Child abuse time bar: when is it reasonably practicable for victims to know they have a claim?
Lord Malcolm made a significant contribution to understanding of how time bar rules under the Prescription and Limitation (Scotland) Act 1973 operate in claims based upon allegations of historical physical and sexual abuse at residential schools in two decisions issued on 5 and 12 March 2009.
The claims related to abuse of children carried out at Kerelaw School in the 1990s. Actions were not raised in respect of this until 2007, and the question was whether this meant the actions were time-barred under the limitation rules in the 1973 Act, or whether the court might exercise its equitable discretion to extend time under section 19A. Lord Malcolm focused, not on the equitable discretion, but on the specific provision in section 17 of the Act that time starts to run once it is “reasonably practicable” for the pursuer to be aware that the injuries in question were sufficiently serious to justify legal action against a known defender. In holding that the issues should go to proof, Lord Malcolm says (at para 32 of his opinion in CG v Glasgow City Council  CSOH 34):
“No doubt from the outset the pursuer in the present action knew that she had been abused. However, she offers to prove that at that time, and thereafter, she failed to appreciate that her experiences justified seeking advice as to litigation with a view to compensation. In a case of historic sexual abuse the issues of actual awareness that the injuries were sufficiently serious to justify proceedings and the reasonable practicability of acquiring such knowledge at an earlier date may well become intertwined. It is I think widely understood that young people who suffer this form of ill treatment on a regular basis can come to regard it as almost part and parcel of their way of life, and that it can have devastating consequences thereafter which may make it difficult for them to appreciate or discover the significance of what had been done to them The pursuer offers to prove that until 2004 nothing occurred to prompt an alteration in her attitude to what had happened, nor in her awareness or potential awareness as to the legal possibilities. I have recounted the lengthy and detailed averments made by the pursuer. I consider that they are such as to make it very difficult to accept the invitation to exclude the pursuers case under section 17 simply from a consideration of her pleadings.”
The second case, MW v Glasgow City Council  CSOH 37, simply reaffirms these comments in reaching the same decision allowing the case to go to a full proof.