Date:  8 August 2008

NEW DEVELOPMENTS IN CIVIL CLAIMS FOR PERSONAL INJURY ARISING FROM ALLEGED SEXUAL ASSAULT - LIMITATION

In A -v- Hoare [2008] (heard alongside 5 other cases on the same issue) the House of Lords has moved to limit the use of the limitation defence for claims for damages for personal injury resulting from sexual assault.

The Court of Appeal had followed the law as laid down in Stubbings -v- Webb [1993] and ruled that these 6 cases were statute-barred by way of expiration of the relevant limitation period.

The House of Lords however moved away from that stance, holding that for deliberate sexual assaults causing personal injury, a claim for damages must be issued within 3 years of when the Claimant thought the injury was serious enough to justify bringing a claim against the Defendant. Section 33 of the Limitation Act 1980 allows for this time period to be waived if it is fair to do so in all the circumstances.

The court must assess the matter objectively, with reference to when a reasonable person, with the Claimant’s knowledge of what happened, would consider the injury serious enough to bring proceedings against the named Defendant. The Court will also have to consider the prejudice to the Defendant that this may cause. For example, if the alleged incident occurred 30 years ago, most of the Defendants’ witnesses will now be elderly or perhaps deceased. There may also be problems with locating documentary evidence which may have helped successfully defend the claim.

Defendants must no longer rely upon limitation being an water-tight defence in such cases. A Defendant must determine whether sufficient evidence exists to support the allegations, and if not, they could defend the claim on the basis that by extending the limitation period, the Defendant would be unfairly prejudiced.  This would be on the basis that attempts to defend the claim on an evidential basis would be hampered by destroyed / misplaced documentation, the absence of relevant and knowledgeable witnesses and therefore a fair trial would be impossible.

Buller Jeffries are acting on behalf of a local authority in a series of claims for alleged personal injury arising from alleged sexual abuse, in some cases dating back over  30 years. Whilst possibly making the Defendants’ job harder, these recent decisions still leave the Claimant with an uphill struggle to prove that limitation is not an issue and that it would be equitable in all the circumstances to waive the limitation period. 

Paul Donnelly