The Gazette 1996

JANUARY/FEBRUARY 1996

GAZETTE

bringing of an action against the defendant;

j (i.e. "knowledge") of the incidents of j sexual abuse is a well recognised I phenomenon and it might be judicially determined that the victim's date of knowledge only occurred when, in adulthood, the victim became actually conscious of the incidents of abuse and their long-term psychological effect. The 1957 Act defines the words "personal injuries" as including "any disease and any impairment of a person's physical or mental condition". Clearly, child sexual abuse would constitute personal injuries within the meaning of the | 1957 Act but the critical question is ] whether it was caused by "breach of duty". This was recently considered in í I England in Stubbings v Webb and Others 5 in the context of statutory provisions similar to the provisions of the (Irish) 1957 Act and the 1991 Act. Í S. was adopted by Mr and Mrs W j ! who also had natural children. j i Between the ages of 2 and 14, S. I was sexually and physically abused I by Mr W and by his son. S. | commenced proceedings for damages against Mr W and his son in 1987 when she was 30 years old, although S. had reached her majority in 1975. The question was whether the Statute of Limitations gave her a further six years (if her claim was grounded on trespass to the person) or three years from the date she contended she first had knowledge that she had a cause of action. It was accepted j that S. had suffered mental illness psychiatric hospitals. She had married, had two children and was divorced. She knew the acts complained of when they occurred and consequently within three years of attaining her majority; but her j appreciation of the causal link between the abuse and her psychological problems came not in \ a single revelation but by a slow gradual process. It had been assisted by seeing a television programme on incest which gave a telephone number for a crisis group. This was followed up and it revealed to her that there ' j \ \ i and had been an in-patient in

date (or dates) on which the cause of action accrued 2 , depending on the nature of the tort involved. An assault is a trespass to the person with a six year limitation period whereas a claim for personal injuries has a three year limitation. However, the period does „ not run against a person until he or she attains the age of majority (i.e. age 18). A further amelioration of the structures of the Statute of Limitations 1957 ("the 1957 Act") is provided by the Statute of Limitations (Amendment) Act 1991 ("the 1991 Act") in the case of an "action . . . claiming damages in respect of personal injuries to a person caused by negligence, nuisance or breach of duty"? The 1991 Act expressly applies "to all causes of action whether arising before or after its I passing and to proceedings pending at its passing". 4 This amelioration is provided by section 2 of the 1991 Act which provides as follows:

and knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, nuisance or breach of duty is irrelevant.

| (2) For the purposes of this section, i a person's knowledge includes knowledge which he might reasonably have been expected to acquire - (a) from facts observable or ascertainable by him, or \ (b) from facts ascertainable by him with the help of medical or other appropriate expert advice j which it is reasonable for him I to seek. (a) a person shall not be fixed under this section with knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps j to obtain (and, where appropriate, to act on) that I advice; and | (b) a person injured shall not be | (3) Notwithstanding subsection (2) of this section - fixed under this section with knowledge of a fact relevant to the injury which he has failed to acquire as a result of that injury." Does child sexual abuse constitute the infliction of "personal injuries" or is child sexual abuse a trespass to the person? If it constitutes personal injuries, were they "caused by . . . breach of duty " ? i The distinction is important because if child sexual abuse is held to be "personal injuries . . . caused by . . . breach of duty" then the provisions of section 2 of the 1991 Act would apply and the question would then arise as to when the victim had "knowledge" of the "injury" as set out in that section. It seems clear that suppression by a sexually abused child of his or her conscious memory

"2. - (1) For the purposes of any

provision of this Act whereby the time within which an action in respect of an injury may be brought depends on a person's date of knowledge (whether he is the person injured or a personal representative or dependant of the person injured) references to that person's date of knowledge are references to the date on which he first had knowledge of the following facts:

j

(a) that the person alleged to have been injured had been injured,

(b) that the injury in question was significant,

(c) that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance or breach of duty,

(d) the identity of the defendant, and

(e) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the

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