News In Focus
11 March 2009
Judge allows proof in historic abuse case
A judge has ruled that a damages claim by a former pupil of the Kerelaw Residential School in Ayrshire can proceed, despite the alleged abuse on which the action is based having taken place more than a decade ago.
Lord Malcolm in the Court of Session ruled that a girl referred to as CG should be allowed to try and prove her case that the facts necessary for the normal three year limitation period to run against her, did not all exist until some time in 2004. Her action was raised in early 2007.
The judge also held that evidence on the facts relating to her claim should be heard at the same time, as the two issues were entwined and the pursuer, who had previously given evidence in criminal proceedings against her alleged abusers, should not have to face two further court appearances.
In 2006, Matthew George, an art teacher, was jailed for 10 years at the High Court for a "horrifying catalogue" of 18 offences of abuse at Kerelaw. John Muldoon, a care worker, was sentenced to two and a half years for four offences. The pursuer gave evidence at the trial.
The pursuer, who was born in 1978, is seeking damages from Glasgow City Council, which ran the residential school. In her pleadings she alleged that she was subjected to brutal physical treatment and sexual abuses between 1992 and 1995 by those employed at Kerelaw.
CG further claimed that she turned to drug abuse to block out memories of the abuse she had suffered, and thus protected herself from experiencing or suffering injury as a result. She suffered mental health problems and had inflicted self harm on a number of occasions. In 2004 police began an inquiry and this forced her to confront the abuse, which made her psychlogical symptoms worse. However it was not until she consulted solicitors in 2006 that she understood that she might have an injury and a legal claim.
Contrasting the legislation on time bar in Scotland and England, Lord Malcolm said the Scottish Act of 1973 "simply requires a consideration of whether and when there were reasonably practicable steps available to the particular pursuer, whether by seeking advice or otherwise, which, if taken, would have alerted him to the statutory facts. It does not tell the court to proceed by reference to a hypothetical reasonable claimant as opposed to the actual pursuer in the case".
He added: "importantly in cases of the present type, I see no reason why any proven consequences of the abuse which are relevant to the reasonably practicable test must be excluded from the court's consideration...
"It is I think widely understood that young people who suffer this form of ill treatment on a regular basis can come to regard it as almost part and parcel of their way of life, and that it can have devastating consequences thereafter which may make it difficult for them to appreciate or discover the significance of what had been done to them."
He noted in addition that CG offered to prove that she had suffered psychological injury that did not occur until within three years of the raising of the action, and ruled she should be allowed proof of this point also.
Last year Law Lords ruled that two former residents of Nazareth House in Glasgow could not pursue their compensation claim because the alleged abuse, which occurred in the 1960s and 1970s, happened too long ago.
Lord Malcolm’s full ruling can be viewed at http://www.scotcourts.gov.uk/opinions/2009CSOH34.html.