IN THE MANCHESTER COUNTY COURT
Claim No: 7MA09263
BETWEEN:
DARREN HARGREAVES
Claimant
And
LANCASHIRE COUNTY COUNCIL
Defendant
_________________________
JUDGMENT
_________________________
1.
This is a trial of a preliminary issue namely whether the provisions of the
Limitation Act which would presently debar the Claimant from proceeding with
his claim for damages arising out of alleged sexual abuse perpetrated upon him by
the Headmaster of a special school where he boarded between ages 8 and 12 and
for which the Defendant would be vicariously liable if proved should be
disapplied under the provisions of Section 33. Without more ado I set out the
evidence so far as available and the parties’ contentions in respect thereof.
2.
The Claimant was born on 18th December 1969 he is now 39 years of age. In
about 1976 the Claimant suffered a serious head injury when a swing he was on
collapsed. He was then 6 ½ years old. One of the consequences was that he
thereafter was in need of special education.
Even before that accident the
psychiatric experts agreed that the Claimant had genetic and environmental
problems, due, as I understand, to his father’s mental make-up and his mental
1
cruelty to the Claimant mother and the Claimant - it is not entirely clear if there
was physical violence as well.
3.
At all events the Claimant because of his problems was received into the
Defendant’s care on 9th June 1978 and in September 1978 the Defendant placed
him at Broughton Towers Special School in Cumbria; this was a boarding school
for children with special needs. The Claimant was then 8 and remained there until
the age of 12 in about May 1982.
4.
The Headmaster was a Mr Wilkes. He has now retired and is in his late 70’s.
Until these proceedings and another one started at about the same time, Mr Wilkes
has had an unblemished career and record and has been something of a pillar of
the community.
5.
The Claimant alleges that the regime at the school was harsh. He has at various
times said
(a) If you were late for a meal you would get nothing (see Dr Ghosh at paragraph
3.9).
(b) There was beating (see Dr Ghosh paragraph 3.7).
(c) The children were required to run around the school naked (see particulars of
claim paragraph 5(c))
(d) If the children had been out in the school van, on their return they were
required to strip of naked and run up the drive, the last being beaten on the
bare buttocks whereafter the Headmaster would rub the buttocks. (Drs. Ghosh
and Wood)
2
6.
More importantly for the purposes of these proceedings the Claimant alleges that
the Headmaster sexually abused him on many occasions, consisting of the
Headmaster caressing, masturbating and fondling the Claimant’s penis and
requiring the Claimant to do likewise to the Headmaster.
According to the
Claimant’s witness statement the abuse started to happen soon after he started at
the school and went on for most of the time he was there. According to what he
told Dr Ghosh it went on “for over a year”. The Claimant in an earlier response to
questions said that the abuse occurred two to three times per week.
7.
The abuse took place mainly in a punishment room called “the dungeon”; it had
bare brick walls and a window covered in ivy and a bed in the middle of the room;
he was required to take all his clothes off or all bar his underpants. The Defendant
has obtained “preliminary” witness statements from a number of witnesses to say
that the “dungeon” was an open area used as a cloakroom off a corridor which
was reasonably well frequented; there was no door to this room and anyone
passing by could look into it.
8.
The abuse also took place according to the Claimant in the Headmaster’s office or
study; it too had a window covered in ivy; the window sill was too high to allow
one to see out. The Defendant says their preliminary witness statements disclosed
that the study door was always unlocked; the Headmaster’s secretary was in the
habit of entering unannounced; the window was of a size and position which
would allow those outside to look in.
3
9.
The abuse also occurred says the Claimant in the “time out” room.
The
Defendants’ riposte to this allegation is that this room, which was off the same
corridor as the “dungeon”, was used for disruptive pupils in order to give them
time to calm down. The door to it had no handle on the inside - someone from
outside was required to open the door when it was shut. There were slats on the
door which would allow anyone outside to look in.
10.
It is said by the defence that staffing levels were good and any untoward activity
in any of these locations which happened on a regular basis would be bound to be
observed sooner or later. It is not clear whether the school premises remain in the
same state as regards these three locations as at the time the Claimant was at the
school.
I am not told to what extent the Claimant disagrees with what the
Defendant says about these matters if at all.
11.
The Claimant says there were no witnesses to the abuse. The Headmaster used to
tell him not to tell anyone; he also said that the Claimant’s parents were friends of
his and would not believe a word the Claimant said to them; further, if he did his
mother would tell the Headmaster and it would be worse for him next time.
12.
Mr Wilkes vehemently denies these allegations and is distressed by them,
understandably, whether there is any truth in them or not. The police will not be
pressing charges.
Coincidentally at about the time these proceedings were
commenced another slightly younger ex-pupil also commenced proceedings
alleging sexual and physical abuse by the Headmaster. It transpires that the
medical reports prepared for that case disclosed that this ex-pupil had said that he
4
was not sure the sexual abuse had in fact taken place. That action has not been
withdrawn but it appears likely that the allegations of sexual assault will not be
pursued.
13.
The Claimant says that after he left Broughton Towers he tried to forget about the
abuse. He did not think anything could be done. He did not trust anybody. He
did not think it was anybody else’s business.
He alleges he was extremely
traumatised by the abuse (Dr Ghosh paragraph 3.12); as he put it to Dr Wood it
had made him the way he was now (Dr Wood paragraph 12.54).
14.
The Claimant went first after leaving to another special school and from the age of
15 to 16 to a secondary school. He says he started taking drugs from the age of
13; he finally ceased that habit at age 33.
15.
It is apparent that during his teens he became involved in criminal activity, both
offences of dishonesty and offences of sexual assault. For both activities he
received prison sentences. The last was imposed when he was 21. He says he
was abused and bullied in Walton Prison, something which Dr Wood the
Defendant’s expert psychiatrist agrees may well have happened to the Claimant as
being a vulnerable person. The Claimant has not offended since his last release
from prison.
16.
The Defendants say that this propensity to dishonest activity counts against the
Claimant’s evidence as to abuse at the school and its being believable. The
Defendant also gained support from the Claimant having been described during
5
his school days as very manipulative; his step-father said he could be deceitful and
was not to be trusted.
17.
It is also pointed out by Dr Wood that the Claimant during this period underwent
rigorous psychiatric assessment and he, Dr Wood, finds it surprising that given the
Claimant’s somewhat uninhibited disposition he did not disclose the abuse during
interview, if indeed such abuse had occurred. Dr Ghosh considers the failure to
disclose such abuse was due to shame, fear and anxiety; presumably that is also
prayed in aid for the subsequent delay in bringing proceedings.
18.
The Claimant achieved his majority on the 18th December 1987 when he was 18.
Although there was a suggestion that the Claimant was a Protected Person, Drs.
Ghosh and Wood agree that the Claimant has had legal capacity since the age of
18 and has retained a capacity to litigate since then although it is acknowledged
that he required support in managing his affairs and in conducting litigation; this
is because of the effect of his head injury, his dependant personality and his
borderline low intelligence; the brain damage may affect his capacity to plan and
use initiative to a limited extent (joint statement paragraph 4.1.2).
19.
The Claimant married in his early twenties. He had basically been and remained
unemployed save for a few temporary jobs.
20.
The Claimant told Dr Ghosh (paragraph 3.10 and 5.6) that he has always
remembered the abusive events and had frequently recalled them. The Claimant
says he has had flashbacks and nightmares about the abuse for years; “many
6
years” according to Dr Ghosh at paragraph 3.11. It also appears from Dr Ghosh’s
report at paragraph 5.21.1 that he only started to get the flashbacks after he
stopped taking drugs at age 33 or thereabouts. Dr Wood (at paragraphs 19.5 and
19.10 could elicit no history of flashbacks from the Claimant and wonders
whether the Claimant did suffer from flashbacks properly so-called.
21.
At all events the Claimant told no-one of the abuse until he was 33 or 34 years of
age in about 2003. He suddenly blurted it out to his mother. The Defendant was
notified of the claim in early 2006. The claim form was issued on 24th May 2007;
the particulars of claim followed on 4th January 2008.
The defence raising
limitation was filed on 14th February 2008. Limitation has been ordered to be
tried as a preliminary issue. It is conceded that the three year limitation period
started to run from 8th December 1987 and expired on 8th December 1990 a long
time ago. There is no argument about the date of knowledge. It is purely a case
of whether the court should disapply the effect of the Limitation Act under the
provisions of section 33. It appears that since the Claimant did not wish to
attempt to be cross-examined it has been agreed I should decide the issue from the
papers and submissions. I only pause to observe that if I disapply the limitation
provisions the Claimant will need to come and give evidence at any subsequent
trial.
22.
The two key issues as Mr Eccles says in his skeleton argument for the Defendant
are
(a) The extent to which there is evidential prejudice consequent upon the delay
since the limitation period expired.
7
(b) The merits of the case.
23.
As regards the merits that depends upon who, the Claimant or the Headmaster is
telling the truth. In other words who will the court believe if a trial takes place.
Did abuse take place or not. If it did the Defendant accepts that it is vicariously
liable. Dr Wood clearly thinks that inconsistencies in the Claimant’s account
suggests that the Claimant’s recall of childhood experience is impaired and
probably unreliable (paragraph 5.5) but accepts if he is believed his experiences
are likely to have had an adverse effect upon him albeit only a modest
contribution to the difficulties he would otherwise have had (some 5 to 10%) as
opposed to Dr Ghosh’s 20 to 25%. Dr Wood acknowledges that it is for the court
to determine questions of credibility. I note that at paragraph 3.1.11 of the joint
statement Dr Wood says he found the Claimant to be composed, relaxed and able
to give a good account of himself and he recognises at paragraph 7.3.3 that the
Claimant’s recollections may be wholly true.
24.
I can see that the Claimant may have some difficulties in satisfying a court that he
is telling the truth
(a) Because of his previous convictions for dishonesty and the like; that is not
conclusive. And in any event the Claimant has put that past behind him. Bad
character does not mean he is to be disbelieved just as the Headmaster’s good
character does not mean that his protestation of innocence must be true.
(b) Because of the fact that he did not tell psychiatrists of the abuse when he was
investigated in the 1980’s; this again is not conclusive.
8
(c) If it is established that the places where the abuse allegedly took place were
hardly out of the public gaze; I cannot presently determine that issue.
(d) The delay in reporting the matter quite apart from (b) above. It may be shame,
anxiety and fear have been at play. It may be treatment at Broughton Towers
or Waltham Prison has had an inhibiting effect. The Claimant’s evidence is
that the flashbacks and the blurting out to his mother about the abuse all
occurred shortly after he had given up drugs. Although he is not a Protected
Person the Claimant does have some difficulties as the psychiatrists
acknowledge. It is not possible to assess on paper how good a reason or
reasons those might be.
(e) Memory lapse; Dr Ghosh says that the Claimant has problems with memory.
Dr Wood picks on this but in the joint statement at paragraph 3.1.4 he
comments that the Claimant does not have significant problems with memory.
I can well see that the delay may have distorted the Claimant’s recall or led as
Dr Wood puts it to “fragmentation” of memory but that does not mean that
there was no abuse just that the recall of it is distorted.
25.
I can see that the Claimant may have problems in persuading a court that he is
right and Mr Wilkes is wrong in his recollection as the evidence unfolds but I
cannot and it would not be right of me to conclude on paper that his case has no
merit or is inherently weak or so weak as to say it is lacking in merit.
26.
As to cogency, Mr Eccles very fairly concedes that the delay of 16 ½ years
between the expiry of the limitation period and the commencement of proceedings
and the facts that events complained of happened 27 to 31 years ago has not led to
9
loss of documents; there are none and would never have been any vis a vis the
alleged abuse or events. Further the all important witness the Headmaster is still
alive and capable of rebutting the allegation. Delay has not meant that he is less
capable of rebutting the type of allegation made; it is a case of the abuse did not
happen. There are clearly several witnesses as to the location of the places where
it is alleged the abuse took place. I infer the witnesses can also speak as to the
nature of the regime of the institution. Evidentially the position would not appear
to be greatly different from what it would have been had a trial taken place some
15 years say before.
27.
I note that the psychiatrists at paragraph 10 of the joint statement say that
psychiatric assessment has been rendered very much harder by the substantial
delay; it would have been easier when the Claimant was 21 years of age. That
may be so but the delay has not prevented the psychiatrist from coming to
conclusions, albeit differing from each other as they are. Dr Ghosh goes for
Recurrent Depressive Disorder and PTSD. Dr Wood for Dependant Personality
Disorder.
28.
It is urged upon me that a court will find the task of making a decision very very
difficult. I conclude it will be no more or not significantly more difficult than it
would have been at a trial conducted 15 years ago. I accept that such a trial will
be stressful for the Headmaster especially given his age. It would have been
stressful in any event at any earlier trial, may be to some extent in different ways.
29.
It is time to go through the checklist provided by section 33 aided by authority.
10
30.
First of all section 33(1) which says “if it appears to the court that it would be
equitable to allow an action to proceed having regard to the degree to which (a)
the provisions of section 11….prejudice the Plaintiff…. and (b) any decision of
the court under this sub-section will prejudice the Defendant… the court may
direct that those provisions shall not apply to the action.” Parker LJ in Hartley v
Birmingham City District Council (1992) 1 WLR 968 at 979G to 980F observed
that “the stronger the Plaintiff’s case the greater is the prejudice to him from the
operation of the provision and greater will be the prejudice to the Defendant if the
provision is disapplied. Likewise the weaker the case of the Plaintiff the less is
he prejudiced by the operation of the provision and the less is the Defendant
prejudiced if it is disapplied.” A little further on he says “what is of paramount
importance is the effect of the delay on the Defendant’s ability to defend. The
specific example given in section 33(3)(b) so indicates”.
31.
Since this case turns upon the credibility of the Claimant and the Headmaster it is
impossible to tell the strength of the Claimant’s case at this stage and hence the
degree to which he will be prejudiced if the limitation period is not disapplied.
Clear it is that the Claimant will in such circumstances be deprived of any cause
of action if the limitation period is not disapplied. He cannot seek to make a claim
against anyone else. The only prejudice to the Defendant is the loss of the
limitation defence.
32.
Section 33(3)(a) requires the court to consider the length of, and the reasons for,
the delay on the part of the Claimant. There is a dispute as to whether the
11
Claimant is telling the truth or not but if he is, then the only reasons for his delay
can be his feelings that he could not do anything about it, he couldn’t trust
anybody; his ability to do anything may also have been affected by his drug taking
until about the age of 33. His mental impairment will certainly have had some
affect. As Dr Ghosh opines, shame, anxiety and fear are all likely to have played
a part. In the case of A v Hoare and another (2008) UKHL6 Lord Brown at
paragraph 84 suggested that “…the sort of consideration which ought clearly to be
in mind in sexual abuse cases in the new era which your Lordships are now
ushering in…. secondly, by construing section 14(2) so as to transfer from that
provision to section 33 consideration of the inhibiting effect of sexual abuse upon
certain victims’ preparedness to bring proceedings in respect of it”. The inhibiting
effect is demonstrated by the Claimant’s apparent unwillingness to be crossexamined. It is certainly not the case that the Claimant, whilst always being aware
of the abuse, didn’t think it serious or worthy of pursuit. It is perhaps pertinent to
note that even if the Claimant had been desirous of suing the Defendant he would
have been advised, unless his advisers were of an adventurous bent, prior to
January 2008 that a claim based on vicarious liability for assault was subject to an
inflexible six years limitation period.
33.
Section 33(3)(b) the extent to which having regards to the delay, the evidence
adduced or likely to be adduced by the Claimant or the Defendant is or is likely to
be less cogent that if the action had been brought within the time allowed, i.e.
some 16 ½ years before proceedings were actually commenced. As was pointed
out in Hoare in paragraph 86 the ability to have a fair trial includes a fair
opportunity to investigate the allegation. For the reasons already discussed, I find
12
it hard to detect that the delay of 16 ½ years or the longer delay since the Claimant
left Broughton Towers has in the circumstances of this case prejudiced the
Defendant’s ability to investigate the case or to defend it. Witnesses are clearly
available to the Defendant. I have not been made aware of any loss of a relevant
witness due to the passing of time. There has been no loss of documents; indeed
there never would have been any documents relevant to the abuse itself alleged.
The Headmaster is still available and is adamant no abuse took place; this is not a
case of prejudice through failing memory. It looks at though the Defendant may
be able to mount a strong defence.
The Claimant for his part has a good
recollection, if he is being honest, as to the occurrence of the abuse.
Inconsistencies or distortion of recall do not make the claim unfounded or
necessarily less cogent. It may be that such inconsistencies along with the other
evidence being marshalled by the Defendant will persuade a court that the
Claimant is wrong but that is not something with which I can properly now deal.
The Defendant would always have been vicariously liable if abuse did take place
whenever a trial took place. I am wholly unpersuaded that the Defendant’s ability
to defend now has been prejudiced by any delay.
34.
Consideration of what effect any abuse if proved may have upon the Claimant has
been made more difficult, say the psychiatrists, by the passage of time. Mr
Levinson on behalf of the Claimant counters this by reference to the decision in
Raggett v The Society of Jesus Trust (2009) EWHC 909 at paragraph 125 where
Swift J points to the difficulties there would have been, if the claim had been
started at age 21, for a psychiatrist to predict the future effect of the abuse upon
the victim. At least the psychiatrists know where the Claimant is now at, nearly
13
aged 40. The courts are well used to resolving issues like it to arise. Both
psychiatrists in this case are able to come to a conclusion even if they do not agree
as to that conclusion.
35.
Section 33(3)(d) the duration of any disability of the Claimant arising after the
date of the accrual of the cause of action. Mr Levinson points out that the
Claimant was a child when the abuse allegedly took place; time did not run until
he was 18. He also points out that the Claimant, although he was not a Protected
Party or the like as was at first thought, has some continuing disability which is a
relevant factor.
36.
Sections 33(3)(c)(e) and (f) are not pertinent.
37.
My discretion in this matter is unfettered. Having considered the various factors
at some length I have come to the conclusion that I should disapply the limitation
restriction and allow the action to proceed. In the light of that decision it will be
necessary to give consequential directions.
14