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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> E.A. (AP) v. G.N. (AP) [2013] ScotCS CSOH_161 (08 October 2013)
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Cite as: [2013] ScotCS CSOH_161

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OUTER HOUSE, COURT OF SESSION


[2013] CSOH 161

A677/04

OPINION OF LORD KINCLAVEN

in the cause

EA (AP)

Pursuer;

against

GN (AP)

Defender:

________________

Pursuer: Gale QC, Barne; Drummond Miller LLP

Defender: Hanretty QC, Ennis; Aitken Nairn WS

8 October 2013

Introduction and overview


[1] This is a reparation action in which the pursuer (referred to as "EN") alleges that she suffered loss, injury and damage as a result of sexual "abuse" by her uncle, who is the defender. She seeks an award of damages.


[2] The pursuer contends that it is equitable to allow her to bring the action in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 ("the 1973 Act).


[3] The defender denies liability and avers that the action is time-barred in terms of section 17 of the 1973 Act.


[4] After a lengthy procedural history, the case came before me for proof before answer.


[5] Mr Gale QC and Mr Barne appeared for the pursuer.


[6] Mr Hanretty QC and Ms Ennis appeared for the defender.


[7] Having heard the evidence, and having considered all the submissions of counsel, I have decided:

      That the pursuer is entitled to reparation from the defender to the extent outlined below;

      That it is equitable to allow the pursuer to bring and proceed with this time-barred action; and

      That the pursuer should be awarded the sum of 70,000 as damages, plus an appropriate sum in respect of interest.


[8] In short, in my opinion, the pursuer's submissions prevail to the extent and for the reasons outlined below.


[9] I would outline my reasons in more detail as follows.

The background


[10] The defender and pursuer are uncle and niece. The pursuer was born on 10 December 1967. She is now aged 45. The defender, was born on 5 August 1948. He is now aged 65. He is 19 years older than the pursuer.


[11] The pursuer alleges breach of delictual duty on the part of the defender and seeks damages of 250,000 together with interest from the date of citation.

An introductory timeline


[12] The defender's counsel produced a "timeline" which was referred to by both parties. I will set out that "Timeline for Defender" below.


[13] To set matters in context, it might be helpful to provide a simplified version of that timeline at this stage, along the following lines:

Alleged events prior to the raising of the present action

1975 In 1975 the defender (GN) came to live with the pursuer's family in her home. He shared a bedroom with the pursuer (EN) and her two sisters (VN and AN). The pursuer alleged that the defender began to abuse her. He also gave her presents. The defender was also alleged to have abused the pursuer's two sisters and had the pursuer procure two friends under the age of sixteen years to abuse. The pursuer and her younger sister (AN) both gave evidence.

1977 In approximately 1977 the pursuer allegedly told her brother (EN) about the relationship with the defender.

1983 The pursuer turned 16 years of age on 10 December 1983.

1985 The pursuer turned 18 years of age on 10 December 1985.

1988 In 1988 there was a meeting at the house of MN (another uncle of the pursuer). The pursuer allegedly told her family "every single thing".

1992 In 1992 the pursuer's general practitioner sought referral for her to the Sexual Abuse Team at RSPCC saying recently disclosed "problems". The pursuer told her GP that she was being "abused" by the defender.

1995 In 1995 the pursuer told friends MD and JN about an allegedly "abusive" relationship with the defender.

1997 In about September 1997, the pursuer allegedly broke away from control of the defender and brought to an end sexual relationship between them.

On about 22 October 1997 the pursuer consulted a firm of solicitors (W) concerning her Criminal Injuries Compensation Authority ("CICA") appeal against refusal of CICA compensation for alleged rape by two Asian men. A claim was submitted.

1998 On about 5 March 1998 the pursuer's claim for CICA compensation for rape by two Asian men was refused. The pursuer subsequently told her solicitors that at this time she was not mentally, physically or psychologically strong enough to appeal against refusal.

On about 27 April 1998 a CICA application was completed by the pursuer.

On or about 2 October 1998 there was correspondence with CICA. The pursuer said that at the time she reported the offence she saw Mary Hart at SSPCC.

1999 In about March 1999 the pursuer advised the police that the defender had allegedly sexually abused her.

In July 1999 the defender stood trial in the High Court of Justiciary for the first time. The pursuer gave evidence at that trial. She was asked if she had discussed the possibility of an action for damages. She was asked in cross examination if she was suing "someone" - "taking any form of civil legal action". The defender's first trial was deserted.

In about November 1999 the pursuer's file was passed to DP, solicitor.

On about 30 November 1999 the pursuer's solicitors applied for Advice and Assistance ("A&A") from the Scottish Legal Aid Board ("SLAB") in respect of three matters although only the CICA application is produced.

2000 In 2000 the defender stood trial for a second time.

On 28 February 2000 the defender was convicted after trial in the High Court of Justiciary of offences against the pursuer and her two sisters. He was sentenced to imprisonment for eight years. [The defender appealed and his conviction was eventually quashed on 9 May 2003].

On 5 March 2000 the News of the World published an article, a copy of which is contained in No 7/10 of process.

On about 24 March 2000 the pursuer contacted her solicitor following the newspaper article.

On about 31 July 2000 there was a file note of a meeting with the pursuer's solicitor - "We came to the conclusion that this would be worth 17,500 ... although it might be possible to add on something for psychological damage".

2001 In about September 2001 the pursuer was awarded 17,500 in respect of her CICA claim.

On about 2 October 2001 the pursuer signed a form accepting the CICA award of 17,500.

The pursuer said in evidence that she was not told of any other potential claim. She also said that had she been told by her solicitor that she had a right of action against the defender she would have commenced it.

2003 On about 9 May 2003 the defender's criminal appeal was heard and his conviction was quashed.

On about 28 May 2003 the pursuer consulted her current solicitor Cameron Fyfe.

On about 27 August 2003 the pursuer was seen by Ian Stephen, Clinical Psychologist.

2004 In January 2004 the present action was raised.

Events after the raising of the present action

2004 On 10 March 2004 the action was initially sisted.

2007 On 10 October 2007 the record was closed and the case was sent to Procedure Roll for debate.

2008 On 23 and 25 June 2008 preliminary pleas were debated on the procedure roll.

On 5 December 2008 the Lord Ordinary repelled the first and second pleas in law for the defender, repelled the first plea in law for the pursuer, sustained the fourth plea in law for the pursuer and allowed a proof.

2009 On 8 January 2009 leave to reclaim was granted.

On 12 and 13 February 2009 the case was heard on the summar roll.

On 31 March 2009 the Inner House recalled the Lord Ordinary's interlocutor of 5 December 2008 and allowed a proof before answer all pleas standing.

2010 On 27 October 2010, after sundry procedure, the original proof was discharged and a new diet was fixed for 2012.

2012 After sundry procedure, the case came before me for proof before answer all pleas standing. The proof lasted a total of 13 days.

The pleadings


[14] The relevant averments of the parties, and their respective pleas-in-law, are set out in the closed record as amended as follows:

"COND. IV. In about 1975, when the pursuer was aged approximately seven years old, the defender separated from his wife. He came to live in the home of the pursuer's parents at [a stated address R]. At this time, the defender was employed as a policeman. He often returned from work late at night. The defender shared a bedroom with the pursuer and her two sisters, [VN] and [AN]. From this period, the defender began sexually abusing the pursuer. He inserted his fingers into her vagina. He ejaculated on the pursuer. He performed oral sex on her. He induced the pursuer to handle his penis. Soon after the sexual abuse began, the defender began to have full sexual intercourse with the pursuer. In order to induce the pursuer not to tell her parents, the defender gave her presents, including money. Such sexual abuse occurred regularly throughout the pursuer's primary and secondary education. The sexual abuse continued after the pursuer had left school until approximately September 1997. It took place inter alia at the defender's flat in [a stated address M], at the defender's houses in [stated addresses Q and F] and at the defender's current address. The abuse also took place at the pursuer's parents' family homes at [stated addresses R and L] and at the pursuer's homes at [stated address M2] and later at [stated addresses C and S].

Ans. 4. Denied.

COND. V. The defender also sexually abused the pursuer's said two sisters for several years while they were children. The defender also induced the pursuer to procure two friends, who were both under the age of sixteen, for the purpose of having sexual intercourse with them.

Ans. 5. Denied.

COND. VI. The sexual abuse perpetrated by the defender became a habitual and routine part of the pursuer's life from an early age. The pursuer came to view the abuse as a normal part of her life. Before 1997, the pursuer was unable to take steps to bring the abuse to an end because the defender exercised a considerable degree of control over her. During the years of abuse, the pursuer had become conditioned to be emotionally dependent on the defender. The pursuer had become habituated to the defender and the sexual abuse perpetrated by him. In the context of the pursuer's difficult childhood, the attention and apparent care shown to her by her uncle was in some ways welcomed by the pursuer. The pursuer manifests difficulties in the areas of social perception, social interaction and cognitive skills which characterises the first degree relatives of those with Asperger's Syndrome. The pursuer has significant problems in reading social signals and in appreciating the consequences of her actions and the actions of others. The pursuer would have had difficulties in recognising that it would have been in her interests to divulge information concerning the abuse at an earlier stage. The nature of these difficulties and the lack of any therapeutic input to address these difficulties made the pursuer more susceptible to exploitation and manipulation by the defender. In approximately September 1997, the pursuer was able finally to break away from the control of the defender and bring an end to sexual relations between them. At this time, the pursuer was pregnant. The defender approached the pursuer for sex. The pursuer had had difficulty in conceiving with her partner. She had suffered several miscarriages. For the first time, the pursuer refused to agree to the defender's requests for sex. After that, the defender stopped having sex with the pursuer.

Ans. 6. Denied.

COND. VII. After the pursuer refused to have sex with the defender, the pursuer contacted her sister [AN] to tell her about the abuse. She was concerned that her own daughter might become a victim of such abuse. She also spoke to her other sister, [VN], and her older brother, [EN]. [EN] subsequently informed the police about the abuse. On 25th March, 1998 and 16th April, 1998 the pursuer was interviewed by the police. Subsequently the defender was indicted on a number of charges of sexual abuse perpetrated against the pursuer and her two sisters. When the charges first came to trial, the trial was deserted. On 28th February, 2000 at the retrial, the defender was convicted on charges that detailed the sexual abuse of the pursuer and her two sisters. He was sentenced to eight years imprisonment. The defender lodged an appeal which was heard on 9th May, 2003. It is reported sub nomine N v HM Advocate (2003 SCCR 378). As a result of the appeal, the defender's conviction was quashed. The conviction was found to be unsafe due to the unfair use in the retrial of evidence given by VN at the first trial. The Crown did not seek permission to raise fresh proceedings.

Ans. 7. Believed to be true that in 1998 the pursuer was interviewed by the police. Admitted that the defender was indicated on a number of charges of sexual abuse; that when the charges first came to trial, the trial was deserted; that on 28th February 2000 the defender was convicted of certain charges and sentenced to eight years imprisonment; that the defender lodged an appeal; that the conviction was found to be unsafe and thus quashed; and that the Crown did not seek permission to raise fresh proceedings. Quoad ultra denied save insofar as coinciding herewith.

COND. VIII. It was only after the pursuer decided to go to the police that she began to experience the full psychological effects of the sexual abuse. It was at that time that the pursuer was required to face up to the reality of what had been happening to her and what she had been involved in. Until then, the pursuer's defence mechanisms had locked off her psychological and emotional reactions to the sexual abuse.

Ans. 8. The psychological and emotional reactions of the pursuer are not known and not admitted. Quoad ultra denied, save insofar as coinciding herewith. On the hypothesis of fact averred by the pursuer (which is denied) the pursuer was engaged in incestuous sexual relations with the defender following her 16th birthday. This criminal activity was consensual. The termination of the relationship as averred by the pursuer and its subsequent publicity upset and distressed her. The defender is not liable for any loss, injury or damage said by the pursuer to have been consequent upon her consensual participation in a criminal course of conduct.

COND. IX. The pursuer has suffered loss, injury and damage as a result of the sexual abuse. She has suffered and continues to suffer from chronic Post-Traumatic Stress Disorder. She has suffered symptoms of recurrent and intrusive recollections, flashbacks, difficulty in concentrating, irritability, hyper-arousal and sleep disturbance. She suffers from panic attacks. She has become withdrawn and nervous around people. The quality of the pursuer's life has been severely affected. She has felt suicidal. The defender's averments in answer are denied. She is constantly anxious. She has phobic anxiety regarding a wide spectrum of stimuli from the years of abuse. She has variable depressive symptoms of low mood, tearfulness, poor concentration, anergia and anhedonia. She has taken a range of medication, including anti-depressants. The abuse has had significant effects on the development of the pursuer's personality. She lacks self-esteem. She is quick to take offence. She has symptoms of panic several times per month during which she will hyperventilate and experience palpations. She has poor coping strategies. Her reactions to events are unpredictable. She lacks confidence. She feels guilty because of the effect that she perceives her problems have on her children. She has major difficulties in all interpersonal relationships characterised by a lack of trust in others, including therapists and authority figures. This makes it difficult for her to seek and obtain treatment from therapists. Her relationships with members of her family have been adversely affected. She has difficulties in sustaining a satisfactory sexual relationship. She finds it difficult to live with a male partner. The experience of giving evidence during the trials was particularly traumatic. She fled the courtroom during the second trial. The pursuer has received psychiatric treatment from Dr Bonham and Dr McCue at Dykebar Hospital, ... . Her general practitioner is Dr Murray ... . The pursuer's ability to function in society has been severely limited as a result of the abuse and its psychological effects. She feels threatened by strangers. If possible, she avoids leaving the house. She is reliant on the support of a carer to manage the household and to bring up her children. For the foreseeable future, it is unlikely that the pursuer will be able to manage to sustain any form of employment. She has suffered a loss of employability. With reference to the defender's averments in answer, admitted that the pursuer has suffered gynaecological and urological difficulties. Admitted that she suffers from diabetes. Admitted that the pursuer has two children. Admitted that both of her children suffer from Asperger's Syndrome. Quod ultra denied. Explained and averred that the pursuer does not require to remain at home to care for her children. One of her children is grown-up and looks after herself. The other child is in full‑time education.

Ans. 9. The occurrence, nature and extent of any loss, injury and damage suffered by the pursuer are not known and not admitted. Quoad ultra denied. Explained and averred that in any event the sum sued for is excessive. The pursuer suffers from poor health unrelated to her mental health. In particular she has had a long history of gynaecological and urological difficulties. She suffers from diabetes. She exhibits characteristics of Asperger's Syndrome. Her personality traits may be as a consequence of this, chronic dysthymia and a borderline personality disorder. Her pattern of poor health would adversely impact upon her ability to find and retain employment. She has two children. Both of her children suffer from Asperger's Syndrome. She considers that she requires to remain at home to care for them, impacting adversely on her ability to find and retain employment. The pursuer has had many difficulties in her life such as to impact upon her mental health, unrelated to those averred by her on record (which are denied). She has had a long history of mental health difficulties. Her compliance with treatment designed to assist her with these health difficulties has been poor. The pursuer does not suffer from Post-Traumatic Stress Disorder. Previous diagnosis of this did not take into account other alternative diagnosis such as personality disorder. She does not suffer from any functional mental disorder. Previous engagement with psychiatric services failed to note evidence of a major depressive disorder. The pursuer is called upon to identify the name and address of her husband and to confirm the duration of her marriage. Her failure to do so will be founded upon.

COND. X. The pursuer has called upon the defender to make reparation for her loss, injury and damage. The defender refuses, or at least delays, to do so. This action is accordingly necessary. With reference to the defender's averments in answer, admitted that the pursuer was 18 in 1985. Admitted that this action is barred by passage of time under explanation that the court should exercise its discretion to allow it to proceed in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. Admitted that the conduct complained of (the occurrence of which is denied) is said by her to have ceased in September 1997. Admitted that in June 1992 the pursuer attended her general practitioner. Admitted that she was referred to Bill Elliot at the Royal Society for the Protection of Cruelty to Children. Admitted that she was represented by [a firm of solicitors R] under explanation hereinafter given. Admitted that the pursuer spoke to the police in early 1998. Admitted that in or about 1999 she made an application, via solicitors, for Criminal Injuries Compensation. Admitted that the pursuer made an application for such compensation in April 1998 under explanation that it was the police who originally advised the pursuer to make such a claim. Admitted that she was able to instruct solicitors to appeal against the initial offer made by the CICA, resulting in the subsequent increased offer, under explanation that this was on the advice she received from [her solicitor DP]. Admitted that following the death of her mother, the pursuer contacted the authorities, possibly the procurator fiscal. Admitted that the pursuer appealed against the refusal of Disability Living Allowance under explanation that in this matter and in others the pursuer was engaged in a dispute with the social work department in respect of income support payments and special payments for carpets to furnish her new home. Admitted that this home had been obtained following her request to the local authority to be re-housed because she considered that her daughters were the subject of racial abuse from neighbours in the area. Admitted that during the defender's first trial the pursuer was asked specifically if she was raising civil proceedings and suing in respect of damages under explanation that the pursuer did not understand the question and was, in any event, dependent on the advice she was given. Admitted that the present action was not raised until January 2004. Admitted that she had engaged solicitors by then and thus has a right of action against those solicitors for failing to raise the current proceedings timeously. Admitted that no solicitor of ordinary skill and competence acting with ordinary care would have failed so to advise. Quoad ultra denied except insofar as coinciding herewith. The present action was raised in January 2004. It was not until 27th August, 2003 that she was seen by Ian Stephen, Clinical Psychologist and his report became available. He diagnosed that she was suffering from Post-Traumatic Stress Disorder which was attributable to the sexual abuse. The pursuer suffered systemic sexual abuse and was not able to identify for herself the disabling long-term effects of the sexual abuse. This inability on the part of the pursuer to identify the long-term effects of the sexual abuse was a direct result of the sexual abuse itself and the nature of the relationship between the pursuer and the defender. Childhood abuse has an inhibiting affect (sic) on the ability of victims to bring the abuse into the public domain. As children, victims of childhood abuse cannot raise claims. As their lives develop, victims find it increasingly difficult to confront the abuse. Instead, the vast majority of abuse sufferers, including the pursuer, suppress the memories of abuse and get on with their lives. They do not have awareness of the statutory facts. It is equitable in the circumstances that the pursuer be allowed to bring the action and that the court should make such an order in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973. Before the sexual abuse was reported to the police, as hereinbefore condescended upon, the pursuer had become habituated to the sexual abuse. She was not able to identify for herself the disabling long-term effects of sexual abuse. This inability on the part of the pursuer to identify the long-term effects of the sexual abuse was a direct result of the sexual abuse itself and the nature of the relationship between the pursuer and the defender. Even after the abuse had been reported to the police, the pursuer still had strong feelings for the defender. When he was originally convicted, the pursuer was upset and felt guilty that he had been imprisoned. Further explained and averred that the pursuer manifests difficulties in the areas of social perception, social interaction and cognitive skills which characterises the first degree relative of those with Asperger's Syndrome. The pursuer has significant problems in reading social signals and in appreciating the consequences of her actions and the actions of others. The pursuer would have had difficulties in recognising that it would have been in her interests to divulge information concerning the abuse at an earlier stage. The nature of these difficulties and the lack of any therapeutic input to address these difficulties made the pursuer more susceptible to exploitation and manipulation by the defender. After the sexual abuse had been reported to the police, the pursuer consulted a lawyer on the advice of the Police's Family Unit, who advised her to do so with a view to making a claim for Criminal Injuries Compensation. At that time, the pursuer's lawyers were [R], which firm represented her in general matters, including providing matrimonial advice. In particular, the pursuer's solicitor was [JM]. After the pursuer had received advice from the Police's Family Unit, the pursuer made an appointment with [R] and saw [JM]. An application for Criminal Injuries Compensation was signed on 27th April, 1998 and submitted on 1st May, 1998 by [R]. The relevant Legal Aid Certificate was in the name of [PR] of [R]. Subsequently, a judicial factor was appointed by the Law Society of Scotland over the estates of [R]. On 11th May, 1999, [PR] himself was sequestrated. [R]'s files, including the pursuer's application for Criminal Injuries Compensation, were taken over by [another firm of solicitors AB]. [JM] came to work for [AB]. He was dismissed in July 1999. The precise circumstance of his dismissal are unknown to the pursuer but it may have resulted in a criminal conviction. In November 1999, [DP], solicitor, joined [AB] as a partner. The firm eventually became [AP]. On his arrival, [DP] was passed a large number of the "Court" files that had come from [R]. This included the pursuer's application. On being passed the pursuer's file, [DP] simply noted that an application for Criminal Injuries Compensation was still awaiting determination. By letter dated 30th November, 1999 [DP] wrote to the Scottish Legal Aid Board to inform it that the name of the said Legal Aid Certificated should be changed to [DP] since [AB] had taken over the file from [R]. Following the appointment of the judicial factor, [DP] then passed the file to [another solicitor C], an Assistant Solicitor with [AB] to process the application. The claim took approximately three and a half years to be processed. The delay was caused in part by the CICA wishing to await the outcome of the appeal in the criminal proceedings. The pursuer was eventually awarded 17,500 in September, 2001, after she had refused to accept an initial offer of 6,000. She was only advised by the Solicitors representing her to apply for Criminal Injuries Compensation. She was not advised at any time that potentially she had a civil claim in damages against the defender. In any event, while the trials and appeal were outstanding, the pursuer was not in a position to contemplate pursuing an action for damages. She was in a state of extreme distress and was struggling to manage her life and that of her family. The experience of giving evidence in court had adversely affected the pursuer. At one stage, during the re-trial, the pursuer fled from the witness box in panic. She fought with two policemen to prevent them returning her to the court. Her experience of legal proceedings and appearing in court was very negative. Individuals, such as the pursuer, who suffer Post-Traumatic Stress Disorder try so far as possible to avoid any discussion or reference to trauma which they experienced. Before the first trial began in July 1999, she was reassured by Karen McGlone of the procurator fiscal's office dealing with the case that the pursuer did not need a lawyer since the Crown would look after her interests. The pursuer understood this to mean that there was no need for the pursuer to take further steps in relation to consulting a lawyer with regard to the sexual abuse as the Crown would advise and assist her. The pursuer was unaware that any claim she might have might become time barred. The pursuer found out that the defender had successfully appealed his conviction from a newspaper article printed on 10th May, 2003. The pursuer then consulted her present lawyers on 28th May, 2003. She was making enquires about bringing a private prosecution or reviving the public prosecution. At this time for the first time she was made aware of the possibility that she had a claim in damages against the defender. On 29th May, 2003 the pursuer's agents wrote to her enclosing a mandate for her to sign in order to recover the relevant papers from the procurator fiscal. On 10th June, 2003 a letter was sent to the procurator fiscal enclosing the relevant mandate. On 18th June, 2003 the procurator fiscal replied enclosing some papers. On 24th June, 2003 the pursuer's agents wrote to her suggesting further preparations and asking if she would be prepared to be examined by a psychologist. On 30th July, 2003 the pursuer's agents wrote to Mr Stephen requesting that he examine the pursuer. On 12th August, 2003 the pursuer was seen by Mr Stephen. On 17th September, 2003 the pursuer's agents wrote to the pursuer confirming that they had received Mr Stephen's report and indicating that precognitions were required from her sisters. On 5th November, 2003 [AN] was precognosed. On 7th November, 2003 the pursuer's Agents wrote to the pursuer enclosing Legal Aid Forms to cover an action for damages. On 1st December, 2003 the pursuer's Agents wrote to the Scottish Legal Aid Board enclosing a Legal Aid Application and emergency Legal Aid Forms. On 8th December, 2003 the pursuer's Agents wrote to her requesting further information to allow a Writ or Summons to be drafted. On 12th December, 2003 the pursuer provided the additional details requested. On 16th December, 2003 the pursuer's agents wrote to the pursuer's Edinburgh agents asking them to instruct counsel to frame a Summons. Even if the pursuer had been made aware earlier of possibility of pursuing an action for damages, she was not in a fit state to undertake such a course of action while the trials and appeal were pending. Furthermore, the delay in raising proceedings is attributable to the sexual abuse and the affect (sic) it had on the pursuer. It would not be equitable to sustain a plea of time bar where the abuse itself has given rise to the delay in bringing proceedings. The nature and effects of childhood abuse have an inhibiting affect (sic) on the ability of victims to bring the abuse into the public domain. Further, the defender will suffer no prejudice if the action is allowed. The facts relevant to the claim would have been fully investigated and preserved as part of the criminal proceedings and subsequent appeal. This material will still be available to the defender. Further, it will be highly prejudicial to the pursuer if the action is not allowed. The pursuer achieved some comfort for her past trauma from seeing the defender convicted. The allowance of the defender's appeal has undermined that comfort. It would assist the pursuer in coping with the effects of the sexual abuse to see her allegations vindicated by the court. With reference to the pursuer's mother, she died before the re-trial. Further explained and averred that the pursuer has been married once. This was to [RA]. The date of marriage was 22nd August, 1994. The pursuer divorced [RA] in 2000.

Ans. 10. The identity of the solicitors with whom the pursuer consulted and the nature of the advice she received are not known and not admitted. The basis of the pursuer's claim is not known and not admitted. Quoad ultra denied save insofar as coinciding herewith. Explained and averred that this action is barred by passage of time. The pursuer attained majority in 1985. The conduct complained of (the occurrence of which is denied) is said by her to have ceased in September 1997. In June 1992 the pursuer attended her general practitioner. She made disclosures to her GP and considered that she would benefit from counselling by the Sexual Abuse Team at the Royal Society for the Protection of Cruelty to Children. Accordingly she was referred to Mr Bill Elliot at this organisation. The pursuer spoke to police in early 1998. From that time, the pursuer consulted Dr McCue, Consultant Psychiatrist at Dykebar Hospital in Paisley. She received psychiatric treatment from that time. During one such consultation on 28th August, 1998, that she was stressed due to her having been charged with the possession of firearms. She consulted with solicitors at that time. She was represented by [R], Solicitors, by March 1999 at the latest. In or about 1999 she made an application, via solicitors, for Criminal Injuries Compensation. The pursuer is called upon to admit the foregoing averments as matters within her knowledge. The pursuer made an application for such compensation in April 1998. She was able to instruct solicitors to appeal against the initial offer made by the CICA, resulting in the subsequent increased offer. She separated from her husband in 1998 and was capable of instructing solicitors to act on her behalf in respect of divorce proceedings, leading to the granting of divorce in 2000. In 1999 following the death of her mother, the pursuer requested of the procurator fiscal that there be a fatal accident inquiry into this death. In December 1999 she appealed against the refusal of Disability Living Allowance to her. She was capable of enlisting the assistance of her GP in this appeal. In August 2001 she was engaged in a dispute with the social work department in respect of income support payments and special payments for carpets to furnish her new home. This home had been obtained following her request to the local authority to be re-housed because she considered that her daughters were the subject of racial abuse from neighbours in her area. By November 2001 she advised her GP that she felt strong and able to cope. During the course of the defender's 1st trial at the high court in July 1999 the pursuer was asked specifically if she was raising civil proceedings and suing in respect of the damage. The pursuer knew or ought reasonable to have known that she had a right to raise these proceedings timeously. She was capable of managing her affairs sufficiently to have instructed the raising of such proceedings from at least 1992. In any event she knew or ought reasonably to have known that she required to raise such proceedings from April 1998. She was capable of managing her affairs. The present action was not raised until January 2004. It is thus time barred by terms of s. 17 of the Prescription and Limitation (Scotland) Act 1973. With regard to the pursuer's answers to the plea of time bar explained and averred that she has since 1998, or at least since 1999 when she applied for Criminal Injuries Compensation, been aware of the necessary facts in terms of s. 17(2)(b) of the 1973 Act. So far as s. 19A is concerned, it would not be equitable to allow the action to proceed. The pursuer's allegations date back to 1975. It is very difficult for the defender to adduce evidence to refute these allegations after such passage of time. The pursuer founds upon various loci, many of which are no longer accessible or at least will have changed in layout. Persons who might be witnesses to the allegations, such as the pursuer's mother at whose home acts of abuse are said to have taken place and who died in 2000, are no longer available. The pursuer has previously made false allegations of rape, having asserted to police on a previous occasion that she had been raped by two Asian men. The two men were arrested and held at Mill Street Police Station, and subsequently released when the pursuer withdrew her allegations. As a result of the lapse of time, there is now no prospect of the defender tracing the men against whom those false allegations were made. The defender will thus face real and irremediable prejudice in the event of the action proceeding. The pursuer on the other hand, will face no such prejudice. She applied for, and was awarded, Criminal Injuries Compensation in 1999. She had engaged solicitors by then and thus has a right of action against those solicitors for failing to raise the current proceedings timeously. On the hypothesis of fact advanced by the pursuer, [JM] et separatim [DP] et separatim [C] failed to advise the pursuer that she had a right of action for damages against the defender. No solicitor or ordinary skill and competence acting with ordinary care would have failed to so advise. The pursuer is called upon to confirm the identity of the individual solicitor at [R] with whom she consulted in 1998/99. The pursuer is further called upon to specify the nature of her consultation with [JM] in 1998 and to confirm the number of occasions that she met with him. She is further called upon to specify whether she ever met with [DP] et separatim [C] and if so, to specify the nature of her consultation with them. Her failure to do so will be founded upon.

PLEAS - IN - LAW for PURSUER.

1.    The defender's averments being irrelevant et separatim lacking in specification, should not be admitted to probation.

2.    The pursuer having suffered loss, injury and damage as a result of the abuse perpetrated on the pursuer by the defender, is entitled to reparation from him therefor.

3.    The sum sued for being a reasonable estimate of the pursuer's loss, injury and damage, decree should be pronounced as concluded for.

4.    It being equitable in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973 to allow the pursuer to bring the action, proof should be allowed.

PLEAS - IN - LAW for DEFENDER.

1.    The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed.

2.    The action being time barred in terms of S.17 of the Prescription and Limitation (Scotland) Act 1973, and it not being equitable to allow same to proceed, should be dismissed.

3.    The pursuer's averments insofar as material being unfounded in fact, the defenders should be assoilzied.

4.    On the hypothesis of fact averred by the pursuer, having been a consensual participant in unlawful sexual conduct (after the age of 16) she is not entitled to damages consequent thereon and decree ought not to be pronounced as concluded for.

5.    On the hypothesis of fact averred by the pursuer, having been a consensual participant in unlawful sexual conduct (after the age of 16) it would be contrary to public policy to award damages consequent thereon and decree ought not be to pronounced as concluded for.

6.    In any event, the sum sued for being excessive, decree therefor should not be granted."

The Proof


[15] The proof before answer lasted a total of 13 days. It required to be heard in two parts. Evidence was adduced from 13 witnesses:

1. EN, the pursuer;

2. AN, the pursuer's younger sister;

3. MD, a friend of the pursuer;

4. PC Helen Petrie, who had contact with the pursuer in 1998;

5. GN, the defender, who was called as a witness by the pursuer;

6. MMcC a former neighbour of the pursuer;

7. Dr Elspeth McCue, Consultant Psychiatrist;

8. Ian Stephen, Chartered Forensic and Clinical Psychologist;

9. Dr Kenneth Aitken, Consultant Clinical Neuropsychologist;

10. DP, retired solicitor;

11. Dr Justin Crean, Consultant Psychiatrist;

12. Cameron Fyfe, solicitor; and

13. Stephen Blane, solicitor advocate.


[16] Transcripts were produced of the first five days of evidence and they have been lodged in six volumes Nos. 49 (i) to 49(v) of process and No. 50 of process.


[17] There was also a report of a commission which was before me in its entirety in relation to two further witnesses:

14. Dr Christine Murray, general practitioner, and

15. Peter Davies, employment consultant.


[18] Counsel sought time to prepare their submissions which lasted a further two days.

Joint minutes of agreement


[19] There were two joint minutes of agreement. In the first joint minute the following matters were agreed, namely:

1.    All copy productions are to be taken to be equivalent of the principals thereof.

2.    In the productions lodged on behalf of the pursuer, in the case of any letter, fax or other written communication addressed to another person, it was duly sent and received on or about the date that it bears.

3.    That pursuer's production 6/1 (pages 1 to 136) and the Defender's production 7/3 are copies of the pursuer's medical records from Dykebar Hospital.

4.    That pursuer's production 6/2 (pages 1 to 444) and the Defender's production 7/5 are copies of the pursuer's general practitioner medical notes and records.

5.    That pursuer's production 6/4 is a copy of a report of the case of N v HM Advocate 2003 SCCR 378.

6.    That pursuer's production 6/5 is a report prepared by Dr. Justin Crean, Consultant Psychiatrist, dated 22nd September 2004 that pursuer's production 6/43 is a Supplementary report prepared by Dr. Crean dated 14th September 2010.

7.    That pursuer's production 6/6 is a letter from Dr Justin Crean, Consultant Psychiatrist, to Cameron Fyfe dated 27th April 2007.

8.    That pursuer's production 6/7 is a report by Ian Stephen, Clinical Psychologist, dated 14th September 2003.

9.    That pursuer's production 6/8 is a letter from Ian Stephen dated 30th December 2003.

10. That pursuer's production 6/9 is a report by Dr Kenneth Aitken, Clinical Neuropsychologist, dated September 2006.

11. That pursuer's production 6/10 is a copy of the pursuer's CICA application dated 27th April 1998.

12. That pursuer's production 6/11 is a copy of an article from The Sun dated 10th May 2003.

13. That pursuer's production 6/12 is a copy letter from the Crown Office to the pursuer dated 20th May 2003.

14. That pursuer's production 6/13 is a copy letter from the Crown Office to Ross Harper dated 24th August 2005.

15. That pursuer's productions 6/14, 6/15, and 6/16 of process are a transcribed record of proceedings in the case of HMA v. GN (328/99).

16. That pursuer's productions 6/17, 6/18, 6/19, 6/20, 6/21, 6/22 and 6/23 of process are a transcribed record of proceedings in the case of HMA v. GN (451/00).

17. That pursuer's productions 6/24 is a copy of the [AP] file relating to the pursuer's application for Criminal Injuries Compensation.

18. That pursuer's production 6/25 is a copy of a Ross Harper file note of Ross Harper of 28 May 2003.

19. That pursuer's production 6/26 is a copy of a letter from Ross Harper to pursuer dated 29 May 2003.

20. That pursuer's production 6/27 is a copy of a letter form Ross Harper to Procurator Fiscal dated 10 June 2003.

21. That pursuer's production 6/28 is a copy of a letter from Procurator Fiscal to Ross Harper dated 18 June 2003.

22. That pursuer's production 6/29 is a copy of a letter from Ross Harper to pursuer dated 24 June 2003.

23. That pursuer's production 6/30 is a copy of a letter from Ross Harper to Ian Stephen, Psychologist, dated 30 July 2003.


[20] In the second joint minute the following matters were also agreed, namely:

1.    That the Pursuer's production 6/47 is a copy of a letter dated 21st May 2008 from [DP] to Drummond Miller WS. The files detailed within the schedule attached to this letter were uplifted from [DP] on behalf of Solicitors.

2.    That the Pursuer's production 6/48 is a copy of a letter from [AB] to Dr Bennie, Consultant Psychiatrist dated 22nd May 2001.

3.    The pursuer's production 6/49 is a copy of a report by the said Dr Bennie dated 27th July 2001. It is a report relative to the Pursuer and was sought in relation to her pursuit of an application for criminal injuries compensation arising out of an alleged rape of her by [TM] and others said to have occurred on 18th March 1985. The Pursuer's production 6/50 is a copy of a letter from [AB] to the Criminal Injuries Compensation Appeals Panel dated 26th July 2001 relative to this said application and production 6/51 is a copy letter dated 15th September 2001 from this Panel in reply.

4.    That the Pursuer's production 6/52 is a copy of a letter [AB] Solicitors to Dr Weir, the Pursuer's general practitioner, dated 6th June 2001.

5.    That the Pursuer's production 6/53 is a copy of a letter from [DP] to Ross Harper, Solicitors dated 19th April 2008.

6.    That the Pursuer's production 6/54 is a copy of a letter from Mr Stephen Blane, Solicitor to Ross Harper, Solicitor dated 18th April 2008.

7.    That the Defender's production 7/10 of process is a copy of an article published by the News of the World newspaper dated 5th March 2000.

8.    That the Defender's production 7/11 of process (pages 1 to 44) is a copy of the file of [WL] Solicitors from 22nd October 1997 to 1st June 1998. This file is relative to the claim instructed by the Pursuer for criminal injuries compensation in respect of her allegation of rape against [TM] and others. Each of the documents therein is what it bears to be.

Authorities


[21] During the proof, I was also referred to the following texts and authorities:

  1. Report of Scottish Law Commission on Personal Injury Actions, December 2007, part 3, "Judicial Discretion", at paragraphs 3.9 and 3.36;
  2. A v N 2009 SC 449 at paragraphs [11] and [14] to [17];
  3. A v Hoare [2008] 1 AC 844;
  4. A v Hoare [2008] EWHC 1573 (QB), at paragraphs 40 and 41;
  5. B v Murray (No 2) 2005 SLT 982, at paragraphs [30], [41], [106], [110], [114], [140] and [141];
  6. AS v Poor Sisters of Nazareth 2008 SC (HL) 146 at paragraphs [23] and [25];
  7. Delict, Cameron et al., at paragraphs 11.18 to 11.33;
  8. J v Fife Council 2007 SLT 85 (OH) at paragraph [44];
  9. JM v Fife Council 2009 SC 163 (IH) at paragraph [16];
  10. RAR v GGC [2012] EWHC 2338;
  11. BJM v Eyre [2010] EWHC 2856;
  12. C v Flintshire County Council [2001] PIQR Q9 at Q97;
  13. Judicial Studies Board Guidelines, for PTSD, JS3B;
  14. Guide to Abuse Compensation Awards;
  15. Judicial Studies Board Guidelines for Psychiatric Damage Generally, JS3A;
  16. Macnaughton v Macnaughton's Trustees 1953 SC 387 at page 392;
  17. Swan v Secretary of State for Scotland 1998 SC 479 at page 485; and
  18. A.S. v Poor Sisters of Nazareth 2007 SC 688, First Division, at paragraph [47].

The pursuer's position on the merits


[22] On behalf of the pursuer, Mr Gale outlined the pursuer's position along the following lines.

Evidence of abuse


[23] The pursuer sets out in some detail on record the abuse which she says she suffered in Arts. 4, 5 and 6 of Condescendence (which I have set out in full above). The defender simply denies these averments. There is no substantive case pled on his behalf.


[24] Accordingly the pursuer is put to her proof on these matters. The position taken on behalf of the defender in the proof was to cross‑examine the pursuer in relation to the evidence which she gave of the course of conduct (which Mr Gale said amounts to abuse) with a single composite question suggesting that there was no improper conduct and that she had lied. (Transcript ("Trns") 9/5/2012, p. 78 (line 20) - p.79 (line 14)). The same approach was adopted in respect of the evidence of abuse given by AN (Trns 8/5/2012, p. 55 (19-24)).


[25] It was Mr Gale's submission that the evidence of the pursuer in respect of the course of abuse which she suffered at the hands of the defender should be accepted, as should the evidence of AN (her younger sister) of the sexual abuse she suffered.


[26] In relation to the evidence of the pursuer Mr Gale invited me to accept the following:-


[27] Mr Gale submitted that the pursuer's account of the abuse perpetrated on her has been consistent in its material elements on the three occasions on which she has given evidence. In particular she had consistently spoken to the first incident in [stated address R]; the continuing abuse in [stated address R] where it developed from external sexual conduct including oral sex to full penetrative sex; the offering of inducements and instruction not to tell anyone; the pattern of sexual encounters in a car and at the defender's commercial premises; the attempts by the defender to persuade the pursuer herself persuade AN to have sex with him, and in particular to reassure AN that sexual conduct would either be enjoyable or alright; the evidence that VN was involved in sexual relations with the defender; the effective procuring of DM and AS at the defender's behest, the continuing sexual relations involving the pursuer and the defender at [stated address L] and his home at [stated address M]; the continuance of sexual relations after the disclosure to member of the family in 1988 up until the occasion in the pursuer's flat at[stated address S] when the defender came to her flat to have sex with her while she was pregnant, she refused and he masturbated onto her carpet.


[28] Importantly, the evidence of the pursuer was supported by that of her younger sister AN. There was no love lost between the pursuer and AN. AN was telling the truth.


[29] There was also evidence from MMcC (a former neighbour of the pursuer) who was distressed when giving her evidence about finding the pursuer lying on her bedroom floor with her pants around her ankles after she was aware that the defender had visited her. She was concerned that something was going on. She had seen the defender's car outside and had seen him going into her flat.


[30] There was also the evidence of MD (a friend of the pursuer) that the pursuer had told her of the abuse (Trns 8/5/2012, pp 67 (3)).


[31] Mr Gale submitted that there had been no substantive case in opposition to the pursuer's evidence of the abuse which she maintains she was subjected to. The defender (who was called as a witness for the pursuer) led no evidence.


[32] The pursuer was subjected to rigorous and thorough cross examination in respect of matters not directly related to the sexual abuse - but in relation to sexual abuse it was simply suggested it did not take place.


[33] Mr Gale submitted that the defender was a wholly unsatisfactory witness. His demeanour in giving evidence and the content of that evidence demonstrated an arrogance and a contempt for the court process. His repeated assertion that he could not recall evidence given only a few weeks earlier which was critical of his conduct, and that on the basis that it was not relevant, bordered on the perverse. It demonstrated a deliberately blinkered approach to this litigation. To the extent that the defender did deny the allegations that he engaged in "improper conduct" with the pursuer or indeed with others such as AN, the court should without hesitation reject his evidence - so submitted Mr Gale.


[34] Mr Gale submitted that the evidence had established that the defender was at the relevant times a predatory paedophile whose abuse of the pursuer in particular was of the grossest kind. This was a man who subjected a 7/8 year old child, who was his niece, to sexual abuse which by the age of about 10 involved penetrative sex. The evidence of AN had clearly established that he had a perverted interest in pre‑pubescent girls.


[35] The defender's suggestion that the pursuer had manipulated AN and the other girls so that they had colluded to give false evidence against him was so unlikely as to be easily dismissed. There was obviously no love lost between the pursuer and AN.


[36] Mr Gale also addressed the question of whether the pursuer's credibility had been undermined by cross examination on other matters - such that her evidence in relation to abuse could not be relied upon. It was accepted that there were a number of issues highlighted in cross examination in respect of which the pursuer's evidence was not wholly satisfactory. In particular, her evidence concerning her relationships with her husband and with Mr A. It was quite apparent from the evidence (for example that of MD Trns 8/5/2012, p 62 (7 - 16)) that the relationship with Mr A had begun or was on-going at the time when the pursuer was ostensibly married to her husband. The pursuer acknowledged in cross examination that it was her husband who wanted to marry her and, when asked why, she stated "because he was an illegal here." She denied it was a sham marriage, (Trns 10/5/2012 p 36 (15 - 23)).


[37] Mr Gale also invited me to bear in mind the evidence given by Dr Aitken when assessing the evidence of the pursuer. Dr Aitken's evidence and his conclusion were not challenged. That evidence was, he suggested, highly illuminating. In No 6/9 of process he concluded that while the pursuer does not fulfil criteria for a diagnosis of Asperger's syndrome, based on neuropsychological testing, the assessments which he carried out clearly manifested "difficulties in those areas of social perception and social interaction consistent with those reported in the literature for the first degree relatives of those with an ASD".


[38] It was Mr Gale's submission that I should accept the evidence of the pursuer that she was sexually abused by the defender from the age of 7/8 to the age of 30. That evidence has been consistently presented by her over 13 years. It finds support in the evidence of others. It should be accepted. I should conclude that the pursuer had established that this abuse did take place.


[39] It was appropriate to characterise that abuse. From the age of 7/8 until the pursuer's sixteenth birthday it was criminal conduct on the part of the defender. That conduct was reflected in the charges of which he was convicted, viz shamelessly indecent behaviour and incest contrary to the then applicable statute, the Incest Act 1567.


[40] It was apparent from the terms of the fourth and fifth pleas in law that the defender maintains that as from the pursuer's sixteenth birthday she participated in consensual sex with the defender and accordingly she is not entitled to damages consequent thereon.


[41] There is also a separate contention by the defender that in those circumstances it would be contrary to public policy to award the pursuer damages in respect of her own unlawful conduct.


[42] If the pursuer is believed in respect of her evidence that she was sexually abused between the ages of 7/8 and 16, and that she can demonstrate loss, injury and damage consequent thereon, then she is entitled to damages.


[43] This case raises the issue of the nature of the delict, if any, post the pursuer's sixteenth birthday. The defender submits that the conduct after the pursuer's sixteenth birthday was with her consent, was not brought about through some circumvention of her will and, in any event, constituted on her part a criminal offence, namely, incest.


[44] Mr Gale submitted that it was relevant to consider the evidence concerning the nature of the conduct which the defender carried out upon the person of the pursuer. On her evidence he abused her in the most base way from a very early age. He subjected her to penetrative sex well before her sixteenth birthday. From this very early age the conduct which he initiated sexualised the pursuer, so that long before her sixteenth birthday she was sexually active with the defender, was sexually aware, and was involved in the procuring of other girls, including her own sister, for the defender's sexual purposes.


[45] The pursuer did not suggest that the defender was ever violent towards her (Trns 9/5/2012, Vol II, p. 27 (8 - 9)). She had become used to what he did (p. 27(11)) - she had become habituated to the course of conduct in the words of Mr Stephen. She went to the defender with her problems and she was in need of the relationship while at the same time appreciating that the sexual aspect of it was wrong (p. 27 (13 - 18)). It was significant that the pursuer stated that "he took advantage of that relationship". In cross-examination at p. 93 (6) et seq she reiterated that he was not violent, but that it was not love or affection. She didn't miss the sexual side of it.


[46] Mr Gale submitted that there was a continuing course of conduct which began in childhood and continued through the threshold of majority into adulthood by which time a degree of dependence engendered by the defender was in place and which required the pursuer to continue engaging in sexual relations with the defender. He asked the court to accept the evidence that he took advantage of the situation. The pursuer gave the impression in the witness box of having fairly low intelligence. There was also agreement among the experts who had examined her that she is of low/average intelligence (7/6, para 10.012). Dr Aitken said that she would have been significantly more vulnerable to the type of abuse in question particularly at the early age this is reported to have begun. (6/9, section 13, Conclusions, (ii))


[47] This continuing conduct was similar in nature before and after the pivot of the pursuer's sixteenth birthday. By virtue of statute it was a crime before that birthday. Mr Gale submitted that it continued after the birthday in the same manner as before with the same consequences as before. The pursuer in her pleadings labelled this "abuse" (in her second plea in law). Mr Gale also observed that the characterisation of the conduct after the pursuer's sixteenth birthday as unlawful applies equally to the defender, perhaps more so, as he was the instigator of sexual relations. There is an equally strong policy reason that a person who continues a course of abuse after the victims sixteenth birthday having been instrumental is sexualising the abused person, should not benefit from the passing of the age of majority and thus entering a time zone in which the same behaviour can be pursued with impunity.


[48] It was accepted on behalf of the pursuer that the authorities do not appear to have conferred a delictual label on sexual abuse which is undoubtedly actionable (without a label) when perpetrated on a child, but which continues in the same form into adulthood.


[49] Mr Gale submitted that the essentials of delictual wrong were present in this case albeit without a modern day label. Walker on Delict (2nd ed) p. 31. The defender was under a legal obligation to refrain from continuing the course of abuse (to which the pursuer had become habituated) after her sixteenth birthday. It was his duty to refrain from incestuous sex with her. The pursuer was clearly within what Walker terms the area of risk. The breach of that duty has caused and continued to cause the pursuer recognised harm in the form of psychological damage.


[50] An analogy may perhaps be found, suggested Mr Gale, in the delict of seduction. Seduction is described by Glegg on Reparation (4th ed) p.133 as:

"the carnal knowledge of her woman her consent having been obtained by dole."

The pursuer's position on time bar


[51] Mr Gale submitted that the court should exercise its discretion in terms of section 19A by allowing the pursuer to maintain her claim notwithstanding the fact that time bar has operated.


[52] It was accepted by Mr Gale that the onus was on the pursuer to satisfy the court that it would be equitable to allow her claim to proceed.


[53] The pursuer's position on time bar was as follows.

1. Background


[54] At the outset, Mr Gale outlined some of the background circumstances relevant to the pursuer's section 19A case as follows:


[55] Mr Gale also suggested that it was relevant to consider the potential sources from which information could have been imparted concerning a civil claim, as follows:


[56] DM appeared somewhat equivocal about whether he had given the pursuer advice on the possibility of a civil claim. There was no reference to any such advice in the files. Mr Gale submitted that the court could infer, from the absence of any reference to such advice in the files, that he did not give such advice or otherwise raise the possibility of a civil claim with the pursuer.


[57] The processing and the progressing of the pursuer's claim thereafter was spoken to by Cameron Fyfe under reference to 6/3 and 6/5 - 6/42 of process. Mr Gale invited me to note the following:-


[58] This process was, in Mr Gale's submission, a diligent and professional progressing of the pursuer's claim from first instruction to the service of the summons. There was no delay beyond that which was necessary having regard to the procedures which were followed.

2. Section 19A


[59] Section 19A(1) of the 1973 Act provides:

"(1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."


[60] The court's discretion is unfettered (Lord Hope in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 at paragraph 27 under reference to section 33 of The Limitation Act 1980). The critical question for the court is where do the equities lie?


[61] It was accepted that the onus is on the pursuer to satisfy the court that it would be equitable to allow this claim to proceed.


[62] Scottish Law Commission's Report (December 2007) ("the Report"), at paragraph 3.9, provided a useful summary restating the relevant factors, as identified in Carson v Howard Doris Ltd 1981 SC 278 at 282, as:


[63] In relation to the Carson case, Lord Hope in AS v Poor Sisters of Nazareth case at paragraph 25 rejected the suggestion that the section 19A discretion should be exercised sparingly and with restraint, since "if that approach were to be adopted the court will fail to do what the section requires, which is to determine what would be equitable in all the circumstances".


[64] Each case ultimately turns on its facts.


[65] The relevant factors must be looked at in their totality.

3. Abuse cases generally


[66] In Mr Gale's submission it was important to bear in mind the fact that (i) the pursuer is bringing the action against the actual perpetrator of the abuse, and (ii) that the abuse finished in 1997. These points were considered significant for a number of reasons.


[67] Almost all of the cases in the UK courts dealing with historic physical and sexual abused have been directed against institutions in whose care the pursuers/claimants were at the time of the abuse. The balancing of the equities is quite different when the defender/defendant in a case is the perpetrator himself.


[68] This point was made forcefully by Lord Drummond Young in B v Murray (No 2) 2005 SLT 982 at paragraph 41 in the following terms:

"To conclude this review of the authorities, I should refer to the Canadian case of M(K) v M(H), to which reference was made by the pursuer's counsel. That case involved a claim made by a daughter against her father for incest. The acts began when the plaintiff was eight years old and continued until she left home at the age of 17. Proceedings were raised 11 years after the abuse ceased and six years after the relevant time bar would normally have come into operation. The Supreme Court of Canada allowed the action to proceed, the main ground being that the plaintiff could not be said to have discovered the wrongful nature of the defendant's acts until she entered therapy. The case was thus, in Scottish terms, one where s 17(2) was relevant rather than s 19A. Counsel for the pursuers nevertheless referred me to the following passage in the opinion of La Forest J (at (1992) 96 DLR (4th), pp 301 - 302):

'Statutes of limitations have long been said to be statutes of repose...The reasoning is straightforward enough. There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. In my view this is a singularly unpersuasive ground for a strict application of the statute of limitations in this context. While there are instances where the public interest is served by granting repose to certain classes of defendants, for example, the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions. The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.

The second rationale is evidentiary and concerns the desire to foreclose claims based on stale evidence. Once the limitation period has lapsed, the potential defendant should no longer be concerned about the preservation of evidence relevant to the claim...However, it should be borne in mind that in childhood incest cases the relevant evidence will often be 'stale' under the most expedient trial process...In any event, I am not convinced that in this type of case evidence is automatically made stale merely by the passage of time. Moreover, the loss of corroborative evidence over time will not normally be a concern in incest cases, since the typical case will involve direct evidence solely from the parties themselves.'

Counsel submitted that that reasoning applied equally to cases such as the present, involving the physical abuse of children. In my opinion it does not, for a number of reasons. First, M(K) v M(H) was a claim brought against the actual perpetrator of the incest. It was not a claim brought against an institution based wither on vicarious liability for the acts of employees or on a failure to control adequately the practices followed in the institution. The equities in favour of a claim against the actual perpetrator are clearly much stronger than those in favour of a claim against an institution whose liability is essentially derivative in nature. This is plainly recognised in the passage that I have cited from the opinion of La Forest J. Secondly, where a claim for sexual abuse is brought against the actual perpetrator, the critical evidence is likely to be that of two parties involved. Serious sexual abuse is not something that is likely to be forgotten by the perpetrator and thus the risk that evidence will be lost through the passage of time is less serious than in other types of case. Thirdly, cases involving incest and other forms of sexual abuse of children are in a significantly different position from cases involving physical abuse, even physical abuse of a relatively serious nature. Especially in cases involving allegations of excessive physical punishment, a major difficulty is the application of the social standards that prevailed 20, 30 or even 40 years ago. That problem does not, however, apply to cases of sexual abuse. Sexual contact with children is always wrong, and always has been. No qualification of that statement is necessary, or indeed possible. Consequently the only question is whether such contact occurred; if it did, there is a civil wrong, and the only questions are the extent of the consequences of the wrong and the assessment of appropriate compensation. For all these reasons, I am of opinion that M(K) v M(H) is not of assistance in the present cases." [emphasis added].


[69] Mr Gale submitted that the approach that the courts have taken to abuse cases has developed. Before the case of Lister v Hesley Hall Ltd [2002] 1 AC 215 allowed institutions to be held vicariously liable for abuse perpetrated by employees, cases against institutions were framed in negligence.


[70] Also, due to the different limitation regimes under the Limitation Act 1980 relating to intentional torts (six years with no section 33 discretion available) and negligence (three years with section 33 discretion available), the English cases often proceeded on artificial legal bases in order to allow an application under section 33 to be made (A v Hoare [2008] 1 AC 844, passim). As a result, in trying to address the fact that the abuse perpetrated resulted in an inhibiting effect on the victims, the English courts adopted a broad approach to the date of knowledge under section 14 of the 1980 Act (being the equivalent of section 17 under the 1973 Act) - see for instance KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441 as discussed in Hoare at paragraph 36. This approach was not followed by Scottish courts - McE v De La Salle Brothers 2007 SC 556 at paragraph 162.


[71] However, as a result of the Hoare case, the inhibiting effect on a claimant's ability to bring proceedings earlier falls to be considered as part of the court's section 33 discretion - Lord Hoffman at paragraphs 44 and 49. The court must therefore be cautious in relying on the approach taken by the English courts to the application of section 33 in cases of historic abuse and also some of the English cases (e.g. Lord Drummond Young places considerable reliance on Bryn Alyn in B v Murray (No 2).

4. Limitation period


[72] In terms of section 17(3) of the 1973 Act, the limitation period ran at the earliest against the pursuer on her reaching the age of 16.


[73] However, the pursuer relied on section 17(2)(a) of the 1973 Act, which states:

"Subject to subsection (3) below and section 19A of this Act, no action to which this section applies shall be brought unless it is commenced within a period of 3 years after -

(a) the date on which the injuries were sustained or, where the act or omission to which the injuries were attributable was a continuing one, that date or the date on which the act or omission ceased, whichever is the later; ... "


[74] Mr Gale submitted that the sexual abuse perpetrated on pursuer by the defender amounted to a course of conduct and that did not stop until the incident in 1997 or 1998 when the pursuer said "no" to the defender. It was during that meeting that the defender followed the pursuer around her flat masturbating.


[75] The defender argued that there was no wrongful act perpetrated against the pursuer after she reached the age of consent.


[76] The pursuer submitted that the defender's approach was wrong for the following reasons:

"The validity of a claim such as that made by the present pursuer does not depend upon there being any precise Scottish authority. There is no such thing as an exhaustive list of named delicts in the law of Scotland. If the conduct complained of appears to be wrongful, the law of Scotland will afford a remedy even if there has not been any previous instance of a remedy being given in similar circumstances. As Professor Walker puts it at p. 9:

'The decision to recognise a particular interest, and consequently to grant a remedy for its infringement, is a question of social policy, and the list recognised has grown over the years. In considering whether or not to recognise particular interests the courts have had regard to such factors as the moral obliquity of the defenders' conduct, the capacity of the parties to bear the loss, and the consistency of recognition with what is conceived to be public policy.'"

"And, if they were satisfied that it came about because the master was the aggressor, they were in my view, entitled to draw the inference that the act of sexual intercourse would not have been permitted by this girl if the aggressor had been a stranger, but that she did permit it because he was her protector in that household. He was the master of the household; he was entitled, generally speaking, to do as he liked in the house, and the girl was at a disadvantage when resisting his wishes".

5. A range of factors


[77] The Scottish Law Commission Report on "Personal Injury Actions: Limitation and Prescribed Claims" (Scot Law Com No 207, December 2007) at paragraph 3.36 and 3.37 sets out a range of factors that may be relevant to the balancing exercise to be undertaken by the court.


[78] Mr Gale's submissions were made under the following headings:

(i) The period that has elapsed.

(ii) Why is it that the action has not been brought timeously?

(iii) What effect (if any) the length of time that has passed since the right of action accrued is likely to have had on the defender's ability to defend the action, and generally on availability of evidence?

(iv) The conduct of pursuer and in particular how expeditious she was in seeking legal and (where appropriate) medical or other expert advice and intimating a claim to the defender.

(v) The quality and nature of legal advice she was given.

(vi) Conduct of defender and in particular how he has responded (if at all) to any relevant request for information made to him by the pursuer.

(vii) What other remedy, if any, the pursuer has if she is not allowed to bring the action?

(viii) Any other matter which appears to the court to be relevant.

(i) The period that has elapsed


[79] In relation to this factor, Mr Gale submitted that:

      Sexual contact ended in 1997 when the pursuer became pregnant with her second child. The incident at the pursuer's flat which triggered the pursuer going to the police was in March 1998.

      The triennium starts, therefore, in March 1998, failing which in September 1997.

      The present action was raised in January 2004. The period that has elapsed since the last wrongful act is therefore approximately 5 years and 10 months.

      On that basis, this is not a case where the last incident is over 20 years before the raising of the action, as in the Nazareth House, De la Salle, Quarriers cases.

      In any event, if the court considers that the limitation period begin in 1983 when the pursuer reached 16, the court in assessing the application of section 19A was invited to have regard to the nature of the relationship between the pursuer and the defender.

In particular, in relation to that last point, it was submitted that:

o  That the pursuer was habituated to the abuse which had started from the age of 7 [Ian Stephen's report; transcript 4 May 2012, page 116 "I don't know about thinking it was wrong, it was what I was used to. I never...It was never any different"; transcript 9 May 2012 [smaller] page 34: "Have you ever heard described what you were involved with your uncle as incest? - You know it at [sic] incest, but I don't, I've not looked at it that way...I look at it as though I was really young. I didn't know any better, I was growing up and I got used to it...No he [the defender] told me that it was absolutely fine, and he also told me that his wife, A, at the time was abused by her uncle at the age of 12."]

o  The pursuer gave evidence that no other adult had shown her affection as a child. After she had reported the abuse to the police, her feelings for her uncle were extremely ambivalent. This was discussed by Dr Crean in his evidence; is recorded in the News of the World article, and can be seen in the pursuer's letter to the defender when he was in prison (7/8).

o  When the abuse started the defender told the pursuer that she would get sweets, that it would be good, it would make her happy, that the pursuer's mother was trying to get off with him downstairs, that she should look up to the defender, that VN was also good [transcript ("tr") 4 May 2012, at pages 40, 41, 49 and 60]. Later on, the defender paid the pursuer money every time he had sex with her.

o  The pursuer heard the defender say that "I would just love to put aw they bastards in care" [tr, 4 May 2012, page 79].

o  The defender never got nasty or threatening with the pursuer [tr., 4 May 2012, page 79]. However, she could not say "no" to the defender as she was always too scared [tr. 9 May 2012 [smaller], page27].

o  That the defender said "I'll always look after you" [tr., 4th May 2012, page 85]. The pursuer went to the defender with her problems [transcript 9 May 2012 [larger], page 27: "What he did, I was used to it. It's not what, he was the one I did run to with all my problems. He took advantage of the relationship. I did miss him, but see as the months and months went on and he wasn't touching me and I didn't have to sleep with him, it was then I realised that he shouldn't have done that. He shouldn't have been doing this. I shouldn't have got him this. I shouldn't have got him that. But I did write this [letter]."

o  That the defender pressurised the pursuer into getting other girls involved [e.g. tr. 4 May 2012, page 92]. The pursuer spoke of her sense of shame at having brought girls to the defender and how it's ruined her life [transcript, 9 May 2012 [smaller], pages 17 and 18]. It was only when he asked for the pursuer's baby sitter LR in 1998 that she refused.

o  That, per Dr Aitken's report, the pursuer has difficulties in the areas of social perception which characterise the first degree relatives of those with Asperger's syndrome (see below). This is reflected in the pursuer's evidence [transcript 9 May 2012 [larger], page 34] when she said that when the abuse came out into the public domain what really frightened her was the reaction of others to how bad the abuse had been.

(ii) Why is it that the action has not been brought timeously?


[80] In relation to this factor, Mr Gale's submissions were as follows:

In relation to the period prior to 1988:

      The abuse started when the pursuer was 7 years old.

      She became habituated to the abuse. It became part of her normal day-to-day life. (Ian Stephen's report, section 1 [6/7]).

      She was scared of the defender's response, were she to say "no" to him. She referred in evidence on a number of occasions to seeing the effect that the defender had had on VN and that she did not want to be subjected to the same [see e.g. transcript, 4 May 2012, page 161].

      The pursuer was also emotionally dependent on the defender. He was, she said, like a father figure to her (see the letter she wrote to him in prison). He was a source of kindness and affection in a chaotic home life. The pursuer also referred in evidence to the control that the defender exercised over the pursuer.

      Childhood sex abuse also has an inhibiting effect on its victims making it difficult for them to confront the sexual abuse and bring it into the open. The effects are a direct consequence of the abuse itself. Prior to disclosing the abuse to the police, the pursuer's defence mechanisms had locked off her psychological and emotional reactions to the trauma of the abuse. (Mr Stephen's report [6/7] and to his oral evidence; pursuer transcript 9 May [larger], page 57). Cf. 9/5(5) p 53-54.

      The pursuer also manifests difficulties in the areas of social perception, social interaction and cognitive skills which characterises the first degree relatives of those with Asperger's syndrome. As a result, she has significant problems in reading social signals and in appreciating the consequences of her actions and the actions of others. This made her particularly susceptible to exploitation. Due to her executive function problems, she would have had difficulty in recognising that it would have been in her interests to divulge information concerning the abuse to the authorities at an earlier stage. (Dr Aitken's report, section 13 [6/9].)

In relation to the period 1998-2004:

      The pursuer gave evidence that she was not aware that she had a remedy in damages against the defender.

      This was confirmed in the evidence given by DP that no such advice had been given. MD said that she attended with the pursuer at Ross Harper to seek a remedy in criminal law. The evidence of Cameron Fyfe indicated that the pursuer was unaware that she had a potential claim in damages against the defender.

      The evidence disclosed that the pursuer was able to consult solicitors between 1998 and 2004. However, she was reliant on their advice as to how to proceed in any particular situation. The letter produced by DP during the course of evidence indicated that the pursuer frequently had recourse to solicitors when issues in her life arose.

      Although the pursuer was able to consult lawyers, the court can have regard to the fact that during this period the pursuer was experiencing considerable stress relating to the disclosure of the abuse to the police and the subsequent trial.

      The defender's appeal against conviction was allowed on 9 May 2003. Within a matter of days, the pursuer went to Ross Harper for advice on a criminal prosecution. Mr Fyfe explained the position between May 2003 and the raising of the action. His chronology was in No 6/3 of process.

      The lack of awareness of a legal remedy is a relevant consideration. McLaren v Harland & Wolff Ltd 1991 SLT 85 and Comber v Greater Glasgow Health Board 1989 SLT 639.

(iii) What effect (if any) the length of time that has passed since the right of action accrued is likely to have had on the defender's ability to defend the action, and generally on availability of evidence?


[81] In relation to this factor, Mr Gale highlighted the following:

      Criminal trials took place in July 1999 and February 2000.

      Evidence was preserved as part of that process.

      This is not a claim that has "come out of nowhere". The defender was aware of the allegations being made against him both in 1988 and subsequently at the trials.

      The material facts are going to be known to the pursuer and the defender. This important consideration is referred to by Lord Drummond Young at paragraph 41 of B v Murray (No 2).

      In circumstances where the defender could have a fair criminal trial, it is difficult to see why it should be unfair on him to have to defend a civil action.

      This is not a systemic case made against an institution. See A v Hoare (paras 52 and 85) where the court considered that this is likely to bear significantly upon possibility of having fair trial. Further, the situation is not comparable with that of an institutional defender having to defend cases relating to the actions of its employees over, say, 20 years ago.

      There was no evidence of any actual prejudice to the defender.

In relation to this last point, Mr Gale also made the following submissions:

o  In the Murray (No 2) case, the solicitor representing the institution being sued was called to give evidence in relation to the difficulties there had been in locating witnesses and documents (see paragraph 120ff). In particular, the perpetrators of the abuse were dead.

o  In the present case, the defender's counsel cross-examined PC Helen Petrie in relation to the original investigation. As she said, witness statements were taken at the time and would have been made available to the defender's legal team. Furthermore, no evidence was led by the defender that an attempt had been made to recover documents that had been frustrated by passage of time. In fact, the pursuer's police statements were referred to in Mr Stephen's report and were handed over to the defender when requested.

o  There was no evidence that some of the loci are no longer accessible or have changed (closed record page 26).

o  The pursuer's mother died in 2000. She was not called as a witness in the trials and there is no indication what her evidence might have been.

o  The pursuer's father died after the second trial. There is no indication of what he would have been able to speak to. He was cross examined during the second trial and his evidence was restricted to the meeting in 1988. He was not cross examined in relation to the truth or otherwise of the sexual abuse. That was a matter uniquely within the knowledge of the defender and his victim. His testimony is available.

o  There are other family members, none of whom were called as witnesses by the defender.

o  The defender refers in the pleadings to the pursuer's rape by two Asian men. The pursuer was cross-examined on things in detail. There was no evidence that the defender had tried and failed to recover police records relating to this matter. The pursuer gave evidence that there were police records existing [transcript 9 May 2012 [smaller], page 14].


[82] In relation to this factor, Mr Gale also referred me to the Opinion of the Inner House in this case A v N 2009 SC 449 at paragraph 12.


[83] He also referred to RAR v GGC [2012] EWHC 2338 paragraphs 1 to 11 where section 33 discretion was exercised (abuse ending in 1977) in circumstances where the action was brought against the alleged perpetrator.

(iv) The conduct of pursuer and in particular how expeditious she was in seeking legal and (where appropriate) medical or other expert advice and intimating a claim to the defender.


[84] In relation to this factor, Mr Gale submitted that:

      The events which occurred after the abuse had been reported to the police are as set out in the closed record.

      The pursuer sought legal advice in relation to a Criminal Injuries Compensation claim in 1998.

      The pursuer was unaware of the possibility of bringing a civil damages claim until May 2003.

      Once that possibility of a civil action had been clarified with her, a claim was brought expeditiously.

(v) Quality and nature of legal advice she was given


[85] In relation to this factor, Mr Gale highlighted that:

      The pursuer was advised by Family Unit to consult a solicitor regarding a Criminal Injuries Compensation Claim.

      She was told that Crown would look after interests (page 18B).

      The pursuer was not told about possibility of claim for damages.

(vi) Conduct of defender and in particular how he has responded (if at all) to any relevant request for information made to him by the pursuer.


[86] In relation to this factor, Mr Gale submitted that:

      The only relevance of this sub-heading was that the defender had contributed to the delay in the process of getting the present action to proof.

      Although the reclaiming motion was "successful", this was in fact on the pursuer's motion on the basis that the Lord Ordinary had exercised his 19A discretion without being invited to do so. The defender's reclaiming motion was directed at the relevancy of the section 19A averments.

      Further, an earlier diet of proof was discharged due to the defender's lack of preparation for the case.

(vii) What other remedy, if any, the pursuer has if she is not allowed to bring the action?


[87] In relation to this factor, Mr Gale submissions were as follows:

      The defender avers that the pursuer "has a right of action against those solicitors for failing to raise the current proceedings timeously." That was admitted.

      While the pursuer has a right of action, the resulting action is more complicated than simply being an instance of missing a triennium.

      It was not possible to assess full the prospects of success on the basis of the evidence led. However, the pursuer might face a number of arguments:

o  The claim was already time-barred by the time the solicitor was consulted.

o  An expert may be located whose views differ from Mr Blane's.

o  The pursuer's case is not a "cast iron" case. See generally the Inner House's Opinion in this case A v N 2009 SC 449 at paragraphs 11 and 12.

      Mr Gale also referred to:

o  The Scottish Law Commission Report at paragraph 3.12.

o  McFarlane v Breen 1994 SLT 1320.

o  Comber v Greater Glasgow Health Board 1989 SLT 639: lack of knowledge of legal remedy and difficult alternative remedy are relevant factors; and

o  Anderson v City of Glasgow District Council 1987 SLT 279.

      Regard should also be had to the nature of the wrong allegedly committed and whether it was equitable in the circumstances that the pursuer's current action should not be allowed to proceed on the basis that there is an alternative claim against the solicitors.

      Further litigation will result in further delay.

      Further litigation will also result in the pursuer having to go through the difficulty of giving evidence on these matters for a fourth time.

(viii) Any other matter which appears to the court to be relevant.


[88] In relation to this factor, Mr Gale highlighted:

      The nature of the wrong allegedly committed - Hoare [2008] EWHC 1573 at paragraphs 40 to 43.

      B v Murray (No 2) paragraph 41.

      This is an action against an individual. There is no public interest in allowing the alleged abuser (as opposed to his employer) to escape liability.

      This is a case of sexual abuse.

      There has been no change in social standards in relation to sexual assault on a child.

      There will be prejudice to pursuer. The pursuer will not be allowed to see her claim vindicated in court. She has seen two criminal trials fail. The court can have regard to the whole history of the trials and the appeal.

      The pursuer would be required to give evidence again on distressing matters in any subsequent litigation.

      There was a criminal conviction (albeit it was quashed on appeal). In McE v De La Salle Brothers 2007 SC 556, Lord Osborne (paragraph 177) and Lord Marnoch (paragraph 197) considered that the existence of a criminal conviction was an important consideration in the context of section 19A (whereas Lord Clarke did not) in circumstances where the action was not directed against the individual (paragraph 188).

The pursuer's conclusions in relation to section 19A


[89] In conclusion, Mr Gale submitted that the court should exercise its discretion in terms of section 19A by allowing the pursuer to maintain her claim notwithstanding the fact that time bar has operated.


[90] The issues have to be looked at in their totality. It was a balancing exercise.


[91] In undertaking that exercise, the court was invited to have particular regard to:

      The age at which the abuse began;

      The nature and extent of the abuse;

      The fact that the defender is the pursuer's uncle;

      The circumstances of the pursuer's home life at the time the abuse began and thereafter;

      The effect of the abuse on the pursuer in terms of habituation;

      The dependency that the pursuer developed on the defender;

      The level of control that the defender had over the pursuer;

      The fact that it is an effect of the abuse itself that resulted in the pursuer not reporting it to the police until 1998;

      The fact that the pursuer expeditiously sought legal advice, which turned out to be incomplete;

      The fact that the abuse is a matter uniquely within the party's knowledge;

      The fact that the defender has led no evidence of the prejudice he has suffered.


[92] To the question of whether a fair trial is still possible, the answer is yes. The only prejudice to the defender is the loss of a time-bar defence (see, for instance, Lord Drummond Young in Murray (No 2) at para 40). On the evidence, the delay has not caused the defender any substantial prejudice.


[93] The existence of an alternative remedy is just one factor that the court must take into account. It is not determinative of the issue. Nor, in the circumstances of the present case, is the court required to give it undue weight, particularly when it cannot be described as a "cast iron" case and will result in further delay.


[94] Further, in the context of the allegations made, the court can have regard to whether it is appropriate that solicitors, rather than the defender, should be responsible for the liability.


[95] I was also referred to:

o  Anderson v Glasgow DC 1987 SC at 288;

o  McFarlane v Breen 1994 SLT 1320 at 1322; and

o  Hartley v Birmingham DC [1992] 1 WLR 968 at 974, 975, 980,983.


[96] For those reasons, submitted Mr Gale, the court should exercise its discretion in terms of section 19A.

The pursuer's position on quantum


[97] In relation to quantum the pursuer's submissions were under the following heads:

1. The effects of abuse;

2. Quantum - solatium; and

3. Loss of employability.

1. The effects of the abuse

The pursuer's evidence


[98] The pursuer spoke of the effect that the abuse had on her:

o  She is overprotective towards her children, vigilant of strangers and difficulty making friends [transcript, 9th May 2012 [larger], page 58].

o  She can't have men sleeping overnight in her house (confirmed by MD, a friend for 18 years; MMcC also confirmed that she saw no sign of a man living in the pursuer's house, despite popping in frequently).

o  Her relationships are only with Asian men. She finds white men's bodies repulsive [e.g. transcript 9th May 2012 [larger], page 60 and transcript 11th May 2012 page 109 and 126].

Mr Stephen


[99] Mr Stephen [production 6/7] sets out the findings of his interview with the pursuer, including:

Dr Crean


[100] Dr Crean [productions 6/5, 6/6 and 6/43] sets out his findings from his interview with the pursuer, including:

GP Records


[101] The pursuer's GP records, production 6/2, contained the following references:

Dykebar Records


[102] The Dykebar records, production 7/2, show in some detail the pursuer's condition after the disclosure in 1998.

2. Quantum - solatium


[103] In relation to solatium, Mr Gale highlighted the following points:

o  7 years of physical and sexual abuse in a children's home between the ages of 8 and 15.

o  The pursuer had done remarkably well in later life, a fact reflected in the award.

o  There was no diagnosed psychiatric illness accepted by the court.

o  The court considered the awards in Bryn Alyn cases unhelpful.

o  The solatium awarded was 75,000 with interest from date of citation.

o  Lord Menzies said he would have awarded over 100,000 if there had been a diagnosed psychiatric condition.

o  On appeal, the Inner House accepted the figure for solatium but increased the allowance for interest, with the capital sum being broken down into (i) 50,000 in respect of the period pursuer was in the children's home (on which interest was awarded at half the judicial rate from 1966) and (ii) 25,000 in respect of emotional and social consequences (on which interest was awarded at a quarter of the judicial rate from 1966).

3. Loss of employability


[104] Mr Gale submitted that an award was appropriate in relation to loss of employability. He referred to:


[105] In relation to damages, Mr Gale suggested a figure of 100,000 to 120,000 for solatium, apportioned 60% to the past (40% to the future) with interest on past solatium at one-half of the judicial rate from the cessation of the breach of duty to date.


[106] Mr Gale also suggested that if the defender's delictual liability ended on 10 December 1983 a figure of 80,000 to 90,000 would be appropriate with similar apportionment and similar provision for interest.


[107] Mr Gale suggested an award in respect of loss of employability of 10,000 to 15,000.


[108] I now turn to deal with the defender's position.

The defender's position


[109] On behalf of the defender, Mr Hanretty moved for decree of absolvitor.


[110] The fairest and most effective way to set out the defender's position is by setting out the detailed and very helpful "Timeline for the Defender" which was produced by counsel (retaining original notation and references) as follows:

The timeline for the defender

DATE

FACTS

PROD. NO.

10/12/67

Pursuer born

1975

Defender came to live with pursuer's family in her home.

Shared bedroom with pursuer (EN) and sister VN + AN. Pursuer alleges defender began to abuse her.

Gave her presents.

CR Art 4 p5 - 6

E in C 4/5/12 p34

E in C 4/5/12 p46

Defender alleged to have abused pursuer's 2 sisters and had pursuer procure 2 friends under 16 to abuse.

CR Art 5 p6-7

E in C Pursuer

4/5/12 p59, p93

P97, p110

E in C AN

Approx.

1977

Pursuer alleges sexually abused by brother E.

Pursuer told E about alleged relationship with GN.

E in C 4/5/12

P143, p144

E in C p144 & 145

10/12/1983

Pursuer turns 16.

1984

Pursuer has YTS placement at Glasgow Airport as catering assistant but stays only 7 or 8 of 12 months.

Then found job as care assistant in care homes for Region and stayed there about 5 years.

Keith Carter

Report p6-7

1985

Relationship with F lasts from about 1982 to 1985.

Cross 9/5/12

p119

18th March

Alleged rape by 2 Asian men

6/48 p1

Pursuer E in C

9/5/12 p2

July

Miscarriage

6/2 p393

Cross 9/5/12

p119

11th September

P had TOP (F father)

Problems in relationship with F due to being raped.

6/2 p393

Cross 9/5/12

p120

Cross 9/5/12

p120

10/12/85

Pursuer turns 18

1988

1988

Meeting at MNs house. Pursuer heavily pregnant with S.

Tells family "every single thing".

Pursuer E in C

4/5/12 p120, p122

p126

24th June

Pursuer's first daughter born, S. Her father is AAK.

Relationship with him finished before S born.

Began relationship with F.

Pursuer E in C 4/5/12 p5

E in C 4/5/12 p141

1989

Approx - leaves employment in care home.

Keith Carter report p7

23rd June 1992

GP seeks referral for her to Sexual Abuse Team at RSPCC saying recently disclosed "problems". At this time pursuer said to be working full time.

Tells GP being "abused" by defender.

Sees MH from Sexual Abuse Team at RSPCC for few weeks and thereafter "still phoned her".

6/2 p406

E in c 9/5/12 p47

E in C 9/5/12 p 49

E in C 9/5/12 p52/53

22nd August 1994

Pursuer married SA (she 26 at time)

CR p21 Pursuer's e-in c 4/5/12 p2

1995

Moved to [address S]

Tells MD and JN about "abusive" relationship with defender.

Pursuer E in C 9/5/12 p57

Pursuer E in C p59

1997

September 1997

"The pursuer was able to break away from the control of the defender and bring an end to sexual relations between them." - according to the pursuer's pleadings.

Pursuer pregnant.

Was concerned daughter would be abused

(she almost 30 at this time and married)

CR Art 6 p8

22/10/97

Pursuer consults WL Solicitors re CICA appeal against refusal of CICA for rape by 2 Asian men.

Submits claim.

6/47 p1

6/50 p1

5/12/97

Pursuer was attending Infertility clinic

6/2 p320 + p317 + eg p437

1998

5th March

Pursuer's claim for CICA compensation for rape by 2 Asian men refused. Had 90 days to appeal against this.

Tells her solicitors (22/5/01) that at this time not mentally, physically or psychologically strong enough to appeal against refusal

Application refused as time barred

7/11 p1

6/48 p1

6/50 p1

25th March

Pursuer interviewed by police re allegations.

CR Art 7 p8

16th April

Pursuer interviewed by police re allegations

April 1998

Separated from husband

6/15 p71 Pursuer's e-in-c 4/5/12 p2

27th April

CICA application completed by pursuer. Legal aid certificate in favour of her agents R

6/10

1st May

See solicitor and completes CICA form

6/24 p125

22nd May

Y born. Her father MA.

Pursuer living at [address S]

Pursuer E in C p6 4/5/12

E in C p153

26th May

GP refers Pursuer to Dykebar

7/3 p145

28th August

Pursuer stressed as charged with possession of a firearm

CR Ans 10 p21

6/1 p14 + p130

8th October

Pursuer going to see her solicitor (in connection with firearm?)

6/1 p16

2nd October

Correspondence with CICA and says at time reported offence saw MMH at SSPCC. Also Dr McCue - relaxation therapy Dr McCarthy.

6/24 p117

1999

Early

Made application via solicitors to CICA

CR Art 10 p13

March

Pursuer finally advised police defender allegedly sexually abused her

6/48 p2

21st April

Solicitors letter of complaint (DP) to Crown Office re way criminal proceedings being conducted against defender.

6/47 p2

11th May

R had judicial factor appointed

CR Art 10 p16

13th May

"Phoned on Tuesday to say her mother had died"

6/1 p26

27th May

"Pushed for FAI for her mother"

6/1 p26

15th July

Gave evidence at 1st trial. Was asked if had discussed possibility of action for damages

6/15 p174

Cross E 9/5/12

P82

July 1999

First trial of Defender began and was deserted

15th July

Pursuer asked in cross examination at first trial if she was suing "someone": "taking any form of civil legal action"

6/15 p175 + p181

Nov

File passed to DP. He chased up CICA claim and Legal Aid cert

CR p17

19th November

DV claim also with DP

6/24 p115

30th November

Solicitors apply for A&A from SLAB in respect of 3 matters although only CICA application in production.

6/24 p110

3rd December

Letter to hospital from AB re appeal against refusal of disability living allowance

6/1 p85

2000

Pursuer's mother died

CR Ans 10 p22

28th Feb

Defender convicted after trial in High Court of abuse of pursuer and her 2 sisters and sentenced to 8 years

CR Art 7 p9

5th March

News of World article

7/10

24th March

Pursuer contacts solicitor to say newspaper report re trial (sentencing?) and it was on the BBC. The fiscal has advised the CICA of the position

6/24 p103

4th April

Solicitors lodge appeal against refusal of CICA award for claim in relation to rape by 2 Asian men. Letter says as at March 1998 not mentally, physically or psychologically strong enough to have appealed refusal.

6/48

27th April

CICA write to hospital

6/1 p72

22nd May

CICA refuse review of claim in respect of rape by Asian men. This sought to be reviewed

6/50 p1

16th June

Solicitor chases up CICA

6/24 p102

16th June

Appeal against refusal of review of CICA application for compensation for rape by 2 Asian men

6/50 p2

28th June

Pursuer calls CICA and PF direct re delay in payment and then solicitor

6/24 p100

See also p98

31st July

File note of meeting with solicitor of Pursuer. "We came to the conclusion that this would be worth 17,500...although it might be possible to add on something for psychological damage."

6/24 p97

August

"CICB no word yet"

6/1 p34

3rd August

CICA offer of 6,000

6.24 p90

29th August

Appeal against CICA award. Says suffered "over a period of more than 3 years".

6/24 p89

13th September

Pursuer calls solicitor to ask that he write to CICA and Council re her changing her (sur)name to A, her married name as N not recognised at her current address and she is trying to get credit under name A. (note getting divorced at this time)

6/24 p83

25th October

Pursuer again calls CICA direct

6/24 p82

2000

Pursuer divorced her husband A

CR p21

2001

8th January

Letter to pursuer from solicitor re her "two claims" and following up her phone call last week wanting these chased up.

6/24 p78

15th February

Pursuer calls solicitor to chase up CICA claim

6/24 p77

21st March

Solicitor chasing up Pursuer's CICA claim and seeking interim payment

6/24 p73

15th April

Refusal of final appeal against refusal of CICA claim from rape by 2 Asian men

6/51

30th April

Pursuer calls to chase CICA claim

6/24 p67

9th May

Pursuer calls solicitor to chase up CICA claim

6/24 p66

11th May

Call with Pursuer re CICA claim

6/24 p64

22nd May

Letter DP, solicitor, to Dr Bennie re medical report for CICA appeal against refusal CICA claim for Asian rape

6/48

26th June

Appointment with Dr Bennie. Tells Dr Bennie "in a relationship with A, he lives away from home"

6/49, p1 & p3

27th June

Pursuer calls solicitor re CICA claim

6/24 p59 & 60

27th July

Report Dr Bennie re mental health in relation to appeal against refusal of CICA claim relative to rape by 2 Asian men.

6/49

30th July

Pursuer calls solicitor re CICA claim

6/24 p53

2nd August

"fighting with income support to get carpets for new house. Hopes SW will get her carpets"

6/1 pp36 (see also p37 + p49)

15th August

Pursuer calls solicitor re CICA claim

6/24 p50

27th August

Pursuer calls solicitor re CICA claim

6/24 p48

20th September

Signs acceptance of offer from CICA in name of A

6/24 p32

September 2001

Pursuer awarded 17,500 CICA claim

CR p17

2nd October

Signs form accepting CICA award of 17,500.

Pursuer says not told of any other potential claims.

Pursuer says had been told by DP that had right of action against defender, would have commenced it.

6/24 p17

Pursuer E in C 9/5/12 p4

E in C 9/5/12 p5

E in C 9/5/12 p78

8th October

Pursuer calls solicitor, "getting confused about signatures"

6/24 p21

19th November

"Feels strong at present + able to cope. Hopes to go to college. Confident mood, not anxious. Wishes no additional input from SWD now"

6/1 p38 also p43

2003

9th May

Defender's appeal heard and conviction quashed

10th May

Pursuer reads newspaper article. Defender's conviction quashed

CR p18

28th May

Pursuer consulted current solicitor, Cameron Fyfe

6/3 Evidence Mr Fyfe

27th August

Pursuer seen by Ian Stephen, Clinical Psychologist. He does not have the benefit of GP or hospital records from Dykebar

6/7 Evidence Mr Stephen

2004

Jan

This action raised and sisted

Interlocutor 10/3/04

11th June

Pursuer seeks remit to Sheriff Court and this refused

Interlocutor 11/6/04

1st July

Sists cause for Pursuer's legal aid

Interlocutor

8th October

Cause removed from Rule 43 and made no ordinary action

Interlocutor

4th November

Sists cause for Pursuer's legal aid

2006

16th March

History of stab injury left thenar prominence and a complex fracture of wrist

7/5 p226

22nd September

In low speed RTA. 14 weeks pregnant

7/5 p205

15th December

Allows record to be opened up and restores case to Adjustment Roll

Interlocutor

2007

29/1/07

Miscarriage of baby boy at 32 weeks

6/2 p21

14/2/07

Again restored to Adj Roll

Interlocutor

3/4/07

Min of Am for P

Interlocutor

4/4/07

Restores case to Adj roll on motion of Defender

Interlocutor

10/10/07

Closes Record and send case to PRD

Interlocutor

28/2/08

Min of A for P (2nd one)

Interlocutor

29/2/08

Min of Am for Pursuer

Interlocutor

4/4/08

Def Answers

Interlocutor

19/4/08

DP sends to Ross Harper 4 files Pursuer Mrs N

6/53

21/5/08

DP sends to Drummond Miller 22 files Ms N

6/47

29/5/08

Discharges By Order hearing and further period adjustment of Min of Am etc

Interlocutor

23/6/08

Amends CR in terms Min of A + Answers

Interlocutor

25/6/08

Procedure Roll Debate on preliminary pleas

Interlocutor

June 2008

Approximate time Pursuer moves from [stated address M] to [stated address N].

Pursuer's evidence 4/5/12 p1 & 2

5/12/08

Repels 1st and 2nd pleas for defender, 1st for pursuer and sustains 4th for pursuer and allows proof of respective averments

Interlocutor

2009

8/1/09

Leave to reclaim thought late granted to defender

Interlocutor

12/2/09

Summar Roll hearing two days

Interlocutor

31/3/09

The Court allows motion to recall interlocutor of 5/12/08. Allows parties PBA all pleas standing

May/June 2009

Pursuer tells GP contact address for A is same as her address

7/5 p117. Cross 9/5/12 p115

2010

1/3/10

Min of A for P allowed

Interlocutor

16/4/10

Agents send letter to Ct withdrawing from acting (PRG)

Inventory Process

21/4/10

Pursuer's motion requiring defender to advise if insisting on defence to action

Interlocutor

11/6/10

Min of Amendment for pursuer allowed

Interlocutor

20/10/10

Pursuer's motion (?) appoints parties to be heard By Order on 27/10/10 Interlocutor.

Minute proceedings notes defender no legal aid, appealing against refusal of that.

Interlocutor

Min of

Proceedings

27/10/10

Defender appears personally and proof discharged and fixed for 1st May 2012

Interlocutor

2/11/10

Proof due to take place on this date

Minute of proceedings of 20/10/10 refers to this

2012

9/2/12

By Order continued to 23/2/12 to be advised of defender's legal aid application.

Minute of Proceedings urged defender to contact SLAB re application and that may have to prepare proof himself.

Interlocutor

23/2/12

Continued By Order hearing re legal aid application. Re-emphasised in Minute of Proceedings the need to prepare for the forthcoming proof

Interlocutor

March 2012

M instructed. Previous Agent applied Legal Aid.

Now been granted

22nd March 2012

Continued By Order hearing, continued again to ascertain legal aid position

Interlocutor

10th April 2012

Cont By Order hearing

Interlocutor

The defender's position in relation to the merits and time bar


[111] On behalf of the defender Mr Hanretty invited me to sustain the second to sixth pleas in law for the defender and to repel the second to fourth pleas in law for the pursuer.


[112] A number of issues in relation to the merits and time bar were highlighted by counsel for the defender in the "Timeline for the Defender" which I have already set out in full above. The defender gave evidence strongly denying the allegations against him.


[113] In the course of his submissions Mr Hanretty also developed a number of robust themes along the following lines.


[114] In the result, on the evidence, the court should grant decree of absolvitor - so submitted Mr Hanretty.

The defender's position in relation to damages


[115] In relation to quantum and causation, Mr Hanretty submitted, bluntly, that the pursuer could not prove any loss. She presented a deliberately confused and potentially misleading scenario. There was no causal connection. The court could not believe, without some independent support, anything said by the pursuer.


[116] In relation to solatium, Mr Hanretty suggested somewhere between 1,000 and 12,500 at best for the pursuer. If there was PTSD those figures would increase to somewhere between 15,250 and 40,000.


[117] In relation to loss of employability, Mr Hanretty submitted that there should be no award. He suggested that there was no professionally conducted appraisal and that this head of claim had not been made out.


[118] If I was minded to make any award it should be 17,500 in total.


[119] In relation to interest calculations the case could be put out By Order.


[120] Mr Hanretty's primary motion was, however, that the defender should be assoilzied.

Discussion


[121] The main issues in this case relate to liability, time bar, and damages:


[122] In relation to liability, the two main questions posed were:

(i) whether and to what extent has the pursuer had established on the balance of probabilities that she was sexually abused by the defender in the manner and over the period averred on Record; and

(ii) whether and to what extent, if any, does that conduct on the part of the defender amount to a delictual wrong which sounds in damages.


[123] If the defender has committed such a delictual wrong (and standing the acceptance on behalf of the pursuer that the action is time barred) the question posed in relation to time bar was whether the court should allow the action to proceed in the exercise of the court's discretion in terms of section 19A of the Prescription and Limitation (Scotland) Act 1973.


[124] If the action proceeds, the questions posed in relation to damages were:

(i) whether and to what extent has the pursuer sustained any loss, injury or damage caused as a result of the defender's delict; and

(ii) what is the proper pecuniary measure of that loss, injury and damage?


[125] I propose to deal with the main issues in turn.

1. Liability


[126] The defender was called as a witness by the pursuer. He gave evidence strongly denying the allegations made against him by the pursuer. He denied engaging in any improper conduct towards her. He repeatedly said "It never happened." "There is no truth in that." "It's irrelevant to me - as it never happened. It's as simple as that." Similarly the defender said everything that the pursuer's younger sister (AN) had said was wrong. She was lying. "The things that [the pursuer] and [AN] were saying were irrelevant, because I know there is no truth in them." "This stuff is irrelevant." "The answer is 'no' to everything." When asked for his reason for the pursuer continuing with this, he said "The only reason I can see is for financial gain." "It's not true." He said that he was the victim of a conspiracy orchestrated by the pursuer. He denied that he was making up stories. There was no cross examination of the defender.


[127] Despite the defender's denials, and the submissions of Mr Hanretty, I am satisfied on the evidence that the pursuer has proved her averments in relation to the defender's unlawful conduct towards her in the period prior to her sixteenth birthday on 10 December 1983.


[128] Clearly the pursuer was essential witness in the case. In order to succeed to any extent the pursuer required to satisfy me that her evidence, so far as material, was both credible and reliable. Having seen and heard the witnesses, I was so satisfied in relation to events while the pursuer was a child and the consequences thereof.


[129] The pursuer was subjected to skilful, robust and rigorous cross-examination by Mr Hanretty as can be seen from the transcripts of her evidence and from factors highlighted in the timeline for the defender. However, in my opinion, the pursuer came through cross-examination relatively unscathed in relation to what happened to her when she was a child. It was accepted by the pursuer's counsel that there were a number of issues highlighted in cross examination in respect of which the pursuer's evidence was "not wholly satisfactory". That is an understatement. There were some serious concerns expressed by Mr Hanretty about the pursuer's credibility and reliability. The pursuer lied to Dr Crean. There were also inconsistencies in the pursuer's evidence (some described as "chalk and cheese") and she was at best a poor historian. Those criticisms, however, did not detract materially from the pursuer's clear evidence to the effect that the defender had carried out the sexual acts referred to by the pursuer when she was a child.


[130] In relation to the defender, having seen and heard the whole evidence, I reject the defender's evidence as being neither credible nor reliable. There was a certain arrogance about the defender when he gave his evidence. I found his answers unconvincing.


[131] In sharp contrast, I accepted and preferred the evidence of pursuer and her younger sister (AN) in relation to the defender's offending while they were children. The pursuer's account has been consistent over the years. Her evidence gains support from her sister. The evidence of those two witnesses was destructive of the defender's case on the merits.


[132] In civil proceedings, there is no requirement for a pursuer to prove her case to a criminal standard by proof beyond reasonable doubt. However, the onus is on the pursuer who must satisfy me on a balance of probabilities if she is to succeed.


[133] On the evidence, the defender subjected a young child (the pursuer) to sexual conduct of the grossest kind. That conduct began when the pursuer was only 7 or 8 years of age and by the age of 10 she was being subjected to penetrative sex. The sexual conduct started in the bedroom occupied by the pursuer and her sisters at [a stated address R] when the pursuer was aged 7 or 8. The defender touched the pursuer's vagina with his fingers and masturbated himself. He told her not to tell anyone. He said that she would like it and that he would make her happy and he promised her sweets and a can of coke. That conduct continued at [stated address R] and at the defenders' business premises at [stated addresses B and G]. The defender progressed from rubbing the pursuer to full penetrative sex with her initially at [stated address R] and then also in his car, and then at [stated address L]. He also performed oral sex on the pursuer and ejaculated on her. I accept the pursuer's evidence about what happened to her as a child - as contained in the transcript of her evidence.


[134] I also accepted the evidence of the pursuer's younger sister AN. AN was both credible and reliable. When AN was about 13 or 14 she was aware that the pursuer was having sex with the defender. AN described an incident in the box room at [stated address L] when the defender rubbed his penis up and down. The defender wanted to have sex with her. The pursuer asked AN to sleep with the defender so that she (the pursuer) could get money. The defender suggested to AN that he would take her out in and get her driving lessons and buy her a car. There was a pattern of offering inducements. He said he wanted to have sex with her before her sixteenth birthday but AN said no. He was interested in having sex with under-age girls.


[135] There is no doubt, in my opinion, that the pursuer has a good cause of action based on the defender's unlawful sexual actings towards her (as outlined above) from the age of about seven or eight years and prior to her sixteenth birthday on 10 December 1983.


[136] Actings of that sort against a child are clearly unlawful. Any suggestion that this was simply "abuse" and did not amount to any delict is simply unsound.


[137] In relation to the defender's subsequent actings, after 10 December 1983, the pursuer faces evidential difficulties. In this particular case, in my view, those difficulties have not been overcome. I was not satisfied that there was an actionable sexual assault upon the pursuer by the defender after the age of sixteen. Nor was I satisfied, on the evidence, that there was no free agreement on the part of pursuer when she was an adult. The pursuer has not established a sufficient causal link between the actionable "under-age" sexual contact and the subsequent actions involving her as an adult - such as to establish delictual liability. There may well be other cases where a defender's liability for sexual conduct towards a child continues into later adult years, and can be shown to give rise to civil liability based on analogy with "seduction". I do not exclude the possibility of such an argument succeeding in a suitable case in the future. However, I was not satisfied that a basis for such a case had been proved in the present case. There were too many uncertainties and imponderables.


[138] Questions of sexualisation, habituation to sexual conduct, vulnerability, emotional dependency on the perpetrator, and controlling behaviour by may however have a bearing on the question of time bar - but that is a different issue (which I will deal with below).


[139] Accordingly, in my opinion, the pursuer is entitled to reparation from the defender in respect of the acts referred to by the pursuer prior to the pursuer's sixteenth birthday which was on 10 December 1983. However, her claim in respect of later acts of alleged sexual abuse has not been proved.


[140] The defender's plea to the effect that it would be contrary to public policy to find the defender liable for his sexual actings has no merit where, as here, those sexual actings are against a child under the age of sixteen. That plea will be repelled.


[141] In light of my findings, it is not necessary for me to decide whether public policy might have operated as a defence in relation to acts after the pursuer's sixteenth birthday. If it had been necessary to decide that issue, I would probably have repelled a plea in those terms. A defender in a similar position to GN is accountable for his own actions at least to some extent.


[142] In short, having considered the evidence and the submissions of counsel, I am satisfied that the pursuer had proved her case in relation to event prior to 10 December 1983 but I am not satisfied that she had proved that part of her damages claim which was based on actings after that date.


[143] Having heard the evidence and the submissions of counsel, I find that the pursuer has suffered loss injury and damage as a result of unlawful acts on the part of the defender while she was a child (prior to 10 December 1983) and that she is entitled to reparation from him therefor.

2. Time Bar


[144] In the whole the circumstances of this particular case, I am satisfied that the court should exercise its discretion in terms of section 19Aof the 1973 Act by allowing the pursuer to maintain her claim notwithstanding the fact that time bar has operated.


[145] In terms of section 17(3) of the 1973 Act the limitation period ran at the earliest against the pursuer on her reaching 16.


[146] I accept that there is no exhaustive list of named delicts in the law of Scotland. However, I was not persuaded by the pursuer's arguments based on a continuing course of delictual conduct (section 17(2)(a) of the 1973 Act) which continued beyond her sixteenth (or eighteenth) birthday and did not stop until 1997.


[147] On the evidence, the defender was in breach of delictual duty towards the pursuer at least in the period prior to 10 December 1985. However, I was not satisfied on a balance of probabilities that the defender's acts after 10 December 1985 sounded in damage.


[148] I accept that there is a certain artificiality in drawing a line at a particular date but in a case of this nature that is inevitable. The duties owed to a child under 16 are more onerous and compelling and properly so. It was for the pursuer to establish her case based on a continuing "act or omission" or on analogy with "seduction" and she failed to do so. However, the factors relied upon by the pursuer in support of those arguments may also be relevant to the question of time bar and the exercise of my discretion.


[149] That brings me to section 19A(1) of the 1973 Act, which provides:

"(1) Where a person would be entitled, but for any of the provisions of section 17, 18, 18A or 18B of this Act, to bring an action, the court may, if it seems to it equitable to do so, allow him to bring the action notwithstanding that provision."


[150] I have borne in mind the various authorities referred to by counsel (above).


[151] I also have, of course, the benefit of the Opinion of the Court in this process dated 31 March 2009, [2009] CSIH 29, A v N 2009 SC 449.


[152] The onus is on the pursuer to satisfy me that it would be equitable to allow her claim to proceed. I require to decide what would be equitable in all the circumstances.


[153] I have considered the evidence adduced and the various factors and authorities highlighted by counsel.


[154] I recognise that, in light of my earlier findings, a very lengthy period of time has elapsed between (a) the pursuer's sixteenth birthday on 10 December 1983 and (b) the raising of the present action in January 2004. Even if expiry of the triennium is taken as 10 December 1986 (or even 1988 as was eventually suggested by counsel) the period is still very substantial. For present purposes I shall take the longer of those periods. I agree with Mr Hanretty that all delay is relevant.


[155] I also recognise that, from a defender's point of view, obvious prejudice arises when a time-barred action is allowed to proceed. The defender would suffer the loss of a statutory defence. Inevitably, through lapse of time, some evidence will have become stale. Mr Hanretty submitted that memories have faded, evidence has be lost, potential witnesses have died or disappeared and some evidence (such as police notebooks) have been destroyed. I have borne in mind that prejudice can relate to quantum as well as the merits. These are all important factors - but they are factors to be considered along with other factors.


[156] It is also a matter of admission between the pursuer and the defender, on Record (at page 16A) that the pursuer has a right of action against her former solicitors for failing to raise the current proceedings timeously. The pursuer admits that no solicitor of ordinary skill and competence acting with ordinary care would have failed so to advise. The availability of some other remedy is also an important factor.


[157] There are, however, other factors in the case that have a bearing on the question of the court exercising discretion.


[158] Firstly, the defender's conduct was reprehensible. The defender personally subjected his own niece, while she was still a young child, to sexual conduct of the grossest kind. The defender was the actual perpetrator - as opposed to an institution being held responsible for the acts of others. The defender subjected a 7 or 8 year old child, a member of his own family, to reprehensible sexual conduct. By the age of 10 the pursuer had been subjected to oral sex and penetrative sex as already outlined above. The defender preyed on the pursuer's vulnerability. He sexualised the pursuer when she was still a young child. She became habituated to his sexual conduct and emotionally dependent on him.


[159] Secondly, the pursuer was exploited by the defender. The defender's sexual behaviour continued into the pursuer's adult life after she became sixteen and it continued until 1997 when the pursuer was aged 30. He produced a state akin to dependency and used controlling behaviour which was liable to confuse and perplex. There were also times when the pursuer felt weak mentally, physically and psychologically. Although the pursuer does not fulfil criteria for the diagnosis of Asperger's syndrome, assessments carried out by Dr Kenneth Aitken manifested difficulties in areas of social perception and social interaction. The defender traumatised the pursuer by his conduct. He exploited her and took advantage of her for years.


[160] Thirdly, on the evidence, the defender has not suffered any real prejudice in his ability to defend this action (apart from the obvious prejudice that arises when a time-barred action is allowed to proceed). I was not persuaded that the defender has been materially prejudiced by the loss of important evidence. In many respects he is in no worse a position than those who face serious criminal sexual allegations many years after the alleged events. The defender is well aware of his own actions. He has been aware of the allegations against him for some time. In this particular case evidence has been preserved as part of the earlier trial processes.


[161] Fourthly, in relation to the conduct of the pursuer, I accept that the pursuer did have some experience of dealing with solicitors in relation to various legal matters - although those matters were not directly analogous. However, the evidence of DP, solicitor, as to whether he had given the pursuer advice on the possibility of a civil claim was somewhat equivocal. The first person to tell the pursuer in any really meaningful way that she had a possible right of action for damages against the defender in a civil court (as opposed to criminal injuries compensation) was Cameron Fyfe and that was in 2003. The processing and the progressing of the pursuer's claim thereafter was spoken to by Cameron Fyfe under reference to the documentation produced. Once the possibility of a civil action had been clarified with the pursuer, a claim was brought expeditiously. The pursuer was asked about the evidence which she gave on 15 July 1999 (in No 6/15 of process at pages 174-175). The pursuer's position was "I've no understood it". I accept the pursuer's explanation.


[162] Fifth, although it is admitted that the pursuer has a right of action against her former solicitors for failing to raise the current proceedings timeously, it cannot be said that she has a "cast-iron" case or one that her claim will succeed against any one or more of them. Stephen Blane outlined his opinion under reference to his letter No 6/54 of process. Some guidance can also to be found in the Opinion of the Court delivered by the Lord President in the present case A v N 2009 SC 449 at paragraph [11]:

"While the [pursuer's] prospects against her former solicitors seem prima facie favourable, her prospective case is not as straightforward as some - such as where a solicitor expressly instructed to pursuer a civil claim has manifestly failed to meet a statutory time limit. While the Lord Ordinary may have undervalued the [pursuer's] prospects of success against her former solicitors, he was correct to hold that any right she had in that respect was not conclusive but only a factor to be taken, with other factors, into account."


[163] Having heard the evidence, I agree that the pursuer's prospects against her former solicitors are prima facie favourable, but as Mr Gale submitted her case is neither cast-iron nor straightforward. That is a factor which I have to take into account - along with other factors.


[164] It can also be said that prima facie, and as a matter of equity, the actual perpetrator of such offensive sexual acts against a child should be held accountable for his own proven delictual acts. That is simply another factor.


[165] In my opinion, looking at all the factors highlighted by both parties, there is sufficient evidence to satisfy me that in all the circumstances it would be equitable to allow the pursuer's action to proceed.


[166] The decision is essentially one for my discretion.


[167] Having heard the evidence, in this somewhat exceptional case, my finding in relation to time bar is that in the whole circumstances it is equitable to allow the pursuer to bring and proceed with this action.


[168] I shall exercise my discretion in terms of section 19A allowing the pursuer to maintain her claim notwithstanding the fact that time bar has operated.

3. Damages


[169] It follows from my previous findings that the pursuer is entitled to an award to damages for the loss, injury and damage which she can prove on a balance of probabilities that she has suffered as a result the delictual acts of the defender.


[170] Causation and the assessment of damages are not easy matters particularly where, as here, the factual position is complicated and confused by other factors and stressors for which the defender is not responsible in delict. Certain elements of the pursuer's case have simply not been established as sounding in damages. I have also taken into account the various criticisms levelled against the pursuer's evidence.


[171] The pursuer's submissions on quantum require to be considered and restricted to those elements which the pursuer has proved, on a balance of probabilities, were caused, or materially contributed to, as a result of the defender's delictual acts (carried out prior to 10 December 1983) and subject always to the test of remoteness.


[172] There were a number of other factors which adversely affected the pursuer and her psychological wellbeing which were not related to the defender's delictual acts (as mentioned in the Timeline for the Defender). I require to make an appropriate allowance and to restrict the award of damages accordingly.


[173] Applying those restrictions to the evidence, my findings in relation to damages are as follows:


[174] I accept the evidence of the pursuer as to the effects of the defender's delictual acts to the following extent:

      The pursuer, who is now aged 45, suffered trauma as a young child by being subjected to sexual conduct of the grossest nature which I have already outlined in my findings in relation to liability.

      The pursuer suffered and will continue to suffer the trauma of having to live with the memory and effects of that conduct inflicted while she was a child.

      She suffered pain and anguish caused as a result of disclosing that conduct to others. The pursuer felt as if her whole life had fallen apart. She was a wreck. She was nervous. She was scared. She had difficulty sleeping. It was like "a volcano that had just went off".

      Relationships with members of her family and other were adversely affected. She became overprotective towards her children, vigilant of strangers and found it difficult to make friends. She found white males repulsive.

      The pursuer also required to give evidence in the High Court (twice) in relation to the defender's delictual acts which she found stressful.

      The pursuer also required to consult her general practitioner who referred her to Dykebar Hospital. She was prescribed antidepressants and diazepam.

      The defender's delictual acts have caused and will continue to cause the pursuer considerable distress and anguish. The effects will hopefully diminish with time, but they are likely to adversely affect her emotional and social wellbeing to some extent probably for the rest of her life.


[175] Dr Elspeth McCue (Consultant Psychiatrist) gave evidence. The Dykebar Hospital records are No 7/2. In cross examination Dr McCue agreed that the pursuer had been inconsistent in relation to certain factual matters. She also agreed that some of the pursuer's symptoms were consistent with other causes, such as post natal depression. Just because someone has depression does not mean that they have been sexually abused. There were other factors affecting her anxiety and depression although it was difficult to judge to what extent. There were other stressors in the pursuer's life - as appears from the Timeline for the Defender. I have borne that in mind.


[176] The pursuer's medical records mention, inter alia, anxiety, depression, sleeping problems, inability to cope, insomnia, suicidal feelings, stress, irritability, feelings of isolation, weepiness and agitation. Many of those problems were not related to the defender's delictual acts. However, it would be fair to say that the defender's delictual acts probably caused or materially contributed to the pursuer's stress, anxiety and feelings of depression, from time to time, and to varying degrees over the years. That situation will probably continue in the future but hopefully the effect will reduce with the passage of time.


[177] In relation to Post-Traumatic Stress Disorder, and having regard to Mr Hanretty's submissions, I was not satisfied on a balance of probabilities that the pursuer had proved that the defender's' delictual acts caused PTSD.


[178] The pursuer was interviewed by Ian Stephen, Chartered Forensic and Clinical Psychologist. He noted clinically significant distress and impairment in social, occupational and other areas of functioning. There was persistent re-experiencing of events and persistent avoidance of stimuli associated with the defender's conduct. He concluded that the pursuer had suffered Post Traumatic Stress Disorder ("PTSD"). The findings of Mr Stephen are set out in his report, No 6/7 of process. He did not feel that the report, No 7/6 of process, from Dr Jane McLennan, undermined his conclusions. However, I have to make allowance for occasions when expert witnesses, such as Mr Stephen, are provided with inaccurate or incomplete information. I have also borne in mind the limitations in Mr Stephen's evidence. He did not call for the pursuer's medical records. He did not have the benefit of GP or hospital records from Dykebar. His remit was limited. He provided an initial assessment. He was not a treating clinician. In the result, I was not satisfied that I should place reliance on the evidence relating to PTSD. I have also left out of account the comments contained in Mr Stephen's Report (No 6/7 of process in the first bullet point of section 5 on page 3) which were not spoken to in evidence and which fall to be ignored. However, I accepted Mr Stephen's other views.


[179] The pursuer was also interviewed by Dr Justin Crean, Consultant Psychiatrist. Dr Crean found sleep disturbance, hyper-vigilance, phobic anxiety, chronic irritability, chronic sleep problems, interpersonal difficulties and other intrusive symptoms. The pursuer has suffered severe limitation of functioning which has arisen primarily from childhood sexual abuse. The findings of Dr Crean are contained in his reports Nos 6/5, 6/6 and 6/43 of process. He was also referred to Nos 7/8, 7/6 and 6/49 of process. In his opinion, the pursuer met the criteria for PTSD. However, the pursuer accepted that she had lied to Dr Crean about certain matters (MA staying with her two or three nights per week - transcript No 50 of process at pages 27 and 28). The pursuer had also suffered from emotional and parental neglect which would have had a major impact on her life - even if there had been no abuse. Dr Crean also felt that it was strange that the pursuer had become involved in the News of the World article (No 7/10 of process). But for the abuse by the defender Dr Crean would not have expected to find PTSD. In the result, however, I was not satisfied as to PTSD on a balance of probabilities. I accepted Dr Crean's other views. There were multiple factors and stressors involved in the pursuer's life but Dr Crean considered that sexual assault from the age of seven was extremely damaging. I accept that.


[180] Dr Kenneth Aitken,
Consultant Clinical Neuropsychologist, also gave evidence. He was able to add little in relation to PTSD. He was relying on Mr Stevens and Dr Crean on the question of PTSD which, for the reasons already mentioned, I shall leave out of account for present purposes. The assessments carried out by Dr Kenneth Aitken did support the view that the pursuer had difficulties in areas of social perception and social interaction (which was also evident from the other evidence). His evidence and his conclusions were not challenged. In No 6/9 of process he concluded that while the pursuer does not fulfil criteria for a diagnosis of Asperger's syndrome based on neuropsychological testing, the assessments which he carried out manifested "difficulties in those areas of social perception and social interaction consistent with those reported in the literature for the first degree relatives of those with an ASD". However that does not assist the pursuer on quantum.


[181] In short, I accept the evidence of the pursuer as to the sexual acts carried out by the defender against her when she was a child. I accept the evidence of the pursuer's younger sister (AN). I reject the defender's evidence as being neither credible nor reliable. The defender's acts were in breach of delictual duty and sound in damages. I accept the pursuer's description of how those acts made her feel at the time and subsequently. I accept and agree with Dr Crean that sexual assault from the age of seven was extremely damaging to the pursuer. In my view, any other conclusion would be surprising and impossible to justify.


[182] The defender's sexual conduct towards the pursuer when she was a child caused her considerable suffering and will continue to do so. It was extremely damaging. The traumatic effects of the defender's delictual acts will probably remain with the pursuer to some extent for the rest of her life.

The assessment of damages


[183] This is a civil case in which I require to make an assessment of damages.


[184] A broad jury approach is appropriate.


[185] In my opinion, in light of my previous findings and having regard to the authorities cited above, the pursuer is entitled to an award of damages reasonably estimated at 70,000 Sterling plus appropriate interest.


[186] That award is in respect of solatium (for pain and suffering).


[187] As mentioned above, Mr Gale on behalf of the pursuer suggested a figure of 100,000 to 120,000 for solatium, apportioned 60% to the past (40% to the future) with interest on past solatium at one-half of the judicial rate from the cessation of the breach of duty to date. Mr Gale also suggested that if the defender's delictual liability ended on 10 December 1983 a figure of 80,000 to 90,000 would be appropriate with similar apportionment and similar provision for interest. Mr Gale also suggested an award in respect of loss of employability of 10,000 to 15,000.


[188] In relation to solatium Mr Hanretty suggested somewhere between 1,000 and 12,500 at best for the pursuer. If there was PTSD those figures would increase to somewhere between 15,250 and 40,000. In relation to loss of employability, Mr Hanretty submitted that there should be no award. He suggested that there was no professionally conducted appraisal and that this head of claim had not been made out. If I was minded to make any award it should be 17,500 in total.


[189] I have had regard to the various authorities cited to me. I agree with counsel that none is directly in point. J v Fife Council 2007 SLT 95 (OH) and 2009 SC 163(IH) is helpful.


[190] Based on the evidence, it is for me to make a reasonable assessment of the pain and suffering which has been caused, and will continue to be caused, to the pursuer by the defender's sexual conduct towards her while she was a child.


[191] In my opinion, solatium in the present case should be assessed as follows:

1. Past solatium 60,000

2. Future solatium 10,000

Total solatium 70,000


[192] In relation to interest on the past solatium of 60,000:

(a) the sum of 50,000 will be attributed to the period prior to 10 December 1983. Interest will run on that 50,000 at one-half of the judicial rate from 10 December 1983 to date;

(b) the remaining 10,000 of past solatium will be attributed to the period from 10 December 1983 to date. Interest will run on that 10,000 at one-quarter of the judicial rate from 10 December 1983 to date.


[193] Future solatium, as mentioned, will be 10,000.


[194] I was not satisfied that there should be an award in respect of loss of employability or impaired prospects on the labour market. There were too many imponderables and the necessary causal connection with the defender's delictual acts has not been proved on a balance of probabilities. I have borne in mind, Mr Davies' evidence on Commission at pages 97 to 99 and 104 to 113.


[195] In short, the pursuer will be awarded a principal sum of 70,000 with interest as stated.


[196] As suggested by counsel, I will put the case out By Order so that parties can consider a total figure inclusive of interest - which may hopefully be agreed.


[197] I can then grant decree in the pursuer's favour in appropriate terms.

Decision


[198] For the reasons outlined above, I shall:


[199] I shall reserve the question of expenses meantime.


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