S v W

A claim against a non-perpetrating parent for failing to protect a child from foreseeable injury is an action for breach of duty, not trespass to the person, even where the injury was deliberately inflicted by another.

It therefore falls within section 11 of the Limitation Act 1980, with the associated knowledge and discretionary extension provisions. The court cannot add an exclusion for deliberate injury merely because the statutory result is surprising or appears illogical.

The claimant brought personal injury proceedings against both parents, alleging childhood sexual and physical abuse by her father. Her claim against her mother alleged an independent breach of parental duty through omissions, including failure to remove her from the home or report the abuse.

The District Judge struck out both claims as statute-barred under section 2 of the Limitation Act 1980. On appeal, Judge Hague QC restored the claim against the mother; no appeal was pursued against the father. The issue was whether the mother's claim fell within section 11, rather than section 2, and could therefore benefit from sections 14 and 33.

The appeal was dismissed unanimously. The claim against the mother was permitted to proceed to the next interlocutory stage.

1. Russell LJ held that the claim against the mother was not a claim in trespass to the person. She was not alleged to have inflicted the injuries. The claim concerned an independent tort consisting of omissions which allegedly breached the common-law duty of a parent to protect a child from unnecessary or foreseeable injury.
2. The claim therefore fell within section 11 of the Limitation Act 1980. The fact that the underlying abuse was deliberate did not convert the mother's alleged breach of duty into trespass or take the claim outside section 11. Stubbings v Webb [1993] AC 498 concerned claims based solely on trespass to the person and did not govern this different cause of action.
3. Millett LJ agreed. Section 11 could not be judicially qualified by adding an exclusion for a breach of duty to safeguard a claimant from deliberate injury inflicted by another person. That would amount to adding a substantial gloss to the statutory wording.
4. The court acknowledged that the interaction between the limitation provisions could produce an illogical or surprising result, including a possible longer period for a claim against a non-perpetrator than for a claim against the perpetrator. That policy issue was not a basis for a different construction and was a matter for legislative or Law Commission consideration.

The order was that the appeal was refused, with costs not to be enforced without leave. Legal aid taxation was ordered, and leave to appeal was refused.

• Court of Appeal (Civil Division): dismissed the mother's appeal and permitted the claim against her to proceed.
• Slough County Court: Judge Hague QC allowed the claimant's appeal and restored the action against the mother.
• District Judge Western: struck out the claims against both parents as statute-barred under section 2 of the Limitation Act 1980.