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Potential pitfalls in historic abuse cases

  • May 20, 2015
  • mmassen
  • Comments Off on Potential pitfalls in historic abuse cases

In the light of the revelations of the widespread abuse perpetrated by Jimmy Savile and others from that era there has been a huge surge in the number of claims made by the victims of historic sexual abuse.

Whilst such claims can be difficult to bring, they are not however impossible.  It is worth looking at the main issues concerning these claims and what can be done to meet them.

Limitation

Following the landmark case of Hoare (the lottery rapist)the limitation period for an intentional assault (rather than an accidental injury) is three years. Prior to this decision it was thought that for this type of assault the period was six years.  While this may not look to be of benefit to a potential claimant, it is worth noting that by these types of claims being subject to S11 of the Limitation Act 1980, there is now a judicial discretion to extend the three year limitation period which is not available to the six year period. In essence, by reducing the period, claimants can now seek to persuade a court to exercise its discretion (under S33 of the act) to extend the limitation period which was not previously available.

The recent case of RE v GE (2015) EWCA CIV 287 sets out the factors a court will take into account when determining whether to exercise its discretion to extend the limitation period. Incidentally the three year period runs either from the date of the incident or the claimants 18th birthday if the assault took place whilst the claimant was a child.

When considering to exercise its discretion, a Court will, in the main, consider whether it would be equitable to allow the action to proceed, and the impact it will have on both parties if the action is allowed to proceed even if, technically, out of time.

It is recognised that over the years, memories fade and recollections of events may become distorted by the passage of time and internal retelling.  For this reason a past conviction of the perpetrator is a great advantage to the claimant as the burden of proof required for the criminal conviction, i.e. one of beyond all reasonable doubt is more than likely to prove sufficient for liability to be established in a civil claim.

The absence of a conviction does not mean that a civil claim cannot proceed. However it is always a great advantage to have a certificate of conviction to support the claim being made.

Vicarious Liability

It may be that a claim can be brought on a vicarious liability basis.  In essence this means that any claim is brought against the perpetrator’s employers.  The great advantage to this is that there is likely to be funds available, usually through insurers to settle an award of damages and legal costs which may not be available if the claim is brought against the individual alone.

For vicarious liability for the assault to exist there needs to be a sufficient link between the duties of the employee and the actions carried out.

In abuse cases it is possible for the abuser to have a margin of control over their victim.  Consider the situation of a doctor who sexually abuses a patient during an examination or a teacher who abuses a pupil during school time or on a school trip.  There has to be a link between the employee’s duties as an employee and the assault.  If somebody was assaulted by a doctor in a nightclub, then this would not be a situation where vicarious liability is relevant as the attendance at the nightclub by both parties is not related to the doctor’s employment.

The definition of employee has been extended to include volunteers and others involved in the furtherance of an organisation regardless of payment of wages or salary. Claims have been allowed against unpaid volunteers at churches and schools who have had access to children and vulnerable adults and abused them.

Claims against an attacker

In the absence of vicarious liability a claimant can consider bringing a claim directly against his attacker.

There are a number of associated problems with this course of action not least in historic cases identifying and tracing the perpetrator.  If they can be found then it may be the case that they do not have adequate assets to warrant claiming against.  In such instances it is worth making investigations into any pensions, property, possessions, etc. that they may have.

It may be the case that the perpetrator has died and his estate has been distributed.  If this is the case then the Claimant has no recourse.  They cannot insist that the estate be re-gathered and distributed to take account of their claim.

Therefore bringing claims for historic abuse can be problematic.  To ensure that you obtain the best possible chance of a successful outcome for a historic abuse claim, it is always best to seek legal advice.

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