The recent case B & W v The Congregation of the Sisters of Nazareth [2022] CSOH 8 issued a decision concerning the difficulties which can arise in a childhood abuse case.
The Pursuers in this case, B & W, alleged they suffered both physical and emotional abuse whilst staying at a home operated by the Defender in 1974.
Facts
The alleged abuse consisted of being beaten, force-fed, forced to take cold baths and being punished and humiliated for wetting the bed.
Both Pursuers alleged Sister X had been a perpetrator of the abuse. Sister X was convicted of four charges of assaulting children in 2000, one of which was associated with her time at the home. Sister X did not provide a statement. Her legal representatives advised her health had declined and there were capacity concerns, despite this never being confirmed.
B also alleged she was abused by a Sister M, however, the Defenders produced evidence that no such person worked in the home in 1974. The Sisters working at the home in 1974 included a Sister MMM. B believed Sister MMM to be the Sister she wrongly recalled as Sister M. Sister MMM provided a statement.
Both B and W’s claims were valued at £750,000 each.
The Defenders argued it would be impossible to conduct a fair hearing due to the passage of time (section 17D (2) of the Prescription and Limitation (Scotland) Act 1973) and if a hearing was conducted, the Defenders would be substantially prejudiced (section 17D (3)). They relied on the following reasons:
- Absence of cogency in the Pursuers’ accounts;
- Changes in social attitudes;
- Causation issues;
- Absence of contemporary documents;
- Lack of witnesses; and
- Insufficient specification in the pleadings.
The Pursuers argued the Defender’s motion to dismiss the hearing should be refused due to the following factors:
- Sister MMM could be called to give evidence as no evidence was available to prove she was either dead or incapacitated;
- The Defender had taken no steps to preserve evidence following Sister X’s conviction;
- Sister X’s previous statement to the Scottish Child Abuse Inquiry was consistent with the Pursuers’ allegations; and
- Both credibility and reliability was dependent upon witness evidence, not documents.
Lord Weir found that those seeking to bring childhood abuse claims will not be prevented from doing so due to the passage of time.
Analysis
Lord Weir accepted there were inconsistencies in available evidence. He also commented beyond the Pursuers’ own accounts of abuse, there was little other evidence which supported this view. He noted that no evidence was available from former members of the home and the evidence primarily consisted of the Pursuers’ affidavits. Lord Weir did not believe the Pursuers’ accounts of abuse were impossible or implausible. He stated that these evidential inconsistencies would not prevent a court conducting a fair hearing. Lord Weir elaborated that such inconsistencies could be raised in cross-examination and be commented on in submissions. For these reasons Lord Weird found that the lack of cogency argument did not mean a fair trial was impossible.
The onus was on the Defender to prove that the change in social attitudes since 1974 would materially affect the ability of the court to conduct a fair hearing. Lord Weird accepted that it would be difficult for the court to assess the alleged abuse in line with the standards of behaviour accepted in 1974. However, he stated that no evidence was led which would suggest that if the abuse was proven, at the time it would only have amounted to reasonable chastisement. Lord Weir concluded that such difficulty establishing wrongful conduct in 1974 would not mean the court would be unable to conduct a fair hearing.
Lord Weir accepted that proving that the abuse directly caused the Pursuers’ injury would be a high bar to satisfy because the Pursuers’ full childhood consisted of domestic difficulties and being placed in care. The Consultant Forensic Psychiatrist Report instructed by the Defender disputed the Pursuers’ claims of mental illness. Lord Weird concluded that the Pursuers would have significant causation challenges. However, he was satisfied these challenges would not render a fair hearing impossible.
The Pursuers argued the Defender should have taken steps to preserve evidence after the conviction of Sister X. Lord Weir did not agree with this. He stated the passage of time has prevented the Defender being able to source documentation. Lord Weir commented on the inability to obtain such evidence was potentially consequential due to the lack of evidence already available.
Lord Weir commented that the Pursuers were trying to prove abuse allegations against un-named Sisters – some of whom are deceased, others untraceable.
Decision
Lord Weir stated that the inability to identify the alleged abusers prevented the Defender from speaking to them. Therefore, the Defender could not examine the credibility or reliability of the allegations. Lord Weir commented therefore they could not argue that the abuse never happened, nor can they prepare a defence.
Lord Weir commented that it would be difficult to establish vicarious liability as the individuals were unidentifiable. He concluded that since the Pursuers case alleges 10 Sisters were abusers, it would be unfair to prescribe blame to only to the named Sisters or only to the unnamed Sisters.
Additionally, Lord Weir comments that B’s allegation of Sister MMM seems to have little evidential basis. He states that the absence of evidence from those alleged unidentified abusers prevents the possibility of a fair hearing. Additionally, Lord Weir considers that the case becomes more complex by the lack of documental evidence.
Accordingly, Lord Weir believes the Defender to have satisfied section 17D (2).
Lord Weir then states he would have also found the Defender to be substantially prejudiced had the action proceeded. His reasons were: defence costs would have been high; most of the potential witnesses were deceased; and there was a lack of documentation. On balance, he would have considered the brief time the Pursuers spent at the home, the nature of the allegations and psychologist’s concerns.
Although the Limitation (Childhood Abuse) (Scotland) Act 2017 removed the 3 year time limit to bring a claim for personal injury, this case outlines the inherent difficulties which can still arise in such claims. If you would like to speak to a member of our specialist team in relation to a potential case please call us now on 0333 060 3935.
