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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kelly v. Cox & Anor [2002] ScotCS 140 (20th May, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/140.html Cite as: [2002] ScotCS 140

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Kelly v. Cox & Anor [2002] ScotCS 140 (20th May, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY PATON in the cause JOSEPH PHILIP McGRATH KELLY, (A.P.) Pursuer; against (FIRST) MRS. MARY COX (SECOND) GLASGOW CITY COUNCIL Defenders:   ________________

 

 

Pursuer: O'Brien Q.C., J.A.P. Moir; Balfour & Manson

First Defender: R.W. Dunlop; Drummond Miller, W.S.

Second Defenders: A. Smith; Edward Bain, Solicitor

20 May 2002

1. The pursuer was born on 1 May 1950. In this reparation action, he avers that he was sexually abused by a teacher named Edward Gilmartin during 1955 to 1961. As the pursuer grew up, he suppressed all memories of the abuse. However in the 1990s he was contacted by police who were investigating similar allegations against Mr. Gilmartin. Their investigations triggered memories. Ultimately, in a criminal trial in 1996, the pursuer gave evidence against Mr. Gilmartin. Mr. Gilmartin was convicted of lewd, indecent and libidinous practices and behaviour. He was sentenced to imprisonment.
2. The pursuer claimed criminal injuries compensation, but was unsuccessful as the offences had occurred before the Criminal Injuries Compensation Scheme came into existence. The pursuer then raised the present action, seeking to recover damages firstly, from Mr. Gilmartin, and secondly, from the education authority. The summons was served on the defenders in December 1998. Mr. Gilmartin died on 3 March 1999. His sister and executrix, Mrs. Mary Cox, was sisted in his place.

Pleas of prescription and limitation

3. At a debate, each defender argued that any right of action which the pursuer might have had was extinguished by, at the latest, 31 December 1981 as a result of the operation of the long negative prescription (section 7 of the Prescription and Limitation (Scotland) Act 1973). Each defender sought absolvitor.
4. Alternatively, the defenders submitted that, even if the pursuer's right of action had not been extinguished by prescription, the pursuer's action was time-barred in terms of the limitation provisions of the 1973 Act (section 17). Quoad ultra the defenders initially accepted that the pursuer was entitled to a preliminary proof before answer on averments relating to the court's equitable power to allow time-barred actions to proceed (section 19A of the 1973 Act). However, as the debate proceeded, counsel for the defenders also attacked the relevancy and specification of the pursuer's section 19A averments, and moved that the action be dismissed in terms of the limitation pleas.

Prescription

5. Defenders' submissions: Counsel for the first defender argued that the long negative prescription had extinguished any obligation to make reparation to the pursuer. Counsel for the second defenders adopted that argument.
6. Counsel for the first defender pointed out that the sexual abuse had taken place during 1955 to 1961. The latest possible date of any abuse was 31 December 1961. The long negative prescription as defined in section 7 of the Prescription and Limitation (Scotland) Act 1973 applied to obligations to make reparation, including obligations to make reparation in respect of personal injuries: sections 7 and 11(4). The quinquennial prescription in section 6 did not apply: Schedule 1, paragraph 2(g); nor was a claim for personal injuries imprescriptible: Schedule 3, paragraph 2(g). Section 7 had come into effect on 25 July 1976: section 25(2)(b). Accordingly, section 7 applied to any obligation to make reparation to the pursuer as a result of Mr. Gilmartin's actions during 1955 to 1961. The latest date from which the long negative prescription could begin to run was 31 December 1961. In terms of section 14 of the 1973 Act, the twenty-year period terminated on 31 December 1981. Accordingly any claim which the pursuer might have had was extinguished by the long negative prescription on 31 December 1981. In contrast with the quinquennial prescription, the 1973 Act expressly excluded any allowance in respect of legal disability (by reason of nonage or unsoundness of mind) or lack of knowledge: sections 7, 11, 14(1)(b); Johnston, Prescription and Limitation (1999), paragraph 7.15 et seq., Beard v. Beveridge, Herd & Sandilands, W.S., 1990 S.L.T. 609. It was irrelevant therefore that the pursuer had been underage for the initial part of the twenty-year period, or that he may have been unaware that he might have a claim for personal injury.
7. Counsel accepted that the enactment of the Prescription and Limitation (Scotland) Act 1984 had made a significant change in the context of claims for personal injuries. The 1984 Act amended section 7(2) of the 1973 Act such that obligations to make reparation in respect of personal injuries were no longer affected by the long negative prescription, but only by limitation The law of limitation incorporated equitable provisions which gave the court some discretion to permit otherwise time-barred actions to proceed: sections 17 and 19A of the 1973 Act. The significant change brought about by the 1984 Act was made on the recommendation of the Scottish Law Commission, in their Report on Prescription and Limitation No.74 at paragraph 2.8. However counsel pointed out that the change took effect only on 26 September 1984. The amended legislation was not retrospective in effect: section 5(3) of the 1984 Act. Accordingly the amended legislation could not assist the pursuer, whose right of action, if any, had prescribed in 1981.
8. Counsel therefore invited the court to sustain the first defender's third plea-in-law and the second defenders' second plea-in-law, and to assoilzie the defenders.
9. Pursuer's submissions: Under reference to Dunlop v. McGowans, 1980 SC (HL) 73, Brown v. North British Steel Foundry Ltd., 1968 S.C. 51, Strathclyde R. C. v. W.A. Fairhurst and partners, 1997 S.L.T. 658, Strathclyde R.C. v. Borders Engineering Contractors Ltd., 1998 S.L.T. 175, and Paterson v. George Wimpey & Co. Ltd., 1999 S.L.T. 577, senior counsel for the pursuer submitted that the necessary concurrence of damnum and injuria had not occurred until 1995, when the pursuer developed a psychiatric illness. In this action, the pursuer sought damages only in respect of his psychiatric injury, not in respect of any physical injury. In Carnegie v. Lord Advocate, 2001 S.C. 802, the Inner House recognised that a claim for a later-developing psychiatric illness could properly be regarded as a separate injury which was not time-barred by the relevant limitation provisions of the 1973 Act, although any claim arising in respect of physical injury suffered earlier was time-barred. The pursuer's psychiatric injury was quite distinct from any physical injury suffered during 1955 to 1961. In Shuttleton v. Duncan Stewart & Co. Ltd., 1996 S.L.T. 517, Lord Prosser viewed the development of asbestosis as an injury quite distinct from pleural plaques and pleural thickening: even if the latter were time-barred, the former was not. Similarly in the present case, the pursuer had developed the psychiatric illness in respect of which he was suing in 1995, and the action had been raised in 1998.
10. Response by the defenders: Counsel for the first defender (whose response was adopted by counsel for the second defenders) submitted in reply firstly, that the pursuer had indeed suffered "loss, injury and damage" within the terms of section 7 of the 1973 Act during 1955 to 1961 when he was being subjected to enforced sodomy and other behaviour all as outlined in the Closed Record at page 6C-E. Secondly, both the Inner House and the House of Lords in Dunlop v. McGowans emphasised that the law of prescription was quite distinct from the law of limitation. In the law of prescription, there was one single indivisible obligation to make reparation, with the prescriptive period beginning as soon as injuria had caused any damnum.

Non valens agere cum effectu

[11] Defenders' submissions: Counsel for the defenders submitted that the pursuer could not avoid the consequences of the long negative prescription by his plea of non valens agere cum effectu. That plea was rarely used, although it probably still existed. For the plea to be effective in suspending the running of the long negative prescription, there had to be some sort of legal bar, or legal impediment to the protection of a person's rights: Harvie v. Robertson (1903) 5 F. 338; Campbell's Trs. v. Campbell's Trs., 1950 S.C. 48; Pettigrew v. Harton, 1956 S.C. 67; Hastie's J.F. v. Morham's Exrs., 1951 S.C. 668; Napier, Prescription (1854); Miller, Handbook of Prescription (1893), Chapter X; Johnston, Prescription and Limitation (1999), paragraph 7.18 et seq.

11. Counsel submitted that the pursuer's averments were insufficient to found the plea, for several reasons: (i) The circumstances did not amount to an impedimentum juris. Nothing, as a matter of law, had stopped the pursuer suing at any time after the assaults had taken place. (ii) The Lord Justice-Clerk in Pettigrew v. Harton, cit. sup., made it clear that the doctrine of non valens agere cum effectu should not be extended beyond its present boundaries. (iii) To allow the plea in the present case would be to subvert the express wording of the 1973 Act. That Act stated in terms that, so far as the long negative prescription was concerned, the court should ignore unsoundness of mind, lack of knowledge, and minority: sections 7 and 14(1)(b) (in contrast with, for example, the quinquennial prescription: section 6(4)). Counsel referred to Johnston, Prescription and Limitation; and Beard v. Beveridge, Herd & Sandilands W.S., 1990 S.L.T. 609. At best for the pursuer, the averments disclosed minority and repressed memory syndrome - a psychiatric condition short of insanity, which led to lack of knowledge of the right to claim damages. To allow such circumstances to found a plea eliding prescription would be to re-write the 1973 Act.
12. Pursuer's submissions: Counsel for the pursuer submitted that, esto the long negative prescription began to run at 31 December 1961 (which was not accepted), the plea of non valens agere cum effectu preserved the pursuer's right to sue. Under reference to Bell's Principles paragraph 627, Stair II.12.27, Erskine's Instititutes III.7.36, and Napier, Prescription (1854) Chapter VI, counsel contended that the pursuer had been subject to a legal disability because he had been unable to claim effectively prior to 1995 as he did not then have the relevant injury, namely the psychiatric illness. He had been unable to make an effectual claim for psychiatric injury until the psychiatric illness actually developed. Accordingly, prior to 1995, the pursuer was prevented from suing by a legal impediment, as he could not competently or effectively have raised an action to recover damages for a psychiatric condition which he had not yet developed.

Human rights

13. Defenders' submissions: Counsel for the first defender argued that the Human Rights Act 1998 could not assist the pursuer. Counsel for the second defenders adopted that argument.
14. Counsel for the first defender submitted firstly that the Human Rights Act 1998 was not retrospective: it could not affect acts committed during 1955 to 1961, or obligations which had prescribed by 1981. Section 22(4) of the 1998 Act was the only retrospective provision, and that section concerned defences to an action raised by a public authority. In other words, the 1998 Act could in such circumstances be used defensively, but it could not be used offensively. Dicta in R. v. Lambert [2001] 3 WLR 206 (for example, Lord Slynn at pages 209-211) supported these propositions. Section 3(2)(a) of the 1998 Act merely provided that any statute, whether enacted before or after the 1998 Act, must be read (so far as possible) compatibly with the European Convention on Human Rights. But that was not to say that the 1998 Act or the Convention could have retrospective effect. Section 3(2)(b) provided that section 3 was not to affect the validity, continuing operation or enforcement of any incompatible primary legislation. The pursuer in the present case was not seeking a declarator of incompatibility in terms of section 4, and in any event, in terms of section 4(6), such a declarator could not affect the outcome of the present action.
15. Counsel suggested that the pursuer might seek to argue that the Court of Session, as a public authority, would act incompatibly with the Convention (contrary to section 6 of the 1998 Act) were the pleas of prescription to be sustained, as the pursuer would be denied access to court. One answer to such a contention was section 6(2)(a), namely that the court had no alternative. If this court ruled that a right had been extinguished in 1981, that would not amount to a breach of human rights: cf. dicta of Lord Hope in Lambert at pages 233G-234C, and page 244; and Lord Clyde at page 254. The most recent decision of the House of Lords, R. v. Kansal, (unreported: net reference [2001] UKHL 62), did not overrule Lambert, and did not criticise Lambert on the question of retrospectivity: see Lord Hope at paragraphs 83 and 84. Accordingly the dicta in Lambert on retrospectivity remained good. Reference was also made to Lord Woolf at paragraph 3(ii) and paragraph 9 of "The Human Rights Act Issue" in Home Office v. Wainright (unreported: net reference 2002 E.W.C.A.Civ. 2081). The whole purpose of the pursuer's argument in the present case was to rely on the 1998 Act in an attempt to prevent the extinction of obligations which would otherwise be extinguished by the 1973 Act: cf. Mummery L.J. at paragraph 43, Buxton L.J. at paragraph 71.
16. Secondly, counsel argued that, in any event, the 1973 Act was not incompatible with the European Convention on Human Rights. The Convention and the European Court recognised the need for prescription and limitation periods. In any civilised society, certainty and finality were required: cf. Napier, Prescription (1854), page 435 et seq. Stubbings and others v. United Kingdom (1997) 23 EHRR 213 was entirely in point. In the present case, the pursuer could have raised an action at any time up to 31 December 1981, by which time he was aged 31. Had a civil action been raised in about 1981, the court would have been asked to adjudicate upon matters which had happened some twenty to twenty-six years earlier - but nevertheless the law permitted the pursuer such an adjudication. Furthermore, in the United Kingdom there had been continuous review and reform of the law relating to prescription and limitation. The Scottish Law Commission had issued consultation papers, memoranda and reports. The Prescription and Limitation (Scotland) Act 1973 had replaced previous legislation. The Law Reform (Miscellaneous Provisions) Act 1980 had introduced the equitable section 19A into limitation law. The Prescription and Limitation (Scotland) Act 1984 had provided that the long negative prescription should no longer affect claims for personal injuries. It could not be said therefore that the United Kingdom or Scotland had let matters rest with the 1924 Act: on the contrary, there had been continuing review. There was no incompatibility with either Article 6 or Article 13, because a margin of appreciation was permitted to any state. Nor was there a violation of Article 8. Even if Article 3 were relied upon, the pursuer was not entitled to an unlimited private civil right to sue, without time limit: Stubbings, cit. sup. paragraphs 62-65. The Scottish civil remedy had been available to the pursuer until December 1981, when he was aged 31. Scots criminal law went even further, and offered protection without timelimit. There had in fact been a criminal trial as late as 1996, many decades after the events. There was therefore an aggregate of remedies offered to the pursuer: cf. dicta of Lord Hardie in Scott Davidson,, Petitioner, 18 December 2001 (unreported) at paragraph 10. In contrast with the case of Z and others v. United Kingdom [2002] 34 EHRR 3, at page 97 (where the court held that no duty was owed to the pursuer, and therefore that the pursuer was unable to recover damages) there was in the present case a right of action available to the pursuer which subsisted until December 1981. It was not therefore as if Mr. Gilmartin had been given immunity from civil or criminal actions: cf. dicta in Z and others v. United Kingdom, cit. sup., paragraphs 97 and 98. The Convention did not insist that any alleged wrongdoer should remain liable for ever to civil claims for compensation.
17. Thirdly, as a fall-back argument, counsel contended that the court had to interpret primary legislation so as to be compatible with the European Convention on Human Rights "so far as it is possible to do so" (section 3 of the Human Rights Act 1998). Bearing in mind the terms of sections 7 and 11(4) of the 1973 Act, it was simply not possible for the court to interpret or construe the legislation other than by holding that the pursuer's right to sue had been extinguished by, at the latest, 31 December 1981.
18. Pursuer's submissions: Counsel for the pursuer submitted that, in the event that the pursuer failed in his arguments about prescription and non valens agere cum effectu, and the court was minded to sustain the defenders' pleas-in-law relating to prescription, the court should not adopt such an approach, for to do so would be to deny the pursuer effective access to a court for a remedy. The court should rather choose to construe section 11(4) of the 1973 Act such that it was compatible with the European Convention on Human Rights. Counsel accepted that Lambert made it plain that the Human Rights Act 1998 did not have retrospective effect, except where expressly provided. All that the pursuer was asking the court to do was to interpret the law, as at the date of the debate, consistently with the Convention. The court was a public authority in terms of section 6 of the 1998 Act, and in terms of section 3 the court had a duty to interpret the legislation compatibly with Convention rights, so far as it was possible to do so. The pursuer was not seeking a formal declarator of incompatibility at this stage, but might do so at a later date.
19. Counsel invited the court to "read down" the Prescription and Limitation (Scotland) Act 1973 so as to be compatible with the Convention. The reading-down would involve construing section 11(4) as if the words in brackets ("with the omission of any reference therein to subsection (3) above") did not exist. This would have the effect that the long negative prescription would not begin to run so long as the pursuer (the creditor) was unaware of his loss in terms of section 11(1)- (3). Such a reading-down was necessary to avoid infringements of Articles 8, 3, and 6. Articles 8 and 3 concerned the pursuer's right to private life (including, for example, physical integrity), and his right not to be subjected to inhuman or degrading treatment. Article 6 concerned the pursuer's right to a fair hearing determining his arguable right to damages under domestic law. The present claim would be decisive of the pursuer's civil rights; there was a "contestation"; accordingly, Article 6 applied. The operation of prescription in the present case would impair the essence of the pursuer's right to have access to court in respect of his claim: cf. Z and others v. United Kingdom, cit. sup.
20. Article 13 (the requirement for "an effective remedy before a national authority"), which was admittedly not included in the Human Rights Act 1998, required, in addition to investigation of a claim, compensation. Compensation was part of the requirement in Article 13. The test set out in, and the reasoning underlying, Stubbings and others v. United Kingdom, cit. sup., was in fact supportive of the pursuer's claim - the victim had no chance to get to court. Counsel argued that the approach of Judge Foighel at page 241 paragraph 10 and Judge Macdonald at paragraphs 2 and 3 should be adopted, and the view taken that the margin of appreciation sought by the defenders was too wide. The result of sustaining the pleas of prescription was disproportionate. Reference was also made to Ashingdane v. United Kingdom (1985) 7 EHRR 528, particularly paragraph 57 of the European Court's judgement. The essence of the pursuer's right of access to the courts would be impaired because (i) no allowance was made for the years of minority; (ii) no recognition was given to the element of unawareness that there might be a claim in law; (iii) if actual damnum occurred after the end of the prescriptive period, it was impossible to claim in respect of that damnum ; (iv) there was no equivalent in prescription to the section 19A discretionary equitable power available in limitation law.
21. The matter could be viewed either as the operation of prescription denying the pursuer access to the court in respect of the psychiatric injury suffered from 1995 onwards, or alternatively as the operation of prescription leaving the pursuer with no remedy for the psychiatric damage suffered after 1981. Such a denial of the pursuer's claim was not a proportionate response: cf. Clayton & Tomlinson, The Law of Human Rights, paragraph 6-46. It was therefore appropriate that the court should read down the Prescription and Limitation (Scotland) Act 1973 as suggested: cf. Poplar Housing and Regeneration Community Association Ltd. v. Donoghue [2002] All E.R. 604, at page 623; R. v. A. [2001] 2 WLR 1546, Lord Slynn at paragraph 13; Lord Steyn at paragraph 44; Lord Hope at paragraph 108; Lord Clyde at paragraphs 136 and 137; Lord Hutton at paragraph 163. It was anomalous that the quinquennial prescription (section 6 of the 1973 Act) took account of the element of unawareness, whereas the long negative prescription (section 7 of the 1973 Act) did not. Section 11(4) should be read treating the phrase in brackets as pro non scripto. Thus the 1973 Act could be read compatibly with the European Convention on Human Rights, yet without being destructive of the purpose of the domestic law of prescription.

Limitation

22. Defenders' submissions: The submission by counsel for the first defender was that the pursuer had no relevant averments relating to section 17(2)(b), but that he had sufficient averments in terms of section 19A entitling him to a preliminary proof on that matter. However, as the debate progressed, it was accepted by the pursuer that the combination of the police investigation, the pursuer's returning memory, and a diagnosis of psychiatric illness by about July 1995, meant that the action had become time-barred in terms of section 17(2)(b) by July 1998. Counsel for the pursuer moved to amend the Record to reflect this position. I allowed the amendment (to Article 7 of the Condescendence, and to the pursuer's sixth plea-in-law). Of consent, I repelled the pursuer's fifth plea-in-law.
23. Counsel for the second defenders then argued that the pursuer's averments relating to section 19A were irrelevant, and that the pursuer was not entitled to a preliminary proof on that matter. Counsel for the first defender adopted those arguments.
24. Counsel for the second defenders contended that, in the newly-amended record, the pursuer accepted that the triennium had expired by July 1998. Yet the averments disclosed that the pursuer had consulted solicitors in or about 1997, well within the triennium. The discussion at the consultation with the solicitors was averred to be "about the possibility of bringing proceedings": page16A-B of the Closed Record. Nevertheless the summons had not been served upon the defenders until December 1998. There were no averments relating to the period between the consultation in 1997 and the service of the summons in December 1998 explaining why no action had been raised by the end of the triennium in July 1998. Counsel referred to Wilson v. Telling (Northern) Ltd., 1996 S.L.T. 380, and Nimmo v. British Railways Board, 1999 S.L.T. 778, and submitted that there were no relevant averments relating to the court's equitable power under section 19A entitling the pursuer to a preliminary proof. Thus, esto the defenders were not entitled to absolvitor on the basis that the action had prescribed, the action was time-barred by limitation law and should be dismissed.
25. Pursuer's submissions: Counsel for the pursuer accepted the force of the defenders' argument, but advised the court that it was not the pursuer's intention to offer to amend further at that stage. The court was invited to reach a view on the question of prescription. If the pursuer were to succeed on the question of prescription, he would seek an opportunity to amend further, if so advised, in an endeavour to render his section 19A case more relevant. Counsel for the pursuer accepted that it would ultimately be for the court to decide whether any further amendment at a later stage would be permitted.

Vicarious liability on the part of the second defenders

26. Defenders' submissions: Counsel for the second defenders presented a further argument, namely that the pursuer's averments failed to bring home vicarious liability to the second defenders. Counsel sought to distinguish Lister v. Hesley Hall Ltd. [2001] 2 WLR 1311; [2001] 2 All ER 769, arguing that, in the present case, the necessary close connection between the employment and the abuse did not exist. Unlike Lister, which concerned a warden in a residential home standing in loco parentis to the school children, inter alia supervising their bed-time and getting them up in the mornings, the present case concerned a day-school pupil who happened to be taught by Mr. Gilmartin. Mere opportunity to commit abuse was not enough. No sufficiently close connection had been pled. It was irrelevant that the pursuer had actually believed that the abuse was part of school discipline. Counsel for the second defenders invited the court to exclude from probation certain averments relating to vicarious liability, to repel the pursuer's second plea-in-law, and to sustain the second defenders' seventh plea-in-law.
27. Pursuer's submissions: In response, counsel for the pursuer submitted that there were sufficient relevant averments to meet the test of close connection required by the House of Lords in Lister. It was accepted that there was a difference between running a school house, and running a class. Nevertheless, a form teacher in the 1950s had considerable power and control over a child such as the pursuer. The pursuer spent most of the day with this particular teacher. The teacher had a general duty to teach, but also a duty to care for the children under his charge during the school day. The abuse arose out of the employment, in that the physical punishment which the teacher was prima facie entitled to inflict, shaded into or preceded the sex abuse, which he was not entitled to inflict. There was a clear connection between the legitimate control and the illegitimate sex abuse. The second defenders' argument should be rejected, and their third, fourth, and seventh pleas-in-law repelled.

Opinion

28. Prescription: The pursuer in this case bases his claim for damages for personal injuries upon averments of an obligation on the part of Mr. Gilmartin and his representatives to make reparation to the pursuer in respect of the psychiatric condition diagnosed in 1995 and averred to have been caused by Mr. Gilmartin's conduct during 1955 to 1961. This is therefore a case involving one obligation to make reparation, not a case involving several obligations.
29. The Scottish Law Commission in their Report no.74, Prescription and Limitation of Actions, published in November 1982, noted that it was possible that a claim for personal injuries might prescribe as a result of the long negative prescription before the claim became time-barred by limitation law.
30. The Report explains:

"2.1 At present two different rules, one of prescription and the other of limitation, apply simultaneously to personal injury claims: the long negative prescription of twenty years, and the shorter limitation of three years. The prescription runs from the date when the obligation to make reparation has become enforceable, and is not affected by absence of knowledge of injury on the part of the injured person. The three-year limitation runs from the date when the cause of action accrued or when the injured person's justifiable ignorance ceased (if later). The combined effect of the two periods of prescription and limitation is that an obligation to make reparation may be extinguished by the long negative prescription before the triennium has run its course ...

2.5 The possibility cannot altogether be excluded ... that the continued application of the prescription may cause injustice, especially where an injury is initially of a latent character, such as a respiratory disease. At the time of the onset of the disease a person may be quite unaware of his condition, and its true extent and cause may become apparent only after the prescription has run its course. A person who is contracting an industrial disease may cease to work altogether, may be transferred to a different post where he is no longer exposed to dust, or may commence work for a different employer. In all these circumstances the prescription may begin to run against him long before his condition is diagnosed. We know of no personal injury case in Scotland since the passing of the 1954 Act where a defender has successfully pleaded the prescription in such circumstances, but such a case could conceivably arise. We believe this result would be unacceptable if the triennium (which contains principles favourable to the pursuer) had not itself expired. [Footnote: We note, too, that the judicial discretion cannot be exercised when the obligation has been extinguished by the prescription: 1973 Act, section 19A.] We note also that in these circumstances an action would not be time-barred under English law, which has no equivalent to the long negative prescription. This might lead to forum-shopping."

31. The Scottish Law Commission resolved the problem by recommending that claims for personal injuries should no longer be affected by the long negative prescription. Following their recommendation, the Prescription and Limitation (Scotland) Act 1984 was passed, and came into effect on 26 September 1984. In terms of section 6(1) and paragraph 2 of Schedule I of the 1984 Act, section 7 of the Prescription and Limitation (Scotland) Act 1973 was amended such that the long negative prescription no longer affects obligations "to make reparation in respect of personal injuries within the meaning of Part II" of the 1973 Act or in respect of the death of any person as a result of such injuries. Section 5(3) of the 1984 Act provided that the amendment should have effect "as regards any obligation which has not been extinguished before [26 September 1984]". However in the present case, any obligation to make reparation to the pursuer was extinguished by 31 December 1981. Accordingly the significant change in the law made by the 1984 Act cannot assist the pursuer.
32. The question then arises whether the pursuer can obtain any assistance from authorities in limitation law, such as Carnegie, or Shuttleton.
33. As Lord Justice-Clerk Wheatley emphasised in the Inner House in Dunlop v. McGowans, 1979 S.C. 22, the law of prescription is quite separate and distinct from the law of limitation. At page 34 of Dunlop, when comparing section 11 of the 1973 Act (prescription) with section 17 of the Act (limitation) the Lord Justice-Clerk commented:

"Section 11 is in Part I of the Act which deals with Prescription. Section 17 is in Part II of the Act which deals with Limitation of Actions. Section 11 in conjunction with section 6 deals with the extinction of obligations. Section 17 deals with the limitations on the periods within which an action of damages is brought. The extinction of an obligation [by the operation of prescription] means that there is no legal right in existence, a matter of which the court can take notice ex proprio motu, and there is no right of action from the start. Section 17 is a defence to an action which may be invoked by a defender, but there are statutory qualifications which a pursuer may pray in aid. The distinction between the two was clearly stated by Lord Justice-Clerk Cooper in Macdonald v. North of Scotland Bank, 1942 S.C. 369 when he said at p.376: "the principle clearly emerges that the non-enforcement by a creditor of a contractual right for the prescriptive period infers an irrebuttable presumption that the right has been abandoned, and therefore that the correlative obligation has been extinguished, the doctrine of prescription being in this respect in contrast with the doctrine of limitation which merely denies certain rights of action after a certain lapse of time (Bell's Principles, sections 586, 605) ... [Section 11 and section 17] are dealing with entirely different matters and the words used in the respective sections are apposite to the matters with which they are dealing ..."

34. It is clear therefore that Part II of the 1973 Act, which deals with limitation of actions, contains concepts, statutory definitions, and statutory qualifications (many favourable to a pursuer), which do not have an equivalent in Part I relating to prescription. For example, the wording and purpose of the limitation sections 17 and 19A, which assist pursuers, have no equivalent in Part I of the Act. Similarly as case-law relating to limitation has developed, there have emerged approaches and concepts tending to benefit and protect pursuers (see, for example, the decisions in Shuttleton and Carnegie). However, in the light of the clear guidance given in Dunlop v. McGowans, such concepts, developments, and case-law cannot, in my view, be relied upon when construing sections of the Act relating to prescription.
35. In the context of prescription, as is made clear in Dunlop v. McGowans, as soon as some loss, injury or damage is suffered, and there is a concurrence of injuria and damnum, the twenty-year long negative prescription begins to run. For the purposes of long negative prescription, it is irrelevant that there may be further and different manifestations of loss arising out of the injuria and only emerging many years later.
36. The case of Paterson v. Wimpey, cited by counsel for the pursuer, is admittedly concerned with the long negative prescription, and not with limitation. However, the case focuses upon the defenders' lack of averment about the date upon which any injury or damnum was suffered. The Lord Ordinary gave the defenders an opportunity to amend to make averments about the relevant date. When they did not so amend, he held (at page 579F) that one could not, in the absence of express averment, equiparate exposure to asbestos dust with the infliction of injury to health. If the defenders wished to argue that an obligation to make reparation had prescribed by means of the long negative prescription, it was incumbent upon them to aver and prove precisely when the pursuer suffered injury: cf. Strathclyde R.C. v. W.A. Fairhurst and Partners, 1997 S.L.T. 658 at page 660K-L: "... the onus is on the defenders not just to raise the issue [of prescription] in a plea-in-law but also, unless the matter is already clear on the face of the pursuer's pleadings [italics added], to aver and, if necessary, prove facts and circumstances which justify the plea."
37. By contrast, in the present case, on the basis of the pursuer's own averments, it appears to me impossible to avoid the conclusion that the pursuer suffered some sort of loss, injury and damage within the meaning of section 7 of the 1973 Act as soon as the sexual assaults occurred during 1955 to 1961. That loss, injury and damage was sufficient to trigger the running of the long negative prescription, even although further loss, injury and damage might ultimately emerge many years later in the form of a psychiatric illness. A very different approach might be possible in the context of limitation law, but I am here concerned with prescription. In my view, therefore, the long negative prescription extinguished any obligation on the part of Mr. Gilmartin to make reparation to the pursuer by, at the latest, 31 December 1981.
38. Non valens agere cum effectu: As indicated above, I am of the view that the pursuer's averments disclose some loss, injury and damage suffered during the period 1955 to 1961. It follows that I am not persuaded by the argument that he was unable to press his claim because of a legal obstacle. If the pursuer suffered some loss injury and damage during 1955 to 1961, he was entitled to recover damages in respect of that loss, injury and damage until 31 December 1981. So far as the subsequent emergence of a psychiatric condition is concerned, it is in my view incorrect to characterize an inability to sue for a condition which does not yet exist as "an obstacle in law". I consider that there was no impedimentum juris during the years preceding the emergence of the condition in 1995. There was rather, in the context of psychiatric injury, nothing about which the pursuer had cause for complaint, and nothing for which he could claim damages: cf. dicta in Brown v. North British Steel Foundry Ltd., 1968 S.C. 51 at pages 64-65; Paterson v. George Wimpey & Co. Ltd., 1999 S.L.T. 577 at page 579C-E. In other words, rather than having a right of action which was in some way not enforceable, or the fulfilment of which was being obstructed by some legal impediment, the pursuer simply had no loss or injury at that stage for which he could seek damages, and no right of action.
39. I accordingly reject the plea of non valens agere cum effectu.
40. European Convention on Human Rights: As Lord Hope of Craighead observed at paragraph 108 of R. v. A. (No.2) [2001] W.L.R. 1546:

"The rule of construction which section 3 [of the Human Rights Act 1998] lays down is quite unlike any previous rule of statutory interpretation. There is no need to identify an ambiguity or absurdity. Compatibility with Convention rights is the sole guiding principle. That is the paramount object which the rule seeks to achieve. But the rule is only a rule of interpretation. It does not entitle judges to act as legislators. As Lord Woolf CJ said in Poplar Housing and Regeneration Community Association Ltd. v. Donoghue [2001] EWCA Civ 585, section 3 does not entitle the court to legislate; its task is still one of interpretation. The compatibility is to be achieved only so far as this is possible. Plainly this will not be possible if the legislation contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible."

41. In my view, the terms of sections 7 and 11(4) of the Prescription and Limitation (Scotland) Act 1973 - not amended by the Prescription and Limitation (Scotland) Act 1984 - are clear and unambiguous. The legislation "contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible". I therefore consider that it is simply not possible for this court to ignore the words in brackets in section 11(4), and I reject the pursuer's submission that section 11(4) should be read as if the words in brackets did not exist.
42. The pursuer does not seek a declarator of incompatibility. It is not therefore necessary for me to express a view on the question whether the 1973 Act could be regarded as in breach of the Convention.

Limitation

43. Section 17(2)(b): As noted above, parties agreed during the debate that the pursuer's claim had become time-barred by July 1998 in terms of section 17(2)(b) of the 1973 Act. An amendment by the pursuer reflecting that position was allowed during the debate, and the pursuer's fifth plea-in-law was repelled.

    [45] Section 19A: I agree with counsel for the second defenders that there are insufficient averments on record relating to the period between the consultation with the solicitors in 1997 and the service of the summons on the defenders in December 1998. In particular, there are no averments explaining why no action was raised until after the expiry of the triennium in July 1998. Accordingly, if the pursuer's action had not prescribed, I would have put the case out By Order to ascertain whether the pursuer wished an opportunity to amend his pleadings relating to section 19A of the 1973 Act.

Vicarious liability on the part of the second defenders

44. On the question of vicarious liability on the part of the second defenders, I am satisfied that the pursuer has averred sufficient to entitle him to enquiry. While the circumstances are perhaps not quite as strong as those in Lister v. Hesley Hall Ltd., there are nevertheless in my view sufficient averments relating to Mr. Gilmartin's daily physical and mental control over the pursuer as a pupil, with power and authority to instruct and discipline, all arising from Mr. Gilmartin's special position of trust as the pursuer's form-teacher. In my view, the averments disclose a sufficiently close connection between the employment and the abuse as required by Lister. Accordingly I reject the second defenders' argument relating to vicarious liability, and I shall repel the second defenders' seventh plea-in-law.

Conclusion

45. For the reasons given above, I shall repel the pursuer's fourth and seventh pleas-in-law, and the second defenders' seventh plea-in-law; I shall sustain the first defender's third plea-in-law, and the second defenders' second plea-in-law, and grant absolvitor to each defender.