Limitation, consent and vicarious liability

In FZO v London Borough of Haringey [2020] EWCA Civ 180, the Court of Appeal considered an appeal from the trial judge awarding the claimant the sum of £1,121,937.50. The claimant had been abused by a school teacher between 1980 and 1983-4 while at school, and after he had left school up until the age of 21 in 1988. The local authority had accepted that it was vicariously liable for the teacher’s assaults between 1980 and 1982 but not thereafter, alleging that after the claimant left the school he was consenting to the abuse. The grounds of the local authority’s appeal rested on limitation, the issue of consent, vicarious liability and causation.

In relation to limitation, McCombe LJ said that the trial judge’s judgment had been a long and careful one. She had summarised the important decisions on the application of the principles affecting the exercise of the discretion to disapply a limitation period under section 33 of the Limitation Act 1980 and she had reminded herself of the need not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation and, in particular, the effect of delay on the cogency of the evidence.

Cogency of evidence

There was some inconsistency in the evidence and at times the claimant had exaggerated or over-dramatised aspects of his evidence, but these were not such that the claimant’s claim must fail. She had also accepted the evidence of the claimant’s psychiatrist that it was impossible to look at the behaviour of the claimant and the teacher after the claimant left school separately from the grooming and abuse of him while he was at the school. In relation to the cogency of the evidence, the trial judge had concluded that the memory of neither the claimant nor the abuser had been affected to such an extent that the matter could not be safely tried. As for missing evidence, she concluded that there was likely to have been little evidence available about this at any time and, moreover, that the defendant had not sought to find any such evidence. Notwithstanding delay, both psychiatrists had been able to reach firm conclusions. It was reasonable for the claimant to have waited until the conclusion of the criminal proceedings to issue proceedings.

Limitation issue

McCombe LJ regarded as being wholly unrealistic the local authority’s submission that the judge could not properly consider the respective credibility of both the claimant and the teacher when dealing with the limitation issue. If a defendant chose, in a case of this type, to argue that a limitation period should not be disapplied because of the total lack of credibility of the claimant he/she/it must take the risk that a judge would have to assess the credibility of both sides, even for limitation purposes.

There were other issues to be considered in deciding whether to exercise the discretion under section 33, which the judge considered fully and properly. The ability to hold a fair trial was not ‘the be all and end all’, particularly in a case where much of what the claimant said had happened was accepted by the abuser himself. No significant concrete examples of missing witnesses had been advanced by the local authority. None of the matters now suggested in the appeal to be material appeared to have been investigated and there was nothing to show that other witnesses were sought but not found. An appellate court would be very slow to interfere with a decision under section 33, so long as there had been no misdirection of law or misapprehension of significant facts.

On the issue of consent, case law showed that submission was not the same as consent, whether in the criminal law or the civil law. The judge found, having heard the oral evidence of both the claimant and the teacher (and assisted by the expert witnesses to understand that evidence in the light of the claimant’s mental state), that the claimant did not truly consent to what happened to him at the hands of the teacher in the period up to 1988. An appellate court could not second-guess this judge’s judgment on this point, based as it was on her assessment of both the detailed factual and expert evidence, given by witnesses whom she saw and heard.

With regard to vicarious liability, the local authority had submitted that it was not liable in respect of any of the acts that occurred after the claimant left the school. The judge referred to the two-stage test for liability set out in Mohamud v Wm. Morrison Supermarkets PLC [2016] AC 677 and found that the test was clearly satisfied in respect of all periods. The later assaults were simply a continuation of the behaviour that commenced while and because the abuser was the local authority’s teacher. McCombe LJ said that the judge had correctly identified the two stages of the test. As was noted in Wm. Morrison Supermarkets, the time and place at which the act or acts occurred would always be relevant, though not conclusive.

Causation

In relation to causation, the judge had preferred the opinion of the claimant’s psychiatrist and she was entitled to do so. There was some agreement between the psychiatrists, and at one stage the local authority’s expert had said that if the court accepted the claimant’s account that he was groomed in the way that he said he was his opinion on this matter would be different. McCombe LJ said that it was extremely important in this case to note that each of the experts recognised very fairly that their opinions might change in the light of the court’s decisions on the primary facts as to the nature and extent of the abuse and as to the question of who was the instigator of the sexual activity.

McCombe LJ and the remainder of the court dismissed the appeal.

Malcolm Johnson is a senior solicitor at Hudgell Solicitors