Limitation of Actions Consultation - Law Commission

significant. In the case of sexual abuse claims, the limitation period will therefore
not start to run until such time as the plaintiff knows, or when the plaintiff in his or
her circumstances and with his or her abilities ought to have known, of the harm
that he or she has suffered, and that it is attributable to the conduct of the
defendant. Applying this discoverability test to claims by sexual abuse victims will
resolve many of the problems which the current accrual method can cause in this
area. It has been suggested that plaintiffs claiming for compensation for child
sexual abuse fall into two categories. First, those who were aware of the sexual
abuse at the time it occurred, but who are unaware for several years that the
subsequent physical and psychological problems they suffer can be attributed to
the abuse. Secondly, those plaintiffs who claim that the trauma of the abusive
experience has caused them to repress their memories of abuse entirely so that
they are unaware of what they have suffered until a later event triggers their
memory. 39
The extent of the knowledge required by our definition of
discoverability should protect plaintiff in both categories. For example, if a
plaintiff had knowledge of the abuse, the injury and who the perpetrator was this
would still not constitute relevant knowledge if he or she did not know (and in his
or her circumstances and with his or her abilities could not reasonably have
known) that his or her injury resulted from the abuse.
13.32 Some guidance on how the courts would apply a discoverability test can be found
in the Court of Appeal judgment (later overturned by the House of Lords) in
Stubbings v Webb. 40
The Court of Appeal held that the limitation period applicable
to the claim was governed by section 11 of the 1980 Act, and therefore ran from
the date of knowledge of the plaintiff. In this case, although the plaintiff was aware
of the acts which had been committed against her (so that it was not a case of
“repressed memory”), she did not appreciate that the psychiatric problems she
suffered throughout her minority, and on into her adult life, were caused by the
abuse until nearly ten years after she attained her majority. The court accepted
her evidence to this effect, and further found that she could not reasonably be
expected to acquire knowledge of the causal link
since mental impairment caused as this allegedly was almost necessarily
produces a lack of insight and during the period in question there was not
that general awareness among the public of the psychological effects of
child abuse which certain well-publicised events since then have caused. 41
It should be noted that the court suggested that a plaintiff coming of age in the
late 1980s would find it very difficult, if not impossible, to establish that she had
acted reasonably in not starting proceedings within three years of majority, as a
result of the heightened public awareness of the effects of such abuse. 42
Under our
core regime, this would depend on the circumstances of the individual plaintiff.
Where, for example, a plaintiff has reacted to the abuse by denying its
39 See N Clevenger, “Statute of Limitations: Childhood victims of sexual abuse bringing civil
actions against their perpetrators after attaining the age of majority.” (1992) 30 JFL 447,
453.
40 [1992] 1 QB 197.
41 [1992] 1 QB 197, 207 per Bingham LJ.
42 [1992] 1 QB 197, 208, 212.
333