging that it might be argued that a child under 16 could never consent, Mr Justice Griffiths found that the Claimant had been a willing participant, and that all of the sexual acts were consensual. As such, although a crime had been committed, the court found that a tort had not been. While consent was not a defence to the criminal charges, it was a valid...