Ed Mitchell looks at the implications for local authorities of the ‘lottery rapist’ decision
The law and common sense were brought into step by the widely reported decision of the Law Lords in the ‘lottery rapist’ case (A v Hoare). But it has wider implications beyond the unusual facts of Hoare and his victim. It is the latest in-road into local authorities’ protection against claims for compensation for sexual abuse suffered by children in their care.
What was the underlying issue?
Many victims of childhood sex abuse wait a long time to bring claims. This means they can only succeed if their claims are of types which are not absolutely time-barred.
A right to bring legal proceedings does not last forever. The Limitation Act 1980 imposes time limits on different categories of claim. One category is claims for general civil wrongs. Here, there is an absolute time-limit of six years from the date of the wrong or, for children, six years from them attaining 18.
A second category is a claim for damages for personal injuries flowing from negligence or breach of duty. Here, a claim must be brought within three years of the child attaining the age of 18 or three years of the ‘date of knowlede’ of claim, if later. Importantly, however, the courts have discretion to permit late ‘category 2’ claims to proceed. Large numbers of victims of childhood sex abuse, who wait before bringing claims, can only hope to gain compensation if theirs is a ‘category 2’ claim.
The history of sex abuse claims against local authorities
The liability of local authorities for sexual abuse has twisted and turned over the years.
In 1993, the Law Lords held that indecent assault could not be categorised as negligence or breach of duty (Stubbings v Webb). Accordingly, they were ‘category 1’ cases subject to an absolute six year time limit. But Stubbings did not actually make much practical difference. This was because it used to be thought that, in the case of sex abuse, victims could only seek damages from their abuser and not the abuser’s employer. Often, it was simply not worth seeking damages from abusers rather than their employers.
In 2002, however, the Law Lords decided that claims against employers were possible on the basis of ‘vicarious liability’ (Lister v Hesley Hall). This left Stubbings as a key obstacle to successful claims. Whilst claims against authorities were now possible, they had to be brought within the six year time limit for ‘category 1’ cases unless the abuse was in some way linked to ‘systemic neglect’ on the part of the employing local authority (which turned it into a ‘category 2’ case). But this was difficult to prove, particulary where abusers carefully covered their tracks.
What did the Law Lords decide?
The Law Lords in A v Hoare overturned Stubbings. Indecent assault claims therefore fall within ‘category 2’. There is no absolute time limit, although the court must give permission for a late claim to proceed.
Will this decision lead to more successful claims?
Undoubtedly, it will. For example, in one of the cases before the Law Lords the first instance court said that, but for Stubbings, it would have awarded £95,000 compensation for sex abuse in a Middlesbrough council residential school. Once Stubbings had been removed, the Law Lords ordered £95,000 compensation.
Which sorts of claims are now more likely to succeed?
Broadly, the claims that previously failed were those where local authorities were not at fault. Now, however, blameless local authorities are more likely to face claims for historic sex abuse committed by their employees.
Want to read more? The Law Lords’ decision is available at www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd080130/hoare-1.htm.