The Gazette 1996

GAZETTE

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could be a link between her problems and the childhood sexual abuse. By meeting the producer of the programme she was introduced to a psychiatrist specialising in child sexual abuse. She consulted the doctor in 1984 and in the \ first consultation he indicated a \ possible link. i In the Court of Appeal 6 it was held j that the claim of S. was not statute- barred. In his judgment, Bingham U i found in favour of S. on the two j questions he regarded as relevant: (a) whether the injury on which her claim was founded was significant; and, (b) whether the injury constituted a j "breach of duty". I The House of Lords unanimously reversed the Court of Appeal in a single judgment of Lord Griffiths. 1 The judgment considered the relevant provisions of the Limitations Acts (similar to the Irish provisions) and also considered the Tucker Committee Report 8 which had led to the statutory change in the meaning of "date of \ knowledge". The Tucker Committee had also concluded that trespass to the person was not within the definition j of personal injuries. Lord Griffiths | held that S's cause of action was grounded in trespass and there could be no extension of time on the grounds of lack of "knowledge", ! which was only open where the action claimed damages in respect of "personal injuries . . . caused by negligence, nuisance or breach of duty ". Lord Griffiths went further to consider the meaning of "breach of duty " and overruled an earlier Court of Appeal decision of Denning LJ in Letang v Cooper 9 which had held that the words "breach of duty " were wide enough to encompass trespass to the person. In , Dankwerts LJ had held that trespass involved a breach of duty in the same way as any other tort and Diplock LJ had held that the words "breach of duty " were wide enough to cover any cause of action which gave rise to a Letang v Cooper, in concurring judgements with Denning LJ,

"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. . . Even without reference to [Hansard] I should not 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." For this reason it was held by the j House of Lords that S's cause of action was one in trespass only and that the limitation period was six years from her date of majority with no statutory power to extend the period. i The judgment of the House of Lords, when compared with the reversed | judgment of the Court of Appeal, is chilling in its lack of sensitivity, as for example (per Lord Griffiths): "I have the greatest difficulty in accepting that a woman who knows that she has been raped does not know that she has j suffered a significant injury." This is j language likely to reawaken these feelings of betrayal and i powerlessness. I The trauma and psychological damage caused to victims and the 'modus | operandi' of abusers who engage in fraud and concealment as well as j threats and intimidation were not overlooked in the recent Canadian case oiM(K) v M(H): U was a victim of incest by her father from the age of 8 up to 1974, when, at age 17, she left home. Subsequently, she married, had children and was divorced in 1983. She had attempted to tell her mother and school counsellor of the incest at age 16 but ended up recanting her accusation against her father in the presence of the counsellor. In 1984, | | | ! j I The plaintiff/appellant

was her father who was responsible I for the abuse. She did not associate I her psychological problems with her father until therapy began and in 1985 she brought an action against him for assault and battery and breach of fiduciary duty. General and punitive damages were assessed but the trial judge dismissed j her action under the Limitation Acts which set a four year limit from the date of accrual of each of the causes of action but (as she was under age | j The case was appealed to the Supreme j Court of Canada who unanimously allowed it. It held that it was a i trespass to the person and not a distinct tort. It was therefore subject J j to the limitation applicable. The Court made the important finding that a victim is incapable of psychologically recognising that a cause of action exists until long after the period of I limitation has run. The period does not begin to run until the victim is reasonably capable of discovering the wrongful nature of the abuse and her injuries. It acknowledged that the victim in the particular case always knew of the assaults but did not know that there was a causal link between j them and the psychological problems. | It recognised the commencement of I therapy as vital in making this | discovery. Even more important the ! Court held there was a presumption j that a victim does not discover the nexus between her injuries and the | abuse until therapy commences. This it applied. at the time) with an additional four years from her attaining Í her majority. | The Court further held that the j doctrine of fraudulent concealment ; applied in law and equity. Incest cases, and presumably all sex | abuse cases, are amenable to it as an : answer to limitations, because the | abuser typically conceals his Í actions and masks their | wrongfulness; and [similar to the Irish and English Limitation ; Acts] where there is fraud or | concealment by fraud then time : does not run until the plaintiff j | :

she went to a self-help group for incest and began therapy in 1985. Until then she knew incest was wrong but was unable to realise it

claim for personal injuries. Lord Griffiths, in overruling Letang v Cooper, said 10 :

has discovered or could

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