45 / 448
GAZETTE
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
Letang
v
Cooper,
in concurring
judgements with
Denning LJ,
, 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
claim for personal injuries.
Lord
Griffiths,
in overruling
Letang v
Cooper,
said
10
:
j
"I cannot agree that the words
i
'breach of duty' have the effect of
j
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
j
injury, rather than an obligation not
to infringe any legal right of
I
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
The plaintiff/appellant
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,
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
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
at the time) with an additional
four years from her attaining
Í
her majority.
|
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.
| 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
has discovered or could
29