Childhood abuse case pursuers win “fair hearing” appeal
Two siblings who alleged they were subjected to physical and emotional abuse in 1974 as children in a care home run by a religious order, have won an appeal against a decision dismissing their action for damages on the basis that a fair hearing was not possible.
Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Woolman allowed a reclaiming motion by B and W, who alleged that they suffered physical and emotional abuse at a residential home operated by the Congregation of the Sisters of Nazareth while they were living there between 8 July and 12 August 1974.
The claim included allegations against unnamed individuals as well as against two named sisters of the order, alleging abusive practices generally at the home. Of the 12 sisters present at that time, eight were now deceased. The Lord Ordinary considered that the defenders could not obtain responses from unidentified persons, or assert that the alleged abuse did not occur, or develop a full defence. The difficulty in establishing vicarious liability for unnamed individuals was a further complicating factor. The defenders had therefore satisfied the test in s 17D(2) of the Prescription and Limitation (Scotland) Act 1973, which prevented the recently extended rights to bring claims for childhood abuse from applying.
Lord Malcolm, delivering the opinion of the court, said the present claims could be distinguished from allegations concerning only a deceased abuser or abusers, especially if operating in circumstances where others were likely to be ignorant as to what was happening. “In effect they allege generalised abuse which would be reflected in the culture and ethos of the administration of the Home as a whole”, he observed. “We consider that the Lord Ordinary erred by not taking into account the nature of the attack on the overall standard of care, or lack of it, in the Home as a whole, as opposed to allegations of specific incidents.”
A fair hearing was not dependent on each party being able to investigate all that it would wish to pursue, nor on reassurance that all pertinent evidence remained extant and available to the court. “In our view if appropriate regard is given to the systematic nature of the allegations and to the numerous sources of relevant evidence still available to the defender, it cannot be said that any hearing would be bound to be unfair. That is the high test presented by s 17D(2). If met it will usually be quite clear that the problems are insurmountable.”
As regards vicarious liability, if the allegations were established, it was not easy to see why the defenders would escape liability simply because of inability to specify a named individual. Concerns over missing documentation were “speculative”.
Similar reasoning applied to the “substantial prejudice” test in s 17D(3), although this should not be interpreted restrictively as argued for the pursuers. The defenders’ exposure to significant potential liabilities, also founded on, would not meet the test as that would be common to all childhood abuse cases which, but for the reforms, would have been dismissed as time barred. “And it would be odd if the greater the harm done, the more likely that the action would be dismissed.”
Lord Malcolm concluded: “We well understand the Lord Ordinary’s comments as to the potential problems for the pursuers; however at this preliminary stage, the primary focus cannot be on the merits.”
The case was remitted for further procedure.