London Borough of Haringey v FZO

When deciding whether to disapply the limitation period for a historic abuse claim, the court may assess the claimant’s credibility against the credibility of the defendant’s witnesses. It must still consider whether delay has caused significant evidential prejudice.

Consent to sexual activity requires freedom and capacity to choose. Submission produced by continuing psychological coercion or grooming is not consent. An employer may remain vicariously liable for assaults after the victim leaves the institution where an abuse of the employee’s entrusted position created continuing control which caused those later assaults.

A former pupil obtained damages against his former physical education teacher and the London Borough of Haringey for sexual abuse extending from his school years until adulthood. The High Court disapplied the primary limitation period, found that grooming prevented true consent, held the authority vicariously liable for the later assaults, and found that the abuse caused the claimant’s breakdown and continuing disability: [2018] EWHC 3584 (QB).

The authority appealed on limitation, consent, vicarious liability and medical causation. The central questions were whether the trial judge had properly assessed prejudice from the long delay, whether conditioned submission amounted to consent, whether the employment connection survived the claimant’s departure from school, and whether the causation findings were sustainable.

1. Appeal dismissed. The judge had correctly exercised the discretion under section 33 of the Limitation Act 1980. A court determining limitation and the merits together must assess the effect of delay and must not infer from success on the available evidence that disapplication is equitable. It may nevertheless consider findings made after a full trial. Where a defendant attacks the claimant’s credibility to resist disapplication, the court may assess that challenge against the credibility of the rival witnesses. The judge had considered missing evidence and expert difficulties and was entitled to find no real possibility of significant prejudice.
2. Consent to sexual activity requires freedom and capacity to choose. Submission is not consent. Grooming and psychological coercion may override genuine choice even after the victim reaches adulthood. The judge was entitled to find that the teacher’s manipulation and the dependency created at school remained operative until 1988. The respondent’s apparent participation was therefore submission rather than true consent.
3. The two-stage vicarious liability test required a relationship capable of attracting liability and a sufficient connection between the employee’s entrusted position and the wrongdoing. Time, place and formal duty status were relevant but not conclusive. The teacher had misused the pastoral position entrusted to him to create control and dependency. Because that control continued to cause the later assaults, the necessary connection remained after the respondent left school.
4. The judge was entitled to find that the abuse caused the 2011 breakdown and continuing inability to work. McCombe LJ and Simon LJ upheld the preference for the diagnosis of complex post-traumatic stress disorder. Nicola Davies LJ considered that inadequate weight had been given to the earlier treating clinicians’ diagnoses and that this amounted to an error of law. The error was immaterial because causation followed on either the complex post-traumatic stress disorder or emotionally unstable personality disorder diagnosis once the primary findings about grooming were accepted.

• Court of Appeal (Civil Division): The authority’s appeal was dismissed. The findings on limitation, consent, vicarious liability and causation were upheld: [2020] EWCA Civ 180.
• High Court, Queen’s Bench Division: Cutts J disapplied the limitation period, found the defendants liable and subsequently awarded damages and interest: [2018] EWHC 3584 (QB).