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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C v Middlesbrough Council [2004] EWCA Civ 1746 (21 December 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/1746.html Cite as: [2004] EWCA Civ 1746

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN;S BENCH DIVISION
HHJ PAUL COLLINS CBE

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 December 2004

Lord Justice Latham :

1. The appellant is now 32. From a very young age he was the victim of assaults and neglect by his mother, as a result of which the respondents' predecessors became involved in his care when he was two years old. By the time he was seven, it was clear that he could no longer be safely left at home and he was placed in a school in Gloucestershire from 1979 until 1982. Although he was happy at the school, he was subject to ill treatment whenever he went home. In April 1982 the decision was taken to move the appellant to Saltergill School, a school run by the respondents' predecessors which was a school for children with special educational needs. He was moved there in June 1982 and remained there until March 1988 when he was 16. Shortly before he left Saltergill School, he complained to Miss Murphy, who was his key worker at the school, that he had been subjected to sexual abuse by a teacher, Myles Brady. Mr Brady was subsequently charged with offences of gross indecency involving the appellant, but was acquitted after a trial in September 1988. Mr Brady eventually went to Ireland, where he was convicted and sentenced for sexual abuse which had occurred in Ireland before he worked at Saltergill school. He died in prison in 1999.
2. The appellant commenced these proceedings on the 8^th May 2002 claiming damages for the psychiatric and consequential damage he suffered as a result of the abuse. His account was that the abuse had continued after he had left Saltergill School, and that he had been introduced to prostitution by Mr Brady which had continued for some time. The psychiatric evidence clearly established that although he was a disturbed child before the abuse commenced, the abuse had undoubtedly had a significant psychological effect on his ability to cope with life, to form relationships and to hold down regular work. The appellant's claim against the respondents was based on the alleged negligence of the respondents' predecessors themselves in the care which they provided for him and, vicariously, for the actions of Mr Brady. The respondents did not formally admit the abuse; but it was essentially not in dispute during the trial; and the judge found that Mr Brady had abused the appellant in the ways that the appellant described. They denied negligence, and raised limitation issues both in relation to the direct claim of negligence against them, and in the claim brought against them for their vicarious liability for the actions of Mr Brady. I will refer to the respondents' predecessors as the respondents hereafter.
3. In relation to the claim against the respondents for their alleged breaches of duty, apart from the actions of Mr Brady, the judge held that the appellant had knowledge as defined in Section 14 of the Limitation Act 1980 for the purposes of Section 11 of the Act by the end of December 1996 at the latest, and that accordingly the action was statute barred by the end of 1999. He nonetheless concluded that it would be equitable to allow the action to proceed and directed under Section 33(1) that the provisions of Section 11 should not apply to this part of the appellant's claim. He held, however, that the appellant had not established any breach of duty on the part of the respondents which caused the damage about which he complained. As far as the vicarious claim against them for the actions of Mr Brady was concerned, he held that that was a claim for trespass against the person and not negligence or any other breach of duty to which Section 11 of the Act applied, and that accordingly on the authority of Stubbings –v- Webb [1993] AC 498, the claim fell within Section 2 of the Act and was therefore subject to a non-extendable limitation period of six years. He therefore dismissed the appellant's claim. The appellant now appeals to this court on the grounds that the judge was wrong to reject the claim based on the negligence of the respondents in their care of the appellant, and was wrong in holding that the respondents' vicarious liability for the actions of Mr Brady fell within Section 2 and not Section 11 of the Act. Although the respondents originally sought to support the judge's dismissal of the claim in a Respondent's Notice contending that the judge's decision under Section 33(1) of the Act was wrong, that notice was abandoned shortly before the hearing.
4. Leaving aside, for the moment, the claims against the respondents based upon their vicarious liability for anything done by Mr Brady, the appellant's claims essentially fell into two relevant categories. The first consisted of allegations that the respondents had failed to exercise reasonable care in the way that they carried out their responsibilities to the appellant as a child for whose care they had become responsible. The relevant history was that on the 18^th June 1974, the appellant was taken into care under a Place of Safety Order and placed with foster parents after a number of occasions upon which he had been found to have suffered from bruising and from a failure to thrive. He was discharged from the respondents' care into the care of his mother in December 1974; but the Social Services Department of the respondents continued to have concerns, and he remained on the Child Abuse Register until October 1983. Because of difficulties with his education, he was placed at the Cotswold Chine School in Stroud in Gloucestershire in December 1979, and spent holidays at home with his mother. There is no doubt that he made good educational and emotional progress at that school to a significant extent because of the distance that it created between him and his mother. Reports indicated that he received genuine affection and care from the staff on which he thrived, but that he remained at risk of abuse whenever he returned home. A review of his case in April 1982 resulted in the decision that he would start at Saltergill School, a special residential school for boys with educational behavioural needs in June 1992; and accordingly he moved to Saltergill where he remained, as I have already said, until 1988.
5. After his transfer to Saltergill School, Social Services involvement ceased, and supervision was transferred to the Education Department; and supervision was thereafter carried out by Social Work Staff at the school, and an Educational Social Worker, Mrs Routledge who was mainly concerned with his family relationships. From July 1983 to September 1985, the appellant lived at Saltergill School, but attended a main stream comprehensive school. From September 1985 until July 1986 the appellant returned home to his parents and attended school from there but returned to Saltergill School in September 1986. For reasons which were unexplained, because Mrs Routledge did not give evidence, there were no records of any visits by her to the family after September 1985. He first complained of abuse to Miss Murphy, his keyworker at the school, in January 1988 as a result of which Mr Brady was suspended, and ultimately charged with and acquitted of indecent assaults on the appellant.
6. The allegations of negligence against the respondents, arising out of these facts, were that there had been a failure on the respondents' part to make appropriate assessments of the appellant's needs which should have resulted in his being taken into care and fostered for the whole of the relevant period; inappropriate decisions were taken such as the decision to transfer him from Gloucestershire to Saltergill School and permit him to both regain contact with his parents, and to live with his parents for a period, when, it transpires, Mr Brady would visit him at home and continue the abuse which had commenced in about July 1985; there was a failure to provide proper supervision, and in particular a failure to provide supervision by a social worker with Social Services responsibilities rather than educational responsibilities, who was independent of Saltergill School after his transfer to the school in 1982.
7. The second category consisted of allegations about the care provided at Saltergill School itself. Mr Brady was already employed at the school when the appellant arrived in 1982. He had a flat on the school premises. The head teacher, who had overall responsibility for the appellant's care, was Mr Jefferson. The appellant claimed that there was ample evidence available to Mr Jefferson to raise suspicions as to the appropriateness of Mr Brady's behaviour towards the children at the school. It was known that he was a lonely man, who suffered from depression. It was known that Mr Brady had allowed children into his room, contrary to a clear prohibition on doing so. It was known that Mr Brady had befriended the appellant's family, which should have raised concerns because that was well known to be a ploy of those who wish to abuse children. It was known that Mr Brady had favourites, and would give presents to some of the children. All this, it was said, should have alerted Mr Jefferson to the fact that Mr Brady was, at the least, a potential abuser and caused him to take appropriate steps to investigate and deal with that risk.
8. The judge concluded that in relation to the first category of allegations, the appellant had established that the respondents had failed to take reasonable care. He concluded that the respondents had taken inadequate steps to monitor and supervise the appellant, particularly in the period after his transfer to Saltergill School in 1982. And he concluded in paragraph 26 of his judgment:

"However, I am far from satisfied on the balance of probabilities that a different outcome would have resulted if the case had been adequately handled. It seems to me that tacitly or by design it was accepted that since there was no apparent history of violence in the home against the claimant, and that since his mother (now dead) wished to remain responsible for him, that the best course was to have him looked after at school in the hope that as he grew older things would get better. The move to Saltergill, though bitterly opposed by the staff there, who appear to have been deeply concerned, no others were, about the consequences of a move, was thought to be in his interests as he would be much nearer home. The records show that the claimant liked Saltergill when he was shown around with his mother and step-father on the 22 April 1982 and that it was hoped that the move to Cleveland would bring them closer together in every way. The claimant agreed that Saltergill would have been acceptable, were it not for the abuse. While he was there, he attended a main stream comprehensive school. In retrospect it is clear that different decisions more promising for the claimant though not bound to succeed, might have been take, but it cannot be safely concluded that they would have been, however the case had been handled.

27. Further, I cannot be satisfied that care proceedings in the Children and Young Persons Act 1969 or wardship proceedings would necessarily have been the chosen route, or that they would have been successful if embarked on. Ms Gumbel put no material before me to justify such a conclusion. Although the psychiatrists agreed that the claimant's disadvantages from his early life were "salvageable", it does not follow that seeking to remove him from the legal care of his mother or finding him an alternative home were what should have been proposed or what would have been achieved. If proceedings had been contested the outcome would have been uncertain and the possibility of working with the claimant's family weakened."

9. Before us, Ms Gumbel submits that these conclusions are wrong in two respects. First, he did not grapple with and deal with the discrete allegation that the appellant should have had a dedicated social worker during his time at Saltergill, who was independent of the school and with whom he could have established the sort of relationship which would have enabled him to talk about his abuse. Ms Gumbel points out that this ultimately came to light in 1988 when he felt able to talk to his key worker at the school. That, it is said, was because he had by then developed a close enough relationship with her to feel able to talk. The key worker system was only put in place by Mr Jefferson in 1986, and was therefore too late to deal with the appellant's abuse, which had already begun. But the fact, it is submitted, that he felt able to confide in his key worker when he did is evidence that, had there been somebody with whom he could have developed a similarly close relationship earlier, the abuse may well have been identified earlier. Further, it is submitted, the judge was simply wrong to conclude on the evidence that the breach of duty which he found established did not cause the damage which formed the basis of the appellant's claim.
10. The first and major difficulty which these submissions face is that, as the judge himself noted, there was no expert evidence before him as to proper social work practice. In those circumstances, it seems to me to be impossible for Ms Gumbel to make good her submission that the fact that the appellant was not provided with a social worker on his transfer to Saltergill School could amount to a breach of duty. It seems to me that such evidence would have been necessary in order to make good this particular allegation. As far as the judge's conclusions on causation were concerned, it seems to me that it is only necessary to refer to the judge's own reasoning. In my view the conclusions that he reached were amply supported by the evidence. It follows that neither of these criticisms of the judge's judgment are made out.
11. As to the second category, the judge concluded as follows:

"29. Should the school have systems in place to prevent or discourage abuse? Saltergill was a special residential school for boys with special educational and behaviour needs. Brady's job description shows the extensive nature of his responsibility for the welfare of boys outside school hours. He achieved his object, it may now be seen, by using the deviant and manipulative techniques in which paedophiles are well versed, including avoiding discovery and deflect any criticism. Mr Jefferson took over the headship in 1982, he was an impressive witness. He explained the procedures were in place. Except (as Mr Spens told me) after lights out there were always two adults on duty and even then a senior member of staff was always available on the premises. He instituted (although the date is uncertain) a key worker system for each child. It was unclear as to the respects in which it was asserted that the school systems were deficient.

30. Much greater emphasis was placed on a number of known concerns which, it is argued, should have alerted the school to the possibility of Brady being an abuser and taken steps to investigate his activities. As the graphic and harrowing account of his abuse given by the Claimant in his statements shows, it started off when the claimant was 11 and developed until it was frequent and serious with the claimant having been turned into a willing participant, so that as the court observed in Bryn Alyn, he might have regarded it as a normal feature of life. Much occurred off school premises, on trips, or at lunch time when the claimant was out at his comprehensive school. It was necessarily secret. The following signals are put forward:

(i) Brady was a single man living initially in rooms in Saltergill, later acquiring his own flat nearby.

(ii) He had few friends (although he was a devout Catholic and a regular worshipper at the nearby church) and related better to children than adults.

(iii) He was a manic depressive on lithium. Mr Jefferson, then as was Mr Spens, was aware of this although it is not recorded on documents available nor is it possible to say when the information became known.

(iv) He had been disciplined for hitting a child.

(v) He had had boys visit him in his rooms, against the rules. This is crucial. The number of incidents and their dates is not known. Mr Jefferson's log would have recorded them. In each case Brady had an innocent explanation. Mr Jefferson told me that the boys were spoken to and corroborated Brady. He was perfectly well aware of the risks and that the rules were there to protect children and staff. I am satisfied from my assessment of the commitment and competence of Mr Jefferson that he made reasonable investigations in the light of the material he had and acted reasonably in the light of those investigations.

(vi) He had visited the Claimant's home on a number of occasions. Mr Jefferson had no idea that it was as frequent as the claimant implies in his statement. A classic technique for an abuser is to ingratiate himself with the family of his victim. Although Brady's job description included liaison with parents. He had no reason to do so in this case and Mr Jefferson warned him off.

(vii) He had given boys cigarettes and presents. The evidence of the presents only emerged at the trial. Mr Spens was aware of Brady slipping the odd cigarette to boys who had run out and said he warned him not to.

31. It would not be hard in retrospect to put together everything that was known about Brady and conclude that the senior staff at the school knew enough to make them suspect he was an abuser. But it would, in my judgement, be a serious error to do so. The claimant did not disclose that he had been abused until January 1988. There had been no suspicion of abuse or seriously irregular conduct on any significant scale until then. I am not satisfied the defendants were in breach of duty in failing to act so as to prevent Brady abusing the defendant."

12. Ms Gumbel submits that the judge was wrong to conclude that the signals, as he described them, were insufficient to have given rise to the suspicion that Mr Brady was an abuser other than in retrospect. She relies in particular on the acceptance by the judge that it was known that Mr Brady had boys visit him in his room. She submits that the evidence shows that the visits caused concern. In particular, she submits that the judge failed to deal with an important part of the evidence to the effect that Mr Frankland, a councillor who took a particular interest in Saltergill School, considered that Mr Brady should be encouraged to move out of the school, as he did in 1986, for that very reason. Ms Gumbel further submits that the judge failed to deal adequately with the evidence that Mr Jefferson knew that Mr Brady was visiting the appellant's home out of school hours. She further submits that the judge failed to put this material into the appropriate context, namely that Mr Jefferson knew that Mr Brady had favourite pupils and was giving boys cigarettes and presents.
13. As far as boys visiting him in his room was concerned, it is clear that Mr Jefferson was aware of the fact that this had happened on a number of occasions. He accepted that staff were expressly forbidden from allowing children into their living accommodation. In his statement at paragraph 26 he said:

"26. The only concerns that I have been made aware of by members of staff were that Mr Brady had allowed children to go into his room and had been giving them presents. Each time such a complaint was made or it was brought to my attention that children had been going into Mr Brady's room I would warn him regarding his behaviour. More often than not Mr Brady had a plausible explanation."

14. When cross-examined, he said that this had happened on two or three occasions as far as he was aware over a period of six years and confirmed that Mr Brady had been warned on each occasion. Further, the children involved were different on each occasion, otherwise he accepted that it would have been a more serious issue. He denied that Mr Brady's leaving the accommodation in the school had anything to do with these incidents.
15. Mr Frankland's evidence was that he had been made aware by Mr Jefferson of the fact that there were complaints about Mr Brady letting boys into his accommodation and in his statement at paragraph 12 he said:

"Mr Jefferson did speak to Mr Brady about this and when Mr Brady came into some money he suggested that it would be better for him to buy a house and to move off site in order that he could make more friends in the community."

16. In his evidence he said that encouraging Mr Brady to move out of the school was "partially" to deal with the problem that he had in fact had boys in his room.
17. Ms Gumbel is accordingly correct to say that the judge did not expressly deal with this apparent discrepancy. But it seems to me that this criticism has to be seen in context. The judge accepted that Mr Jefferson knew about visits by boys to Mr Brady's room but clearly accepted the evidence of Mr Jefferson that on each occasion Mr Brady had an innocent explanation. The judge was clearly impressed by Mr Jefferson. He took the view that if these visits had indeed been capable of giving rise to the sort of concern which would have raised the suspicion of abuse, Mr Jefferson would have taken action. The fact that he did not, accordingly, was not any evidence of want of care on his part. In these circumstances, I do not consider that the fact that he did not expressly deal with the discrepancy between his own evidence and Mr Frankland in anyway undermines the clear conclusion to which he came.
18. As far as the evidence of visits to the appellant's home is concerned, it is clear that Mr Brady had been a regular visitor. The appellant's parents told the respondents, after the allegations of abuse had been made, that Mr Brady had been a regular visitor to their home and they considered him a friend rather than a staff member. But in his evidence, Mr Jefferson said that he only knew of two occasions on which Mr Brady had visited the appellant's home.
19. In cross-examination he said:

"It wasn't a great big deal because he would make other home visits as well to other places but he would take it upon himself if he was passing other places to sort of call in. But is wasn't a major issue at the time."

20. He said that nonetheless, it was against the rules and he had told Mr Brady so. Once again, it seems to me, this has to be seen in the context of the Judge's findings as to Mr Jefferson. The judge clearly took these visits into account when he ultimately concluded that these incidents only assumed significance with hindsight. He was entitled to take that view.
21. As to the evidence in relation to the giving of presents and the fact that Mr Brady was known to have favourites, Mr Jefferson accepted that he had noted that "he had a favourite pupil" (not the appellant), and that this was a matter which could be of concern. As far as presents are concerned, the evidence was not entirely satisfactory. In paragraph 26 of his statement, to which I have already referred in paragraph 13 above, Mr Jefferson appeared to be accepting that he had been made aware of the fact that Mr Brady had been giving children presents. In his cross-examination, he said that he had understood that by this he meant that he was aware of Mr Brady giving children cigarettes, and was paying children, for example £5, for washing his car which was significantly more than might be considered appropriate. In re-examination he was specifically asked whether he knew that Mr Brady was giving children presents before Mr Brady's trial in September 1988 and he answered "No". He said that he only found out, for example about Mr Brady paying the children too much for washing the car at the trial.
22. In saying therefore "the evidence about the presents only emerged at the trial" in the passage to which I have already referred in his judgment, the judge was somewhat compressing the evidence and, in particular did not deal with what Mr Jefferson had said in his statement. But again, it seems to me, the fact that he did not in no way undermines the conclusions that he reached. The most important conclusion was that, as I have already said, Mr Jefferson was an impressive witness who made reasonable investigations in the light of the material that he had and acted reasonably in the light of those investigations. I do not consider that there is therefore any proper basis upon which this court could interfere with those conclusions which are clearly fatal to the submissions of Ms Gumbel.
23. Turning then to the allegations of vicarious liability on the basis of the actions of Mr Brady, this raised a pure issue of law. The judge correctly held that on the authority of Lister –v- Hesley Hall Ltd [2002] 1AC 215, the respondents were vicariously liable for those actions. The question was whether or not the appellant's cause of action was a claim falling within Section 11 of the Limitation Act 1980, in which case the conclusions he reached would have permitted the action to continue, or was an action which fell within Section 2 of the Act which provided for a non-extendable time limit of six years which expired at the latest in January 1994. He held that it was the latter and accordingly dismissed the claim.
24. Section 11(1) of the Act provides:

"This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provisions made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person."

25. In Stubbings –v- Webb [1993] AC 498, the House of Lords considered the nature of a claim for intentional wrongdoing in the context of a claim by a plaintiff who alleged sexual and physical abuse during her childhood by her step-father, step-brother and step-mother. The court held that the plaintiff's action was one for trespass to the person which was not a cause of action falling within Section 11 of the Act. Lord Griffiths with whom the other members of the House agreed, gave two reasons for so holding. First, he concluded that Section 11 was intended to give effect to the Tucker Committee Report on Limitation of Actions, 1949 in paragraph 23 of which the Committee had said:

"We wish, however, to make it clear that we do not include in that category" (that is actions for personal injuries) "actions for trespass to the person, false imprisonment, malicious prosecution or defamation of character…."

26. The second basis upon which Lord Griffiths came to that conclusion was that as he said at page 508:

"The phrase "(breach of duty)" lying in juxtaposition with negligence and nuisance carries with it the implication of a breach of duty of care not to cause personal injury rather than an obligation not to infringe any legal right of another person."

27. This court has recently considered the issue in an identical context to the present in KR and Others –v- Bryn Alyn Community Holdings [2003] EWCA Civ 85. Auld LJ, in giving the judgment of the court, acknowledged the anomaly that this creates, as had been recognised as long ago as 1995 in Seymour –v- Williams [1995] BIQR 470, and noted that the Law Commission has now recommended that the distinction should be abolished and that all such action should be subject to the Section 11 regime. Nonetheless, the court concluded that where the actions for which an employer is held vicariously responsible consist of deliberate abuse, the cause of action does not fall within Section 11.
28. In coming to that conclusion, the court considered in some detail the speeches of their Lordships in Lister –v- Hesley Hall Ltl [2002] 1 AC 215. In doing so, it noted that Lord Steyn had, in paragraph 29, expressly left open the question of whether or not the abuser's actions might amount to a breach of a duty akin to a duty of care, so as to engage Section 11 of the Act. It also noted that Lord Hobhouse, in paragraphs in 54 and 55 of his speech referred to the duty of those involved in the care of the young and vulnerable to protect them from the risk of harm. In paragraph 55 he said:

"The classes of persons or institutions which are in this type of special relationship with another human being are schools, prisons, hospitals and even, in relation to their visitors, occupiers of land. They are liable if they themselves fail to perform the duty which they consequently owe. If they entrust the performance of that duty to an employee and that employee fails to perform the duty, they are still liable. The employee, because he has, through his obligations to his employers, adopted the same relationship towards and come under the same duties to the plaintiff, is also liable to the plaintiff for his own breach of duty. The liability to the employers is a vicarious liability because the actual breach of duty is that of the employee. The employee is a tortfeasor. The employers are liable for the employee's tortious act or omission because it is to him that the employers have entrusted the performance of their duties. The employers' liability to the plaintiff is also that of a tort feasor…"

29. However, this court in the Bryn Alyn case considered that to try to create a duty which would fall within Section 11 in order to avoid the logic of the decision in Stubbings –v- Webb would, to use the words of Lord Clyde in Lister in paragraph 32, "be a somewhat artificial basis for the claim". It preferred Lord Millett's approach in paragraph 84 of Lister:

"I would hold the school vicariously liable for the Warden's intentional assaults, not, (as was suggested in argument) for his failure to perform his duty to take care of the boys…. The law is mature enough to hold an employer vicariously liable for deliberate, and criminal wrong doing on the part of an employee without indulging in sophistry of this kind."

30. This court concluded in paragraph 108 of the Bryn Alyn case:

"In our view, the correct approach is as Lord Millett has expressed it. Whether or not Section 11 is in play, it is to identify the wrongful act, deliberate or otherwise, in respect to which vicarious responsibility is claimed and to assess the closeness of its connection of the employment in question. If the act is sufficiently closely connected with the employment, there is vicarious responsibility. In such circumstances and bearing in mind Lord Griffiths' reasoning in Stubbings –v- Webb …. there is no justification or need, for the purpose of establishing vicarious responsibility, to elide the duty in respect of which the employee's deliberate act is a breach with a duty of care delegated to "entrusted" to him by the employers. The two are quite distinct. Where Section 11 is under consideration it follows that the claims for personal injuries in respect of deliberate conduct, whether considered in the context of vicarious responsibility or not, are caught by its provisions. Accordingly, in the absence of some provable allegation of systemic negligence of the first defendant, we are of the view that its employee's deliberate abuse does not fall within Section 11 and is, therefore governed by a non-extendible six years period of limitation rather than an extendible three years period."

31. Ms Gumbel tried valiantly to escape from what seems to me to be the inevitable consequence of this decision. She submitted that the court had not fully considered the nature of the duty which Lord Hobhouse had suggested as the basis for liability. But I confess I found it impossible to see in her argument anything which could enable us to distinguish the Bryn Alyn case or hold that this court's decision was for some other reason not binding on us. In my view the judge was correct in the conclusion that he reached.
32. I would according dismiss this appeal.

Sir Swinton Thomas:

33. I agree

Lord Justice Chadwick:

34. I also agree.