Limitation in abuse cases: Nigel Dunn v Durham County Council

This claim was before the courts in 2012 on the claimant’s successful application for non-redacted disclosure of the defendant’s records, which led to the decision of Dunn v Durham CC [2012] EWCA.

Mr Dunn alleged that he had suffered abuse whilst a child and was resident at the defendants Aycliffe Young Peoples Centre. It should be noted that this claim involved allegations of physical and not sexual abuse.

The substantive issues have now been heard and a decision handed down in Teesside Combined Court Centre on 25 October 2019 by His Honour Judge Mark Gargan.

In summary, the claimant lost his claim on both limitation and liability.

Mr Dunn was admitted to the young peoples centre in September 1980 and remained there until July 1984. Mr Dunn alleged assault by a number of members of staff and that he had suffered modest physical and significant psychological injury.

On the facts of this case the primary limitation period expired in April 1990 however legal proceedings were not issued until March 2011.

On Mr Dunn’s evidence, he had a difficult background that included being physically and sexually abused by family members from a young age and also physically and sexually assaulted in another institution before he was admitted to Aycliffe.

The claimant was a serial criminal offender both before and after his time at Aycliffe and there was contemporaneous documentary evidence of him being an inveterate liar.

At trial, evidence was heard on limitation, liability, causation and quantum. Mr Dunn’s lawyers invited the court to exercise its discretion to disapply the limitation period (s33 Limitation Act 1980) and to allow the claim to proceed out of time. This was resisted by the defendant.

The judgment makes reference to the principles of limitation law and the cases of Catholic Welfare Society v CD [2018] EWCA, A v Hoare [2008] UKHL and others.

The burden is on the claimant to show that the court should make an exception to the general rule and disapply the limitation period using its statutory discretion. The burden is not necessarily a heavy one but this will depend on the facts of the case.

The judgment comments that the court has an unfettered discretion to disapply the limitation period where it is equitable (fair and just) to do so.

The court will examine the reasons for a delay after the expiry of the limitation period.

Mr Dunn gave evidence that he told his partner of the abuse in 1996. He says that he was not aware that he had a right to claim damages until reading the prison newspaper Inside Times in 2006 and 2007. Mr Dunn sadly has a long history of offending and periods in prison.

It was not until October 2007 that Mr Dunn contacted his solicitors, Abney Garsden McDonald (now Simpson Millar). The letter of claim was dated December 2007 however the claim form was not issued until 25 March 2011.

Mr Dunn’s Counsel argued that the psychological effect of the abuse played a part in the delay. The defence did not accept that the nature of the claim inhibited disclosure; the real reason was his habitual drug use and regular imprisonment which the court accepted.

The court found that there were inconsistencies in Mr Dunn’s evidence and also drew a distinction between cases of physical and sexual abuse; both claimant and defendant psychiatric evidence was that victims of the former do not put their memories in a box to the back of their mind unlike victims of sexual abuse.

Aycliffe had a background of some criticism. It had been under review by Social Services Inspectorate in 1993 following a TV programme that asserted children were suffering from excessive restraint leading to fractured bones. The Inspectorate report examined events going back to 1986 by which point the claimant had left. The report identified that adult prison restraint techniques were being used and was also critical of the use of force to achieve compliance.

However on the facts of this case HHJ Gargan found that there was a modest but real prejudice on the medical issues, real prejudice when considering standards of restraint and real and significant prejudice in considering the evidence of the central witnesses.

The judge found that the overall prejudice is clearly sufficient to prevent there being a fair trial of the action and that the claim should fail on limitation grounds.

HHJ Gargan also considered what would be his finding on liability if he had exercised his limitation discretion in favour of the claimant. The judge had regard to the guidelines on prosecuting cases of child sexual abuse but nevertheless found that the claimant did not establish on a balance of probability that he had been assaulted as alleged or at all.

Commentary

Mr Dunn had a difficult background and there were issues around his credibility as a claimant.

The case involved physical and not sexual abuse although there was evidence of sexual abuse elsewhere.

The claim was statute barred for limitation and the claimant failed to establish on a balance of probability that he had been assaulted.

Limitation defences are very case specific. The issue of the application of the law of limitation in sexual abuse claims is currently being closely considered by the Independent Inquiry into Child Sexual Abuse. .This case highlights many of the challenges for all parties in connection with limitation issues.


Dover_G-28-print Written by Garry Dover, partner at BLM

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