Liability for historical abuse and the implications for organisations21/02/18
Liability for abuse claims
Post Saville, Rotherham, and Winterbourne Care Home and the ongoing Inquiry into Child Sexual Abuse, there has been a significant rise in historic abuse claims.
The substantive legal issues to be determined in such claims are limitation and whether or not there is vicarious liability.
The first line of defence in historic abuse claims for personal injury will always be limitation.
The time limit for bringing a personal injury claim under the Limitation Act 1980 is three years from either:
i) the date on which the cause of action accrues;
ii) the date of knowledge of the injury of the injured person or
iii) if the person injured is a child, their 18th birthday. The second of these is the most problematic in historic claims.
Section 14 defines “date of knowledge” as the date when the injured person became aware that the injury in question was significant; that the injury was attributable to the negligent acts or omissions or breach of duty of the other party, and of the identity of the Defendant.
Whilst each case is different, often the injured party supresses their memories and they develop inhibitions which make it difficult or impossible for them to describe what has happened to them. In some cases, the memory will be “triggered” by something seen or heard in the media. In this instance, the Claimant will argue that the trigger date is their date of knowledge for the purposes of the Act, hence why these claims are often brought decades later.
The Court has a wide discretion under S33 of the Act to allow a claim to be brought outside the limitation period. Factors to be considered include the length and the reasons for the delay. However, whether or not there can be a fair trial remains the overarching concern for the Court. Relevant factors will include whether the accused has been convicted of the abuse complained of, the availability of witnesses and whether the allegations have come out of the blue.
The perpetrators of abuse usually have no financial means, and, by the time a claim is made may have died, be unable to conduct their affairs or moved abroad. Claimant’s solicitors will therefore look for a potential defendant who has the means to compensate the victim.
In recent years, it has become accepted that sexual abuse could be an act carried out “during the course of employment”, an idea which was previously seen as absurd. However, the doctrine has been extended further so that there is no longer a need for there to be an employment relationship, the focus being upon the control the organisation had over the abuser.
The extension of the doctrine culminated at the end of last year in the case of Armes v Nottingham County Council  UKSC. Ms Armes was in the Defendant’s care from the age of 7 to 18. She was placed in foster care with Mr and Mrs A from March 1985 to March 1986 and with Mr and Mrs B from October 1987 to February 1988. Sadly, she was physically abused by Mrs A and sexually abused by Mr B. Her claim for damages based on either a non-delegable duty of care owed to her by the Defendant, or on the basis that it was vicariously liable for the abuse failed in both the High Court and the Court of Appeal.
Ms Armes appealed to the Supreme Court who allowed her appeal by a majority of 4 to 1, finding the council vicariously liable for the abuse committed by the foster parents. The Court considered the connection between the council and foster carers to be such a close one that “it is impossible to draw a sharp line” between them. The council had a significant degree of control over the foster carers. It carried out their recruitment, selection and training. It supervised the arrangement and exercised powers of approval, inspection and removal of foster carers and paid their expenses. Whilst the Court rejected the Appellant’s argument that the council was liable on the basis of a non-delegable duty, it was fair, just and reasonable to impose vicarious liability on the local authority who in contrast to most foster carers, can more easily compensate victims of abuse. This case brings the rights of the victims of abusive foster carers into line with those abused in children’s homes.
Whilst Claimants arguably have an uphill struggle with historic claims, they continue to push the boundaries both in terms of time limits and the identity of compensators.