The question of limitation in tort claims for sex abuse came before the Court of Appeal recently in A v Iorworth Hoare [2006] EWCA Civ 395. The Court of Appeal, in granting permission to appeal, has in effect handed the question over to the House of Lords, because the Court of Appeal is bound by higher authority, and the real point in contention is one which only a higher court or the legislature can resolve.

On the central and simple question of which limitation rules apply to the trespass to the person – of the tort of assault, sexual or otherwise – the ruling in the case therefore has a temporary air, a step on the way the Lords. It may makes sense for such cases to direct to the Lords. There is leapfrog procedure under Administration of Justice Act 1969 s12. In the first appeal (from the Master) in A v Iorworth Hoare [2005] EWHC 2161 (QB) the parties were willing for the matter to go direct to the Lords. However, the judge held that the case did not meet the statutory conditions which need to be satisfied for a leapfrog appeal.

The simple question in the present case, and the Court of Appeal's answer, can be explained in a few seconds. Several appeals were heard together where alleged victims of sex offenders sought compensation. The case is known by the name of the parties in the first case, A v Iorworth Hoare. Iorworth Hoare is the convict who won £7 million on the lottery. This made him worth suing, whereas he had not been worth suing before his win. It is alleged that he caused psychiatric injury to the Claimant. Psychiatric injury is normally subject to the same limitation rules as physical injury.

The question: In a Claim for injury caused by a deliberate assault, does limitation commence six years from the date of damage? Or, is trespass to the person covered by the personal injury provisions in the Limitation Act 1980, so that the limitation period is 3 years (under s.11) with a discretion in the court to extend the period (under s33)? The answer: In the case of deliberate assault the six year period applies, and there is no discretion to extend the period. This point was decided by the House of Lords in Stubbings v Webb [1993] AC 498 .

What is wrong with this rule, given that limitation does not start to run until the claimant is 18? There is an view that the balance should tipped in favour of complainants in sex abuse cases. This has arguably happened in criminal justice system, though the risk is that it can encourage false allegations, as the the teachers' lobby group, FACT, points out. However, this is not the only, or even the main reason why the limitation period is anomalous. The reasons are set out in the Law Commission's consultation paper on the question. The government expressed an intention to act on the Law Commission's eventual recommendations, but failed to do so. The consultation paper and report are available on the Law Commission website. The most striking problem with the rule is set out briefly in para 31 of the judgment in A v Iorworth Hoare:

In Seymour v Williams [1995] PIQR P470 the plaintiff issued proceedings against her father and mother. She alleged that her father had been guilty of physical and sexual abuse and that her mother was guilty of want of parental care. This court held that the claim against the father, which Russell LJ described as "plainly a claim alleging trespass to the person", was subject to a six year period of limitation in accordance with Stubbings v Webb and out of time. On the other hand, the claim against the mother was a claim in negligence, covered by section 11(1) of the 1980 Act. It was therefore subject to the shorter three year limitation period which could, however, be disapplied under section 33.

Broadly speaking (this is not a complete summary) the Court of Appeal deal with three kinds of argument about why the personal injury provisions in the Limitation Act 1980 should apply to an assault.

The first group of arguments is that the House of Lords got Stubbings v Webb wrong. The Court of Appeal's answer was that it is not their job to overrule the House of Lords. The drift of the arguments comes out in their summary of the legislative history. The relevant words in the 1980 Act are in s.11(1) "This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person." The House of Lords decided that 'breach of duty' does not cover an assault. However, the 1980 Act was a consolidating act, so prima facie its interpretation should have followed the interpretation of earlier limitation acts in which 'breach of duty' had been held to cover assault. This argument was not dealt with in Stubbings v Webb, where the House reached the opposite conclusion on several grounds, including the language of the section; the opinion of the Tucker Committee on Limitation (introduced under Pepper v Hart), in response to whose 1949 report the 1954 predecessor of the Limitation Act 1980 was enacted, that the personal injury provisions should not apply to assault cases; and the logic that the possibility of extending limitation in personal injury cases is there to help claimants who do not know they have been injured at all, a situation which does not apply in rape cases.

The second group of arguments before the Court of Appeal were connected with the Human Rights Act. In the case of A v Iorworth Hoare the argument is along the lines that A had no worthwhile claim until the day Mr. Iorworth Hoare won the lottery. When that happened, limitation had already kicked in. Therefore A's Human Right of access to the courts was breached. An unkind way of putting the argument is that, if Claimants' Human Rights are not to be infringed, every time a poor man gets rich he should lose the right to plead limitation for wrongs he is said to have committed while poor. Lottery tickets might be harder to sell if that were the law. The formulation is unfair to the extent that what the Claimant seeks is not an automatic extension of time but a discretion in the court to extend time. Still, a change in the law would add to the woes which lottery winners are reported to suffer (for examples, google 'bankrupt lottery winners'). In any event the Human Rights argument faces an uphill struggle because Stubbings v Webb went to Strasbourg, where the ECHR decided that the English law on limitation fell within the permitted 'margin of appreciation.' (The ECHR judgment in Stubbings v United Kingdom is on HUDOC.)

The Court of Appeal did not rule on whether the interpretation of the Limitation Act is affected by the HRA, because the claims all had limitation periods which had expired before the HRA came into force. It followed, the Court of Appeal's judgment, that when it was applying the Limitation Act to the cases in hand, it could not take the HRA into account as a ground for departing from House of Lords authority. Claimants submitted that the question of limitation arose when the action was commenced, or when the limitation defence was pleaded, and that the Limitation Act had by then to be interpreted in the light of the HRA. The Court of Appeal, following Privy Council authority on an earlier statutory limitation, decided that the Defendants, even before they pleaded limitation, had an accrued right to plead limitation which the HRA could not extinguish. I would add that this attempt to make the HRA retrospective would probably have poor prospects in the Strasbourg court, because whereas English lawyers regard limitation as a procedural obstacle to a claim, civilian lawyers in general regard limitation as automatically extinguishing the claimant's legal right. A lawyer for whom limitation extinguishes the substantive legal right is less likely to be persuaded that human rights law can revive that right, than an English lawyer for whom limitation does not extinguish the substantive right, but merely erects a procedural bar.

The third group of arguments is subtle, and much the most interesting for the development of the law. In three of the cases before the court (not that of A v Iorworth Hoare) the defendant was a teacher (or rather the teacher's employer) who owed the defendant a duty of care to actively protect them, as well as the general duty not to injure them. A teacher may have an active duty to report a fellow-teacher who is about abuse a pupil. A breach of that duty leading to personal injury (including psychiatric injury) would be actionable negligence and subject to the personal injury rules on limitation. The argument goes that if a teacher has an active duty to protect pupils from third parties, how much more does he have an active duty to protect the pupil from his own wrongdoing. On this argument, an assault by a teacher automatically amounts to negligence as well. Therefore the Claimant should be able to take advantage of ss. 11 & 33 of the Limitation Act on the basis of the concurrent negligence claim, irrespective of the fact that the sections do not apply to the assault as such.

In order to make good the argument that an assault by a teacher is also a negligent act, Counsel made much of the fact that the school could be vicariously liable for a deliberate assault (the phrase used is an 'unauthorised act') committed by a teacher. The leading case on this is a sex abuse case, Lister v Helsey Hall [2001] UKHL 22; [2002] 1 AC 215. The somewhat convoluted argument is as follows. Why is the school liable? Is it because they negligently failed to supervise the tortfeasor teacher? Is it because the teacher was negligent as well as committing an assault, so the usual rule on vicarious liability for negligence is in play? Or is there some other principle on which a principal can be liable for unauthorised acts committed by agents or servants? If the answer is that the school is vicariously liable because the teacher who commits an assault is at the same time also negligent, then Lister v Helsey must be read as authority for the idea that in these sex abuse cases the limitation rules on personal injury caused by negligence can be invoked. But it all depends on how you read Lister v Helsey, and other cases which depend on it or bear on it.

As noted, the Court of Appeal did not in the end decide the question. The whole field of vicarious liability for unauthorised acts is in some confusion, which is beyond the scope of the present article. www.legalpractitioner.co.uk has a forthcoming video CPD course on the topic.

The key points from A v Iorworth Hoare are that at present there is no way that an allegation of sex abuse (or any other trespass to the person) can overcome the six year limitation period which starts when the Claimant is 18. The House of Lords may reconsider this position soon. It is not yet decided whether the answer would be different if the limitation period ended after the HRA came into force on 2 Oct 2000, but it is very unlikely to make a difference. A teacher or other carer does have an active duty to prevent psychological as well as physical injury to pupils in areas covered by the school-pupil relationship applies. It is unclear whether the teacher who commits an assault or other intentional wrong is simultaneously negligent. Even if that abusing teacher is simultaneously negligent, his negligence does not allow the student to use the personal injury provisions in the Limitation Act (with their possibility of an extension of time under s33) to get round limitation problems in a claim against the teacher, or against his vicariously liable employer.

Dr John Birchall - Professional English, Legal English, and Common Law Training