CIVIL PROCEDURE
Case law - child sex offences - date of knowledge - limitation periods

A v Iorworth Hoare: C v Middlesbrough Council : X & anor v Wandsworth London Borough Council : H v Suffolk County Council : Young v Catholic Care (Diocese of Leeds): HL (Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Brown of Eaton-under-Heywood):

30 January 2008



Six appellants in unrelated cases, all of whom alleged that they had been victims of sexual abuse during their childhood, appealed against decisions that their claims were statute-barred.



In each case, the respective judges, following Stubbings v Webb [1993] AC 498 HL, had concluded that the claim failed on limitation grounds. The issues for determination were: (1) whether Stubbings was wrongly decided and whether the court should depart from it in accordance with the Practice Statement (HL: Judicial Precedent) (1966) 1 WLR 1234 HL; (2) whether the definition of 'significant' injury in section 14(2) of the Limitation Act 1980 allowed account to be taken of a claimant's personal characteristics, either pre-existing or consequent upon the injury suffered.



Held: (1) Stubbings was wrongly decided, and the right thing was to depart from it and reaffirm the law laid down in Letang v Cooper [1965] 1 QB 232 CA, Stubbings not followed, Letang v Cooper approved and Stingel v Clark [2006] 80 ALJR 1339 0 considered. Stubbings had placed more weight upon the Report of the Committee on the Limitation of Actions 1949 (Cmd 7740) under the chairmanship of Tucker LJ and on Hansard than they could properly bear. Stubbings had not initially given rise to much difficulty until 2002, Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215 and S v W (Child Abuse: Damages) [1995] 1 FLR 862 CA (Civ Div) considered.



The observation in Jones v Secretary of State for Social Services [1972] AC 944 HL that unsatisfactory decisions of the highest court could cause uncertainty because lower courts tended to distinguish them on inadequate grounds was also pertinent to the consequences of Stubbings because victims of sexual abuse seeking the discretion of the court under section 33 of the Act were driven to alleging that abuse was the result of some other breach of duty, which could be brought within the language of section 11.



(2) The test in section 14(2) was an entirely impersonal standard: not whether the claimant himself would have considered the injury sufficiently serious to justify proceedings, but whether he would 'reasonably' have done so. The correct approach was to ask what the claimant knew about his injury, add any 'objective' knowledge which might be imputed to him under section 14(3), and then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify his instituting proceedings for damages. Having ascertained what the claimant knew and what he should be treated as having known, the actual claimant dropped out of the picture, and judges should not have to consider the claimant's intelligence. Standards were, in their nature, impersonal and did not vary with the person to whom they were applied.



Section 14 made time run from when the claimant had knowledge of certain facts, not from when he could have been expected to take certain steps, and section 14(2) merely defined one of those facts by reference to a standard of seriousness, Adams v Bracknell Forest BC [2004] UKHL 29, [2005] 1 AC 76 distinguished and KR v Bryn Alyn Community (Holdings) Ltd (In Liquidation) [2003] EWCA Civ 85, [2003] QB 1441 considered. The effect of the claimant's injuries upon what he could reasonably have been expected to do was irrelevant.



In Y's case, if the Court of Appeal had not been bound by Bryn Alyn, the date of knowledge would have been 1977; the later date determined by the court below could not be justified. That did not mean that the law regarded as irrelevant the question of whether the actual claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to start proceedings, but it dealt with that question under section 33 of the Act and that was the right place to consider it until Parliament decided whether to give effect to the Law Commission's recommendation of a more precise definition of psychological incapacity suffered by victims of sexual abuse.



(3) The approach to the exercise of discretion remained as described in Horton v Sadler [2006] UKHL 27, [2007] 1 AC 307, but the court commented on the sort of considerations which ought clearly to be in mind in sexual abuse cases, Horton v Sadler applied.



(4) A's case remitted to the Queen's Bench Division to decide whether the discretion under section 33 should be exercised in her favour; orders that the trial judge said he would have made in C's case had he been free to decide that the action came within section 11 of the Act were made; H's appeal allowed on the issue of limitation only and case remitted for decision whether to exercise discretion under section 33; damages awarded to X and Y as if the previous limitation defence had failed; Y's case remitted.



Appeals allowed.



Alan Newman QC, Paul Spencer (instructed by DLA Piper UK) for the appellant A; Elizabeth-Anne Gumbel QC, Henry Witcomb (instructed by Griffith Smith Farrington Webb) for the appellant C; Elizabeth-Ann Gumbel QC, Henry Witcomb (instructed by Bolt Burdon Kemp) for the appellants X and Y; Nigel Cooksley QC, Stephen Field (instructed by BTMK) for the appellant H; Stuart Brown QC, Rosalind Coe (instructed by Sharpe Pritchard (for Jordans)) for the appellant Young; Christopher Sharp QC, Andrew McLaughlin (instructed by Atkins Law) for the respondent Hoare; Kate Thirlwall QC, Steven Ford (instructed by Crutes) for the respondents Middlesbrough Council; Kate Thirlwall QC, Steven Ford (instructed by Browne Jacobson) for the respondents Wandsworth LBC; Kate Thirlwall QC (instructed by Browne Jacobson) for the respondents Suffolk County Council; Edward Faulks QC, Nicholas Fewtrell (instructed by Hill Dickinson)

for the respondents Catholic Care; Nigel Wilkinson QC, Malcolm Sheehan (instructed

by Treasury Solicitors) for the Home Office.





EMPLOYMENT

Compensatory awards - constructive dismissal - ill health - loss of earnings

GAB Robins (UK) Ltd v Gillian Triggs: CA (Civ Div) (Lords Justice Tuckey, Lawrence Collins, Rimer): 30 January 2008



The appellant employer (G) appealed against a decision of the Employment Appeal Tribunal (EAT) upholding directions as to the assessment of compensation made by an employment tribunal.



The respondent (T) worked as a secretary/personal assistant. The employment tribunal held that she had been overworked and felt that her manager was bullying her. She had left work, and her doctor had signed her off sick with stress and depression. G proposed that T would receive half-pay for a period and then statutory sick pay. G also proposed that, before returning to work, T should have an informal meeting with her manager, an HR manager and a director with a view to trying to resolve her situation. T's response was to terminate her contract of employment and claim constructive dismissal.



The tribunal held that T had accepted a repudiatory breach by the employer of its implied duty of trust and confidence owed to her as an employee, and that she had been constructively dismissed. The tribunal gave directions, upheld by the EAT, as to the assessment of compensation on the basis that T was entitled to recover the loss of her salary flowing from her dismissal at the full rate for such period as the tribunal determined at a remedies hearing.



G submitted that the assessment of compensation under section 123 of the Employment Rights Act 1996 had to be confined to compensating T for the loss sustained by the dismissal itself, in the present case compensating an employee who, at the time of dismissal, was already ill and on sick pay, and that the loss identified by the employment tribunal did not flow from the dismissal, which happened later, but, in so far as it was caused by G, was caused by G's antecedent breaches of the implied term of trust and confidence, being breaches which, by the time of the dismissal, had already caused T to become ill and so impaired her earning capacity, and for which T might have a separate common law remedy.



Held: In that area of the law that had been exclusively reserved to the unfair dismissal, jurisdiction of an employment tribunal recourse to a common law damages claim was excluded, Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518 applied. There was a clear distinction between loss flowing from the dismissal itself, which was within the Johnson exclusion area and was exclusively the province of a claim for unfair dismissal before an employment tribunal, and loss flowing from the employer's antecedent breaches of the implied term as to trust and confidence, being breaches the acceptance of which constituted the unfair dismissal, but being loss that fell outside the Johnson exclusion area and could only form part of a common law claim, Eastwood v Magnox Electric Plc [2004] UKHL 35, [2005] 1 AC 503 applied.



The employment tribunal erred in the present case by including, as loss flowing from the dismissal itself, loss that did not so flow at all: it was loss that flowed exclusively from the employer's antecedent breaches, which had been committed before the dismissal, and so was only recoverable, if at all, in a common law claim.



T's reduced earning capacity by reason of her illness was not a loss suffered by her in consequence of the dismissal within section 123 of the Employment Rights Act 1996. It was correct that the dismissal was a constructive one, that it was the result of, and followed upon, her acceptance of G's antecedent breaches of the implied term of trust and confidence that had caused her illness and, in turn, her reduced earning capacity. But it was fallacious to regard those antecedent breaches as constituting the dismissal. The dismissal was effected purely and simply by her decision that she wished to discontinue her employment.



On a claim for unfair dismissal, that entitled her to compensation for whatever loss flowed from that dismissal. But that loss did not include loss, including future loss, flowing from wrongs already inflicted upon her by G's prior conduct: those losses, including any future lost income, were not caused by the dismissal. They were caused by the antecedent breaches of the implied term as to trust and confidence, and T had an already accrued right to sue for damages in respect of them before the dismissal.



The EAT had erred in holding that the course of conduct by G amounting to a breach of the implied term formed part of the constructive dismissal; while the employer's repudiatory conduct was an essential condition of a constructive dismissal, it was not that conduct that effected the dismissal, it was the employee's acceptance of it. Damage caused by that conduct was not damage suffered in consequence of the dismissal.



Appeal allowed.



Andrew Clarke QC, Gary Self (instructed by Penningtons) for the appellant; Ingrid Simler QC, Sarah Stanzel (instructed by Holmes & Hills) for the respondent.