AS TO THE ADMISSIBILITY OF
Application No. 22799/93
by I.B.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 15 May 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 10 August 1993 by
I.B. against the United Kingdom and registered on 21 October 1993 under
file No. 22799/93;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
31 May 1994 and the observations in reply submitted by the
applicant on 8 December 1994;
- the Commission's decision of 4 July 1995 to request further
observations from the respondent Government in relation to
Article 6 taken with Article 14;
- the further observations submitted by the respondent Government
on 16 August 1995 and the observations in reply submitted by the
applicant on 20 October 1995.
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1967 and resident
in Dolgellau. He is represented before the Commission by Mr. Davies
Sykes, a solicitor practising in Y Bala, Gwynedd.
The facts as submitted by the parties may be summarised as
follows.
A. The particular circumstances of the case
At the age of 11, the applicant was taken into the care of the
local authority. He spent approximately six months in a children's home
in Wrexham. During this period, the applicant was subjected to anal
intercourse and was indecently assaulted by three members of staff.
Those members of staff and one other are now facing trial on criminal
charges following a police investigation into the children's home. The
applicant is to appear as a prosecution witness as are other children
who were resident in the home at the relevant time.
The police investigations were commenced in January 1992, during
which the applicant was compelled to relive memories he had in general
succeeded in suppressing. Only in about August 1992 did he become
psychologically capable of contemplating the institution of legal
proceedings. Further, he was unlikely to have appreciated before August
1992 that (i) he had suffered significant physical and/or psychological
injury, and (ii) that such injury was attributable in whole or in part
to the sexual abuse that he had suffered aged 11. Following the
judgment of the House of Lords in the case of Stubbings v. Webb on
16 December 1992, it became evident that any such action would be
statute-barred.
The applicant subsequently pursued an application to the Criminal
Injuries Compensation Board and was offered £5000 compensation for the
injuries he had suffered while in the care of the local authority. The
applicant is currently challenging the level of the award.
B. Relevant domestic law
1. The Limitation Act 1980 ("the 1980 Act")
Actions founded on tort:
"2. An action founded on tort shall not be brought after
the expiration of six years from the date on which the
cause of action accrued."
Actions in respect of wrongs causing personal injuries or death:
"11 (1) 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 provision 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.
(2) None of the time limits given in the preceding
provisions of this Act shall apply to an action to which
this section applies.
(3) An action to which this section applies shall not
be brought after the expiration of the period applicable in
accordance with subsection (4) or (5) below.
(4) Except where subsection (5) below applies, the
period applicable is three years from -
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person
injured.
...
14. (1) In sections 11 and 12 of this Act references to a
person's date of knowledge are references to the date on
which he first had knowledge of the following facts -
(a) that the injury in question was significant; and
(b) that the injury was attributable in whole or in
part to the act or omission which is alleged to constitute
negligence, nuisance or breach of duty; and
(c) the identity of the defendant; and
(d) if it is alleged that the act or omission was that
of a person other than the defendant, the identity of that
person and the additional facts supporting the bringing of
an action against the defendant;
and knowledge that any acts or omissions did or did not, as
a matter of law, involve negligence, nuisance or breach of
duty is irrelevant.
(2) For the purposes of this section an injury is
significant if the person whose date of knowledge is in
question would reasonably have considered it sufficiently
serious to justify his instituting proceedings for damages
against a defendant who did not dispute liability and was
able to satisfy a judgment.
(3) For the purposes of this section a person's knowledge
includes knowledge which he might reasonably have been
expected to acquire -
(a) from facts observable or ascertainable by him; or
(b) from facts ascertainable by him with the help of
medical or other appropriate expert advice which it is
reasonable for him to seek;
but a person shall not be fixed under this subsection with
knowledge of a fact ascertainable only with the help of
expert advice so long as he has taken all reasonable steps
to obtain (and, where appropriate, to act on) that advice."
Extension in the time-limit where a person is under a disability:
"28. (1) Subject to the following provisions of this
section, if on the date when any right of action accrued
for which a period of limitation is prescribed by this Act,
the person to whom it accrued was under a disability, the
action may be brought at any time before the expiration of
six years from the date when he ceased to be under a
disability or died (whichever first occurred)
notwithstanding that the period of limitation has expired.
38. ...
(2) For the purposes of this Act a person shall be
treated as under a disability while he is an infant, or of
unsound mind."
Discretionary exclusion of time limit for actions in respect of
personal injuries or death:
33. (1) If it appears to the court that it would be equitable to
allow an action to proceed having regard to the degree to which-
(a) the provisions of section 11 or 12 of this Act
prejudice the plaintiff or any person whom he represents;
and
(b) any decision of the court under this subsection would
prejudice the defendant or any person whom he represents;
the court may direct that those provisions shall not apply to the
action, or shall not apply to any specified cause of action to
which the action relates.
...
(3) In acting under this section the court shall have regard to
all the circumstances of the case and in particular to-
(a) the length of, and the reasons for, the delay on the
part of the plaintiff;
(b) the extent to which, having regard to the delay, the
evidence adduced or likely to be adduced by the plaintiff
or the defendant is or is likely to be less cogent than if
the action had been brought within the time allowed by
section 11 or (as the case may be) by section 12;
(c) the conduct of the defendant after the cause of action
accrued...
(d) the duration of any disability of the plaintiff arising
after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and
reasonably once he knew whether or not the act or omission
of the defendant, to which the injury was attributable,
might be capable at that time of giving rise to an action
for damages;
(f) the steps, if any, taken by the plaintiff to obtain
medical, legal or other expert advice and the nature of any
such advice which he may have received..."
2. Stubbings v. Webb and Another
On 16 December 1992, the House of Lords in the case of Stubbings
v. Webb, held that claims arising from the intentional infliction of
injury did not fall within the ambit of section 11 of the 1980 Act and
were consequently outside of the scope of sections 14 and 33 of that
Act. Victims of intentional infliction of injury are therefore unable
to obtain the benefit of the more flexible limitation periods available
to victims of unintentional injury. In reaching that decision, the
House of Lords overruled the Court of Appeal decision which was based
on previous Court of Appeal precedent (Letang v. Cooper 1965 1 QB 232).
COMPLAINTS
The applicant complains under Article 6 of the Convention that
he is denied access to court to take a civil action for damages in
relation to incidents of sexual abuse to which he was subjected as a
child. He submits that intentionally inflicted injuries may give rise
to latent psychological and physical damage that should be treated in
the same way as latent damage arising out of accidental injuries. He
further complains that the limitation period for someone of unsound
mind does not start to run until that person ceases to be of unsound
mind, however long a period after the relevant harm was done.
In his observations in reply the applicant also complains under
Article 3 of the Convention that the abuse which he allegedly suffered
in the children's home constituted inhuman and degrading treatment. He
further complains in those observations that he did not have an
effective domestic remedy as guaranteed by Article 13 of the
Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 10 August 1993 and registered
on 21 October 1993.
On 2 March 1994, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 30 May 1994,
after one extension in the time-limit fixed for this purpose, and the
applicant's observations in reply were submitted on 8 December 1994
after three extensions in the time-limit.
The applicant was granted legal aid on 18 October 1994.
On 4 July 1995 the Commission invited the Government to submit
written observations in relation to Article 6 taken with Article 14 of
the Convention. These further observations were submitted on 16 August
1995. The applicants observations in reply were submitted on
20 October 1995.
THE LAW
1. The applicant complains under Article 3 (Art. 3) of the
Convention that the abuse to which he was subjected when he was in the
children's home constituted inhuman and degrading treatment. Article
3 (Art. 3) of the Convention reads as follows:
"No one shall be subjected to torture or to inhuman and degrading
treatment or punishment".
The Commission however is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision as Article 26 (Art. 26) of the Convention
provides that the Commission "may only deal with the matter... within
a period of six months from the date on which the final decision was
taken." It is established case-law that the six month period may begin
to run either from the date of a "final decision" taken in the
exhaustion of an effective and suffient domestic remedy or from the
date of the act or decision complained of where such act or decision
finally determines the applicant's position on the domestic level (eg.
No. 9599/81 dec. 11.3.85 D.R.42 p. 33).
The Commission notes that the applicant had the requisite
knowledge and was psychologically capable of taking proceedings
relating to harm suffered as a result of the abuse, at the latest, in
August 1992. On 16 December 1992 the decision of the House of Lords
in the case of Stubbings v. Webb confirmed that the provisions of the
Limitation Act 1980 barred him from taking civil proceedings in
respect of injuries resulting from that abuse. The Commission considers
that the judgment of the House of Lords must be regarded as the "final
decision" for the purposes of Article 26 (Art. 26) of the Convention.
The applicant's complaint under Article 3 (Art. 3) was not introduced
until his observations in reply on 8 December 1994. An examination of
the case does not disclose the existence of any special circumstance
which might have interrupted or suspended the running of that period.
This complaint was therefore introduced more than six months
after 16 December 1992 and must be rejected as out of time pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant complains about being denied access to court as a
result of the limitation period applicable to claims arising out of
intentional injury as laid down in the 1980 Act. He submits that cases
concerning psychological and physical damage caused by the intentional
acts of another, can give rise to the same justifications for the
extension of time limits as cases of unintentional injury, that is
where the limitation period can run from "date of knowledge" and can
be extended in the interests of justice. He invokes Article 6 para. 1
(Art. 6-1) of the Convention. The Commission also invited the parties
to address issues which might arise under Article 14 of the Convention
in conjunction with Article 6 (Art. 14+6).
Article 6 para. 1 (Art. 6-1) provides:
"1. In the determination of his civil rights and obligations or
of any criminal charge against him, everyone is entitled to a
fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law..."
Article 14 (Art. 14) provides:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national
minority, property, birth or other status."
The Government argues that the present application has been made
out of time, the relevant decision for the purposes of the commencement
of the six month period being the judgment of 16 December 1992 of the
House of Lords in the case of Stubbings v. Webb.
The applicant submits that the decision of the House of Lords in
Stubbings v. Webb of 16 December 1992 merely clarified the meaning of
the 1980 Act as regards the limitation period applicable in cases of
intentional injury and that the limitation on his access to court by
the provisions of the 1980 Act represents a continuing situation.
The Commission notes that prior to the House of Lords judgment
in the case of Stubbings v. Webb it was accepted that the limitation
period was the same in cases of intentional and unintentional injury
to the person. It considers that the House of Lords judgment which
ruled authoritatively on the proper statutory interpretation of the
applicable limitation periods must be considered as determining the
position of the applicant in relation to any existing rights of action
and consequently must be taken as the "final decision" for the purposes
of Article 26 (Art. 26) of the Convention. It does not find that the
applicant can claim to be the victim of a continuing breach of the
Convention in the circumstances of this case.
The Commission recalls that the applicant introduced his
complaints concerning the operation of the limitation period on his
claim on 10 August 1993, that is more than six months after the
decision of the House of Lords on 16 December 1992. It has found no
indication of any special circumstances which might have interrupted
or suspended the running of the six month period.
It follows that the applicant has failed to submit these
complaints within the requisite six month period and this part of his
complaint must therefore be rejected pursuant to Article 27 para. 3
(Art. 27-3) of the Convention.
3. Insofar as the applicant complains under Article 13
(Art. 13) of the Convention in relation to his complaints under
Article 3 (Art. 3) and Article 6 para. 1 (Art. 6-1) of the Convention,
the Commission must also dismiss these complaints as having been
introduced out of time and reject them pursuant to Article 27 para. 3
(Art. 27-3) of the Convention for the same reasons as set out above.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy