by Chantal Richard (as appeared in the ACAL Newsletter
of 2003)
Over the last several months the Court of Appeal's decision
in Various Claimants v Bryn Alyn Community Holdings Ltd. (1) and Royal
and Sun Alliance (2) [2003] EWCA Civ85 ["Bryn Alyn"] has been the
subject of much discussion among practitioners of child abuse litigation.
At first glance the case appears to be a positive development for
claimants on the issue of limitation, yet it is a setback for claimants
in terms of the Court's decision on vicarious liability and "The Lister
Point".
In Bryn Alyn the Court considers 'The Lister Point' at paragraphs
97 to108 of its decision. 'The Lister Point' references the House
of Lords' groundbreaking ruling in the case of Lister v. Hesley Hall
Ltd. [2001] 2 WLR 1311 ["Lister"] where the Lords concluded that an
employer could be held vicariously liable for the school warden's
sexual assaults of children in his care.
Since Lister there has been some uncertainty about how widely the
ruling could be applied because the Lords left open the issue of the
nature of the tort committed by the warden - in other words, was the
employer responsible for the warden's intentional assault of the children
at the home or were they responsible for the warden's breach of duty
in failing to protect the children in his care from harm? The characterisation
of the tortious conduct of the warden was not particularly important
in Lister because limitation was not at issue. However, in cases where
child abuse claims are being brought more than six years after the
expiry of the limitation period for trespass on the person, the nature
of the tort becomes extremely relevant. It is the blurring of the
issues of limitation and vicarious liability which have led to some
confusion about the application of the Lister ruling.
In cases of intentional sexual assault the limitation period is six
years from the time the assault was committed or if the victim was
a child, then six years from the time the child reaches the age of
majority. The six year limitation period is non-extendable. Thus if
a claim for intentional assault is statute barred as against the employee
then it will be statute barred as against the employer even if the
employer would have been vicariously liable for the employee's wrongful
conduct had the claim been brought within the limitation period. By
contrast, the limitation period for acts of negligence is three years
but this timeframe may be extended if a court finds under section
14 of the Limitation Act 1980 ["the Act"] that the claimant's relevant
date of knowledge is less than three years before the issuing of his
or her claim or if the court is prepared to exercise its discretion
under section 33 of the Act to allow the claim to proceed. An employer
therefore may be held responsible for the negligent acts of its employee
even where the three year limitation period has expired provided that
sections 14 or 33 of the Act apply in the circumstances of the case.
In order to clarify the Court's position in Bryn Alyn, it is worthwhile
to review some of the case law on vicarious liability in the context
of child abuse cases. The Lister decision overturned an earlier Court
of Appeal ruling in Trotman v. North Yorkshire County Council [1999]
LGR 584 ["Trotman"]. In Trotman the claimant was a handicapped teenager
who was sexually assaulted while on a foreign school holiday in Spain
by the deputy headmaster of the special school that he attended. The
Court of Appeal denied that the deputy headmaster's employer could
be vicariously liable for the sexual assault because the unauthorised
act of assault was outside the deputy headmaster's scope of employment.
In Lister, the House of Lords concluded that the Court of Appeal in
Trotman had applied the doctrine of vicarious liability too narrowly.
The House of Lords recognised that in cases where there has been intentional
wrongdoing by the employee it can be more difficult to assess whether
the employer should be vicariously liable for the wrongful act. In
these cases a court has to examine whether the employer should be
liable for the intentional wrongdoing in any event because the employee's
wrongful conduct is so connected with acts that the employer has authorised,
that they may be properly regarded as being within the scope of his
employment. Ultimately in Lister the House of Lords held the school
liable for the warden's conduct because the torts he committed were
in the time and on the premises of the employer whilst the warden
was also busy caring for the children.
The Lords in Lister were divided on the question of how to characterise
the torts committed by the school warden. Lords Steyn, Clyde and Hutton
were not clear on the issue but Lord Hobhouse held that the employer
was vicariously liable because the warden had breached the duty owed
to the children in his care. On the other hand, Lord Millett explicitly
rejected the notion that the school was vicariously liable for the
warden's failure to perform his duty but did hold the school responsible
for the warden's intentional assaults.
Due to the lack of clarity on this point in Lister, the nature of
the tort committed is the central issue that needed to be determined
by the Court of Appeal in Bryn Alyn. In order for three of the fourteen
claimants to succeed in their case against the managers of the home,
Lord Auld explained at paragraph 103 of the decision: "[t]he question
that arises for decision on this appeal is whether a claim against
a carer who, in the course of his employment, deliberately abuses
a child, is an action in negligence or other breach of duty for personal
injuries within section 11?"
Unfortunately the Court of Appeal in Bryn Alyn chose to follow the
minority decision of Lord Millett in Lister and concluded that the
employee's deliberate acts of sexual abuse were distinct from any
duty of care delegated to him by the employer. Thus, the claims for
personal injury arising out of the deliberate acts of abuse were not
caught by section 11 of the Limitation Act and were therefore governed
by the non-extendable six year period of limitation such that the
employer could not be vicariously liable.
It is understood that the three claimants in the Bryn Alyn case are
in the process of appealing the issue of liability to the House of
Lords. While one hopes that the claimants will be successful on this
aspect of their appeal, it may be difficult for them to persuade the
House to overlook or distinguish its earlier decision of Stubbings
v. Webb [1993] 1 All ER 322. In this case, Lord Griffiths with whom
the other Lords agreed, explained that he would not construe breach
of duty as including a deliberate assault or rape. Here, a 30 year
old claimant brought an action against her stepfather and stepbrother
for damages suffered as a result of physical and sexual abuse by the
stepfather when she was a child between the ages of 2 and 14 and rape
by the stepbrother when she was 12 years old. The House held that
her claims were subject to the six year limitation period for trespass
on the person which had long since expired and were therefore statute
barred.
As in Stubbings v. Webb, the House of Lords on the Bryn Alyn appeal
may be again reluctant to characterise the deliberate acts of sexual
abuse as amounting to either negligence or breach of duty owed to
the claimants in order to overcome what is really a limitation problem.
The Court of Appeal expressed its reservations with such an approach
at paragraph 107 of its decision and acknowledged that to deploy such
an argument would be contrary to the unanimous reasoning of the House
of Lords in Stubbings v. Webb.
Although it ruled against them on liability, the Court of Appeal did
express its sympathy with the three Bryn Alyn claimants who were caught
by the six year non-extendable limitation period. Referring to the
anomaly that can arise in some child abuse cases such as Seymour v.
Williams [1995] PIQR 470 where a mother was held liable in negligence
for failing to protect the plaintiff from abuse by her father even
though the plaintiff's claim against her father for the abuse itself
was dismissed for being out of time, the Court in Bryn Alyn commended
the Law Commission's proposal for legal reform in this area. Lord
Justice Auld made the following comment at paragraph 100 of the decision
about the Law Commission's proposal to include claims for personal
injury in the same regime of an extendable three year limitation period
with discretion to disapply: "For what it is worth, we warmly commend
such a proposal. Early statutory implementation of it would obviate
much arid and highly wasteful litigation turning on a distinction
of no apparent principle or other merit.'
Even if the Bryn Alyn claimants are successful in convincing the House
of Lords that the acts of abuse by staff at the home can be construed
as claims for negligence or breach of duty such that the employer
would be held vicariously liable, there will be claimants in other
cases who will have the same set of factual circumstances and their
claims will be rejected on the basis that they are statute barred
as against the abusive employee and the employer. It seems then that
the most sensible solution to ensure some certainty across the board
is to lobby for reform of the relevant sections of the Limitation
Act.
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