Ich habe mich im Internet umgesehen und ein paar interessante Details gefunden. Zum ersten folgt das britische Rechtssystem ‚case law’, genau wie auch der EuGH in Den Haag. Das heißt, dass es einige Referenzfälle zu der Verjährungsfrist aus der jüngsten Zeit gibt. Das Problem dieser Ungerechtigkeit war schon seit langem vom House of Lords und anderen Organen anerkannt (1) (2)*. Jedoch bedurfte es einiger ‚großer Fälle’, so genannte ‚Landmark rulings’ um dies auch tatsächlich zunehmend verlässlich zu machen. Es geht hierbei um einen bestimmten Paragraphen 11 and 14 vom 1980 Act on Limitation. Absätze 11/3 und 11/4 legen eine Verjährungsfrist von drei Jahren beginnend bei Kenntnis oder der Volljährigkeit für Personenschäden (3)*. Anders gesagt, jeder, der in der Kindheit missbraucht wurde und den Missbraucher nicht melden konnte (ob der eigenen Sicherheit, Glaube es ist die eigene Schuld oder weil verdrängt und daher unbekannt) kann den Missbraucher nach dem 21. Lebensjahr nicht mehr juristisch zur Rechenschaft ziehen. Paragraph 14 des 1980 Acts verlängert diese Frist auf sechs Jahre, wenn der Grund des Schadens/die Tragweite der schädlichen Handlungen zur Zeit der Tat nicht bekannt waren. Danach verlängert sich die maximale frist auf das 24. Lebensjahr, bis zu dem sich ein Opfer von sexuellem Kindesmissbrauch oder anderen Personenschäden Anklage erheben muss. Ich habe das Gesetz von 1980 als Adobe Dokument angehängt.
Nun ist es aber in der jüngeren Vergangenheit zu Fällen gekommen, die besonders Medienträchtig waren und daher mehr Druck auf die Judikative ausgeübt haben. Seitdem wird Paragraph 33 desselben Acts zu Rate gezogen. Dieser erlaubt dem Richter nach eigenem Ermessen die Verjährungsfrist aufzuheben (siehe auch unten und (7)). Section 33/1A jedoch sagt, dass dies nicht auf 11/3 zu beziehen wäre. Dies hat sich nun in einigen Rulings (Urteilen) gewandelt und Paragraph 33 wird doch zur Aufhebung der Verjährungsfrist bei Personenschäden genutzt. So hat ein Mitte Vierzig Jähriger einen Pfarrer verklagt, der in als Kind missbraucht hat (4), und eine Frau ihren Missbraucher, der kurz zuvor im Lotto gewonnen hatte (5). Letzteres gab Schlagzeilen ob der Frage, darf sich ein Mensch der einem anderen als Kind etwas angetan hat, was lebenslange, meist schwerwiegende Folgen hat, im Wohlstand und Ruhm sonnen oder soll er –angemessen seines derzeitigen Wohlstands – dem Opfer/der Überlebenden Schadensersatz zahlen. Es sieht insgesamt so aus, als ginge es in diesen Prozessen um Schadensersatzansprüche und nicht um Haftstrafen. Die bleiben wohl noch ‚verjährt’. Aber da bin ich nicht 100% sicher und müsste das weiter herausfinden. Es gibt aber Juristen, die sich auf dem Gebiet spezialisiert haben und sicher Auskunft erteilen könnten (1) (6).
Unten angefügt habe ich zudem einen Auszug aus einem gerichtlichen Missbrauchsfall in dem Paragraph 33 als triftig erklärt und die Verjährungsfrist aufgehoben wurde. Der Fall wurde im Juni 2009, 11.5 Jahre nach Ende der Verjährungsfrist, vom obersten Zivilgericht, dem High Court of Justice, gehört. Die Klägerin fordert von einer Londoner Kommune – London Borough of Camden – Schadenersatz für die Mitverschuldung des jahrelangen Missbrauchs in der Pflegefamilie, an die das Jugendamt die Klägerin als Mädchen vermittelt hatte (7).
Soviel jetzt als erste Antwort. Hier in Großbritannien ist definitiv etwas in Bewegung was die Ungerechtigkeit des Verjährungsprinzips in diesem Kontext offen thematisiert und in Urteilen umkehrt.
Hoffe dies ist von Interesse und von positivem Wert für die Petition.
* Die “Rechtskommission” (Law Commission) ist ein statutarisches, unabhängiges Organ das durch den Law Commission Act 1965 geschaffen wurde. Es hat zum Ziel einen Überblick über die Rechtssprechung zu halten und Reformen zu empfehlen wenn dies angezeigt ist. Dies könnte eine weitere interessante Quelle für weitere Recherchen sein?
Dies ist die Webseite von Anwälten, die sich auf Schaden und Schadensersatzansprüche spezialisiert haben.
Frequently the civil claim is precipitated by criminal proceedings brought many years after the event forcing the Claimant to give details of the abuse for the first time. The claim against the abuser himself or anybody vicariously liable for his actions is, at present, subject to a 6 year non extendable time limit. The unfairness and illogical position this creates is now recognised by:-
• The Law Commission report in 2001;
• The Court of Appeal in A v Hoare, H v Suffolk CC and X & Y v Wandsworth LBC;
• The High Court in Australia in Stingel v Clark.
The position is expected to be soon considered by the House of Lords.
Meanwhile claims arising out of sexual assaults that occurred more than 6 years ago (or more than 6 years from the Claimant’s 18 th birthday) can only proceed by way of claim in negligence. If a claim in negligence can be brought the limitation period will run from the date on which the Claimant could first be expected to „turn his mind to litigation“ or first understood the abuse had caused psychiatric damage experienced by the Claimant.
Limitation of Actions – Law Commission Consultation Paper 151
Making the law on Civil Limitation Periods simpler and fairer
In its consultation paper published on 6 January 1998, the Law Commission examines the law on limitation of actions. A person with a civil claim (for example, for damages) will lose it if he or she does not sue within a specified period of time. Unfortunately the law on limitation periods is needlessly complex, outdated and, in some respects, unfair. A range of different regimes apply depending on the claim in question. This incoherence reflects the piecemeal development of the law since the seventeenth century. In this consultation paper we seek opinions on our provisional proposals for fundamentally modernising the law to render it simpler and fairer.
The Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and to recommend reform where it is needed.
Legal victory for child abuse man
A North Yorkshire man who suffered sexual abuse as a child has won the right to sue his tormentors in a landmark ruling by Law Lords.
Kevin Young, now 46, claims he was abused at a Catholic boarding school and then by Neville Husband when he was in a Medomsley detention unit in 1977.
Husband was subsequently jailed for brutal sex attacks on teenage boys.
Mr Young’s lawyers said they will now pursue civil claims against Catholic Care and the Home Office.
Solicitor David Greenwood, who specialises in child abuse cases, and is representing Mr Young, issued a statement after Wednesday’s Law Lords‘ ruling.
Lords issue landmark abuse ruling
Victims of sexual abuse may be able to sue their attackers after many years, following a ruling by the Law Lords.
The House of Lords overruled Stubbings v Webb and held that actions for damages for personal injury for sexual abuse and assault fell within section 11. The Court took the view that it could not have been Parliament’s intention that those who had been intentionally injured were to be excluded from sections 11, 14 and 33.
The Court went on to clarify the test in section 14 for determining the date of knowledge of the cause of action by the Claimant. The test is whether a Claimant could reasonably have considered the injury they suffered as being sufficiently serious to justify proceedings. The test is not whether the Claimant would have seen this, which will protect those such as the Claimant in Stubbings v Webb, where she did not realise the link between her abuse and her injury until she was an adult.
This decision recognises that it is not appropriate or realistic for Claimants who have suffered sexual abuse or assault to be restricted to bring a claim within 6 years when the effects and realisation of the nature of their injury may not present themselves to the Claimant for many years.
(7) http://www.bailii.org dann in Suchfeld offizielles Urteilkennwort eingeben:  EWHC 1786 (QB)
The law on limitation
184. The primary limitation period expired on 25 November 1996, the claimant’s 21st birthday. The letter of claim was sent in August 2005. A claim form was issued in September 2007, but allowed to lapse. The current claim form was issued on 23 May 2008, 11½ years after the expiration of the primary limitation period.
185. The relevant provisions relating to date of knowledge are contained in sections 11 and 14 of the 1980 Act. The combined effect of section 11(3) and (4) is that an action for personal injuries cannot be brought more than three years after the date on which the cause of action accrued or (if later) the date of knowledge of the person injured. The claimant does not contend that her date of knowledge was less than three years before she commenced proceedings. The sole question to be determined on limitation is whether, despite the fact that the claim was commenced outside the limitation period, I should exercise my discretion under section 33 of the 1980 Act.
186. Section 33 provides:
„(1) 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 … of this Act prejudice the plaintiff or any person whom he represents; and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the action, or shall not apply to any specified cause of action to which the action relates.“
((1A) and (2) are not relevant for these purposes)
(3) In acting under this section the court shall have regard to all the circumstances of the case and in particular to –
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11 …;
(c) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;
(d) the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received“.
187. In the leading case of A v Hoare and Ors  UKHL 6, the House of Lords considered, inter alia, the approach to be adopted by a court when considering when a claimant acquired the requisite knowledge under section 14. In particular, the court considered the extent, if any, to which account should be taken of characteristics personal to the claimant, whether pre-existing or consequent upon his injury. The court concluded that the test was an objective one and disapproved the partly subjective test which had been applied in the earlier cases of McCafferty v Metropolitan Police District Receiver  1WLR 1073 andKR v Bryn Alyn Community (Holdings) Ltd  QB 1441.
188. However, Lord Hoffmann made clear that the question of whether the claimant, taking into account his psychological state in consequence of the injury, could reasonably have been expected to institute proceedings is not irrelevant to the issue of limitation. At paragraph 45, he said that the law:
„…deals with that question under section 33, which specifically says in subsection (3)(a) that one of the matters to be taken into account in the exercise of the discretion is „the reasons for … the delay on the part of the plaintiff“ „.
He went on to observe at paragraph 49:
„The judge is expressly enjoined by subsection (3)(a) to have regard to the reasons for the delay and in my opinion this requires him to give due weight to evidence, such as there was in this case, that the claimant was for practical purposes disabled from commencing proceedings by the psychological injuries which he had suffered.“
189. Lord Carswell referred to the different approach which would now be applicable to the exercise of discretion. At paragraph 70, he said:
„If, as I think to be the case, section 14 should be construed in this manner, which is less favourable to a claimant, there requires to be a more liberal approach to the exercise of discretion than has always been the case. For the reasons which my noble and learned friends and I have set out, that less favourable construction of section 14 is correct in principle, but it must follow that the favourable factors which have hitherto been taken into account in reaching a conclusion under section 14 should form part, and in appropriate cases a very significant part, of the judge’s determination in exercising his discretion under section 33“.
190. At paragraphs 85 to 87 Lord Brown, made three comments on the exercise of discretion:
„85 First, insofar as future claims may be expected to be brought against employers (or others allegedly responsible for abusers) on the basis of vicarious liability for sexual assaults rather than for systemic negligence in failing to prevent them, they will probably involve altogether narrower factual disputes than hitherto. As Lord Hoffmann suggests, at paragraph 52, that is likely to bear significantly upon the possibility of having a fair trial.
86 Secondly, through the combined effects of Lister v Hesley Hall Ltd and departing from Stubbings v Webb, a substantially greater number of allegations (not all of which will be true) are now likely to be made many years after the abuse complained of. Whether or not it will be possible for defendants to investigate these sufficiently for there to be a reasonable prospect of a fair trial will depend upon a number of factors, not least when the complaint was first made and with what effect. If a complaint has been made and recorded, and more obviously still if the accused has been convicted of the abuse complained of, that will be one thing; if, however, a complaint comes out of the blue with no apparent support for it (other perhaps than that the alleged abuser has been accused or even convicted of similar abuse in the past), that would be quite another thing. By no means everyone who brings a late claim for damages for sexual abuse, however genuine his complaint may in fact be, can reasonably expect the court to exercise the section 33 discretion in his favour. On the contrary, a fair trial (which must surely include a fair opportunity for the defendant to investigate the allegations-see section 33(3)(b)) is in many cases likely to be found quite simply impossible after a long delay.
87 Hitherto the misconstruction of section 14(2) has given an absolute right to proceed, however long out of time, to anyone able to say that he would not reasonably have turned his mind to litigation (more than three years) earlier (the Bryn Alyn test described by Lord Hoffmann at paragraph 36). It is not to be supposed that the exercise of the court’s section 33 discretion will invariably replicate that position. “
191. Hoare was a case of attempted rape and the related cases concerned vicarious liability for sexual abuse. The evidence in that type of claim is in general more straightforward than in a case of professional and/or systemic negligence.
192. The Scottish case Bowden and another v Poor Sisters of Nazareth and others  UK HL32 was concerned with allegations by former residents of a children’s home of physical abuse suffered in the 1960s. In setting out the approach to the exercise of discretion under the Scottish provisions equivalent to section 33 of the 1980 Act, Lord Hope said at paragraph 25 of his judgment:
„…the context in which that discretion is to be exercised is plain enough. Its effect will be to reimpose a liability on the defender which has been removed by the expiry of the limitation period. The issue on which the court must concentrate is whether the defender can show that, in defending the action, there will be the real possibility of significant prejudice…The burden rests on the party who seeks to obtain the benefit of the remedy. The court must, of course, give full weight to his explanation for the delay and the equitable considerations that it gives rise to. But proof that the defender will be exposed to the real possibility of significant prejudice will usually determine the issue in his favour. This is a question of degree for the judge by whom the discretion … is to be exercised“.
193. As to prejudice, Parker LJ made the following observations in Hartley v Birmingham City Council  WLR 979 at 979 G – 980 C:
„… In my view, however, as the prejudice resulting from the loss of the limitation defence will always or almost always be balanced by the prejudice to the plaintiff from the operation of the limitation provision the loss of the defence as such will be of little importance. What is of paramount importance is the effect of the delay on the defendants‘ ability to defend. The specific example given in section 33(3) (b) so indicates…“.
194. The case of Donovan v Gwentoys  WLR 472 established that, although section 33(3) of the 1980 Act refers only to delay occurring after the expiration of the primary limitation period, the court must nevertheless take into account all the circumstances of the case, including any prejudice that might be faced by a defendant relating to delay before the limitation period expired.
195. I shall bear all these principles in mind when reaching my decision on the issue of limitation.
The sexual abuse
214. Although, in usual circumstances, a failure to mention sexual abuse to the police, a doctor, the CICA and in pre-action correspondence might well cast serious doubts on the veracity of later allegations, I am quite satisfied in this case that the sexual abuse described by the claimant occurred. There are a number of references, in the history which I have set out, to suspicions of sexual abuse held by those dealing with the claimant (social workers, foster parent and teacher) in 1989. They were understandably concerned about Miss P’s continuing insistence that the claimant should sleep in her bed. Miss P had told social workers about the sexual abuse of her siblings by her brother, G, and there was concern that she seemed happy for him to have contact with the claimant. In 1989, in the presence of the claimant’s foster mother, Mrs Petch, Miss P threatened the claimant with sending for G as a punishment. These matters provide strong support for the claimant’s allegations.
215. Moreover, the claimant had mentioned the fact of sexual abuse to her solicitors prior to June 2008, when the Particulars of Claim were filed but had declined to give any details. I find her explanation for not doing so entirely convincing. Her distress when the matter was raised while she was in the witness box was very evident.
246. The question that I must address is whether it would be equitable to allow the action to proceed, despite the fact that it was commenced well outside the primary limitation period. I remind myself that the burden of showing that it would be equitable to do so lies on the claimant and that it is a heavy burden. With those matters in mind, together with the principles to which I have already referred, I shall address separately the considerations set out in section 33(3) of the 1980 Act.
247. Section 33(3)(a) requires the court to have regard to the length of, and the reason for, the delay on the part of the claimant. The length of the delay in this case is very substantial indeed: 32 years from the beginning (and 19 years from the end) of the abuse to the commencement of proceedings. I must give weight to that fact. At the time of the abuse, the claimant was a child. She did not attain the age of 18 until November 1993. By that time, she had already begun to seek information about her early life. She had asked to see the defendant’s records on her in October 1992 and her evidence, which I accept, was that she repeated that request from time to time thereafter. The records were not provided. In November 1996, just before her 21st birthday, she made a formal written request through a Legal Advice Centre. It does not appear that the defendant responded to that request. The claimant took no further active steps to pursue the matter until 2004.
248. During those intervening years, I find that the claimant was facing considerable difficulties. In 1990, when she was only 15 years old, she formed a relationship with a partner who had criminal convictions and took drugs. According to Ms Beeston, he was a bad influence on her and she too became involved with drugs and other criminal activities. Her partner was in and out of prison and was often violent (sometimes seriously violent) towards her. Her first child was born in September 1993 when she was only 17 years old.
249. She had a second child in 1996. She and her partner had frequent separations after which they would become reconciled. The relationship ended in late 2002 after a serious assault which put her in hospital. She formed another relationship soon afterwards and, in 2003, gave birth to a child with disabilities. It seems that, from that time, her life became rather more settled. Throughout the whole of this period, the consultant psychiatrists who have examined her agree that she was suffering from an emotionally unstable personality disorder and drug dependence. When, in May 2004, she was asked by the police why it had taken her so long to report the abuse by her mother, she told them that she had „tried to pursue it before“ but was having a lot of trouble with her ex-partner and his abuse. She said that she now felt „a lot more steady“.
The claimant cannot be criticised for her failure to take any active steps to investigate a possible claim against the defendant up to her 18th birthday. She remained in voluntary care until that time and had continuing contact with and support from its Social Services Department for some time afterwards. Furthermore, given the circumstances of the claimant’s childhood, her disrupted adolescence and the difficulties which she faced in the years following her 18th birthday, it is not in my view surprising that she did not make any steps to pursue enquiries into a possible claim during that period. She had attempted to obtain sight of her Social Services records in 1992 and 1996 (and, as I have found, at other times also) but her efforts met with no success. Without those records, she would have had no grounds for believing that the defendant had or might have been negligent in her early childhood. It was not until she obtained the document from her GP’s file (see paragraph 139 of this judgment) that she became aware that the defendant had known of Miss P’s violence towards her and yet had not removed her from Miss P’s care. That was after she had reported Miss P’s conduct to the police in late April 2004.
250. Once the claimant had reported the matter to the police, there was further delay while they attempted to obtain records from the defendant. The claimant tried to assist that process by making a written complaint to the defendant in October 2004 but the defendant decided to suspend investigation of that complaint until the police investigations had been concluded. Even when the criminal proceedings were concluded in July 2005, the records were not provided. By that time, however, the claimant had consulted her current solicitors. They sent a letter of claim in August 2005. They pressed the defendant for full disclosure of the documentation and, when that was not forthcoming, made an application to the court. Meanwhile they issued a claim form in 2007 which was allowed to lapse. It was not until April 2008 that all the relevant documents were received. The current claim form was issued in May 2008.
251. Section 33(3)(c) requires the court to consider the conduct of the defendant after the cause of action arose, including the extent (if any) to which it responded to requests reasonably made by the claimant for information or inspection for the purpose of ascertaining facts which were or might be relevant to the claimant’s cause of action. The defendant’s failure to respond to the claimant’s requests for the records is relevant here. In saying that, I am not suggesting that there was any concerted attempt to conceal information from the claimant. It may well be that those involved with the claimant’s care in 1992 and thereafter genuinely felt that it would not be in her best interests to dwell on what had happened in the past and gave her what they felt was good advice not to pursue her requests. However, the request by the Law Centre in 1996 should have received a positive response. If the records had been provided at that stage, it is in my view highly likely that, despite the claimant’s difficulties, she would have sought legal advice on their contents and proceedings would have been commenced much earlier than was in fact the case. Furthermore, while it was possibly understandable that, once the criminal proceedings were under way, the defendant should have suspended consideration of the claimant’s complaint about its failure to provide the records, there can have been no excuse for not having dealt with the matter promptly after those proceedings were concluded. I find on a balance of probabilities that the defendant’s conduct made a significant contribution to the delays that have occurred.
252. Another aspect of the defendant’s conduct that might be of relevance is the loss of the file relating to Miss P and the claimant. I shall refer to that matter later in this judgment.
253. Section 33(3)(d) requires the court to have regard to the duration of any disability of the claimant arising after the date of the accrual of the cause of action. I have taken into account when considering section 33(3)(a) the fact that the claimant did not attain her majority until November 1993 and have observed that no criticism can be made of her for any delay which occurred before that time.
254. Section 33(3)(e) and (f) require me to have regard respectively to the extent to which the claimant acted promptly and reasonably once she knew that she might have an action for damages and the steps which she took to obtain medical, legal or other advice and the nature of that advice. The claimant first sought legal advice in 1996 with a view to obtaining her records from the defendant. Her evidence was that, at that stage, she was not considering a civil claim but just wanted to know what the defendant knew about her past. The letter written on her behalf stated that she wished the Centre to „enquire into the events concerning her upbringing and care“ by the defendant. I am satisfied that the request for the records was very much an exploratory step at that stage and that the claimant’s primary motive at that time was to find out what had happened to her in the past and precisely what part the defendant had played. It was not until she had obtained the document from her GP in April or May 2004 that she knew that the defendant had been aware of Miss P’s ill-treatment of her as a baby.
255. After that time, the claimant sought legal advice very promptly. At first, that advice was directed at a claim to the CICA. Once her current solicitors were instructed, they notified the defendant of a potential claim and began the process of seeking disclosure of documents. Until the relevant documents were available, it was not possible for the claimant to obtain expert or medical evidence in support of her claim. As I have said, the disclosure process took a considerable time due to the defendant’s failure to deal promptly with it.
256. I find that the claimant acted promptly and reasonably and that the delay which occurred was not – or not to any significant extent – the fault of her or her solicitors.
257. Section 33(3)(b) requires me to consider the extent to which, having regard 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, than if the action had been brought within the primary limitation period. In particular, I must consider the effects of the delay on the defendant’s ability to defend the action.
258. I have already found that there were documents relating to the claimant which came into existence in 1976 and which would have been transferred to the new file in February 1977. These documents are likely to have included information about the failure to obtain a PSO in April 1976 and the successful application for a PSO in August 1976, together with Minutes of Case Conferences and meetings following the claimant’s inclusion on the CP Register. All the defendant’s documents from February 1977 onwards (except those kept by the RFH social worker and a few references in the family file) are missing. The defendant contends that that fact, coupled with the unavailability of Miss Coller, makes a fair trial impossible. It is said that, without the missing documents, it is impossible to determine whether or not the decisions taken by Miss Coller and others of the defendant’s Social Services Department staff were below the standard of decisions made by reasonably competent practitioners at the time. There may, it is said, have been circumstances of which we are unaware and which would have justified their actions and decisions. For example, any conclusions as to a failure on the part of Miss Coller to visit the claimant may be erroneous since there may have been visits or other incidents that went unrecorded. It is suggested that Miss Coller might, if she had been available to give evidence, have been able to shed light on her practice with regard to visiting and/or the recording of visits. As it is, no confidence can be placed on the completeness of the running record in the family file.
259. It is to be noted that section 33(3)(b) requires the court to consider the cogency of the evidence now, as compared with its cogency if the action had been brought within the primary limitation period. It is therefore, appropriate to consider what the position would have been if the case had been tried in, say, 1996. The relevant documents could not be found in 1989. Nor have they come to light since. There is in my view no reason to suppose that the search for documents conducted by the defendant in 1989 was inadequate. The defendant was at that time anxious to gather information about its past involvement with the claimant and had every reason to make a thorough search. I conclude that the documents had been mislaid by 1989 and would not have been available in 1996.
260. The defendant has provided no evidence as to the date when Miss Coller left its employment. It seems likely that she did so before 1989 since there is no indication in the records that she was consulted when the claimant came to the defendant’s notice that year. Nor is there any reason to believe that Miss Coller, Mrs O’Kelly or any of the other potential witnesses would have been traceable in 1996. Even if they had been, it is highly unlikely that, without the relevant records, they would have been able to provide a significant amount of additional detail about events which had happened 20-25 years earlier.
261. As to the other evidence, neither the claimant’s evidence nor that of AB is in my view likely to have been of materially better quality in 1996. Nor, since quantum is agreed, can any problems with the cogency of evidence relating to medical causation arise.
262. Thus, I do not regard the evidence as adduced by the claimant and the defendant as a whole as significantly less cogent than if the action had been brought within the primary limitation period.
263. That, however, is not the end of the matter. Section 33(3) requires me to consider all the circumstances of the case. I must take into account delay arising before the expiration of the primary limitation period. The relevant file must have been mislaid some time between the early 1980s (when it was closed) and 1989 (when it was found to be missing). During that period, the claimant was still a young child and in Miss P’s care. There could have been no realistic prospect of her bringing proceedings at that time.
264. At the time it was lost, the file was (or should have been) within the defendant’s control and the defendant should have had proper arrangements for storing it in such a way that it could be readily retrieved if necessary. It is clear that, for reasons that are not known, this did not happen, as a consequence of which the file could not be found when it was needed in 1989. There is no suggestion that there was any fire, flood or other extraneous event beyond the defendant’s control that caused the loss of the file. Nor, as the defendant conceded, would it have been the subject of any routine file destruction programme. Therefore, the failure must be attributable to the actions of one or more of the defendant’s employees and the defendant must bear the responsibility for its loss. That matter is not, of course, determinative. It merely one factor which I must put into the scale when reaching my decision.
265. Section 33(1) requires me to consider the degree to which any decision under the section would prejudice the defendant. I must therefore consider carefully whether, if I use my discretion in the claimant’s favour, this would give rise to the real possibility of significant prejudice to the defendant in defending the action.
266. At paragraphs 218-220 of this judgment, I summarised the potential causes for concern relating to the claimant’s care which existed in 1976. It is true that she had sustained no serious injuries which would in themselves have given rise to the conclusion that she should be removed from her mother. However, there was evidence of regular (said to be virtually daily) use of violence on the claimant. I am quite satisfied that that violence, coupled with the concerns as to Miss P’s ability and motivation to care for the claimant and her apparent lack of concern and affection for her, should have raised a serious question over the safety of the claimant if she were to remain in Miss P’s care, particularly after a move to separate accommodation. The available documents suggest that Miss Coller failed properly to address that question.
267. I am not persuaded that there were any, or any significant number of, additional visits to Miss P and the claimant over and above those which Miss Coller recorded in the family file. It is true that there is a reference in the entry for 14 March 1976 to there having been two unrecorded visits since the previous entry in the running record. However, the two visits were at least noted on 14 March 1976. One of those visits was that of 11 March 1976 which is fully described in the entry of 14 March 1976. I am satisfied that the visit of 11 March 1976 was Miss Coller’s first meeting with Miss P and the claimant. The entry she made on that occasion included her impression of Miss P and a reference to her personal appearance, which would have been unnecessary if she had met Miss P before. Furthermore, if she had seen the claimant on previous occasions, the overwhelming likelihood is that she would have followed the correct practice and made a note recording details of the claimant’s condition and how Miss P was handling her.
268. If the visit of 11 March 1976 was the first visit at which Miss Coller saw Miss P and the claimant, it follows that she cannot have seen them before that date. Miss P visited Miss Coller in her office on 15 March 1976 and it seems very unlikely that Miss Coller saw Miss P and the claimant again in the intervening period. The second visit referred to in the entry dated 14 March 1976 must therefore have been abortive, certainly in the sense that Miss Coller did not see Miss P and the claimant (she may have seen other members of the family). Thus, I do not accept that the reference to the two visits which went unrecorded at the time supports the conclusion that there were visits when Miss Coller saw Miss P and the claimant which were not included in the running record.
269. Given the background of concerns about the claimant throughout 1976, I do not regard it as likely that Miss Coller would have failed to record an episode of contact with the claimant during 1976. The fact that she did not make a practice of visiting regularly is demonstrated by her failure to visit the claimant (or arrange for another social worker to do so) after her failure to obtain the PSO on 30 April 1976. As I have said, she did not even know where Miss P and the claimant were living at that time and apparently made no effort to find out. I accept that it is just possible that there may have been the odd visit that was recorded on a separate sheet of paper in the running record which was later transferred to the new file. However, I am satisfied that the record of any such visit, had it been available, would not have affected the overall picture.
270. It is quite clear from the documents we have that what was required was a period of systematic monitoring and/or assessment to ascertain whether Miss P was capable of caring properly for the claimant. That view was shared by Miss Coller and those senior to her in April 1976 at the time when the unsuccessful application for a PSO was made. Yet it never materialised. Instead, the defendant allowed itself to be deflected by Miss P’s refusal of the various options offered to her. However many Case Conferences, reviews and other meetings may have taken place in connection with the claimant’s case after April 1976 (and, from the lack of cross-referencing in the available documents, it is my view probable that, in 1976, they were few in number), it is clear that no systematic monitoring and/or formal assessment was undertaken and no court order sought in order to compel Miss P to choose between submitting to such monitoring and/or assessment or risking the claimant being removed from her care.
271. It is impossible to say with certainty why no such step was taken. However, the views of Miss Coller, as the social worker dealing with the family, would no doubt have been highly influential. Given the infrequency and superficiality of her observations of Miss P and the claimant, her evident lack of experience in child protection matters and her failure to take account of the overall picture, it is difficult to see how Miss Coller could adequately have conveyed the seriousness of the risk to the claimant to the other professionals who were involved in making the relevant decisions. They may well have accepted at face value her apparent belief that many, if not all, Miss P’s problems would be solved by a move to her own accommodation.
272. I regard it as highly unlikely that, if the missing documentation from 1976 were available, it would significantly change the picture which emerges from the existing documents. Certainly, there is no indication in the family file that Miss P’s conduct underwent any material improvement during 1976. On the contrary, during the later part of the year, she was causing such problems at Mrs P’s flat that Mrs P was compelled to move out and live elsewhere. It is true that no allegations of violence towards the claimant were recorded between August 1976 and February 1977. However, since neither Mrs P nor AB were living at the flat, any ill-treatment of the claimant by Miss P would not necessarily have been observed by others. Furthermore, having regard to the events of 1978 and what we know about the subsequent history, there is no reason at all to believe that there was any change in Miss P’s behaviour which should have caused the defendant to consider that no systematic monitoring and/or formal assessment of her parenting skills was necessary.
273. Nor do I consider that the evidence of Miss Coller would have materially assisted the defendant. I have already rejected the suggestion that there were visits (save possibly for the very odd one) where she observed Miss P and the claimant together and which went unrecorded. It is difficult to see how, given the records of the visits which exist, she could successfully have claimed that she made careful observations and assessments of risk, as a result of which she concluded that no systematic monitoring and/or formal assessment of Miss P’s parenting skills was necessary. She may have claimed that she was not solely responsible for the decisions that were made and that more senior staff, such as Mrs O’Kelly, bore a greater responsibility for such decisions. Such contentions may have had some force, but they would not have assisted the defendant. I have already expressed the view that senior staff should have recognised Miss Coller’s lack of experience in child protection matters and given her proper supervision or allocated an alternative social worker to the claimant’s case. I do not consider that the evidence of Mrs O’Kelly or other witnesses would have materially altered the position.
274. We now know that Miss P ill-treated the claimant continuously from the time of her birth. She did not hesitate to use violence in front of other people. In 1976 and 1989 (and by her guilty plea in the criminal proceedings), she admitted her use of violence towards the claimant. She spoke frankly at various times of her feelings towards the claimant. She was prone to outbursts of temper. She admitted in 1989 that she had been unable to cope with the claimant even when she was a baby. It is notable that, during the claimant’s admission to hospital in June 1978, when there was an opportunity to observe Miss P at close quarters, hospital staff were concerned by her behaviour towards the claimant which veered unpredictably between cuddling her and shouting at and hitting her. During that same admission, members of the public were concerned enough at her behaviour to report the matter to social work staff. Had the defendant undertaken (as they should have done) systematic and competent monitoring and/or a formal assessment of Miss P’s skills as a mother in 1976, or indeed at any time thereafter, it is inconceivable in my view that her total unsuitability as a carer for the claimant would not have rapidly been recognised. Indeed, the strong probability is that she would have failed to co-operate consistently or at all with any programme of monitoring and/or assessment.
275. Thus, while in many cases, the absence of documents and/or of a witness intimately concerned with the relevant events may cause a defendant very substantial prejudice, in the unusual circumstances of this case, I do not consider that it has significantly prejudiced the defendant in its defence of the case.
276. Balancing the various factors and taking into account all the circumstances of the case, in particular the various issues set out in section 33(3) to which I have already referred, I am entirely satisfied that the claimant has established that it would be equitable to allow the action to proceed. I take the view that, notwithstanding the delay that has occurred, the ability of the defendant to defend the issues of liability and factual causation has not materially been affected. I therefore direct that the provisions of section 11 of the 1980 Act shall not apply to this action.