OUTER HOUSE, COURT OF SESSION
EXTRACTS From the Court Cases
OPINION OF LADY SMITH
in the cause
Pursuer: McEachran, QC, Stirling; Drummond Miller, WS
Defender: Moynihan, QC, Dunlop; Simpson & Marwick
10 October 2006
††††††† 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 defenders.
††††††† It was submitted that in the present case and indeed, in all seven cases before me, the merits and time bar issues were inextricably linked. There would be duplication if the pursuer was successful at preliminary proof. At that proof, there would need to be expert evidence about his psychiatric injury to explain the delay. There would need to be evidence about his whole life since leaving the home. The pursuer ought not to be required to give evidence twice. The pursuers in these actions were very damaged, vulnerable people and it would be grossly unfair to force them to do so. As a practicality, there were hundreds of similar cases pending in the Court of Session. If they were not moved forward quickly, the court would be dealing with them for many years. It was necessary to look at the "big picture". Whilst inevitably there were limitation problems in these cases, it was within judicial knowledge that that was because of the shame, fear, confusion and silence that was engendered by such abuse. The only answer for these cases having arisen so late could be that their treatment silenced the claimants.
††††† Section 17 provides:
"Actions in respect of personal injuries not resulting in death
17.1(1)††††††††††† This section applies to an action of damages where the damages claimed consist of or include damages in respect of personal injuries, (being an action to which section 18 of this Act applies) brought by the person who sustained the injuries or any other person.
††††††††††† (2) Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of three years after -
(a)††††††††††† the date on which the injuries were sustained or, where
or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased whichever is the later; or
(b)††††††††††† the date (if later than any date mentioned in paragraph
above) on which the pursuer in the action became, or on which, in the opinion of the court, it would have been reasonably practicable for him in all the circumstances to become aware of all the following facts -
(i)††††††††††† that the injuries in question were sufficiently serious
justify his bringing an action of damages on the assumption that the person against whom the action was brought did not dispute liability and was able to satisfy a decree;
(ii)††††††††††† that the injuries were attributable in whole or in part to an act or omission; and
(iii)††††††††††† that the defender was a person to whose act or omission the injuries were attributable in whole or in part or the employer or principal of such a person.
(3)††††††††††† In the computation of the period specified in subsection (2) above there shall be disregarded any time during which the person who sustained the injuries was under legal disability by reason of nonage or unsoundness of mind.
Interpretation of Part II and supplementary provisions
22.††††††††††† (3)††††††††††† For the purposes of the said subsection (2)(b) knowledge that any act or omission was or was not, as a matter of law, actionable, is irrelevant.
††††††††††† (4)††††††††††† An action which would not be entertained but for the said subsection (2)(b) shall not be tried by a jury."
The matters set out in sub-paragraphs (i), (ii) and (iii) of section 17(2)(b) are generally referred to as the "statutory facts".
Section 19A of the 1973 Act provides:
"(1) Where a person would be entitled, but for any of the provisions of section 17 .... of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."
††††† The pursuers' approach requires account also to be taken of certain of the provisions of the Limitation Act 1980 sections 11, 14 and 33:
"11(1) This section applied to any action for damages for negligence......or breach of duty.....where the damages claimed by the plaintiff for the negligence....or breach of duty consist of or included damages in respect of personal injuries to the plaintiff or any other person....
(3) An action to which this section applied shall not be brought after the expiration of the period applicable in accordance with subsection (4) ........below.
(4)...the period applicable is three years from the date on which the cause of action accrued; or (b) the date of knowledge ( if later) of the person injured.
14(1)..in section 11.....of this Act references to a person's date of knowledge are references to the date on which he first had knowledge of the following facts - (a) that the injury in question was significant; and (b) that the injury was attributable in whole or in part to an act or omission which is alleged to constitute negligence......or breach of duty; and (c) the identity of the defendant........and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence .....or breach of duty is irrelevant.
(2) ††††††††††† For the purposes of this section an injury is significant if the person whose date of knowledge is in question would reasonably have considered it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment.
(3) ††††††††††† For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire - (a) from facts observable or ascertainable by him; or (b) from facts ascertainable by him with the help of medical or other appropriate expert advice which it is reasonable for him to seek; but a person shall not be fixed under this subsection with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice."
33(1) ††††††††††† If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which - (a) the provisions of section 11...prejudice the plaintiff ....; and (b) any decision of the court under this subsection would prejudice the defendant ...........; the court may direct that those provisions shall not apply to the action..."
Relevancy of "Apology" Averments
††††† Article 6 of Condescendence is in the following terms:
"In August 2002 a Petition was lodged with the Scottish Parliament calling on the Scottish Parliament inter alia to urge the Scottish Executive to conduct an inquiry into past institutional child abuse, particularly for those children who were in the care of the state under the supervision of religious orders. In response to an invitation from the Public Petitions Committee to comment on the Petition, the defenders stated that their position was that if any individual suffered abuse in Quarriers Children's Home then they apologised."
††††††††††† Counsel for the defenders submitted that these averments were irrelevant. They did not amount to averments of an admission of liability. They did not amount to an admission that any abuse took place. They referred to a statement made that amounted to no more than the common courtesy of an apology tendered on the basis of a hypothesis.
Quarriers Legal representatives make the following claims about records
The defenders would not be prejudiced if the claim were to proceed. The defenders have archives dating back to at least 1878. The defenders retain extensive records of the pursuer's time in Quarriers Children's Home. Extensive medical records are available. Extensive records from Strathclyde Regional Council Social Work Department covering the period when the pursuer was in Quarriers Children's Home are available. Witnesses are available. The (deleted to protect the victims identity) .
†Bill Dunbar, Assistant Director at Quarriers Children's Home and a person who attended the pursuer's reviews, is available as a witness. He can remember events including a Christmas Service in 1980.
Four cases were allowed to proceed purely on the same basis as Lord Drummondís cases which were then thrown out (These cases have not been tried in the lower Courts)
Three other cases which had been previously tried and the assailants convicted were not allowed to proceed due to TIMEBAR. A decision is pending with regards these cases. We are not publishing the full Judgements at this time to protect the identities of the victims who have anonymity in Law!