The Limitation (Childhood Abuse) (Scotland) Act 2017 (‘the Act’), effectively removed the defence of time bar for matters concerning historic abuse if it occurred after 26 September 1964 and the survivor was under the age of 18.
However, the provisions of section 17D(3) of the 2017 Act serve to limit actions proceeding by allowing a defender to argue that as a result of the claim being brought after this time, they ‘would be substantially prejudiced’ if the action were to proceed; and, that this prejudice outweighs the pursuer’s (claimant’s) interest in the action proceeding.
In A v XY Limited [2021] CSOH 21, Lord Woolman considered what circumstances constitute “substantial prejudice” since the change in the law.
In approximately 1987 the pursuer (claimant) known as ‘A’, was aged 13 and a pupil at a junior school in Scotland. She alleges that she was raped by a teacher on a school camping trip. ‘A’ seeks damages from the school on the basis that they are vicariously liable for the conduct of the teacher.
In 1990 ‘A’ disclosed the incident to doctors who then referred her to a psychiatrist. In 2013 she reported the rape to the police. Another complainer came forward, the teacher was arrested and charged in connection with the rape of ‘A’ as well as other offences. In 2014 the other complainer refused to give evidence and the criminal trial collapsed. The teacher is alive and denies the rape occurred. ‘A’ is not pursuing the teacher.
At debate (preliminary hearing), the defender argued they were ‘substantially prejudiced’ and the action should not be allowed to proceed on the following basis:
(1) As a result of the retrospective alteration of the law on limitation, they would be found liable for acts of a member of staff for which they would not have been responsible at the time the events occurred; and
(2) The passage of time had impacted the availability and quality of evidence.
The incident occurred in 1987 and under the previous limitation regime ‘A’ would have had three years from her 16th birthday to raise proceedings i.e. January 1993.
The law on vicarious liability changed in 2001 following the decision in Lister v Hesley Hall Ltd. The retrospective alteration of the law on limitation meant that the school would now be found liable for acts of a member of staff for which they would not have been responsible for at the time the acts occurred. This in and of itself causes substantial prejudice to the defender.
In addition the provisions in section 17D recognised the rights of defenders under the European Convention on Human Rights. Article 1 enshrines the right to the peaceful enjoyment of one’s possessions. Article 6 guarantees the right to a fair trial. The retrospective removal of a defence previously available to a defender results in an increased financial burden on those defenders and this amounts to an unlawful inference with possessions.
The incident occurred around 33 years ago. The prejudice associated with the length of time that has passed related to the questions of causation, which is complex, and quantification of the claim.
The damages claim of £1.5M includes future wage loss and pension loss. ‘A’ claimed that but for the incident she would have qualified as a vet. The junior school in question dissolved and closed in 2004. All school records were destroyed in a fire prior to its closure. There is a lack of contemporaneous records; and/or independent evidence as to how ‘A’ was before and after the incident both psychologically and academically. Accordingly, there was no basis upon which the defender could challenge the position put forward by ‘A’.
It was the pursuer’s position that the defenders were not substantially prejudiced, but even if they were, the pursuer’s interest in recovery of damages for the rape outweighed any prejudice.
In his decision, Lord Woolman approached the 2017 Act on the basis that it introduces a new line of jurisprudence and so it would not be helpful to refer to prior decisions based on different legislative provisions.
Lord Woolman concluded that the defender had established that it would be substantially prejudiced if the action were allowed to proceed.
He noted that ‘For many years [the defender] had no potential liability for the alleged incident. It is now exposed to significant inference with the peaceful enjoyment of its possessions… if the pursuer succeeds in her claim, which is valued at £1.5 million, the defender may have to pay substantial damages. At least it will have to expend sums in defending the action’.
In relation to this stage the defender succeeded.
However, that is not the end of the matter. The judge is then required to undertake a balancing exercise to assess whether this prejudice outweighs the pursuer’s interest in the action proceeding.
Lord Woolman acknowledged that there were investigation problems and accepted that there may be gaps in evidence. However, the pursuer had provided a comprehensive portfolio of documents which included report cards, medical records and police witness statements from fellow pupils. ‘A’ was also able to provide key witnesses which included fellow pupils that attended the trip, her mother and the Psychiatrist who she made a disclosure to in 1991.
He noted it was unusual to have documents in cases of this type and the fact that school records had been lost should be regarded as a ‘handicap to both parties in equal degree’.
In spite of the above factors the defender did not argue that these issues prevented a fair hearing.
Against this, the pursuer:
When considering the above factors Lord Woolman found the ‘scales tip decisively in favour of the pursuer’, the action could proceed and a proof before answer was allowed.
This was the first time that the Scottish Courts have been asked to consider what amounts to ‘substantial prejudice’ under 17D(3). Whilst the matter was allowed to proceed, potential defenders should take comfort in the finding that the defender was regarded as being substantially prejudiced as they will now be held vicariously liable for conduct that took place pre-Lister, and for which, but for the change in limitation law, they would not have been liable.
In addition, it will generally be appropriate for the court to consider the issue of substantial prejudice at debate, rather than proceeding to proof.
Precisely in whose favour the balance should tip will inevitably be fact sensitive and require to be dealt with on a case by case basis. However, the pursuer’s interest in ‘securing justice’ is likely to weigh heavily in their favour.
For now, organisations and insurers will need to ensure a full assessment of the availability and quality of the evidence takes place on abuse claims pre-Lister to assess limitation and if further judicial guidance is required.
Keoghs, Liverpool, were instructed as principal agent on behalf of the defender.
For more information, please contact Solicitor, Nicola Markie, or Laura Baxendale, Associate and Solicitor Advocate.
Nicola Markie
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