Sexual abuse, Employer's negligence

Historic abuse claims become easier to manage

A key judgement means claimants need prove only abuse − not employer's negligence. But this could be good news for schools writes Dai Durbridge

The House of Lords, in January, gave judgement in two important cases on time limits for making historic abuse claims. The judgement will have serious consequences for schools and education providers, in both the private and public sectors. There will also be implications for social services and healthcare, and children's clubs.

This article will examine the implications of the judgement for those in education and children’s services, and explain why it will take some pressure off defendants in historic abuse claims.

The claims

The cases are H v Suffolk County Council, and X and Y v London Borough of Wandsworth. The claimants alleged historic child abuse, in each case making allegations of serious sexual abuse against teachers employed by the local authority.

Who and what is covered?

Whilst these claims involved sexual abuse, the judgement will apply equally to cases of physical abuse.

The judgement will cover not only cases where allegations are made against teachers in schools, but also claims made against schools for alleged assaults of any nature by other employees.

Time limits and historic abuse

Previously, a claimant in this type of abuse claim had two causes of action:

s/he could say that the school or local authority had negligently monitored the alleged abuser, thus allowing the abuse to take place
or s/he could say that the school was vicariously liable for the abuser's actions

Vicarious liability
Vicarious liability was easier to prove. So why didn't claimants always allege vicarious liability? Because the time limit on doing so was shorter than that for making a claim for negligent monitoring. Stubbings v Webb (1993) decided that a deliberate sexual assault was caught by section 2 of the Limitation Act 1980. So, from a child's 18th birthday s/he had a non-extendable six-year limitation period in which to bring a claim.

As soon as a claimant turned 24, the claim for deliberate assault was statute-barred. There were no exceptions. So, if the claimant was over 24 before s/he considered bringing a claim, s/he had to find another way of stating the case, which s/he could do by saying the school was negligent in allowing the abuse to take place.

Negligence claims
A claim in negligence alleging that the school recruited an inappropriate member of staff or failed to monitor the alleged abuser was caught by section 11 of the Limitation Act.

This meant that a three-year limitation period applied — a period that could be further extended by sections of the Act that allowed a claim to proceed out of time if a claimant showed either:

s/he didn't realise s/he was psychologically damaged until the solicitor commissioned a medical report, or
s/he demonstrated that the court really ought to exercise its discretion in his or her favour

This discretion was until recently regarded as an 'exceptional indulgence' to the claimant.

Perceived injustice
In practical terms this previous decision meant that someone over the age of 24 who wanted to claim for abuse suffered as a child had to be inventive with the claim in order to bring the case. This increased the costs of claims and the time taken to resolve them.

More importantly, it created a perceived injustice — bring your claim before your 24th birthday and all you had to do to succeed was prove the abuse took place. Bring it a few weeks later, and not only did you have to prove the abuse, but you also had to prove that it took place as a result a negligent act of omission by the school.

This raised a simple question: Why should a claimant of under 24 have to prove only that abuse took place, whereas a claimant of 25 had to prove organisational negligence as well? The recent judgement resolves this discrepancy.

The new law

Following the decision of the House of Lords in January, any claim against a school alleging abuse by one of its employees will be caught by section 11 of the Limitation Act 1980.

This means that the extendable three-year period will apply to all these cases — regardless of the claimant's age.

All the claimant has to do to succeed with a claim now is to prove that the abuse took place. Gone are the days where the claimant had to show that the school was at fault for allowing the abuse to occur.

Practical effect for claimants
Whilst on the face of it the House of Lords decision appears to reduce the limitation period for claimants from six to three years, what it actually means is that a claimant who issues a claim after his or her 21st birthday can continue with the claim if:

s/he proves that his or her date of knowledge of a significant injury was within three years of bringing his claim, or
s/he persuades the court to exercise its discretion to allow the claim to continue

See below for analysis of these terms

Practical effect for schools
There are two important parts to this decision:

1. First, the change in the law that means that all claimants who allege abuse against an employee of a school simply need to show that the abuse took place to succeed with their claims (where limitation is not an issue). Negligence need no longer be proved.

2. Second, there is no absolute time limit after which these claims will be barred.

To know what effect this decision will have on abuse claims in the education sector, we must consider each part of the decision in detail.

1. Prove abuse but not negligence
This is all claimants have to do. On the plus side, managing claims brought against a school should now be easier and more cost-efficient. Under the old law, cases were complex and difficult to manage and as such claimants’ solicitor's costs often overshadowed the damages received.

The benefit of this decision is that the complexities of proving negligence fall away, making the claim far simpler and thus quicker and cheaper to manage.

The major downside to this decision is that, regardless of how strong a school's recruitment policy may be, how regular the monitoring of staff or how good their training, if abuse is proved to have taken place, the school is potentially liable for it. There will be few exceptions.

Will this lead to a substantial increase in claims?

It is unlikely. claimants were never discouraged from bringing their claims simply because they were over the age of 24. Instead, their solicitors would just allege negligence.
As one would expect, in the majority of cases where abuse was proved, the defendant was also found negligent for allowing it to have taken place (although that was not the
case in these appeals).

2. No absolute time limit
If a claimant brings a claim after his or her 21st birthday, s/he is out of time unless:

s/he can show that his or her date of knowledge was delayed, or

the court exercises its discretion in his or her favour and allows the claim to proceed

The House of Lords has been helpful to schools and other potential defendants on both counts:

Date of knowledge

For date of knowledge, Lord Hoffman was keen to point out that when a child is sexually abused, s/he knows s/he is being abused and s/he knows s/he is injured as a result.

Therefore, in the case of sexual abuse, there is no delayed date of knowledge and the child's 'limitation clock' begins to run on his or her 18th birthday.

Physical abuse and the date of knowledge

Whilst the cases before the House of Lords dealt with allegations of sexual abuse, the same rule on date of knowledge has to apply to physical abuse.

If a pupil is hit by a teacher and injured as a result, that pupil should bring a claim for damages by the time s/he reaches the age of 21 — s/he cannot delay the date of knowledge. This is good news for schools.

Exercise of discretion

Lord Brown's helpful judgment on the exercise of the court's discretion to allow the claim to proceed is a clear indication that claimants who delay in bringing their claim, regardless of their merit, should not expect that the court will automatically allow their claims to proceed.

This is an important point, supported further by Lord Brown's comments that the longer the claimant delays, the less likely it is that a fair trial will be possible.

Gone are the days where an ex-pupil can allege that s/he was assaulted by a teacher 20 years ago and expect the claim to proceed as of right.

A levelled playing field

This can only be a good thing for schools and other children's service providers who in the
past have faced many stale claims. In the future, they are likely to find a significantly levelled playing field upon which to defend themselves.

It will take some time and a few test cases for the full consequences of this new decision to become apparent. But what we do know is that a dramatic increase in allegations is unlikely — and those allegations that are made will be easier and more cost effective for defendants to manage.

Having to prove only the abuse significantly lightens the claimant's evidential load — but it should lighten the school's costs burden too.

School policy

It is unlikely that this decision will mean that schools need to reconsider their policies on recruitment or monitoring — or even those on punishment or restraint of pupils. The decision covers situations where those working with children chose to assault them. Unfortunately, no amount of policy or training will prevent this.

Complaints procedure
What may be relevant, though, is a school's complaints procedure. Lord Brown made it clear that a contemporaneous complaint of an assault adds weight to a claim. Ensuring that complaints procedures are accessible and known to the pupils will go some way to ensuring that they feel able to raise matters of concern if they arise.

A lack of complaint at the alleged time of an assault will support the school if a later claim is made.

Find out more...

H v Suffolk County Council; X and Y v Wandsworth London Borough Council [2006] EWCA Civ 395
Stubbings v Webb [1993] AC 498, HL
Good practice on child protection, including recruitment and record-keeping

Dai Durbridge is a solicitor at Browne Jacobson, specialising in professional negligence

*Browne Jacobson acted for three of the respondents in these cases

This article first appeared in Education Law Update - Mar 2008

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