The Gazette 1996

GAZETTE

JANUARY/FEBRUARY 1996

date (or dates) on which the cause of

action accrued

, 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".

This amelioration

is provided by section 2 of the 1991

Act which provides as follows:

"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:

(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

bringing of an action against the

defendant;

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,

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

which it is reasonable for him

to seek.

| (3) Notwithstanding

subsection (2)

of this section -

(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

to obtain (and, where

appropriate, to act on) that

advice; and

(b) a person injured shall not be

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 " ?

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

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

in the context of

statutory provisions similar to the

provisions of the (Irish) 1957 Act and

the 1991 Act.

S. was adopted by Mr and Mrs W

who also had natural children.

Between the ages of 2 and 14, S.

was sexually and physically

abused

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

that S. had suffered mental illness

and had been an in-patient in

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

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