A B & Ors v The Nugent Care Society

Where liability is alleged for deliberate abuse by an employee, the claim may fall in trespass and be subject to the non-extendable six-year limitation period. A concurrent breach-of-duty claim does not avoid that result where the employer is alleged to be vicariously liable for the employee’s deliberate acts.

A distinct claim based on the employer’s own systemic negligence, such as failing to protect a child from a known risk posed by another employee, falls within section 11 of the Limitation Act 1980 and may benefit from the section 33 discretion.

The claimant had been placed in residential care and alleged repeated sexual and physical abuse by the headmaster, Hoskin, and another member of staff, Dick. The defendant sought a further ruling that the claim was statute barred under sections 2 and 11 of the Limitation Act 1980, contending that all the assaults constituted trespass and were subject only to the six-year limitation period.

The central issue was whether the claims were claims for deliberate trespass, or instead claims for breach of duty or negligence capable of falling within sections 11 and 33.

1. Hoskin’s assaults. The claim arising from Hoskin’s own assaults could not be distinguished from the claim considered in KR v Bryn Alyn Community (Holdings) Ltd. The court was bound by that decision and by the position confirmed in A v Hoare. The claim was therefore characterised as trespass and was subject to the expired, non-extendable six-year limitation period.
2. Hypothetical alternative analysis. If free from binding authority, the court would have held that the defendant owed a child in its care a duty of care requiring reasonably practicable protection from reasonably foreseeable physical, psychiatric and psychological injury. That duty was supported by regulation 3 of the Community Homes Regulations 1972 and paragraph 22 of the St Aidan’s management instrument. The duty was delegated to the headmaster, whose failure to institute and maintain adequate protective systems would have made the defendant vicariously liable under principles derived from Lister v Hesley Hall Ltd. This reasoning was expressly tentative and did not displace the binding authorities.
3. Dick’s assaults. The court could distinguish the claim concerning Dick from the private assaults considered in KR v Bryn Alyn Community (Holdings) Ltd. There was no immediately apparent basis for vicarious liability in trespass for Dick’s conduct. The real claim was that Hoskin, despite actual knowledge of Dick’s propensity, failed to institute or maintain systems protecting the claimant from a foreseeable risk. That was a negligence claim within section 11.
4. The claim based on Dick’s abuse was therefore not statute barred and remained subject to the earlier section 33 decision. The claim based on Hoskin’s abuse was statute barred. The court made no further alteration to its section 33 ruling.