[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> S v W [1994] EWCA Civ 35 (28 November 1994) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1994/35.html Cite as: [1995] 3 FCR 649, [1995] 1 FLR 862, [1994] EWCA Civ 35

[New search] [Help]

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SLOUGH COUNTY COURT
(HIS HONOUR JUDGE HAGUE)

		Royal Courts of Justice Strand London WC2A 2LL
		28 November 1994

1. LORD JUSTICE RUSSELL: The plaintiff, the respondent in this appeal, was born on 5 November 1965, and is now 29 years of age. She attained her majority on 5 November 1983. Until the age of 19, the plaintiff lived with her parents. The defendant, who is the appellant, is the plaintiff's mother.
2. The plaintiff alleges that from early childhood, and over a number of years until about 1983, she was subjected to repeated sexual and physical abuse by her father. This conduct came to the notice of the defendant at an early stage, although not every particular of it.
3. In 1985 the father admitted five counts of incest involving the plaintiff. He was sentenced to a term of four years' imprisonment. On 10 March 1992, some eight or nine years after she attained her majority, the plaintiff instituted proceedings in the High Wycombe County Court against both her father and the defendant, her mother. The claim was for damages for personal injuries, a medical report having been obtained which speaks of the psychological damage that has been occasioned to the plaintiff, so it is said, in consequence of her experiences which I have related.
4. As against the father, the claim was based upon the physical assaults to which he had subjected his daughter. It was plainly a claim alleging trespass to the person. As against the mother, the claim was based upon her breach of duty, as a parent, to protect her child in the circumstances from what was said to be a foreseeable risk of injury. In particular, paragraph 5 of the amended particulars of claim stated:

"In breach of the said duty of care, the defendant failed to procure the removal of the plaintiff from the home and/or failed to report the activities of the father to the police and/or social services and/or failed to take any step whatsoever to prevent the abuse of the plaintiff by the father."

5. Both claims against the father and the appellant were originally struck out by District Judge Western. He took the view that they were each an abuse of process because each was statute barred under the provisions of the Limitation Act 1980. The District Judge held that more than six years had elapsed after the plaintiff obtained her majority before the institution of proceedings, and that the appropriate period of limitation for this type of action against both the father and the mother, was that to be found in section 2 of the 1980 statute, namely, a period of six years from the date on which the cause of action accrued. That period has to be extended in the case of infants to a date six years after the child maintains majority.
6. The plaintiff appealed to his Honour Judge Hague QC, though no appeal was entered relating to the striking out of the father's action. On 18 February 1994, the learned judge allowed the appeal and restored the action against the mother alone. The defendant now appeals to this court.
7. She alleges that in her case, too, she is entitled to rely, as did her husband, upon Section 2 of the Limitation Act. The learned judge, however, found that in the case of the appellant the limitation period was that to be found in section 11 of the Act, namely, three years from the date when the accrual of the action took place, or from the date when majority was attained, with the prospect of further extensions being permissible pursuant to the provisions of sections 14 and 33 of the statute. Whether the plaintiff can avail herself of any of those extensions of time, has not been decided, and, if this appeal fails will no doubt form the subject matter of a later ruling by the trial judge.
8. I turn to examine the statutory provisions impinging upon this appeal. It turns very much upon the construction of section 11 which reads, so far as is material:

"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 a 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."

9. Section 14 goes on to deal with the definition of the date when knowledge for the purposes of section 11 arises. Section 33 can be summarised by saying that it gives the court jurisdiction to extend a period of limitation indefinitely if it is equitable so to do.
10. Thus, it is plain that if this action is to proceed at all against the defendant, the plaintiff must show that her claim falls within section 11 with the advantages enjoyed by sections 14 and 33, as opposed to section 2 where no extension of time beyond the six year period was available to the plaintiff. In this context our attention was directed to a House of Lords authority Stubbings v Webb [1993] AC 498 upon which Mr Bennett, on behalf of the appellant mother, strongly relies. It was a case, as is the instant case, involving sexual abuse, but the cause of action in Stubbings v Webb was one of trespass to the person, where the plaintiff had been sexually abused by her step-mother, her step-father and her step-brother. The claim was struck out as being statute barred, the House of Lords holding that it was a claim caught by section 2 of the 1980 Act and that section 11 had no application to the facts of that case. As far as the two cases, Stubbings v Webb and the instant case, had as their background sexual abuse by a parent, or somebody in the position of a parent, the facts are indistinguishable, but it is to be observed that in Stubbings v Webb there was no claim other than trespass to the person. I cite two short passages from the speech of Lord Griffiths, at page 507:

"I accept that Letang v Cooper [1992] QB 197 was correctly decided insofar as it held that negligent driving is a cause of action falling within section 2(1) of the Act of 1954."

11. I interpose to say that section 2 of the Act of 1954, was the predecessor to section 11 of the 1980 statute. Lord Griffiths continued:

"But I cannot agree that the words 'breach of duty' have the effect of including within the scope of the section all actions in which damages for personal injuries are claimed which is the other ground upon which the Court of Appeal decided Letang v Cooper. If that had been the intention of the draftsman it would have been easy enough to say so in the section. On the contrary the draftsman has used words of limitation; he has limited the section to actions for negligence, nuisance and breach of duty and the reason he did so was to give effect to the recommendation of the Tucker Committee that the three year period should not apply to a number of causes of action in which damages for personal injury might be claimed, namely, damages for trespass to the person, false imprisonment, malicious prosecution or defamation. There can be no doubt that rape and indecent assault fell within the category of trespass to the person."

12. Later at page 508 Lord Griffiths continued:

"Even without reference to Hansard I should not have myself have construed breach of duty as including a deliberate assault. The phrase lying in juxtaposition with negligence and nuisance carries with it the implication of a breach of duty of care not to cause personal injury, rather than an obligation not to infringe any legal right of another person. If I invite a lady to my house one would naturally think of a duty to take care that the house is safe but would one really be thinking of a duty not to rape her? But, however, this may be, the terms in which this Bill was introduced to my mind make it clear beyond peradventure that the intention was to give effect to the Tucker recommendation that the limitation period in respect of trespass to the person was not to be reduced to three years, but should remain at six years. The language of section 2(1) of the Act of 1954 is in my view apt to give effect to that intention, and in cases of deliberate assault such as we are concerned with in this case are not actions for breach of duty within the meaning of section 2(1) of the Act of 1954.

In the language of section 2(1) of the Act of 1954 was carried without alteration into the Act of 1975 and then into section 11(1) of the Act of 1980 where it must bear the same meaning as it had in the Act of 1954."

13. Thus, relying strongly upon those dicta, Mr Patrick Bennett QC, on behalf of the appellant, submits that on a proper construction of section 11, we are concerned here with what in effect was a case involving sexual assault, as opposed to any negligence claimed. Certainly it began by sexual assault on the part of the father. Mr Bennett equates, as I understand his argument, the activity of the mother with those activities of the father, contending that the mother, the appellant, was nothing more than an aider and abetter of what took place. As against such a submission, the learned judge in the course of his judgement said:

"It is important to appreciate that this is not a claim of trespass against the person allegedly committed by the mother. She was not the perpetrator of the personal injuries. The only allegation is that she has been in breach of a duty which is owed by a parent to a child."

14. Mr Beddoe suggested that that duty could not extend to cover the facts in the present case, but I firmly disagree with that contention.
15. Mr Bennett has submitted that as a matter of policy that the court should not construe section 11 so as to permit proceedings (such as have been launched in the instant case against the mother) to proceed over a period which may be measured over many, many years. As a matter of policy, he submits that that type of action should be prohibited and that in effect the prohibition is to be found in section 11.
16. For my part, I am unable to accept the submissions of Mr Bennett. I agree with the ratio of the judgment of the learned judge in the court below when he said that it was vital to appreciate that the claim against the mother was not a claim involving direct physical contact, as the allegations against the father were. It was a claim against the mother for an entirely independent tort involving acts of omission by her, such as constituted on her part a breach of her common law duty to take care of her child and not to expose that child to the unnecessary risk of injury or further injury.
17. For these reasons, in my judgment, Stubbings v Webb does not bite upon the situation that prevails in this appeal vis a vis the appellant. For these reasons I would dismiss this appeal and permit the action to proceed to the next interlocutory stage.
18. LORD JUSTICE MILLETT: I agree. Mr Bennett invites us to place a gloss upon section 11 by excluding from its operation a case such as the present where the injury was inflicted deliberately. Section 11(1) provides that:

"This section applies to any action for damages for negligence, nuisance or breach of duty....where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries"

19. The argument would require there to be added after the words "breach of duty" the words:

"other than a breach of duty to safeguard the plaintiff from the deliberate infliction of injury by another person."

20. I do not see any way in which it would be possible for the court to read into the section such a major addition as that.
21. The result was described by the judge as somewhat illogical and perhaps surprising. He pointed out that it did seem odd that all claims against the actual perpetrator of violence should be statute barred while a claim against the non-perpetrator for failing to prevent the violence is not. That results from the fact that the distinction between actions for trespass to the person and other deliberate torts and actions for negligence, nuisance or breach of duty, which was recommended by the Tucker Committee, was made in the context of a further recommendation of the Committee that the power of the court to extend the time within which the action could be brought after the expiry of the statutory period should not extend beyond six years. That latter recommendation was not accepted by Parliament; but the result is that what the Tucker Committee intended to be a reduction in the period of limitation in cases such as the present has, in the event, become a potential extension. This appears to me to be a matter deserving of the attention of the Law Commission, for the law cannot be described as satisfactory. I too would dismiss the appeal.
22. SIR RALPH GIBSON: I agree that the appeal should be dismissed for the reasons my Lords have given. As has been pointed out, the result of the judge's ruling was, as he rightly said, illogical and surprising. That fact, in my view, is a good reason for inviting the attention of the law committee to the inter-relation of these provisions and to the absence of any longstop limitation period of this and any other parts of the Act, for example, section 28 of the Act which deals with persons under a disability. It is not the basis on which this court could reach any other conclusion.

Order: Appeal refused with costs not to be enforced without leave of the court. Legal aid taxation. Leave to appeal is refused.