The Law Reform Commission

AN COIMISIÚN UM ATHCHÓIRIÚ AN DLÍ

CONSULTATION PAPER

ON

THE LAW OF LIMITATION OF ACTIONS ARISING FROM

NON-SEXUAL ABUSE OF CHILDREN

(LRC-CP16–2000)

IRELAND

The Law Reform Commission

I.P.C. House, 35–39 Shelbourne Road, Ballsbridge, Dublin 4

© Copyright The Law Reform Commission 2000

First Published August 2000

ISSN 1393–3140

THE LAW REFORM COMMISSION

Background

The Law Reform Commission is an independent statutory body whose main aim is to keep the law under review and to make practical proposals for its reform. It was established on 20th October, 1975, pursuant to section 3 of the Law Reform Commission Act, 1975.

The Commission's Programme for Law Reform, prepared in consultation with the Attorney General, was approved by the Government and copies were laid before both Houses of the Oireachtas in January, 1977. The Commission also works on matters which are referred to it on occasion by the Attorney General under the terms of the Act.

To date the Commission has published sixty Reports containing proposals for reform of the law; eleven Working Papers; fifteen Consultation Papers; a number of specialised Papers for limited circulation; and twenty one Reports in accordance with section 6 of the 1975 Act. A full list of its publications is contained in an Annex to this Report.

Membership

The Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners. The Commissioners at present are:

President The Hon. Mr Justice Declan Budd,

High Court,

Full-time Commissioner Mr Arthur F Plunkett, B.L.,

Part-time Commissioners Dr Hilary A Delany, B.L.,

Lecturer in Law, Trinity College, Dublin;

Ms. Patricia T Rickard-Clarke,

Solicitor, Partner McCann FitzGerald Solicitors;

Professor Finbarr McAuley,

Jean Monnet Professor of European Criminal Justice,

University College Dublin.

The Secretary to the Commission is John Quirke.

Research Staff

Director of Research: Professor David Gwynn Morgan LL.M. (Lond.), Ph.D. (N.U.I.).

Legal Researchers: Ms. Bairbre O'Neill, B.C.L., LL.M.

Ms. Dara Dowling, B.C.L., LL.M.(University of Paris II)

Mr Patrick McEvoy, B.C.L., LL.M. (Cantab.), B.L.

Mr Liam Herrick, B.C.L., LL.M.

Ms. Nessa Cahill, LL.B., LL.M.(Bruges), B.L.

Legal Information Manager: Ms. Helen Bradley, B.A., M.Phil., M.L.I.S

Assistant Librarian: Ms. Marina Greer, B.A.

Clerical Staff

Ms. Deborah McAdams, Private Secretary to the President

Ms. Susan Fitzpatrick, Clerical Officer

Mr Denis McKenna, Clerical Officer

Mr Liam Dargan, Clerical Officer

Legal Researchers on this Project

Ms. Nessa Cahill, LL.B., LL.M. (Bruges), B.L.

Ms. Laura Rattigan, B.C.L., LL.M., B.L.

Contact Details

Further information can be obtained from:

The Secretary

The Law Reform Commission

IPC House

35–39 Shelbourne Road

Ballsbridge

Dublin 4

Telephone: (01) 637 7600

Fax No: (01) 637 7601

Email: info@lawreform.ie

INTRODUCTION

Part I: The Reference of the Attorney General

1.

On 25 May 1999, the then Attorney General, Mr. David Byrne, S.C.,¹ acting pursuant to section 4(2)(c) of the Law Reform Commission Act, 1975, requested the Law Reform Commission to undertake an examination of, and research in relation to, the following:

The then Attorney General requested the Law Reform Commission to submit to him any recommendations for reform of this area of the law as the Law Reform Commission considers appropriate.

Part II: The Layout of this Consultation Paper

2.

This Consultation Paper has been prepared in response to the Attorney General's Reference. The remit of the Law Reform Commission is solely to consider the limitation of actions in respect of non-sexual child abuse. Any considerations or recommendations concerning the substantive law of tort are outside the scope of this Reference.

Chapter 1 This Chapter details the background to the current Reference. It places the Reference in context by outlining the problems of the existing law of limitations in the context of civil actions arising from non-sexual child abuse, as well as the purpose and justifications that lie behind limitation statutes.

Chapter 2 This Chapter contains an analysis of the law pertaining to limitation periods in several common law jurisdictions and, in particular, the approach taken towards limitations of civil actions arising from child abuse, both sexual and non-sexual.

Chapter 3 This Chapter discusses the possible options for reform with provisional recommendations in this regard.

Chapter 4 This Chapter considers various miscellaneous issues which arise in the context of the possible options for reform.

Chapter 5 This Chapter contains a summary of our provisional recommendations.

Part III: The Consultation Process

3.

We would like to stress that all the recommendations in this paper are tentative and provisional. Owing to the sensitive issue of this Reference and the inherent difficulties associated with the issue of child abuse, the Law Reform Commission seeks the views of interested persons or groups in relation to the options for reform which we consider and any other issues which are addressed in this Consultation Paper. Thus, the final recommendations of the Commission will be made only after careful consideration of all submissions received and upon extensive consultation with interested parties. Following this consultation process, the Commission will present its final Report to the Attorney General.

Those who wish to participate in the consultation process should submit their submissions in writing to the Commission by 30th November, 2000, at the following address:

The Law Reform Commission,

IPC House,

Shelbourne Road,

Ballsbridge,

Dublin 4.

CHAPTER ONE: INTRODUCTION

Part I: Background to the Attorney General's Reference

1.01

The history of the present Reference to the Commission is worth noting as it helps to clarify the scope of this Paper. Broadly speaking, the origin of the Reference lies in the huge public concern which arose following revelations by persons who had been abused as children, particularly those in State-administered institutions.

(a) Child Abuse Scandals

1.02

In the 1990s, incidents of child abuse and child sexual abuse, in particular, came to light in Ireland. Scandals revealed by the Kilkenny Incest inquiry, the Madonna House Inquiry and the case of Sophia McColgan to name but a few, served to highlight the existence of the problem. Recently, revelations of child abuse in RTE's documentary series “States of Fear” brought to the forefront of public consciousness, systematic abuse of both a physical and a sexual nature which had occurred from the 1930s to the present day in orphanages, industrial schools and other state-funded institutions established for the care of children.

1.03

In the 1980s the same problem was encountered in countries such as Canada, the United States and Australia. The extent of such abuse in these countries only became known as a result of the establishment of official enquiries.² For example, the Waterhouse Report, Lost in Care, dealing with sexual abuse in Welsh residential homes, was recently published in Britain.³ In Ireland there are currently no comprehensive official figures as to the scale of the problem.

(b) Political Reaction

1.04

The political response to these revelations took a number of forms. On May 11 1999, the Taoiseach announced a package of measures to deal with the issue of child abuse. These included:

1.05

The first response of the Government was the establishment of the Commission to Inquire into Child Abuse on May 22, 1999.⁵ The Commission is chaired by The Hon Miss Justice Mary Laffoy and its task is to operate as a listening / counselling forum on the one hand and, on the other hand, as an investigative forum. Part of the work of the Commission is to ascertain the cause, nature and extent of both sexual and non-sexual child abuse in institutions and other places and to produce an official set of figures in that respect. The Commission estimates that it could take approximately two to three years to complete its work. The second response of the Government was the Reference of the Attorney General to the Law Reform Commission under Section 4 of the 1975 Act, which is set out in full in the introductory chapter of this Consultation Paper.

1.06

The third response of the Government was the position adopted in relation to the Statute of Limitations (Amendment) Act, 2000.⁶ When originally introduced in the Dáil, the Bill was intended to apply to both physical and sexual abuse. The Government welcomed the Bill in principle but queried whether it should apply to physical abuse as well as to sexual abuse. The view expressed by the Minister for Justice, Equality and Law Reform was that,

1.07

The scope of the 2000 Act was clarified in October/November 1999, when the Bill was amended at the Committee Stage in the Dáil so as to exclude non-sexual abuse from its ambit.

1.08

The Act which was ultimately signed into law in June 2000, extends the definition of “disability”, as contained in the Statute of Limitations, 1957,⁸ to circumstances in which a person is suffering from a significant “psychological injury” as a result of being sexually abused during childhood so “that his or her will or his or her ability to make a reasoned decision,” to institute civil proceedings in respect of such abuse is “substantially impaired”.⁹

1.09

These amendments were of considerable importance in setting the proper legal context for the Law Reform Commission to deal with the Attorney General's Reference. It would have been futile to proceed with this Consultation Paper until the scope of the 2000 Act had been properly clarified.

Part II: Preliminary observations

(a) Scope of the Reference

1.10

It is most important that two matters concerning the remit of the Law Reform Commission under the Attorney General's Reference should be clearly understood at the outset. The first of these is that, under the Reference, the Commission is called upon to examine the law of limitation of actions only insofar as it concerns the non-sexual abuse of children. This inevitably poses questions of definition and these questions are addressed later in this Consultation Paper. Secondly, the remit of the Law Reform Commission is confined to an examination of the law within the area just mentioned only insofar as it concerns the limitation of actions, that is to say the time limit within which victims of such abuse may bring civil proceedings against the perpetrators or other persons or bodies liable under the existing law (whether vicariously or otherwise) in respect of the abuse.

1.11

It follows that any question of changes in the law, other than the law of limitation of actions concerning such child abuse, lies beyond the remit given to the Commission by the Attorney General. Certain matters are entirely excluded from consideration, such as the possibility of amendment of the present law of tort or breach of duty to create new civil

wrongs and the extension of vicarious liability (the rules of liability whereby one person may be held responsible for the acts or omissions of another) so as to impose liability on persons who would not be liable under the present rules on vicarious liability.

1.12

Furthermore, the wider areas of social or legal policy which may arise in dealing with victims of child (non-sexual) abuse lie outside the remit of the Law Reform Commission. Such areas of policy have been assigned to the Commission to Inquire into Child Abuse which now stands established by the Commission to Inquire into Child Abuse Act, 2000 under the chairmanship of the Hon Miss Justice Laffoy.

By way of contrast, under a corresponding Governmental initiative in Canada undertaken in 1998, the Canadian (federal) Law Reform Commission had a remit which covered areas corresponding both to that of the Law Reform Commission in Ireland and to that of the Laffoy Commission, albeit perhaps without the statutory powers of the latter.

1.13

We make this point not in any sense by way of a sense of grievance that our remit under the Attorney General's reference is not wider than it is; on the contrary, we fully agree with the Government that the task assigned to the Laffoy Commission can best be achieved on the basis of the special powers and functions conferred on that Commission by the Act which constituted it. The Law Reform Commission would not have had either the resources or the statutory powers to fulfil those functions under the 1975 Act.

Our purpose in making this point is simply to convey to the readers of this Consultation Paper the fact that the remit of the Law Reform Commission is just one part of a three-pronged governmental approach to the question of child abuse and as such is a single segment of a considerably larger overall picture.

1.14

In approaching the remit which has been conferred on it, the Commission adopts the stance which is normal in any consideration of the reform of the law concerning limitation of actions: the need to strike as fair a balance as one can between the legitimate claims of injured parties and the legitimate right of defendants not to be subjected unfairly to stale claims or to open-ended threats of liability. In the law of limitations, these interests are in conflict and neither side can have everything that it wants. These considerations are elaborated further on in this chapter.

1.15

We also wish to emphasise the following preliminary matters relevant to the scope of this Reference:

(b) Medico-legal aspects

1.16

Under the terms of the Attorney General's Reference, the Commission is requested to undertake research into the medico-legal aspects of the law on limitation of civil actions.¹² In furtherance of this objective, the Commission consulted medical literature, opinion and evidence, particularly that of a psychological and psychiatric nature, regarding the types and categories of child abuse and the effects of such abuse, among other matters. This body of opinion has been considered, analysed and applied at various stages throughout this Paper.

1.17

There are four areas in which the medical aspects of child abuse are particularly prominent in this Paper:

Part III: The Law of Limitations in Ireland

(a) General justifications for imposing periods of limitation

1.18

The purpose of limitation periods which has been discussed in two previous publications of this Law Reform Commission,²⁰ is twofold. First, a limitations regime aims to discourage plaintiffs from sitting on their rights and delaying unreasonably in

instituting proceedings. Secondly, it aims to protect defendants against the possible injustice of stale claims. In essence statutory limitation periods seek to balance issues of fairness to the plaintiff and fairness to the defendant.

1.19

The principal justifications in favour of limitation periods are:

1.20

It is apparent that in devising limitation rules a balance must be struck between the competing rights of the plaintiff and the defendant and the interests of society. The Alberta Law Reform Institute noted this:

(b) The law of limitations in Ireland

1.21

The current Irish law on limitations is embodied in the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Act, 1991 and the Statute of Limitations (Amendment) Act, 2000. Clearly, child abuse comes within the ambit of tort law, in particular the tort of trespass to the person (assault and battery) and the tort of negligence and breach of duty giving rise to an action for personal injuries. Thus, the provisions regarding time limits for tort actions contained in these statutes are of direct concern.

(c) The Statute of Limitations, 1957

1.22

Section 11(2) of the 1957 Act provides that an action founded on tort must be brought within six years from the date the cause of action accrued.²² This general six year rule is subject to two exceptions: cases of slander and personal injury actions, in respect of which the limitation period is three years. The former exception is of no concern in the present context.

1.23

The 1957 Act also allows for the postponement of a limitation period during a person's minority (ie until they reach 18 years of age)²³ or while a person is of unsound mind.²⁴

(d) The Statute of Limitations (Amendment) Act, 1991

1.24

This legislation was enacted on foot of recommendations made by the Law Reform Commission in 1987.²⁵ Prior to the enactment of the 1991 Act, the law made no allowance for persons whose cause of action could be extinguished before they even knew they had such a cause of action.²⁶ The central argument put forward by the Law Reform Commission in support of a change in this rule was that stated by Carroll J in Morgan v. Park Developments,²⁷

1.25

The general rule concerning personal injury actions, is now contained in section 3(1) of the 1991 Act:

1.26

Section 2 of the 1991 Act defines the “date of knowledge“ as the date on which the person first had knowledge of certain facts namely:

1.27

As can be seen from the above, the 1991 Act introduces a “discoverability” or “date of knowledge” test in respect of personal injury actions. Time does not run until an injured person has knowledge of the fundamental facts relating to their cause of action.

(e) The law of limitations in child abuse cases

1.28

To date, there has been no judicial determination in this jurisdiction regarding the application of the Statute of Limitations to civil actions arising from child abuse. In particular, there has been no decision concerning the application of the discoverability rule in the 1991 Act to such actions. Two recent cases have come before the courts concerning this issue, but both were settled before a judicial decision was reached.²⁹

1.29

The law at present provides that normal limitation rules are postponed during a person's minority so that in effect time does not run until a person has attained their majority (ie reached 18 years of age).³⁰ Therefore, with regard to an action founded on the tort of trespass, a person has until the age of 24 to institute proceedings. If the conduct in question gives rise to an action for damages for personal injury arising out of negligence, nuisance or breach of duty, within the meaning of the 1991 Act, a person has three years from the age of majority to bring a claim or three years from the date

they discovered they had suffered a significant injury.

Part IV:Child Abuse Actions and the Irish Statute of Limitations

1.30

When the Statute of Limitations is considered in the context of child abuse, in particular child sexual abuse, it is often argued that the traditional balance between the rights of the defendant and the plaintiff, and those of society, should be altered in favour of the plaintiff and more particularly that no limitation period should apply.

1.31

The principal problem in applying the law of limitations to civil actions for childhood abuse, and the reason that the imposition of periods of limitation is objected to in this context, is that victims of such abuse often find themselves statute-barred. This may seem surprising considering the rules of limitation in actions for trespass, negligence, nuisance or breach of duty, outlined above.³¹ Under these rules, it would appear that a person should have adequate time from the age of majority within which to bring proceedings and no limitation problems should arise.

1.32

However, in many cases the damage caused as a result of childhood abuse is primarily psychological in nature. In these circumstances, victims may initially be unable to recall the abuse, they may be unaware of the connection between the abuse and the mental or emotional harm suffered in adulthood, they may fail to understand that the abuse was wrong or, alternatively, even when a victim does possess knowledge of the abuse and its consequences, this knowledge may be rendered useless if the victim is immobilised from acting. Some commentators point out that knowledge is a fundamental requirement to ground a cause of action and, as this knowledge is lacking in many victims of child abuse due to these psychological effects of abuse, periods of limitation should not be applied.

1.33

As against this, unreliable evidence presents significant problems from the point of view of defendants. The extent of the unreliability of the evidence is the subject of much debate and controversy among psychologists and other commentators. One of the main problems in this regard is the repressed memory syndrome. As will be seen below, it has been argued that this syndrome can produce false memories based on the power of suggestion during therapy. This makes it even more difficult for a defendant to counter such false evidence several years later and could pose a danger to innocent defendants. Finally, there may exist a danger that the abolition of limitation periods could constitute an abuse of process in itself and leave many potential defendants open to false allegations.

1.34

To understand in more detail why many victims find themselves statute-barred, regard must be had to the long term effects of such abuse on a person, effects which continue to manifest themselves right into adulthood. It is significant that, while there is

a significant body of literature detailing the effects and psychological damage that emanate from childhood sexual abuse, comparatively few studies have been conducted into the long-term effects of non-sexual child abuse on persons in their adult years.³² As a result of the lack of authoritative studies, it is difficult to know whether it can be said that the same psychological damage is caused to persons who have suffered child abuse, other than sexual abuse, so as to hinder their ability to bring legal proceedings within time. However, it is worth noting that several Canadian courts have taken the view that the same adverse psychological effects flow from both sexual and non-sexual abuse of children.³³

1.35

Due to the difficulty of ascertaining the long term effects of non-sexual abuse, we include here a synopsis of the long-term effects of child sexual abuse. However, it should be noted that the consequences of childhood sexual abuse vary with the individual. Not all children who are sexually abused are prone to problems in adult life; some are more resilient than others. Moreover, the harmful consequences of the abuse may not be apparent in the immediate aftermath of the abuse and may not become fully apparent until adulthood.

1.36

The following account describes how an adult who was sexually abused as a child may react. It is hoped that this account will help to explain the reasons for the delay in commencing litigation in respect of child abuse and will also illustrate the problems raised by child abuse in general.³⁴

(a) “Avoidance behaviour” or “Post-traumatic Stress Disorder (PTSD)”

1.37

Post-traumatic stress disorder is concerned with the development of certain characteristic symptoms following a psychologically distressing event outside the normal range of human experience. PTSD is normally associated with victims of war and concentration camp survivors. Essentially it denotes that a victim is aware of the abuse but disassociate themselves from any reminders of the traumatic event, including litigation. Some psychologists are of the view that the use of the terms “PTSD” or “avoidance behaviour” is unhelpful as they amount to various emotional effects which stem from child abuse.

(b) “Repressed Memory Syndrome”

1.38

“Repressed memory syndrome” is, in general, very rare and there is even controversy as to whether it is sufficiently well established and exact to be called a syndrome. However, what is widely accepted is that where a person is a victim of physical or sexual abuse, certain consequences will ensue. On such consequence is that the victim may be reluctant, in varying degrees, to acknowledge what has occurred. One view is that the repressed memory syndrome is simply an extreme form of this tendency. Another possible consequence of abuse is that a person affected by such a cataclysmic event at a formative period will usually be depressed and fearful of authority figures.

To define “repressed memory syndrome” in more technical terms, it is a situation where the victim may experience the symptoms of abuse but fail to recall the actual abuse itself. In such a situation it is alleged that the victim repressed all memory of the abuse until the memory returned. Pursuant to such a theory it is contended that repression is a defensive psychological response to a severe trauma whereby an event such as sexual abuse is too painful for the mind to process with the result that it is subsumed into the unconscious mind. Once there, it remains intact until some future event or stimulus such as psychotherapy triggers the retrieval of the memory. The theory of repressed memory syndrome has been subject to much criticism and scepticism among psychologists and psychiatrists.³⁵ This criticism relates to the fact that it is possible to implant a false memory of a traumatic event and it is then open to the power of suggestion to invoke such a false memory.

(c) Psychological incapacity

1.39

This is a situation where the victim has a knowledge of the abuse and can make the connection between it and their psychological symptoms or injuries but, due to a lack of emotional strength, is unable to confront the abuser or to take any action against the perpetrator such as litigation.

(d) Inability to recognise the link between the abuse and psychological symptoms

1.40

This is where victims have knowledge of the abuse but fail to make the connection between it and their psychological injuries or symptoms.

(e) Conclusion

1.41

In these four situations, it may be that the actual effect of the abuse will prevent a victim from being able to begin legal action within the limitation period. One

commentator has summed up the reasons for this as follows:

1.42

The Ontario Limitations Act Consultation Group (who proposed a separate limitation regime for victims of sexual and non-sexual abuse)³⁷ considered

1.43

The relevance of these descriptions of the psychological effects, to a possible legal test for the limitation of actions, is that, even if a victim may be aware of the possibility of legal action, they may decide that to take such action would revive hideous memories and may even be destructive. The issue then is whether the law should view that victim as having chosen not to litigate, and therefore apply the Statute of Limitations to the cause of action. The alternative would be to distinguish this plaintiff from other litigants who fear the trauma of court proceedings, and devise a special regime for dealing with these cases. The decision as to which side of the line a particular case would fall upon, may be regarded as a question of legal policy as well as one of psychiatric expertise.

Part V: The Scope of “Non-Sexual Abuse”

(a) “A general sketch of “child abuse”

1.44

In order to put the terms of the Attorney General's Reference into perspective,

some understanding of what is meant by “child abuse” is essential. Arriving at such an understanding is not an easy task, however, as is evidenced by the fact that there is no universally accepted definition of “child abuse”, nor is there a statutory or legal definition of the term in this jurisdiction. Psychologists, researchers, writers on the subject and the courts each use the term “child abuse” in a variety of contexts. The fact that there are so many definitions in the literature on the subject shows that none is adequate for all purposes.³⁹

(b) Meaning of “abuse”

1.45

One problem with defining “child abuse” is that the term “abuse” does not refer to one specific type of act, but covers a wide range of behaviour. A further problem is that what constitutes “abuse” is a question of degree and it is largely dependent upon the opinions and values of society, which are ever changing. It has been said that “the definition of child abuse varies over time, across cultures and between social and cultural groups”.⁴⁰ One particular illustration of this is the fact that, while severe physical beatings and rape are clearly abusive, it may be difficult to differentiate between acceptable corporal punishment and assault.⁴¹ The problem of changing standards regarding the level of punishment which is acceptable, was highlighted by the Minister for Justice, Equality and Law Reform in a speech delivered in the Dáil in May 1999.⁴² This led to the formation of the view by the Government that expert advice was necessary in this area.⁴³

1.46

It should be noted that a broad definition of “child abuse” will lead to an increase in the number of children who may be classified as having been abused.⁴⁴ This in turn makes it difficult to identify the effects of the more serious forms of abuse. On the other hand, if a narrow definition is adopted, the number of potential victims is limited. With such an approach, children may be left unprotected and at risk of further abuse.

1.47

The definition of “abuse” is not something which the Commission intends to elaborate upon to any significant degree, as it is envisaged that the question of whether

there is abuse will not be contentious in the majority of cases potentially affected by this Paper. Moreover, as was stated above, the Reference does not touch upon the substantive law, and it would therefore be inappropriate to embark upon a lengthy discussion of this topic. For the same reason, the Commission does not recommend that the term “abuse” be defined in legislation.⁴⁵

(c) Definitions of “sexual abuse”

1.48

Sexual abuse is more easily defined than other types of child abuse. It can cover a variety of acts from molestation to rape. It is useful at this stage to quote the definition of sexual abuse which is contained in the Statute of Limitations (Amendment) Act, 2000. Section 48A (4) defines “an act of sexual abuse” as including the following:

(d) Definitions of “non-sexual abuse”

1.49

For the purposes of this Paper, it must be ascertained what the expression “non-sexual” encompasses. It is useful to have regard to the definition of an “act of sexual abuse” contained in the 2000 Act, quoted above. This is particularly important as the regime proposed in this Paper for non-sexual abuse and that contained in the 2000 Act to deal with sexual abuse, should complement each other and provide a clear scheme for the limitation of every civil action arising from incidents of child abuse. This issue will be addressed in greater detail in Chapter 4.⁴⁶

(e) Categories of child abuse

1.50

The Irish Department of Health and Children in its recent publication, Children First: National Guidelines for the Protection and Welfare of Children (September 1999), defines child abuse as falling into four categories, in similar terms to the English Department of Health.⁴⁷ These guidelines also recognise the fact that a child may be

subjected to more than one form of abuse at any given time. It should be stressed that these–are not legal definitions. However we believe that it is necessary to quote extensively from the guidelines in order to provide an overview of the types of abuse at issue.

CHAPTER TWO COMPARATIVE JURISDICTIONS

Part I: England and Wales

(a) The present law

2.001

The present law on limitation in England and Wales is to be found in the Limitation Act, 1980. This Act does not contain specific and distinct time periods for actions based on child sexual or non-sexual abuse. Instead such actions are subject to the general limitation rules applicable to torts and claims arising from personal injuries.

2.002

The general rule in respect of torts is that such actions must be brought within six years from the date on which the cause of action accrued.⁴⁸

2.003

In the context of personal injury actions, section 11(1) of the 1980 Act provides for a limitation period of three years from either the date on which the cause of action accrued or the date of knowledge (if later) of the person injured in the context of

“Date of knowledge” is defined in section 14 as the date on which the person injured first had knowledge of the following facts:

2.004

This is almost identical to the date of knowledge test in the Irish Statute of Limitations (Amendment) Act, 1991. Knowledge under the 1980 Act (as is the case in Ireland) includes both actual and constructive knowledge.

2.005

Unlike Ireland, where there is no judicial discretion not to apply periods of limitation, if invoked, English courts have a discretion to extend time in personal injury actions, notwithstanding the fact that the limitation period has expired.⁴⁹ Such judicial discretion does not apply in respect of torts, other than negligence, nuisance or breach of duty, which are subject to a six year limitation period. In deciding whether it is equitable to let the matter proceed, the court must take into account the following factors:⁵⁰

Under section 28 of the 1980 Act, limitation periods are suspended during disability⁵¹ which includes minority (under 18 years) and unsoundness of mind.

(b) Case law

2.006

The 1980 Act does not contain any separate provisions in relation to limitation periods for child abuse actions. Therefore, the general law of limitations in respect of

general torts and personal injury actions contained in the 1980 Act govern such claims. The problems raised by the law of limitations in relation to child abuse actions was first encountered in the case of Stubbings v. Webb.⁵²

2.007

In the Stubbings case the plaintiff alleged that she had been raped and sexually abused by her stepbrother and stepfather respectively, between the ages of two and fourteen. She issued proceedings in 1987 when she was 30 years of age. Her case was that she did not appreciate that she had suffered serious psychological injuries as a result of the abuse, until she received therapy in 1984. In other words, the plaintiff did not discover the causal connection between her injuries and the abuse until she underwent therapy.

2.008

The plaintiff based her cause of action in negligence, nuisance and breach of duty pursuant to section 11 of the 1980 Act, claiming damages for personal injuries, and contending that time did not run until she had acquired the requisite knowledge as provided for in section 14. If time had expired, the plaintiff sought to rely on the judicial discretion not to apply the limitation period. The defendants, on the other hand, argued that the plaintiff's claim was statute-barred. They further contended that section 11 was not applicable to her claim as her claim was based on an action in tort, namely, trespass to the person, which has a time limit of six years.

2.009

The House of Lords found for the defendants. Griffiths LJ, delivering judgment on behalf of the Court, held that section 11 did not apply to a cause of action based on sexual assault and rape, as these came within the category of intentional trespass to the person. The House of Lords refused to hold that the phrase “breach of duty” in section 11 could apply to all actions in which damages for personal injuries are claimed and particularly did not include an action for deliberate assault. Griffiths LJ stated that,

In so deciding, the House of Lords overturned 30 years of jurisprudence of the Court of Appeal to the effect that the phrase “breach of duty” covered a breach of any duty under the law of tort.⁵⁴ In accordance with the decision in Stubbings, the relevant limitation period was that contained in section 2, namely six years. Even though this period did not start to run until the plaintiff attained her majority, it had expired several years before the proceedings were issued and the plaintiff's claim was therefore statute barred.

2.010

This decision of the House of Lords has been the subject of severe criticism in England and Wales.⁵⁵

2.011

The plaintiff in Stubbings subsequently made an application to the European Court of Human Rights⁵⁶ claiming that there had been a breach the European Convention of Human Rights.⁵⁷ The Court held that there had been no violation of the Convention. It held that the limitation period of six years from the age of majority was not unduly short and that the limitation rules applied were proportionate to the aims of securing finality, legal certainty, and of protecting defendants from stale claims and unreliable evidence. The Court also noted:

2.012

The more recent case of S v. W⁵⁹ distinguished the Stubbings decision. In that case the plaintiff had been sexually abused during childhood. She sued her mother for negligence in failing to protect her from the abuse. The Court of Appeal held that this was not an action for trespass to the person but was clearly an action for damages for personal injuries, so that the three year limitation period from the date of knowledge, contained in section 11 of the 1980 Act, applied.

2.013

As a result of the decisions in Stubbings v. Webb and S v. W the law in England and Wales is in an anomalous and absurd state as regards sexual abuse claims: a plaintiff can sue a parent in negligence for allowing the abuser to abuse but cannot sue the abuser for negligence.

(c) Proposals for law reform in England and Wales

2.014

The Law Commission of England and Wales has recently undertaken an examination of its entire law of limitations and has published a consultation paper

setting out its recommendations.⁶⁰ A report is due to be published in the near future.

2.015

The Commission's main proposal is that there would be a core limitation regime, which would apply uniformly to all causes of actions. This would eliminate the need to categorise different classes of action. The main elements of this core regime are:

Under the core regime the date of discoverability or date of knowledge is the commencement point for the limitation period.

(d) New proposals in relation to child abuse

2.016

The Law Commission examined the problems posed by the law in this area. In so doing they had regard specifically to actions arising from sexual abuse rather than child abuse claims in general. The Commission first considered whether a limitation period should apply at all in cases of child sexual abuse. In considering this question they looked at the proposals of other law reform commissions, particularly Ontario and Western Australia. The Commission also took into account the policy considerations of limitation periods and concluded that there should be a limitation period. They then considered the introduction of a separate limitation regime for such cases but firmly rejected this possibility.

2.017

The Commission was of the view that these claims were capable of being dealt with under the proposed core regime. In support of this conclusion they claim that “applying this discoverability test to claims by sexual abuse victims will resolve many of the problems which the current accrual method can cause in this area.”⁶² They are

also of the view that the long-stop limitation period of 30 years would mean “that it is unlikely that many victims would find their claims barred by it.”⁶³ In addition they point out that the advantages of a long stop outweigh the disadvantages in that after a certain period of time it is not possible to give a fair trial to disputes.⁶⁴

2.018

The Commission was also of the view that the definition of disability under the existing law in England and Wales is far too narrow to include victims of sexual abuse. They recognised that the “trauma of abuse is said to give rise to psychological impediments to bringing an action which should be recognised as a form of disability sufficient to delay the start of the limitation period.”⁶⁵

2.019

The provisional recommendation proposed by the Law Commission in respect of “disability” is that the focus should shift to a lack of capacity. The definition proposed was the following:

The term “mental disability” as it appears in the proposal, is defined as “a disability or disorder of the mind or brain, whether permanent or temporary, which results in an impairment or disturbance of mental functioning.”⁶⁷

2.020

It is of note that this definition of disability does not apply specifically to the case of sexual abuse victims. The Law Commission stated that they considered it to be “strongly arguable” that such victims would fall within the proposed definition of “disability”.⁶⁸ However the Commission also acknowledged that the definition may not take into account all forms of psychological incapacity which can stem from sexual abuse. While recognising this flaw, the Law Commission were of the view that it would be difficult to arrive at acceptable definitions of what exactly constitutes “psychological incapacity” in this context, due to considerable academic disagreement.⁶⁹ To that end, the question was left open for consultees to determine whether the definition of

disability should make provision for the psychological incapacity suffered by victims of sexual abuse.⁷⁰

2.021

The Law Commission's provisional view was that the core regime proposed in the Consultation Paper should apply to claims arising from child abuse, rather than adopting a separate regime for dealing with such claims.⁷¹ Clearly the reasoning would be the same in respect of non-sexual abuse of children.

2.022

The Law Commission's proposals regarding child sexual abuse cases have already been subject to the criticism of placing too much emphasis on the discoverability principle and in not taking into account the lack of capacity phenomenon experienced by many victims of abuse.⁷²

Part II: Scotland

2.023

Scottish law uses both the concept of prescription, which is derived from Roman law and is found in civil law jurisdictions, such as France and Germany, and that of limitation, which is found in English law. Prescription is a legal presumption of abandonment or satisfaction of the claim, with the consequence that prescription periods can extinguish the plaintiff's rights. Limitation rules, by contrast, do not extinguish the right but merely bar the remedy.

2.024

The Prescription and Limitation (Scotland) Act, 1973 governs the law on the limitation of time in respect of civil actions. Section 17 of the 1973 Act provides that, in civil actions for damages for personal injury, there is a three year limitation period from the event giving rise to the action. However, this section also sets out exceptions, which extend this period. For example, time does not run while a child is under a legal disability by reason of nonage (under 16) or where a person is of unsound mind.⁷³ In addition, section 17 contains a delayed discovery rule which extends the basic three year period until it would have been “reasonably practicable” in all the circumstances, for a person to become aware of the relevant facts, such as the fact that the injuries in question were sufficiently serious to justify bringing an action.⁷⁴ Finally, the courts in Scotland have a discretion to extend time and thus override the prescribed time limits where it “...seems equitable to do so”.⁷⁵

2.025

Under Scottish law there are no separate statutory provisions in respect of the limitation of time in child abuse actions. Instead these would be governed by the time periods laid down in section 17 of the 1973 Act combined with the disability provisions contained therein and the provision for judicial discretion. It is interesting to note that section 17 states:

No reference is made to the particular category of tort action and so this overcomes the problems encountered in England and Wales.⁷⁷ Clearly, child abuse actions would be covered by section 17 of the 1973 Act.

Part III: Canada

(a) Overview

2.026

Each of the Canadian provinces has its own statutory rules on limitation of actions. Generally speaking, the limitation period in an action in tort, runs from the date of discoverability of the cause of action. In those jurisdictions where this is not explicitly contained in legislation, the courts have applied such a discovery rule.

2.027

The difficulty posed by statutory limitation periods in the context of claims arising from child abuse has been well recognised in Canada for many years. In the past decade, many provinces have addressed this problem by enacting specific statutory limitation regimes to deal with cases arising from child sexual abuse. These legislatures have separated cases of child sexual abuse from all other torts for the purpose of the law of limitations. For instance, the provinces of British Columbia, Saskatchewan and Newfoundland have each abolished limitation periods in respect of sexual abuse claims. Other provinces have postponed the running of time in such cases until the connection between the psychological injuries and the abuse was capable of discovery by the victim. While there have generally been no separate limitations regimes introduced in respect of non-sexual child abuse, the example of Ontario is very interesting as it was proposed there to reform the law in respect of victims of both sexual and non-sexual child abuse. However, these proposals were never enacted into law. These legislative reforms and proposals are discussed more fully below.

2.028

The Canadian Supreme Court has also taken an active role in ameliorating the problems created by statutory limitation periods in claims arising from child abuse. The

case of M(K) v. M(H)⁷⁸ was the first decision of the Canadian Supreme Court concerning a civil action arising out of child abuse. The plaintiff in this case was a victim of incest. She had been abused by her father during the period 1964 to 1974, between the ages of eight and sixteen. She later married and had three children. This marriage subsequently failed. In 1984 she attended a self-help group for incest victims and it was as a result of this that the plaintiff made the connection between the abuse and her psychological and emotional problems. In 1985, at the age of 28, she instituted a civil action against her father seeking damages for assault and battery and breach of fiduciary duty. Pursuant to the legislation of Ontario, there is a limitation period of four years in respect of an action for assault and battery, whereas no limitation period is imposed in respect of an equitable claim, such as a breach of fiduciary duty. The trial court and the Ontario Court of Appeal both held that the plaintiff's claim was statute barrred. The Supreme Court of Canada reversed the decision, holding that incest was both a tortious assault and a breach of fiduciary duty and that time did not run until the plaintiff was reasonably capable of discovering the wrongful nature of the abusive acts and the nexus between those acts and her injuries. The Court decided to apply the reasonable discoverability test and held, by a majority, that there is a presumption that incest victims only discover the necessary connection between their injuries and the wrong done to them (thus discovering their cause of action) during some form of psychotherapy. Therefore, the limitation period did not run against the victim until she had received therapy.

(b) Ontario

2.029

Under the present state of the law of Ontario, a person has four years from the date the cause of action arose within which to bring a claim founded on assault, battery, wounding or imprisonment,⁷⁹ with the normal postponement of time during minority and other disability, based on unsoundness of mind or mental deficiency or incompetence.⁸⁰

(i) Attempted law reform

2.030

Ontario has a history of failed attempted reforms of its limitations law.⁸¹ The

most recent attempt which is of relevance in the present context, was the establishment in 1989 of a Limitations Act Consultation Group by the Ministry of the Attorney General, with the object of conducting a comprehensive review of the law on limitation and making recommendations for reform of the law in this area.

2.031

This group was representative of several interest groups in order to reconcile as many competing interests as possible and to secure the passage of new legislation. A report was published by the group in March 1991,⁸² which recommended far-reaching and innovative reforms. These were largely embodied in the Ontario Limitations (General) Bill, 1992. This Bill failed to be enacted into law.

2.032

The reforms proposed by the Consultation Group consisted of the introduction of a single limitation period of two years from the time of the act or omission giving rise to the claim. This two-year period incorporated a discovery test: time would not run until a person had acquired or ought to have acquired knowledge of the material facts. Four possibilities were put forward as bases for acquiring this knowledge.⁸³ In addition, all claims were to be subject to a 30 year ultimate limitation period or ten years in exceptional cases.⁸⁴

(ii) Proposals concerning child abuse

2.033

Of particular interest and significance was the recommendation by the Group in its 1991 Report that there should be special statutory limitation provisions for victims of both sexual abuse and non-sexual abuse. This was quite a radical approach and though there have been many law reform reports advocating changes to the law of limitations, this was the first report to deal specifically with the problem of child abuse. These recommendations were also mirrored in the 1992 Bill which contained the following provisions:

2.034

First, no limitation period was to apply in proceedings arising from childhood sexual assault “...if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether or not financially.”⁸⁵ The definition of the relationship which must exist between the victim and assailant is broad

enough to cover situations outside the family setting. It could apply to situations where one of the parties to the assault had charge of the child or was otherwise in a position of trust or authority. The special limitations regime could also apply to relationships where the child is dependent on the perpetrator.

2.035

Secondly, in respect of claims of sexual assault which occur other than in a relationship of trust and dependency (ie assaults by a stranger), the Bill created a rebuttable presumption that the plaintiff was “incapable of commencing the proceedings because of his or her physical, mental or psychological condition” until the proceedings were in fact commenced.⁸⁶

2.036

Thirdly, the Bill contained a rebuttable presumption in the context of claims for non-sexual assault, that the “plaintiff was incapable of commencing the proceeding because of his or her physical, mental or psychological condition” until the proceedings were in fact commenced.⁸⁷ This presumption only applied where there was a relationship of intimacy between the parties or where one of the parties to the assault was someone on whom the person was dependent, whether or not financially. This provision was clearly aimed at persons who were in a relationship of trust or dependency with each other. While it is directed at non-sexual child abuse, it also covers domestic spouse abuse. The Bill provided that the running of time would be postponed for this category of persons while they were suffering from incapacity as a result of a physical, mental or psychological condition. No definition was given as to what constitutes a psychological condition for the purpose of this provision.

2.037

It is finally worth noting that the Bill provided that the legislation, when it came into force, would be fully retrospective in the case of sexual and non-sexual abuse claims.⁸⁸

Justifications for recommendations

Sexual abuse

2.038

The reasons for recommending the abolition of limitation periods in sexual abuse claims, as advanced by the Consultation Group in its 1991 Report, were as follows:

Non-sexual abuse

2.039

In making the recommendation that there should be a rebuttable presumption that a victim of non-sexual assault which occurred in a close proximate relationship, is incapable of pursuing a claim and is entitled to a postponement of the limitation period, the Consultation Group were of the view that the factors which rendered a victim of sexual assault incapable of bringing proceedings, could possibly be the same for a victim of non-sexual assault. The Group remarked that child abuse “...can leave a victim incapable of pursuing legal action until years after the age of majority is attained”.⁹¹ In particular they stated that the focus should be on the validity of the claim and not on the condition of the plaintiff. Thus, instead of compelling every victim to prove inability to pursue the claim, the limitation period should be postponed unless the defendant can prove that the victim was capable of bringing the proceedings within the limitation period.

2.040

However, the Group was keenly aware that the recommendations should be confined to assaults arising in relationships of trust and dependency. In the Report, the Group remarked that,

2.041

In addition, the Group was also aware that, due to the diverse nature of physical assaults, it could not be conclusively presumed that every victim would be traumatised by an assault.⁹³

2.042

The effect of the creation of this rebuttable presumption is that the onus is placed on the defendant to prove that the plaintiff had discovered the cause of action and was capable of pursuing it within the relevant limitation period.

Sexual assaults by a stranger

2.043

The Group advanced the same justifications for the application of the regime to sexual assaults by a stranger as the justifications put forward in respect of non-sexual assaults in close relationships.

(iv) Ontario Limitations (General) Bill, 1992

2.044

The recommendations of the Ontario Limitations Act Consultation Group formed the basis of the Ontario Limitations (General) Bill, 1992 (Bill 99), which was introduced into the legislative assembly on 25th November 1992 and given its first reading. In 1995 a general election was called which brought about a change of government and the Bill lapsed. The end result is that these radical proposals have never become law and so the law of limitations in Ontario remains as it was. Despite its failure, the model put forward in the Ontario Bill has been influential in other Canadian provinces and has provided food for thought in the context of child abuse.

(c) Saskatchewan

2.045

In Saskatchewan, there is no limitation period in respect of sexual abuse claims.⁹⁴ Moreover, there is no limitation period in respect of claims arising from non-sexual abuse, where such abuse occurs in the context of a relationship of intimacy or dependency. The Saskatchewan law,⁹⁵ as amended in 1993 to provide for these types of actions,⁹⁶ states:

2.046

This provision is very much along the same lines as the Ontario model. In particular the wording of the proximate relationship between the victim and the abuser is that adopted by the Ontario Limitations Act Consultation Group in their 1991 Report.⁹⁷ More significantly, the Saskatchewan legislation goes further than the Ontario Limitations (General) Bill, 1992 as no limitation period is imposed in respect of non-sexual assaults in close relationships based on trust or dependency.

(d) Prince Edward Island

2.047

The Statute of Limitations Act, 1988 governs the law relating to limitation periods on Prince Edward Island. This act stipulates that a person has two years within which to bring an action for trespass to the person, assault, battery, wounding or other injury whether arising from an unlawful act or from negligence.⁹⁸ The Statute of Limitations Act, 1992 created the following exception in respect of claims arising from sexual abuse:

2.048

By virtue of this amendment, the limitation period is suspended until the plaintiff draws a connection between the abuse and the injuries sustained, but only in the context of claims arising from sexual abuse. Once a plaintiff discovers the

connection the limitation period of two years begins to run. Essentially this approximates to a discoverability test.

2.049

There is no separate provision for dealing with cases of non-sexual abuse. Such cases are governed by the general limitation period applicable to trespass to the person, which is two years with a postponement of time during disability. “Disability” is defined in the Act as “minority” or “unsoundness of mind”.¹⁰⁰

(e) British Columbia

2.050

British Columbia was the first Canadian province to abolish limitation periods for actions based on sexual abuse, which it did in 1992.¹⁰¹ Pursuant to statute, no limitation period applies where the cause of action is

2.051

However, this legislation does not make separate provision for non-sexual abuse cases. Such cases are therefore governed by the normal limitation rules, which impose a limitation period of two years from the date when the action arose,¹⁰³ subject to the usual suspension of time based on disability arising from minority or unsoundness of mind.¹⁰⁴

(f) Newfoundland

2.052

Section 8(2) of the Limitations Act, 1995 abolishes limitation periods in respect of a claim brought by a person based on sexual misconduct where that person was:

2.053

As can be seen, the legislature enacted a separate limitation regime in respect of sexual abuse only. No separate provision is made for non-sexual abuse.

2.054

It follows that cases concerning non-sexual abuse are covered by the general limitation provisions contained in the 1995 Act, namely a limitation period of two and six years respectively, with a suspension of time during disability.¹⁰⁵ A person under a “disability” is defined in the Act as someone who is:

2.055

The 1995 Act also introduced for the first time a discoverability test in respect of personal injury actions and a limited range of other actions.¹⁰⁷ Applying this test, once a person is aware that they have a cause of action they have two years within which to bring proceedings.¹⁰⁸ However the discoverability provisions are subject to a ten year ultimate limitation period from the date of the relevant act or omission.¹⁰⁹ This ten year period can be overridden by the disability provisions. All actions are subject to a 30 year long stop after which time no action can be brought.¹¹⁰

(g) Alberta

2.056

The law relating to limitation periods in Alberta is contained in the Limitations Act, 1996, which came into force on March 1, 1999. This Act is based on recommendations made by the Alberta Law Reform Institute.¹¹¹ The 1996 Act reformed the entire law concerning limitation periods and established one of the most simple and novel limitation regimes in the common law world.

2.057

This piece of legislation introduces a single limitation scheme for all classes of action, based on a discoverability test, thereby eliminating the need to categorise or

characterise claims for the purpose of the law of limitations. Instead, all claims are subject to two limitation periods; one is the 'discovery period' and the other is the 'ultimate limitation period'. All claims must be commenced within two years of discovery of the claim and the legislation sets out criteria for when the plaintiff is deemed to have sufficient knowledge to have discovered the claim.¹¹² The ultimate limitation period is ten years from the date when the claim arose, after which time an action cannot be commenced, regardless of the state of knowledge of the claimant.¹¹³ These limitation periods are prescribed by section 3(1) of the Act, which states:

2.058

The Act establishes the discoverability principle for the first time in Alberta law. Prior to this the courts in Alberta refused to apply such a rule.¹¹⁴

2.059

The 1996 Act makes limited provision for victims of sexual abuse, by suspending the limitation periods set out above while a person is under a disability. However, minority does not automatically constitute a disability, as section 1(i) defines a person under a disability as: “(i) a minor who is not under the actual custody of a parent or guardian”.

2.060

There is an exception to this provision in respect of victims of sexual abuse who wish to sue an abuser who was either a parent or guardian. Section 5(2) of the Act provides:¹¹⁵

2.061

Prior to this amendment the position was (and still is in respect of cases other than sexual misconduct actions) that minority is not a disability where the minor is under the custody or control of a parent or guardian.¹¹⁶ Section 5(2) now relieves victims of sexual abuse from the presumption that minors in the actual custody of a parent or guardian are not under a disability but does not extend the disability beyond majority. Accordingly, once a person attains majority, he/she then has two years after discovery within which to institute proceedings with an ultimate limitation period of ten years. Presumably such persons could seek to postpone the running of time after the age of majority by invoking “functional disability”, which is defined in the Act as follows: “where the claimant is unable to make reasonable judgments in respect of the claim”.¹¹⁷

2.062

It has been seen that the Alberta legislature singled out sexual abuse cases for special attention in respect of the law of limitations. However, the 1996 Act does not contain any special provisions in respect of victims of non-sexual abuse. Such persons are subject to the two year discovery period up to an ultimate limitation period of ten years, with postponement of time during disability as stated in the preceding paragraph.

(h) Nova Scotia

2.063

In Nova Scotia, sexual abuse cases are treated under a separate limitations regime. The Limitation of Actions Act RSNS, 1989 suspends the running of time in sexual abuse cases. Section 2(5) provides:

2.064

This combines both a discoverability test and postponement during disability. It is similar in terms to the Ontario model. Once discovery has been made or the

disability has ceased, a plaintiff has one year within which to institute proceedings.

2.065

No separate provision is made for non-sexual abuse cases. Such actions are subject to a two year limitation period based on an action of trespass to the person.¹¹⁹ The 1989 Act does not provide for an action for damages in respect of personal injuries arising out of negligence and breach of duty save with regard to medical negligence and road traffic accidents. However, the 1989 Act does provide for judicial discretion not to apply the limitation period to actions in tort if it appears equitable to do so having regard to the risk of prejudice to both the plaintiff and defendant.¹²⁰ In exercising this discretion the court must have regard to certain factors one of which involves consideration of the date of knowledge of the plaintiff.¹²¹

(i) New Brunswick

2.066

There has been no recent legislation in New Brunswick concerning the law of limitations. The Limitation of Actions Act RSNB, 1973 provides for a two year period for the institution of proceedings in assault and battery cases.¹²² No special limitation regime has been introduced for either sexual or non-sexual abuse cases.

Part IV: Australia

(a) Overview

2.067

The States and Territories of Australia each have their own statutory limitation rules. Most of the current law of limitations in force in Australia is based on early English statutes, particularly the English Limitation Act, 1939,¹²³ with the result that much of this legislation is quite antiquated and there are no specific provisions in respect of child abuse. However in Western Australia and Queensland proposals have been put forward recommending major changes. These are discussed in detail below. Interestingly, Australian statutes, unlike other common law jurisdictions, provide for judicial discretion to extend limitation periods in certain circumstances.

2.068

There has been an increased awareness of child sexual abuse throughout

Australia in the past ten to twenty years. The response of governments in the state and in the territories has been to establish inquiries to report on the extent of such abuse.¹²⁴ However these reports have focused solely upon child sexual abuse and addressed reform of the criminal law and child welfare law in that context. In 1993 the first civil action arising from child abuse was heard in Queensland.¹²⁵

(b) Western Australia

2.069

The law on limitations in Western Australia is currently governed by the Limitation Act, 1935. This Act merely consolidates the provisions of the English limitation statutes between 1623 and 1893,¹²⁶ which had been inherited by Western Australia or incorporated by the adoption or replication of English statutes on the foundation of the State in 1829.¹²⁷ Pursuant to the 1935 Act, a plaintiff has six years¹²⁸ within which to bring an action based on negligence and four years¹²⁹ for an action based on trespass to the person, with the possibility of postponement of time until the age of majority (ie 18 years).¹³⁰ Unlike other Australian jurisdictions, there is no judicial discretion to extend time in Western Australia.

2.070

In light of the fact that this is an antiquated piece of legislation, the Law Reform Commission of Western Australia recommended a complete overhaul of the law of limitations in its 1997 report.¹³¹

2.071

The Commission recommended that there should be a single limitation regime for all causes of actions, based on a three-year discovery period with an ultimate limitation period of 15 years. This is similar to the Alberta Limitations Act, 1996. However, unlike that Act, the Commission recommended that there should be a very narrow judicial discretionary power to extend time in appropriate cases.¹³² The Commission felt that, without such a discretionary power, the limitation rules would be

too rigid and could work an injustice against a plaintiff. One situation considered by the Commission was child sexual abuse claims in which a plaintiff may not appreciate the connection between the injuries sustained and the abuse for many years.¹³³ In such cases, it could take many more years before a plaintiff could contemplate legal proceedings. The Commission recommended that, in exercising this discretion, a court should take into account the length and reasons for the delay on the part of the plaintiff, the nature of the injury, the position of the defendant, the conduct of the defendant, the duration of any disability which the plaintiff might have suffered, as well as all the other circumstances of the case.¹³⁴

2.072

The problem of child abuse gained much recognition in Western Australia in the 1980's which resulted in the establishment by the government of a Child Sexual Abuse Task Force in 1986 to look into the problem. The report of the Task Force proposed changes in the criminal law in this respect but did not consider the possibility of civil action.¹³⁵ The specific problems posed by the law on limitations in the context of civil actions arising from child abuse, first came to light in Western Australia in the case of Reidy v. Trustees of the Christian Brothers.¹³⁶

2.073

The Law Reform Commission of Western Australia addressed specifically the issue of child abuse and considered the approach taken in other jurisdictions, particularly Canada, New Zealand, England and Wales.

2.074

The Commission considered the question as to whether special limitation rules should be enacted to deal with child abuse cases but concluded that there was no need to do so as these cases would be adequately covered by the proposed general limitation scheme based on discovery with the possibility of the exercise of judicial discretion.¹³⁷

2.075

It is of note that the Commission considered the possibility of introducing a presumption of incapacity in respect of non-sexual assault cases where there is a relationship of trust or dependency, similar to the Ontario proposals. This proposal was rejected however, on the basis that such a presumption would run counter to the uniformity which the Commission was seeking to encourage in its general proposals.¹³⁸ Therefore, on the basis of the Commission's general proposals for the reform of the law of limitations, the only recourse open to victims of non-sexual abuse whose claims are statute barred is to attempt to persuade the court to exercise its discretion in their favour.

(c) Queensland

2.076

The Limitation of Actions Act, 1974¹³⁹ provides for a limitation period of three years¹⁴⁰ for personal injury cases resulting from negligence, trespass, nuisance or breach of duty¹⁴¹ with the normal postponement of time during minority.¹⁴² In addition, the court has discretion to extend time if any material fact of a decisive character relating to a right of action, came within the means of knowledge of the plaintiff after the beginning of the final year of the limitation period.¹⁴³ In such circumstances, a court can extend the limitation period to a date one year after the date of such discoverability. With regard to child abuse claims, these provisions are not altogether satisfactory. The extension provisions are based on an objective test of what a reasonable person acting upon knowledge of, and advice concerning, certain facts, would have done. This could work to the disadvantage of a plaintiff.

2.077

However, in the Queensland case of Tiernan v. Tiernan,¹⁴⁴ which was the first Australian decision to deal with the issue of limitation periods in a sexual abuse context, the extension provisions of the 1974 Act were applied. Byrne J, in exercising his discretion in favour of the plaintiff, held that a material fact of a decisive character relating to the right of action was not within the plaintiff's means of knowledge until after the end of the limitation period. The material fact in question was the fact that there might be an association between the abuse and the psychological problems. As this was a material fact which was not capable of being ascertained by the plaintiff before the expiry of the limitation period, time was extended. In that case, the Court applied the provisions governing the law of limitations in Queensland, which are based on personal injuries arising from trespass, negligence, nuisance and breach of duty, to a case arising from abuse. It is significant that the Court found the plaintiff had suffered a personal injury within the meaning of that legislation.

2.078

The Report produced by the Law Reform Commission of Queensland in 1998¹⁴⁵ reviewed the entire area of limitations and recommended that there should be one limitation scheme for all causes of action. This regime would consist of a three year period from the date of discovery with a 15 year long-stop period. It was recommended that there should be a judicial discretion to extend the period of limitation

in cases where a 15 year period would cause hardship to plaintiffs. It was further recommended that the exercise of this discretion should be limited to exceptional circumstances and take into account various factors, including the length of, and the reasons for, the delay, the extent of any likely prejudice to the plaintiff, the position and conduct of the defendant and the conduct of the plaintiff.

2.079

The Commission also considered in detail the issue of child abuse and the problems posed by limitation periods in that context. The Commission considered the effects of such abuse on adult survivors and studied the various submissions of interested groups, before concluding that claims for childhood sexual abuse should not be excluded from the general proposed scheme and could be adequately provided for by the exercise of judicial discretion.¹⁴⁶ The Commission recommended that the following factors should be taken into account by a court when exercising this discretion:

2.080

The Commission did not consider the issue of non-sexual abuse of child victims. However, in light of the recommendation made in respect of sexual abuse claims, it would appear that cases of non-sexual abuse would also fall within the general limitation scheme proposed by the Commission, which would be supplemented by the possibility of the exercise of judicial discretion.

(d) Victoria

2.081

The statutory rules of limitation in Victoria are to be found in the Limitation of Actions Act, 1958, which is based on the English Limitation Act, 1939 and the subsequent amending legislation. The limitation period for an action in respect of personal injuries arising out of negligence, nuisance or breach of duty is six years from the date of accrual of the cause of action.¹⁴⁸ However, with regard to personal injuries which consist of a 'disease or disorder', there is an alternative six year limitation period running from the date on which the plaintiff becomes aware of the injuries.

2.082

In 1983 the legislation was amended to provide the courts with a discretion to extend time in personal injury actions where it is just and reasonable to do so.¹⁴⁹ However, this only applies to causes of action accruing on or after 11 May 1977.¹⁵⁰

2.083

With regard to child abuse claims there are no specific legislative provisions. The present provisions governing the law of limitation are clearly unsatisfactory in respect of such claims.¹⁵¹ While the courts in Victoria have judicial discretion to extend time, which could be availed of by victims of child abuse, this discretion is only available to causes of action accruing on or after May 1977. Therefore, not all abuse cases would come within this provision. An alternative option for victims of child abuse would be to rely upon the “discovery” provisions. “Disorder” is not defined under the Act, but the courts have interpreted it as meaning “traumatic injury” which could cover sexual abuse cases.

(e) Tasmania

2.084

The Limitations Act, 1974¹⁵² provides for a six year limitation period for torts and three years for personal injuries. There is a judicial discretion to extend time for a period of no more than three years.¹⁵³ Clearly these provisions are unsuitable for child abuse claims.

2.085

The Law Reform Commissioner of Tasmania produced a Report in 1992¹⁵⁴ in which she recommended the extension of the limitation period, in a similar manner to Victoria, so as to make provision for the problems arising in respect of sexual abuse claims. However, as seen above, the provisions in Victoria are also unsuitable for such claims. There was no discussion of the issue of claims arising from non-sexual abuse and the Commissioner made no recommendations in this regard.

(f) New South Wales

2.086

The Limitation Act, 1969 governs the law relating to limitation periods in New South Wales. Unlike other Australian states and territories, the 1969 Act is far more

than an enactment of existing English statutes. Under the law of New South Wales, the limitation period is six years for torts¹⁵⁵ and three years for personal injuries arising from negligence, nuisance or breach of duty.¹⁵⁶ In 1990, provision was made for the extension of time in personal injury cases which accrue on or after 1 September of that year.¹⁵⁷ In such cases, there is a judicial discretion to extend time for a period of up to five years, if it is just and reasonable to do so. The legislation enumerates the factors to be taken into consideration when exercising such discretion.¹⁵⁸

2.087

If a cause of action accrued before 1 September 1990, the provisions for the extension of time are based on the same premise as the provisions applicable in Queensland, namely knowledge of a material fact of a decisive character relating to the cause of action.¹⁵⁹

2.088

Where there is a latent personal injury, such that the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment, time can be extended indefinitely by the court. This is subject to the condition that the court must be satisfied that the plaintiff was unaware of the injury or of the connection between the injury and the defendant's act or omission. The application to court must also be made within three years of the plaintiff becoming aware of these matters.¹⁶⁰

2.089

The legislation makes no specific provision for victims of childhood sexual or non-sexual abuse. Presumably, the provisions pertaining to latent personal injuries could be relied upon by these victims.

(g) Northern Territory

2.090

The Limitation Act, 1981 is modelled on the New South Wales legislation. There is a limitation period of three years in respect of tort claims,¹⁶¹ which can be extended in cases of latent damage, provided the plaintiff becomes aware of the material facts within a period of twelve months before the expiration of the limitation period, or after the expiration of that period, and proceedings are commenced within twelve months of discovery of the relevant facts.¹⁶² In the case of Forbes v. Davies,¹⁶³ Kearney

J suggested that a court should also consider the extent to which the delay may have caused the evidence to become less cogent than if the action had been brought within the time allowed.

In the more recent decision of Cubillo v. the Commonwealth of Australia,¹⁶⁴ section 44 was considered in detail by the Federal Court of Australia Northern Territory. The Court observed that,

2.091

There is no specific provision in the law of limitations of the Northern Territory for dealing with cases arising from either sexual or non-sexual child abuse.

(h) South Australia

2.092

The Limitation of Actions Act, 1936 governs the law of limitation in South Australia. There is a three-year limitation period for personal injury claims¹⁶⁶ and six years for other torts.¹⁶⁷ The extension provisions are the same as those contained in the legislation of the Northern Territory.¹⁶⁸ There are no special provisions for cases arising from child abuse.

(i) Australian Capital Territory

2.093

The Limitation Act, 1985¹⁶⁹ is based on the New South Wales model. Prior to this Act, the law on limitations in the Capital Territory was very outdated as it consisted of the English Limitation Act, 1623. The law was reformed on foot of a Working Paper prepared by the Commonwealth Attorney General's Department.¹⁷⁰

2.094

Under the 1985 Act, all tort claims are subject to a six-year limitation period

running from the date of accrual of the cause of action.¹⁷¹“Personal injury” is defined under the Act as including “any disease and any impairment of the physical or mental condition of a person”.¹⁷² The Act provides for the possibility of extension of limitation periods in personal injury actions where the court considers it just and reasonable to do so.¹⁷³ The court can extend the period for such time as it determines. The legislation also sets out the factors which are to be taken into account by a court when exercising this discretion.¹⁷⁴ These factors are similar to those applicable in Victoria. However, unlike Victoria, the provisions permitting an extension of time in the Capital Territory are fully retrospective. These provisions were applied in the case of A v. D¹⁷⁵ where the court found it was not just and reasonable to extend time in a case concerning sexual assault which occurred 25 years previously during a medical examination. More recently in the case of Paramasivan v. Flynn,¹⁷⁶ the Supreme Court considered the extension provisions and in particular, the factors listed and concluded that it was not just and reasonable to extend time in the circumstances of the case. In this case, the plaintiff was sexually abused in childhood by his guardian. This demonstrates that, while allowing judicial discretion does give flexibility to the court and can further the interests of justice and fairness, there is no guarantee that time will be extended. This is particularly applicable to abuse cases, where the onus is on the plaintiff to justify the exercise of the discretion within the context of the factors to be considered by the court. Once again, there are no specific provisions relating to child abuse claims.

Part V: New Zealand

2.095

The statutory rules on limitation periods in New Zealand can be found in the Limitation Act, 1950. As is the case in Canada and Australia, the relevant legislation in New Zealand is based on an English statute, in particular the Limitation Act, 1939. Pursuant to the 1950 Act, actions for damages in respect of “bodily injury” have a two year limitation period from the date of the accrual of the cause of action.¹⁷⁷ This period can be extended with the consent of the defendant or at the discretion of the court (if it thinks it is just to do so) at any time within six years of the accrual of the cause of action. All other actions founded on tort have a limitation period of six years from the date of accrual.

2.096

In 1988, the New Zealand Law Reform Commission examined the law of limitation of actions. The issue of latent damage had posed serious problems and was “at least indirectly responsible” for the ministerial reference to the Law Reform Commission.¹⁷⁸ The Commission in its Report¹⁷⁹ recommended a new limitation regime based on the following:

2.097

These proposals are similar to the Alberta Limitations Act, 1996 in that they advocate a uniform limitation scheme for all classes of action. The Commission points out that in many cases the date of the act or omission will coincide with the date of accrual under the existing legislation. These proposals have not been implemented.

2.098

Neither the 1950 Act nor the recommendations of the Law Reform Commission make any provision for claims arising from child abuse. The courts have addressed the problems presented by such cases by invoking the discoverability test, which had previously been applied by the courts in cases of latent damage in relation to building defects.

2.099

S. v. G¹⁸⁰ was the first New Zealand case in which damages were sought in respect of childhood sexual abuse. The plaintiff brought actions in negligence, trespass to the person and breach of fiduciary duty and invoked section 4(7) of the 1950 Act to extend the time within which to bring the proceedings. The Court of Appeal adopted the reasoning of the Canadian Supreme Court in M(K) v. M(H)¹⁸¹ and applied the reasonable discoverability rule. The Court held that the plaintiff's cause of action in negligence only accrued when the plaintiff discovered, or should reasonably have discovered, the causal link between the damage and the abuse. With regard to the claim in trespass, the Court held that the discoverability test could be applied to the plaintiff's lack of consent. The Court recognised that this could mean that time would run in respect of claims of trespass before starting to run in claims of negligence on the same set of facts, but the rules relating to fraudulent concealment could operate to delay time. However, the Court of Appeal refused to grant leave to extend time on the basis that the abuse had taken place in a community, of which both the plaintiff and her mother were members, where free and open sexual practices were an integral part of the lives of the

residents. The Court felt that the prejudice to the defendant outweighed the desirability of allowing the plaintiff to proceed with her claim.

2.100

In the case of H v. R¹⁸² a court of first instance applied the principles developed in S v. G. The plaintiff claimed damages for sexual abuse inflicted on him by his uncle twenty years previously when he was in his teens. The abuse had a significant effect on the plaintiff and caused him to suffer from a psychiatric disorder. The action was based on battery and breach of fiduciary duty. In relation to the claim for battery, the trial judge accepted that “bodily injury” in section 4(7) of the 1950 Act extended to psychiatric conditions. The judge went on to apply the discoverability rule and held that it was only when the psychiatric damage was identified and linked to the abuse that it could be said that the cause of action had accrued. As regards the claim for breach of fiduciary duty, the judge held that the statutory limitation period should be applied by analogy. Thus, the claim was brought within the time prescribed by law.

2.101

The recent decision of T v. H¹⁸³ demonstrates that the use of the discoverability test is not a satisfactory means of dealing with sexual abuse cases. In that case the plaintiff was abused during childhood by a friend of her father's and was aware of the effects of the abuse, but was mentally incapable of disclosing this abuse or of contemplating litigation at that time. It was only after his death that she instituted proceedings for assault and battery against his estate. The Court of Appeal, by majority, held that the discoverability principle could not be applied, as the plaintiff had always been aware of the abuse and its effects but had been mentally incapable of acting on this knowledge. As a result, the claim was held to be statute barred.

Part VI: United States

2.102

During the past decade, the US courts have considered how cases of sexual abuse should be treated within the context of the law of limitations. This has centred mainly on whether a discoverability test should be applied in such cases. The cases can be divided into two main categories: those where the plaintiff was aware and continued to be aware of the abusive acts but did not discover a causal connection between the abuse and the damage suffered until later and those where the plaintiff's memory of the abusive acts has been repressed altogether and not discovered until later, usually during therapy. The courts have generally appeared more willing to postpone the running of time in the second of these types of case than in the first.

2.103

In Johnson v. Johnson¹⁸⁴ the plaintiff alleged that she had been abused between the ages of three and thirteen. However, she had retained no memory of the

abuse until she underwent psychotherapy some twenty years later. The Court drew a sharp distinction between the two categories of case and held that, where a plaintiff claimed that due to the trauma of the experience he or she had delayed knowledge of the abuse itself, a discoverability test could be applied. This contrasts with the approach taken by the Supreme Court of Washington in Tyson v. Tyson¹⁸⁵ In that case, the court emphasised the need to prevent the bringing of stale claims and the possible unreliability of the memories of some plaintiffs. The Court therefore held that discoverability would only be applied in cases where “the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred.”

2.104

The other category of case discussed in Johnson involves a delay in realisation, not of the facts themselves, but of their causal relationship with the damage experienced by the plaintiff. Such a situation arose in Hammer v. Hammer¹⁸⁶ where the Court of Appeals of Wisconsin focused on the need to provide justice for abuse survivors. The Court acknowledged that, in the absence of a discoverability rule, few plaintiffs would ever be in a position to bring an action. However, American courts have seemed reluctant to follow this approach in other cases. In EW v. DCH¹⁸⁷ the Supreme Court of Montana refused to apply the discovery doctrine.

2.105

Some states have now introduced legislation, which provides expressly for discoverability in abuse cases. In California the limitation period applicable to actions arising from childhood sexual abuse, ends on the later of the following two dates: eight years after the plaintiff attains majority or three years after he discovered, or reasonably should have discovered, that the psychological illness or injury was caused by sexual abuse.¹⁸⁸

Part VII: Concluding Comments

2.106

Having considered the limitation rules of other jurisdictions, it can be observed that, where a legislature has amended, or a law reform commission has reviewed, the statutory limitation rules in the context of claims arising from child abuse, the focus has

been primarily upon cases of child sexual abuse. Many common law jurisdictions have recommended and introduced separate limitations regimes for dealing with child sexual abuse but less attention has been paid to cases arising from non-sexual child abuse. Most jurisdictions which did consider the limitation of actions arising from non-sexual child abuse as a discrete issue, concluded that a separate limitations regime was not necessary.

CHAPTER THREE OPTIONS FOR REFORM

Part I: Introduction

3.01

As was seen in the previous chapter, there have been a number of different models and approaches adopted in other jurisdictions for the limitation of actions arising from child abuse. Some of these differentiate between actions founded on sexual abuse, while others apply a core regime to all cases. We will now consider the advantages and the disadvantages of these models, among others, in order to make a recommendation as to the most appropriate regime for the limitation of actions arising from non-sexual child abuse in Ireland.

Before considering the individual models, however, there are some preliminary matters which we wish to emphasise.

(a) The need for a special regime

3.02

There are some jurisdictions, such as England, Scotland and Australia, that have no separate limitation regimes for child abuse and therefore apply a core regime to the limitation of all actions. In the light of this approach, it is important to have regard to the existing legal framework for the limitation of actions in Ireland.

3.03

At present, the general law of limitations in Ireland is governed by the Statute of Limitations, 1957, as amended by the Statute of Limitations (Amendment) Act, 1991 and the Statute of Limitations (Amendment) Act, 2000. This legislation was not drafted with the victim of non-sexual child abuse in mind and does not deal appropriately with the particular issues affecting such plaintiffs, particularly since, unlike other jurisdictions which extend the core limitations regime to all causes of action, there exists no judicial discretion to extend time under Irish law. We consider that it would be unsatisfactory to apply the existing legislation to cases that were not intended to come within its ambit.

3.04

We recommend that a special limitations regime is necessary to accommodate the particular problems of the law of limitations in cases arising from the non-sexual abuse of children.

(b) Differing regimes for sexual and non-sexual abuse

3.05

In a later section of this Chapter, we will consider in detail the terms of the Statute of Limitations (Amendment) Act, 2000, which deals with the limitation period for cases of sexual abuse.¹⁸⁹ At this stage, we wish to set out the reasons why we consider that the two categories of child abuse differ and, consequently, why there is no reason that there should be the same limitations regime for dealing with cases arising from sexual and non-sexual abuse of children.

3.06

We recommend that there should be separate limitations regimes for cases of sexual abuse and cases of non-sexual abuse of children.

(c) No period of limitation?

3.07

In a number of Canadian states, there is no limitation period in cases of sexual abuse of children (eg Saskatchewan and British Columbia).¹⁹⁶ One justification for this approach is the seriousness of the wrong committed. In the case of M(K) v. M(H),¹⁹⁷ La Forest J expressed this justification in the specific context of sexual abuse, as follows:

In addition, he said that any delay on the part of the plaintiff was understandable and outweighed the policy of “penalising” plaintiffs who sleep on their rights.

3.08

As against this, there are strong reasons for retaining some limitation regime in the context of non-sexual abuse of children. First, it is always preferable that actions be taken as close in time to the events in question as possible. By contrast, the removal of limitation periods would remove the incentive for a victim of abuse to commence an action as soon as he or she is capable of doing so. Secondly, the aims of a limitation

regime, to bring about certainty and finality and to protect a defendant against stale claims, require the retention of some form of limitation upon actions. Thirdly, and in further support of the previous point, the European Court of Human Rights, in the case of Stubbings v. United Kingdom¹⁹⁸ held that a limitation period of six years from the age of majority in the case of child sexual abuse, was not a violation of the human rights of the plaintiff. The Court, in that case, emphasised the need for certainty, finality, the need to protect the defendant against stale claims and the need to prevent injustice due to unreliable evidence. Fourthly, the 2000 Act retains a limitation period in respect of sexual abuse, and it is not desirable that the regime governing non-sexual abuse be more lenient than that contained in the Act.

3.09

The Commission recommends the retention of periods of limitation in respect of causes of action arising from non-sexual child abuse.

(d) Provisional nature of the recommendations

3.10

Finally, we emphasise that the recommendations of the Commission in this Paper are provisional in nature. This is true, by definition, of all our Consultation Papers. But the provisional quality of our recommendations in this Paper is heightened by: the uniquely sensitive interests that are at stake, the high profile nature of these issues and the difficult policy considerations which arise. The Commission is therefore anxious to receive the views of consultees, including experts and interested persons and groups, in relation to these provisional recommendations, so that they may be considered and taken into account in the preparation of our final Report.

3.11

The following are the options for the reform of the law of limitation of civil actions arising from non-sexual child abuse, which are under consideration by the Commission:

Part II: Options for Reform

Option One: Test of “disability” Statute of Limitations (Amendment) Act, 2000

(a) Introduction

3.12

The Statute of Limitations, 1957 provides for the suspension of periods of limitation while a person is under a “disability”, until six years from the date the person ceases to be under the disability. Section 48 states:

3.13

The Statute of Limitations (Amendment) Act, 2000 is based on the recognition that individuals who have been sexually abused during childhood are likely to have suffered trauma as a result of such abuse and to have been hindered from taking legal action within the prescribed timeframe. The Act therefore proposes to extend the definition of 'disability' in the 1957 Act to include cases of child sexual abuse. Section 2 provides that, where a person brings an action founded on a tort in respect of an act of sexual abuse perpetrated on that person before they had reached the age of majority, they shall be deemed to be under a disability while they suffer from any “psychological injury” that,

As already stated, the 2000 Act expressly does not apply to acts of non-sexual abuse.

(b) Arguments in favour of Option One

(c) Arguments against Option One

The Commission is of the view that, where possible, expert psychological or psychiatric evidence should not be the determining factor in respect of limitation rules, particularly as the very essence of statutory rules of limitation is to import certainty into the law. There are other legal factors which also point towards the same conclusion.

(d) Recommendation

3.14

Taking into account the undesirability of an over reliance on psychological evidence, the Commission makes the recommendation that the approach adopted in the 2000 Act should not be adopted in the context of non-sexual abuse.

Option Two: Test of “discoverability” Statute of Limitations (Amendment) Act, 1991

(a) Introduction

3.15

The test of “discoverability” contained in the 1991 Act was described in Chapter One.²⁰² Section 3(1) of the Act states:

3.16

The expression “date of knowledge” is defined in section 2 of the Act by reference to the knowledge of the plaintiff of the fact of the injury, the significance of the injury, the identity of the defendant, among other matters. The option we consider here involves applying this “discoverability” test to actions arising from non-sexual abuse.

(b) Applicability of the 1991 Act to cases of non-sexual abuse

3.17

We need to consider, as a preliminary matter, the applicability of the 1991 Act to cases of non-sexual child abuse under the present state of the law. Two points of doubt arise in this regard. The first point is that the scope of the Act is defined by the phrase: “[a]n action ... in respect of personal injuries to a person caused by negligence, nuisance or breach of duty... ”.²⁰³

3.18

Controversy has arisen in England as to whether the equivalent provision, section 11 of the English Limitation Act, 1980, applies to intentional torts, such as abuse. This background and its implications in this jurisdiction, will be considered in more detail in Chapter 4.

3.19

The second matter, which raises doubts as to the extent, if any, of the application of the 1991 Act to cases of non-sexual child abuse, is that victims of such abuse may be aware of the injury, the significance of the injury, the identity and the responsibility of the defendant, within the meaning of the 1991 Act, and yet be inhibited from acting upon this knowledge due the emotional and psychological effects of the abuse. In these circumstances, unless the expression “date of knowledge” is given an artificial interpretation, the plaintiff would not be able to rely upon the “discoverability” test of the 1991 Act.

3.20

There is no Irish case-law dealing with the application of the test of

“discoverability” to cases of child abuse. However, there is some divergent case-law in Canada, New Zealand, Australia and the US in this regard. Recently, the New Zealand Court of Appeal were confronted with such a problem in the case of T v. H.²⁰⁴ The Court found that the “discoverability” test could not be applied as the plaintiff had always been aware of the abuse and of its effects but had been rendered unable to act on this knowledge. The Court considered the law to be inadequate in this regard, but felt there was no option but to deem the plaintiff's claim to be statute barred.

(c) Possible approaches regarding “discoverability”

3.21

In the light of these substantial doubts as to whether non-sexual abuse falls within the scope of the 1991 Act, it appears to us that there are three possible approaches which could be adopted:

1. Legislation applying discoverability to non-sexual abuse.

3.22

The arguments against applying a test of discoverability to cases of non-sexual abuse are the following:

3.23

Several of the criticisms made in relation to Option One apply equally in this context. First, expert psychiatric and psychological evidence would be necessary to determine the “date of knowledge” under the 1991 Act and, for the reasons given earlier, it is undesirable that expert evidence be given undue prominence in fixing the appropriate limitations regime for cases of non-sexual abuse. Secondly, the criticism made of the need for a preliminary assessment by a judge of the psychological effects of abuse also applies in this context.

3.24

Because of these disadvantages, and because of the considerable uncertainty in this area, the Commission recommends that legislation should not be adopted providing that the limitations rule in the 1991 Act does apply to cases arising from non-sexual child abuse.

(2) Legislation providing that discoverability does not apply to cases of non-sexual abuse.

3.25

In this Paper, the Commission will design a limitations regime which will endeavour to balance appropriately the rights of victims of non-sexual child abuse, the rights of defendants and the rights of society, while acknowledging the particular problems and complexities of this area of the law and the effects of abuse on the victim. For the reasons given above, we do not consider that the test of discoverability meets these requirements.

3.26

This gives rise to an argument in favour of enacting legislation to provide that the 1991 Act does not apply to cases of non-sexual abuse. The argument is that, without such a clarification, a plaintiff may assert that the 1991 Act does apply in these cases, and, if such an argument were accepted, it would entirely undermine any alternative limitations regime which we may recommend. In this manner, the existence of that Act in tandem with other limitations rules could re-introduce all of the disadvantages of the discoverability test of the 1991 Act. Its retention would also endanger the certainty and finality which every limitations regime aims to attain.

3.27

However, it is not in the interests of fairness or justice to prevent worthy plaintiffs from relying on legislation which may rightfully apply to them. The frailties of the 'discoverability' test, outlined above, are unique to the present context of non-

sexual abuse. The fact that the 1991 Act was not framed for these cases, and the fact that it may operate arbitrarily, in certain circumstances, as a result, is not a reason to preclude its application to non-sexual abuse cases, whatever the circumstances, and however strong the arguments in favour of its application or its exclusion.

3.28

The Commission recommends that no legislation should be adopted to provide that the 1991 Act does not apply to cases arising from the non-sexual abuse of children.

(3) No legislation

3.29

As stated at the outset, it has never been determined by an Irish court whether the 1991 Act applies to cases of child abuse. The uncertainty surrounding this question is heightened by the fact that other jurisdictions have divergent case-law in this regard.

3.30

There is a wide range of views as to the character and the severity of psychiatric conditions and effects which can arise from abuse. It is quite likely, as described above, that some of these cases would be interpreted as falling outside the test of 'discoverability' and therefore outside the scope of the 1991 Act. It is also possible that certain victims of non-sexual abuse may be treated as lacking 'knowledge' within the meaning of section 2 of the 1991 Act. These plaintiffs may therefore benefit from the limitations regime in the Act, if the courts do decide that cases of abuse are within the scope of the Act. We do not favour foreclosing this avenue of recourse to such plaintiffs and we do not favour removing the benefit of the 1991 Act, because of potential problems with its operation in this context. The Commission does not favour the approach of “throwing the baby out with the bathwater”.

3.31

The Commission recommends that no changes be adopted with respect to the 1991 Act. The determination as to whether the Act does apply to cases of non-sexual abuse of children, should be made by judicial decision.

Option Three: Presumption of incapability; the Ontario model

(a) Introduction

3.32

The Ontario Limitations Consultation Group suggested postponement of limitation periods in the context of non-sexual child abuse, on the basis of a presumption of incapability.²⁰⁷ The 1991 Report of the Group provided,

3.33

The Group were motivated by the view that victims of non-sexual abuse are generally as incapable of pursuing litigation as victims of sexual abuse. The Group further commented that,

3.34

These recommendations were embodied, with slightly different wording, in the Ontario Limitations (General) Bill, 1992, but it should be noted that this was never enacted into law.²¹⁰ In the context of child abuse the Act provided a presumption:

3.35

There are two aspects to this test: first, it favours a psychological capacity test. This aspect was already considered in the context of the 2000 Act. We shall therefore focus here on the second aspect, namely the fact that the onus is placed on the defendant to prove that the plaintiff was not incapacitated, rather than the plaintiff having to prove an inability to institute proceedings.

(b) Arguments in favour of Option Three

(c) Arguments against the adoption of Option Three

(d) Recommendation

3.36

The Commission's recommendation is that Option Three should not be adopted.

Option Four: Fixed period of time

(a) Introduction

3.37

This Option involves the introduction of a long fixed limitation period, commencing from the age of majority, within which to bring legal proceedings. The virtue of this proposal is that it would go some distance towards accommodating the plaintiff's incapacity to commence proceedings, while also importing certainty and clarity into this area of the law.

(b) Arguments in favour of Option Four

(c) Arguments against Option Four

3.38

It is worth noting the approach taken in California, which is similar to many other US states, where it is provided that the limitation period in respect of sexual abuse is the later of eight years after the plaintiff's majority or three years after he or she could reasonably have discovered that his or her illness was caused by abuse. The proposal made by the Commission in this Paper, namely a fixed limitation period of 12 years, with the possibility of 'discoverability' being applied by a court under the 1991 Act, would resemble the Californian model, but the provisions proposed here are more favourable to the plaintiff.

(d) Recommendation

3.39

The Commission recommends that a plaintiff in a case concerning non-sexual abuse of children, should have a fixed period of time from the date of their majority within which to bring an action.

(e) Content of proposed regime

3.40

We now turn to consider three important points in connection with the operation of this regime.

(1) Length of the limitation period

3.41

Option Four requires a decision as to the appropriate duration of a fixed limitation period. The first point to note in this regard, is that it is difficult to find an entirely justifiable numerical basis for a limitation period, no matter what the cause of action may be.

3.42

The concept of maturity could be used as one basis for fixing a period of time. This concept arises from the view of some psychiatrists that, despite being abused, a person will have reached full maturity by the age of 30 and so should be in a position to take decisions or action concerning the abuse, such as legal action. On the other hand, other psychiatrists take the view that maturity or awareness may come later with some significant event such as counselling.

3.43

There are two views within the Commission. One recommends a fixed period of limitation of 15 years from the age of majority for the commencement of actions arising from non-sexual abuse of children. The other view favours a fixed period of limitation of 12 years from the age of majority, to be supplemented by the recommendations on judicial discretion addressed below.

(2) Judicial discretion

3.44

The issue to be considered, is whether there should be a judicial discretion to vary the period of limitation, where the justice of the case so requires.

3.45

An advantage of the inclusion of a judicial discretion, which would be particularly important in the present context, is that it would remove the risk of injustice or inflexibility, and permit the court to consider any particular factors or aspects of a case which would justify an additional extension of time. The inclusion of a judicial discretion would enable the courts to deal with exceptional cases, where the plaintiff's claim would otherwise be defeated by the limitations regime.

3.46

The principal disadvantage with legislating for judicial discretion is the uncertainty which it would create. This uncertainty undermines the very objectives of a limitation period. A further problem is the perception that different judges may exercise their discretion differently, resulting in potential hardship and injustice for plaintiffs. What may appear to one judge to amount to good reasons to extend time may not produce the same result with another judge. In an earlier report of the Commission, the possibility of allowing judicial discretion to extend periods of limitation, was rejected firmly on these grounds.²¹³

(3) Whether a judicial discretion should be subject to guidelines or restrictions.

3.47

One solution to the problem of the perception of unpredictability of the exercise of judicial discretion, would be to introduce a set of guidelines or restrictions for the exercise of such discretion. This is a method which is employed in many Australian States and Territories. Interestingly, guidelines were included in section 33 of the Limitation Act, 1980, in England and Wales. However, the operation of that provision in England has given rise to difficulties, and over 220 judicial decisions recorded on Lexis refer to the section.²¹⁴ This is clearly an argument against the adoption of such a provision here. Of note in this regard is the fact that the Law Reform Commission, in an earlier report on personal injuries, previously considered the option of a statutory judicial discretion not to apply the limitation period and concluded that such a discretion would either have to be drawn in broad and unfettered terms introducing uncertainty, or with more qualifications, like that under section 33 “whose subsequent history does not suggest it is a desirable model”.²¹⁵ Finally, it is worth noting that the imposition of strict guidelines may jeopardise the main benefit of a judicial discretion, namely flexibility.

3.48

The Commission recommends that guidelines should not be included to govern the exercise of a judicial discretion to extend a fixed period of limitation.

3.49

An alternative to the introduction of a set of guidelines to govern the exercise of a judicial discretion, is to limit the scope of the discretion to a fixed term of years. This was the approach adopted in Tasmania, for example, where there is a judicial discretion to extend the limitation period for up to three years.²¹⁶ This may counter the criticism that judicial discretion leaves the defendant and insurers subject to open-ended

claims and considerable uncertainty. It may also go some way towards countering allegations that the fixed period of limitation of 12 years, as recommended by some Commissioners, is insufficient and does not allow any consideration of the individual circumstances of a case, or any flexibility in the treatment of such cases.

3.50

The recommendation that there should be a fixed period of limitation of 12 years from the age of majority for the commencement of actions arising from non-sexual abuse of children, would be supplemented by the introduction of a judicial discretion to extend this period for an additional period of not more than three years. The alternative recommendation of the Commission, that there should be a fixed period of limitation of 15 years, would not be supplemented by any judicial discretion.

CHAPTER FOUR SCOPE AND OPERATION OF THE TEST

4.01

In Chapter Three we considered the appropriate test for the limitation of actions arising from non-sexual abuse of children. In this Chapter, we will examine the scope and the operation of this test. A number of different questions must be addressed:

Part I: “Non-Sexual Abuse”

4.02

As stated in the Attorney General's Reference, the measure we are considering must be confined to acts of non-sexual abuse. It is necessary, therefore, to consider this key concept.

(a) Definition of “non-sexual abuse”

4.03

There are two elements to this expression: first, the meaning of “abuse”, which will be considered below;²¹⁷ and secondly, the non-sexual aspect, to which we now turn. The most important factor here is the existence of the Statute of Limitations (Amendment) Act, 2000, which is grounded on the term, “sexual abuse”. Given that we recommend a significantly different limitations regime for non-sexual abuse to that which is proposed in the Statute of Limitations (Amendment) Act, 2000 for sexual abuse, the question of the borderline between the forms of abuse coming within each regime is critical. Put simply, the line at which one regime ends and the other commences ought to be the same. Otherwise there would be a danger of overlap or, alternatively, of a gap between the two regimes, so that certain acts would be covered by neither. This question of the borderline is of particular importance since, in most circumstances, the regime contained in the 2000 Act will be more favourable for the plaintiff, than the regime proposed in this Paper. Accordingly, it is easy to anticipate a heavy pressure of legal argument as to its precise meaning.

4.04

We recommend the formulation of a clear definition of the term “sexual abuse”. This definition will set out the borderline between the two limitation regimes, and it will clarify the parameters of the term “non-sexual abuse” for the purposes of this Paper.

(b) Interpretation of section 48A(4)

4.05

An “act of sexual abuse” is the trigger for the application of the limitation regime in the Act. This is defined in section 48A(7) of the Statute of Limitations, 1957 (as inserted by section 2 of the 2000 Act) as follows:

4.06

For the reason given below, one question which is significant here is whether these provisions would cover a situation in which abuse which, while it is overtly non-sexual, is undertaken for the sexual gratification of the perpetrator. With this issue in mind, we turn to a brief analysis of the relevant provisions of the 2000 Act.

Paragraph (a)

The key concept in paragraph (a) is “sexual activity”. It seems to us reasonable to take the word “activity” as referring to acts which are objectively sexual. There is no scope for a subjective appraisal of the act, in terms of the motivation of the perpetrator or the victim's perception or understanding of the activity. There must be an activity which is of itself sexual and the victim must have been caused, induced or coerced to participate in such activity. The other two paragraphs are wider.

Paragraph (b)

Paragraph (b) is directed at the particular circumstance of the plaintiff being forced to observe “any other person engaging in any sexual activity”. Its width is increased by the fact that it may not be necessary for the observer (who may have been a young and uninformed person) to have appreciated that the activity going on was sexual, so long as it was objectively sexual activity. It is easy to think of circumstances where this is the case and yet the plaintiff was troubled by the action, possibly because later and/or subsequently he appreciated that it was sexual in character.

Paragraph (c)

Widest of all is paragraph (c). It speaks of an act “...that any reasonable person would, in all the circumstances, regard as misconduct of a sexual nature”. We believe this is very wide and indeed embraces much of the ground caught by the previous two paragraphs and goes beyond it. In particular, if we contrast the term “misconduct of a sexual nature” in paragraph (c) with the expression “sexual

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activity” in paragraphs (a) and (b), it seems to us that the former expression is significantly wider simply because “sexual nature” requires merely a flavour of sexuality whereas “sexual activity” requires more of a substantive act.

A further feature widening paragraph (c) is the phrase “in all the circumstances”. Some moderating element is introduced by the adoption of the stance of the hypothetical reasonable person. Nevertheless, we consider that the “reasonable person” would be an adult of more sophistication and sexual awareness than a child victim. Therefore, conduct which a child victim may not realise or perceive to be of a sexual nature, may nonetheless fall within paragraph (c), if a reasonable person would regard the conduct as sexual.

4.07

As mentioned, one issue which is of practical significance in the present context is the categorisation of physical abuse which is undertaken for the sexual gratification of the perpetrator. To take well-known examples: beating a child regularly or keeping him or her bound or in a cupboard are not in themselves sexual acts; yet they may be carried out because of the sexual gratification which they give the perpetrator. Do they not then become sexual in character? Consequently, it seems probable that they would fall within at least paragraph (c).

4.08

The salience of this tentative conclusion as to the meaning to be given to “non-sexual abuse” and, hence, the scope of the 2000 Act, is as follows: as noted in Chapter 1, the aims of a statute of limitations include the need to attain some element of certainty and repose of legal actions; the defendant's right to fair treatment; and the public interest in speedy resolution of disputes. It is therefore essential that there be clarity and certainty in defining the terms “sexual abuse” and “non-sexual abuse” in this particular context.

4.09

Plainly this is a most important policy choice. From a practical perspective, if the legal test is centred upon the sexual gratification of the perpetrator, the categorisation of the abuse would be peculiarly difficult to establish, particularly years after the abuse in question. The consequence of such a situation would be that in almost all cases, whether sexual gratification was or was not actually involved, it would be found to be present. The 2000 Act would be applied, despite this possibly not being the intention of the legislature.

4.10

The Commission does not support a definition of “sexual abuse” which would permit an act of abuse, which is overtly non-sexual, to be interpreted as “sexual” on the basis that the perpetrator gained sexual gratification from the act in question. We are of the view that the act, to constitute an act of sexual abuse, must be objectively of a sexual nature, in the sense that a reasonable person, with no insight into the motivation of the perpetrator, would categorise it as sexual abuse.

(c) Conclusion

4.11

We have taken the policy position that, if an act is not overtly sexual, such that a reasonable person would categorise the conduct as sexual in nature, it should not be characterised as sexual for the purpose of determining which limitations regime – that in the 2000 Act or in the measure we propose – should be adopted.

4.12

If there is any doubt regarding the borderline between the 2000 Act and the scope of this Paper, it may be better to clarify it beyond dispute by including a definition which deals specifically with the point covered in this paragraph. This definition should reflect the recommendation of the Commission that the sexual character of the act in question should be assessed objectively, from the perspective of a reasonable person. It should also be clarified that the same definition would have to apply not only to the measure which we propose but also to the 2000 Act, as otherwise, the danger referred to earlier of an overlap, or a gap, between the two regimes would re-surface.

4.13

The Commission recommends that the definition of “an act of sexual abuse” should be sufficiently clear, certain and ascertainable to set out the borderline between the limitations regime contained in the Act and the regime proposed in this Paper. It should also be made clear that it applies to both the legislation arising from this Paper and to the 2000 Act. The definition recommended is as follows:

(d) Types of abuse

4.14

Earlier, we noted that a key concept in the measure which we propose is the term, “non-sexual abuse”. At this point, we turn to examine the meaning of “abuse”. The first point to emphasise is that the alteration of the substantive law of torts it is not within the terms of reference and we do not intend to consider such topics. Accordingly, in order to make it clear beyond a doubt that the measure we propose would not have this effect, we recommend the inclusion of the following form of words, which is also used in section 48(A)(7) of the 2000 Act: “Provided that the doing or commission of the act concerned is recognised by law as giving rise to a cause of action”. We do not intend to enter into a detailed discussion as to the definition of the term “abuse”. In the first place, as just indicated, the Reference does not invite consideration by the Law Reform Commission of amendments to the substantive law. Secondly, determining whether there was abuse will not be contentious in most cases potentially affected by this Paper, for the reasons to be given below.

4.15

The term “abuse” might seem to give rise to a problem since it is not often used in legal terminology and consequently has not been stamped with a precise legal meaning. In lay parlance, it is a long-established and vivid, if inexact, term. As outlined in Chapter One, the Irish Department of Health and Children has issued a publication which categorises child abuse as follows: neglect, emotional abuse, physical abuse and sexual abuse.²¹⁸ However it should be emphasised that some of the acts described in this publication, for instance those categorised under the

heading of “Emotional Abuse”, may not be torts or other civil wrongs.

4.16

Nevertheless we believe that the term “abuse” can be used as one of the concepts determining the scope of the measure regarding limitation of actions, which we propose. The reason is that, as mentioned already, the measure only applies to acts of abuse which are, under the existing law, actionable. If they are not actionable, then no question of limitation of actions arises. Thus the only theoretical danger is that there might be an act which constitutes an actionable wrong, yet which might or might not amount to abuse so that there is a consequential doubt as to whether the limitations regime in the proposed measure would apply or not. However in this field – a tort done to an infant by a person in a position of trust and dependence – it seems most unlikely that the tort would not constitute “abuse”. A doubtful case would be most unlikely. And if such a case arose, we believe that the definition of “abuse” could safely be left to the judge to determine using a dictionary or whatever other aid he considered best. We, therefore, do not recommend that a statutory definition of “abuse” is necessary.

4.17

The Commission recommends that no statutory definition of the term “abuse” should be adopted.

(e) Mixed Cases

4.18

The question to be considered here is what limitation regime should apply where a victim has suffered both sexual and non-sexual abuse at the hands of the perpetrator. The significance of this question is that, as noted, the 2000 Act proposes a particular limitation regime for sexual abuse, while the Commission is confined to considering a regime for the limitation of actions arising from non-sexual child abuse. As a result of the view which Commission provisionally takes as to the appropriate limitations regime for non-sexual abuse, this will result in two different regimes operating in tandem. We do not consider this to be unworkable, particularly as there are strong reasons for differentiating between the limitations regimes applicable to cases of sexual and non-sexual abuse.²¹⁹

4.19

However, in a case in which both sexual and non-sexual abuse are perpetrated against the victim, it is necessary to ascertain which limitations regime should apply. The difficulty in this regard is exacerbated by the fact that most of the damage, for which compensation is claimed, will be psychological in character. If psychological damage were caused by an incident which involved acts of both sexual and non-sexual abuse, it would naturally be difficult to distinguish between damage caused by one form of abuse and damage caused by the other. In these circumstances, the plaintiff may claim that the psychological damage was caused by sexual abuse, when the abuse was in fact non-sexual in nature. This appears to be one of several major difficulties of proof which are inherent in the area.

4.20

In most cases, therefore, the only way this matter could be resolved would be by the attribution of a proportion of the injury to the sexual abuse and the

remainder to acts of non-sexual abuse. There is neither an evidential basis for making this type of distinction, nor is there any fair or accurate means of carrying out such an allocation. A judge with responsibility for determining which proportions of the injury were caused by which category of abuse, would face an impossible task. We therefore believe that the same regime should apply to both types of abuse, where the abuse is perpetrated together.

4.21

A further matter to be considered is the fact that many judges may be reluctant to make a decision in this regard which would deprive the plaintiff of the benefit of a particular limitations regime. There may therefore be a temptation to classify the abuse in such a way as to bring the case within the limitation regimes which is the most lenient towards the plaintiff in the circumstances.

4.22

It is important to overcome this risk of a case which should properly be categorised as a case of non-sexual abuse, for example, being framed as a 'mixed case' and falling within the wrong limitations regime. We therefore make the following proposal: in cases where both sexual and non-sexual abuse are committed, each type of abuse must be sufficiently serious to be actionable, of itself, under the existing civil law, in order to constitute a “mixed case” for the purposes of determining which limitations regime should apply.

4.23

If this view is accepted, then the question which arises is what form the regime should take. There are three possibilities:

4.24

If option (ii) is applied, it could have the consequence of a claim being barred, even though the plaintiff had suffered sexual abuse and would have been able to litigate in respect of this, if it had occurred alone. It is therefore recommended that (ii) should be rejected. As will be seen below, there may be circumstances in which the regime for sexual abuse is less favourable to the plaintiff than the regime for non-sexual abuse. In these circumstances it would be unfair to apply option (i), for the same reasons as option (ii) was rejected. We therefore recommend that option (iii) is the most appropriate of the three possibilities.

4.25

This conclusion is based on the policy view which we adopt, that where both sexual and non-sexual abuse have been committed, the regime which is most favourable to the plaintiff in the circumstances should apply. Our conclusion is also based on the factual assumption we have made that the most favourable limitations regime will be the regime applicable to cases of sexual abuse. While this will usually be an accurate assumption, there may be rare cases in which the regime which we propose in this Paper is more favourable to a plaintiff than the regime contained in the 2000 Act. The following are examples of such cases:

4.26

To take account of situations in which the non-sexual regime is the more favourable to the plaintiff, the Commission makes the following recommendation:

Where both sexual abuse and non-sexual abuse are committed against the victim by the perpetrator, and both types of abuse are actionable under the civil law, the limitations regime which is most favourable to the plaintiff in the circumstances of the case, should apply to the cause of action.

Part II: Cause of Action

(a) Introduction

4.27

In order to explain the problem which we seek to avoid here, it is necessary to refer briefly to section 11 of the English Limitation Act, 1980, as considered by the House of Lords in Stubbings v. Webb.²²⁰ In that decision, Griffith LJ delivering the judgment of the Court, interpreted the phrase “any action for damages for negligence, nuisance or breach of duty”, in section 11 of the 1980 Act as follows:

4.28

Stubbings is naturally of considerable significance for the interpretation of the Irish Statute of Limitations (Amendment) Act, 1991, since this Act reproduces the form of words used in the English 1980 Act. It is conceivable that the literal interpretation adopted in Stubbings would be adopted here. It is also possible that the more purposive and generous interpretation followed in England before the decision of the House of Lords in Stubbings may be adopted here. There is no Irish authority on this point and all that can be said is that the matter is in considerable doubt. In most of the cases flowing from non-sexual abuse, the cause of action would be trespass to the person.

(b) Recommendation

4.29

The short, but important point which flows from this, is that it should be made clear that when there is an act of non-sexual abuse of a child, the special limitations regime which we propose should apply irrespective of the legal form of action, be it negligence, nuisance, assault, battery, trespass to the person (or even chattels, for example clothes), breach of contract or breach of fiduciary duty or any other.

4.30

We recommend that the wording used should make it clear that the proposed limitations regime applies to all instances of abuse irrespective of the particular cause of action in which they are cast.

4.31

Section 2 of the Statute of Limitations (Amendment) Act, 2000 uses the phrase “bringing an action...founded on tort in respect of an act of sexual abuse” which takes into account the possibility that the cause of action might be something other than tort, for instance breach of duty. We would not use the phrase “founded in tort” since it appears to subtract rather than to add anything.

4.32

We recommend that the following formulation should be used: “bringing an action... in respect of an act of non-sexual abuse”.

Part III: A Relationship of Trust and Dependency between the Plaintiff and the Defendant

(a) Introduction

4.33

It is necessary to consider the category of defendants to whom the limitations regime proposed in this Paper will apply.

4.34

As mentioned earlier, it is fundamental that the plaintiffs, whose claims are under consideration, are suing because of (non-sexual) abuse in childhood. Accordingly, they should be allowed an exceptional limitations regime not only because they had been abused; but also because they had been abused by those close to them at an age when they would be so affected by the abuse that they would be likely to suffer psychological damage. The fact that the relationship between the perpetrator and the victim was one of trust and dependency, is a factor which goes a long way to explain why some plaintiffs in this category have been unwilling or unable to initiate proceedings until long after the time of the wrong. For this reason, the Commission believes that the limitations regime which we recommend should be confined to plaintiffs in this category.²²² The remaining plaintiffs would fall under the general regime established by the Statute of Limitations Acts, 1957–91. This policy is in line with the regime proposed in the Ontario Model as outlined in Chapter Two.

(b) Ontario Model

4.35

The remaining question is the form of words which should be used to articulate this limitation. The Ontario Limitations Act Consultation Group²²³ provide a useful model. They define the necessary relationship in the following way:

4.36

This wide form of words appears to us to cover abuse occurring in a family setting, in a foster care situation, in institutions such as orphanages, or in another context which may be anticipated. It also caters for a situation in which the person who abused the plaintiff met him or her seldom yet enjoyed a position of ascendancy, for example a rich uncle. The other persons within the definition would, where appropriate, include

(c) Recommendation

4.37

We believe that the formula proposed by the Limitations Act Consultation Group of Ontario for defining the relationship which must exist between the plaintiff and the defendant is all-embracing, unambiguous and comprehensible.

The Commission recommends that the limitations regime proposed in Chapter Three of this Paper, should be confined to situations where the relationship between the parties falls within the definition adopted in the Ontario recommendations, namely that one of the parties to the assault was

Part IV: Vicarious Liability and Liability of Supervisory Authorities

(a) Introduction

4.38

The doctrine of vicarious liability provides that one person may be liable for a wrong committed in the context of employment relationships where employers are held liable for the torts committed by their employees in the course of their employment. Other relevant examples are where a principal is held liable for the wrongs of his agent, a firm liable for the wrongs of its partner or other situations where one person has sufficient control over the actions of another even though the person held liable is not actually at fault or is not the perpetrator of the wrongdoing. This form of liability is most often applied in the employment context.²²⁴

4.39

Vicarious liability could be a very useful doctrine for plaintiffs to invoke in cases of child abuse. The use of this doctrine would enable institutions and other bodies or persons who have employed the perpetrator of the abuse to be held accountable for the effects of the abuse. A further and more important point is that, while a plaintiff may succeed against the perpetrator of the abuse, this may well prove to be only a pyrrhic victory in terms of obtaining compensation. The employer who may be held vicariously liable for the acts of the abuser is likely to have greater resources.

(b) Test for vicarious liability

4.40

The test in respect of vicarious liability is that an employer is only liable in respect of an act committed by an employee within the scope of his employment. The traditional test in defining an employer's liability is as follows:

4.41

Therefore, the issue which would fall to be determined by a court is whether an employee was acting within the scope of his employment when the abuse took place. It is not clear that a court would find an employer to be vicariously liable in these circumstances, as the abuse of a child is evidently not envisaged as part of an employee's duty. However, ifthe institution or other employer had knowledge of the abuse this would be a ground for a finding of vicarious liability. Furthermore, there have been some indications that an employer could be held to be vicariously liable even where the acts of a servant done outside his or her employment did not amount to tortious misconduct.²²⁶ The case of Kearney v. Ireland²²⁷ expanded the scope of vicarious liability in this manner,

holding the State liable for breaches of constitutional rights, not amounting to torts, committed by its servants. Costello J stated, “The State may be liable for the acts of a servant of the State which amount to an infringement of a constitutionally protected right, even though done outside the State servant's employment...”. This statement was obiter. However, it is relevant in the present context to note that gratuitous acts of violence committed by servants of the State do not give rise to the vicarious liability of the State, where the acts were not committed in the course of employment.²²⁸

Two recent decisions of the Supreme Court of Canada considered the vicarious liability of institutions or organisations for acts of child abuse committed by their employees. In the first of these, Bazley v. Curry,²²⁹ the Court analysed whether the abuse committed “... was so connected to an authorized act that it could be regarded as a mode of doing that act.”²³⁰ The Court examined the nature of the authority which must have been conferred on an employee to satisfy this test and concluded that

In another decision of the Supreme Court of Canada, Jacobi v. Griffiths,²³² the same approach was adopted. In that case, the Court elaborated upon the nature of the connection which must exist between the enterprise and the act, stating that, “[t]o find a strong connection, there must be a material increase in the risk of the harm occurring in the sense that the employment significantly contributed to the occurrence of the harm.”²³³ In Ireland, on the other hand, the appropriate test to govern the allocation of vicarious liability in the context of child abuse remains in doubt, until there is an authoritative Supreme Court decision to settle the matter.

(c) Liability of supervisory authorities

4.43

A further area of likely controversy in much of litigation in the present area would be the extent to which public supervisory authorities like the Garda Siochana, Department of Social Community and Family Affairs (or one of its predecessors) and the health boards (or their predecessors before 1970, the County Councils) could be made liable for failing to detect offenders and protect the victims. In a concrete case, such a claim would involve difficult questions of

statutory interpretation of the governing statutes; as well as the application of the standards of awareness and conduct which were contemporary at the time of the abuse. There could also be a claim that the State failed to perform a possible duty to supervise education facilities under Article 42 of the Constitution.

4.44

But the Law Reform Commission's remit in this paper does not involve consideration of law reform in any of these complex fields, as our brief is simply to consider the application of the proposed exceptional limitation period. However it is within our remit to address the issue of whether whatever limitations regime is advocated for defendants, who are personally liable, should also apply to all other categories of defendant.

(d) Arguments in favour of vicarious liability in the context of non-sexual child abuse

(e) Recommendation

4.45

The Commission recommends that where a cause of action arises from an act of non-sexual abuse of a child, any action in respect of vicarious liability or other associated liability, including the responsibility of supervisory authorities should also be subject to the special limitations regime which we recommend in chapter 3.

Part V: Retrospective Effect of Statutes of Limitation

4.46

The background to this Paper is that of claims which have been brought or are on the point of being brought by plaintiff's whose case is that they were abused in the past. In this context, it is a very significant question whether the legislation which we recommend should be accorded retrospective effect.

(a) General rule

4.47

As a general rule, the law leans against the retrospectivity of statutes. This policy is of most significance in the context of the interpretation of statutes. In the case of Hamilton v. Hamilton,²³⁴ O'Higgins CJ described the justification for this rule as follows: “[r]etrospective legislation, since it necessarily affects vested rights, has always been regarded as being prima facie unjust.”²³⁵ He then considered the scope of this rule and quoted from Craies on Statute Law (7th edn, page 387), where a retroactive statute is described as one which,

4.48

It is important to note at this stage, that the focus of this Consultation Paper differs from the analysis of the rule against retrospectivity which has been conducted in the caselaw. Most of the caselaw has focused upon construing statutes and applying the presumption against retrospectivity. The question we must address is whether the limitations regime we recommend in this Paper, should contain an express provision to the effect that it operates retrospectively. The primary concerns in this regard are whether such retroactivity would have implications from the point of view of fairness to the defendant or from a constitutional perspective. In order to answer these questions, it is useful to first outline the manner in which the presumption against retrospectivity has been applied to statutes of limitation within the caselaw.

(b) Retrospectivity of statutes of limitation

4.49

The application of the rule against retrospectivity is different in the context of statutes of limitation. To apply the test cited above, the issue is whether a “vested right” is affected by a change in the law of limitations. A number of cases have drawn a distinction between procedural and substantive laws, with the former having retrospective effect, and the rule against retrospectivity applying only to

substantive laws.²³⁷

4.50

The Law Reform Commission of Tasmania considered this question and concluded that,

4.51

The Law Reform Commission of Western Australia noted that, “[a]lthough these principles are easy to state, they have proved difficult to apply in practice, since they rest on the somewhat elusive distinction between substance and procedure”.²³⁹

In R v. Chandra Dharma,²⁴⁰ Lord Alverstone CJ stated at page 338–9 that,

4.52

In Yew Bon Tew v. Kenderaan Bas Mara²⁴¹ Lord Brightman indicated that the distinction between substantive and procedural laws was not always decisive and he proceeded to state that a right to plead a time bar was “in every sense a right, even though it arises under an Act which is procedural.”²⁴²

4.53

There is therefore some divergence as to whether limitation acts are procedural or substantive, and as to the implications this has for the question of retrospectivity.

(c) Fairness to the defendant

4.54

It is reasonable to suppose that, when a person is committing an act, which may be an infringement of the civil or the criminal law, they will have in mind the substantive law and may adapt their behaviour accordingly. A person who so

adapts their conduct to avoid infringing existing legislation, would have a ground for complaint, if there was a subsequent retrospective change in the law. The position is different, however, where the question is one of procedure. The alleged perpetrator of an infringement of the civil or the criminal law, is unlikely to have in mind procedures which would govern a claim or action against him. Such a defendant could not therefore allege that he conducted himself in reliance upon the existing law of limitations or that he had an expectation that his conduct would be governed by that law.

4.55

Furthermore, the manner in which the law of limitations operates does not relate to the conduct of the perpetrator. Limitations relate to delay by the plaintiff, and neither the defendant's knowledge of the existence of limitations periods, nor any aspect of his conduct, could have any bearing upon such delay or its consequences, since this is not something within the control of the defendant.

4.56

A final point in this regard is that the law of limitations aims to protect a variety of interests. It has the aims of achieving certainty, finality and of respecting the public interest, as well as the aim of protecting the defendant against stale claims.²⁴³ This is a further reason why it would be inappropriate to categorise a limitation period as a right of the defendant.

(d) Constitutional dimension

4.57

The topic of retrospectivity is only addressed expressly in one provision of the Constitution. Article 15.5 provides: “The Oireachtas shall not declare acts to be infringements of the law which were not so at the date of their commission.”

4.58

In the case of Sloan v. Culligan,²⁴⁴ Finlay CJ stated,

4.59

Legislation with retroactive effect does not therefore infringe Article 15.5 of the Constitution, provided no new infringement of the law is created. Statutes of limitation do not create new infringements of the law. The limitation period may bar the plaintiff from pursuing a claim, but the cause of action is not extinguished (unlike the rules of prescription in Scotland, for instance). As the liability of the defendant is not altered by a change in the limitations regime, the constitutional protection contained in Article 15.5 is not affected by retrospective changes in the law of limitations.

4.60

Secondly, we should consider whether Article 40.3 of the Constitution which protects “...the personal rights of the citizen” may be of relevance. In this regard, there is an important distinction drawn between personal rights protected under Article 40.3 of the Constitution and rights conferred by law. In The State (Nicolaou) v. An Bord Uchtála,²⁴⁶ the Supreme Court considered it to be

4.61

It appears, therefore, that the right of a defendant to plead the statute of limitations, being a right created and defined by statute, is not a personal right within the meaning of Article 40.3 and the modification of this right is therefore not an infringement of a constitutional right.