PAMELA Stevenson fears for personal injury actions
In June 2015, amidst a climate of increasing publicity relating to historical child sex abuse scandals, the Scottish Government published its consultation paper proposing to remove the three-year limitation period for bringing a civil action of damages for personal injury for in-care survivors of historical child abuse taking place after 26 September 1964.
The paper observed that survivors of historical abuse were not only vulnerable children when the harm took place, they came from difficult circumstances and as a result were especially vulnerable when they were supposed to be in a safe environment. Whilst they may be able to pursue actions, the survivors required to overcome the hurdle of limitation by demonstrating that they did not have knowledge of the harm until a later date, which is a strict test with the onus being on the pursuer.
Also noted was the way in which the harm manifests itself, making it almost impossible to raise an action within the limitation period as it is common for sufferers of child abuse to suppress the knowledge through the shame, guilt, fear and the stigma associated with their abuse, often referred to as the “silencing effect”. Furthermore, “grooming” a child is effectively encouraging their complicity and silence in the abuse.
The purpose behind the well-meaning proposal is to redress the grave wrongs of the past and to bring some justice to victims. There is however, concern that this proposal is another example of the Scottish Government interfering with judicial decision-making, and furthermore, could be the slippery slope to the eradication of the three-year limitation period in all personal injury claims in Scotland.
There is already legislation – via Section 19A of the Prescription and Limitation (Scotland Act 1973) – which allows Scottish Courts to exercise discretion and allow actions to proceed although raised outwith the three-year time limit. The consultation paper observed that pursuers were often unsuccessful in such a balancing exercise as they were unable to provide a cogent justification for failing to raise proceedings timeously or for a significant period thereafter. By contrast, it was not difficult for defenders to demonstrate that the passage of time caused prejudice in investigating the allegations and/or presenting a defence.
This therefore leads one to question – whether there is merit in removing limitation for historical abuse claims post-26 September 1964? An alternative would perhaps be to amend the existing legislation whereby Section 19A dealing with discretion would expressly require judges to consider the special characteristics of pursuers in abuse claims. The consultation paper also called for views as to whether the change to the limitation period for in care survivors of abuse should be retrospective. The Association of Personal Injury Lawyers (APIL) believes that provisions should be made for those who have brought their case previously but who were rejected on the basis of limitation to receive compensation as failure to do so would be grossly unjust whereby people who came forward earlier were rejected but people who waited longer are permitted to pursue their case.
However, allowing these claims to be re-raised would fly in the face of the established legal principle and defence of res judicata, which in practice means that decided cases of the same subject matter and involving the same parties cannot be brought again before the court. APIL suggested that the government could establish a redress scheme to provide compensation to the people whose cases were previously struck out due to time bar. An estimated 1,000 adults who claim they were abused in Scotland’s care homes have been unable to pursue damages because of the limitation period.
The consultation period concluded on 18 September and the Scottish Government has advised of its intention to publish a draft Bill.
If the Scottish Government proceeds with the proposal to remove limitation for in-care historical child abuse claims, the likelihood is that there will be increased litigation but it does not necessarily follow that there will be increased success for the victims as they still have evidential hurdles to overcome.
• Pamela Stevenson is a partner at Weightmans (Scotland) LLP: www.weightmans.com