FZO v Adams & Anor

Under section 33 of the Limitation Act 1980, the claimant bears the burden of showing that it is equitable to disapply the limitation period. The court must assess all the circumstances, including the reasons for delay and the real possibility of significant prejudice caused by evidential deterioration. Grooming may impair a victim’s freedom to consent even where there is no violence and the victim submits to sexual activity. For vicarious liability, the relevant question is whether the employee’s misuse of the position entrusted to him is sufficiently closely connected with the employment. Childhood sexual abuse following grooming may satisfy the diagnostic criteria for complex PTSD, including where the victim only later understands the abuse and physical escape was possible.

The claimant sought damages for prolonged sexual abuse by his former PE teacher while he was a pupil at Highgate Wood School and, subsequently, after leaving and later returning to the school. The first defendant admitted sexual activity and pleaded guilty to four criminal offences. The second defendant accepted vicarious liability for abuse during the claimant’s first period at the school but disputed liability for later conduct. Both defendants relied on limitation and disputed consent, causation, the extent of the abuse and damages.

The central issues were whether section 33 of the Limitation Act 1980 should be applied, whether the claimant had freely consented after leaving school, whether the second defendant was vicariously liable for later assaults, and whether the abuse caused the claimant’s complex PTSD and resulting loss.

1. Limitation. The claimant established that it was equitable to allow the action to proceed against both defendants. The delay was very substantial, but it resulted from grooming and emotional manipulation which caused the claimant to depend on the first defendant and not recognise the conduct as abuse. The delay had not created a real possibility of significant prejudice preventing a fair trial. The evidence remained sufficiently cogent, liability was substantially admitted, and the missing evidence would have been of limited assistance on the disputed extent of the abuse and causation. The provisions of section 11 of the Limitation Act 1980 were therefore disapplied.
2. The first defendant groomed the claimant from the age of 13 by exploiting his vulnerability after the rape by John Paul Monteil, isolating him and representing himself as the only person who would accept him. The claimant submitted to, rather than freely consented to, the sexual activity. That conclusion applied throughout the period up to the claimant’s departure for Australia in 1988.
3. The grooming and manipulation were closely connected with the first defendant’s pastoral duties as a teacher. Applying the two-stage approach in Mohamud v Wm Morrison Supermarkets PLC [2016] AC 677, the first defendant misused the position entrusted to him. The connection was not broken when the claimant left or returned to the school, or when the first defendant ceased directly to teach him. The later assaults were a continuation of the original conduct, and the second defendant was vicariously liable.
4. Complex PTSD was an available diagnosis where a victim only later understood the nature of childhood sexual abuse, where grooming produced acquiescence, and where escape was difficult psychologically rather than physically. The claimant satisfied the relevant diagnostic requirements and suffered complex PTSD.
5. On the balance of probabilities, the first defendant’s abuse caused the claimant’s disorders. The rape by Monteil and bullying contributed only to a limited extent. The 2011 breakdown was precipitated by loneliness and substance use, but the claimant’s continuing inability to work resulted from complex PTSD caused by the abuse.
6. The public-policy rule discussed in Gray v Thames Trains [2009] 1 AC 1339 did not bar the claim for loss of earnings. The claim was not founded on, or inextricably linked with, criminal conduct, and any contribution from voluntary drug use was minor and transient.
7. Quantum was not finally determined. The parties were given an opportunity to agree damages and the indemnity between the defendants, failing which limited written submissions and, if necessary, short oral submissions would follow.

Not stated in the judgment.