EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Eassie Lord Bannatyne Lord Wheatley	[2010] CSIH 70 Case Ref: A228/07 OPINION OF THE COURT delivered by LORD EASSIE in the cause MW Pursuer and Respondent; against GLASGOW CITY COUNCIL Defenders and Reclaimers: _______

Act: J Mitchell, Q.C., Stirling; Drummond Miller LLP

Alt: G Clark, Q.C.; G Lindsay, Solicitor

23 July 2010

[1] The pursuer and respondent in this action seeks reparation from the defenders and reclaimers in respect of certain wrongs which she avers were done to her while she was resident in Kerelaw Residential School for a period which ended in October 1996. According to the pursuer, who was born in March 1981, she was sent to Kerelaw in 1991 when she was ten years of age. For their part the defenders aver that she was resident in the school from March 1994. Whichever be the correct date of admission to the school, it is accepted that it was administered and operated by the defenders or their statutory predecessors, Strathclyde Regional Council.

[2] The action was commenced on 10 October 2006 when the summons was served upon the defenders. In light of the fact that the pursuer left the school some ten years earlier, and that she attained majority in March 1997, the defenders plead that the action is time-barred.

[3] In view of the action raised by this pursuer, M.W., having certain similarities with an action raised by another resident of the school, C.G., against the defenders, both actions were debated on the Procedure Roll at the same diet. As in the case of the action at the instance of C.G., the Lord Ordinary allowed a proof before answer on all matters. These included the pursuer's plea that in terms of section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973, as amended - "the Act" - the claim is not time-barred and, in the event that the application were time-barred, an application to the court in terms of section 19A of the Act for the exercise of the court's equitable discretion to override the time-bar should be granted. The Lord Ordinary delivered a short opinion in the present case - [2009] CSOH 37 - dealing briefly with one matter not argued in the C.G. action and for the rest he simply referred to the fuller opinion which he had delivered in the C.G. action - [2009] CSOH 34. The separate issue was not revisited in this reclaiming motion by either party. The reclaiming motion was heard at the same diet on the Summar Roll as the reclaiming motion in the C.G. case and, apart from a recognition by counsel that the abuse of which M.W. complains is less serious than that with which the C.G. action is concerned, the two cases were treated by parties as raising the same issues, particularly the proper approach to the provisions of section 17(2)(b)(i) of the Act.

[4] Contemporaneously with the advising of this reclaiming motion, we also advise the reclaiming motion in the action at the instance of C.G. and in common with the approach followed by the Lord Ordinary we refer to and adopt the terms of that opinion in so far as the opinion deals with matters common to both cases. In that opinion we indicate in particular that the view of the Lord Ordinary that the terms of section 17(2)(b)(i) allowed for a subjective assessment of the seriousness of the injury, was a construction of that provision which was not consistent with what had been decided by the First Division in its opinion in AS v Poor Sisters of Nazareth [2007] CSIH 39; 2007 SC 688.

[5] However, as already indicated, counsel for the defenders recognised that the nature and consequences of the wrongs averred by the pursuer in this action are less serious than those in the case of C.G. We therefore consider that the question whether the pursuer's averments may meet the criterion in section 17(2)(b)(i) of the injuries being sufficiently serious to justify the bringing of an action on the statutory assumptions of admitted liability and guaranteed solvency requires separate examination.

[6] We begin with the important observation that, unlike C.G.'s case, the pursuer in this action does not aver that she was the subject of sexual abuse. We also observe that while the pursuer advances a number of complaints critical of the general regime prevailing in the school, it may be open to question whether many of those complaints give rise to a sound claim for reparation by way of damages. For example, the pursuer avers (page 8C of the Reclaiming Print) that a member of staff "punished her by preventing her from going on trips". The pursuer also avers that certain members of staff shouted or swore at her which then finds reflexion in article IX of the condescendence that the staff "knew or ought to have known that it was not appropriate for the pursuer to be verbally abused." The complaint of conduct being "inappropriate" is also found in earlier averments as, for example, in these averments in Article V of condescendence that a male member of staff "behaved inappropriately towards the pursuer, cuddling her and asking her to sit on his knee. He walked into the pursuer's bedroom at night and sat on her bed, making her feel uneasy." There are also averments of alleged mistreatment or inappropriate actions respecting other residents generally, which may be of doubtful relevancy to a personal claim for damages.

[7] If one leaves aside those particular, doubtful averments and looks to the averments of actual physical abuse, in article V of condescendence the pursuer avers that, shortly after she arrived at Kerelaw, on an occasion after she had been returned to the school following her having absconded she was instructed to take a bath, which she refused to do. She then avers that a named male member of staff "and two women members of staff dragged the pursuer to the bathroom, stripped her to her pants and put her in the bath". The pursuer further avers that "on several occasions" the same male member of staff "restrained the pursuer by grabbing her by the throat, or by placing her on the ground and kneeling on her neck. He also sat on her belly and leaned on her chest. On occasions [the member of staff] restrained the pursuer for more than an hour. He deliberately hurt the pursuer and made her cry."

[8] In article VI of condescendence the pursuer avers that another male member of staff punched her on two occasions. The averments then continue - "He slapped the pursuer on the head. He pulled her hair. He physically restrained the pursuer by sitting on her." It is not averred that any of these incidents of assault occurred on more than one occasion, or indeed that they did not occur otherwise than on a single episode.

[9] Finally, in article VII of condescendence it is averred that a third named member of staff "dragged the pursuer along a corridor, placed her on the floor and poked her hard on the upper chest area". The pursuer avers having suffered bruising. There then follows the averment that the same member of staff "hit the pursuer on two or three occasions". No further specification of what is meant by hitting is offered.

[10] In article X of condescendence the pursuer avers that, put shortly, on leaving Kerelaw she had suffered no psychological or material physical injury. When she left Kerelaw in October 1996, aged 151/2 years, she was pregnant, and gave birth to her first child on 1 January 1997 (there then follows an unfortunate social history of concerns respecting the child and subsequent child born to the pursuer). But the pursuer also avers that after she was contacted by the police in February 2005, she was "forced to confront the abuse" and that she has, since that date, suffered from various mental health problems and has been - "diagnosed as suffering from chronic post traumatic stress disorder in conjunction with a very severe level of depression and very high levels of anxiety as the result of her experiences in Kerelaw. She requires to receive psychological treatment to help cope with her anxiety and depression. Without such treatment prognosis is poor." Reference is then made to certain medical reports. Also within the sometimes confused and contradictory averments in article X of condescendence, which also reflect the subjective approach to section 17(2)(b)(i), one also finds this averment:

"Her injuries at that time, namely at the age of 16, were not in fact sufficiently serious to justify bringing an action of damages, bearing in mind the inconvenience and stress involved in bringing a court action."

That averment might thus signal some ultimate appreciation on the part of the pleader of the proper test under section 17(2)(b)(i).

[11] In our view this is indeed a case in which one can see the possible application of the provisions in section 17(2)(b)(i). The pursuer avers a succession of relatively minor matters, to which that last quoted averment is directed, followed by, on the pleadings, averments of the development of significant mental problems following the police making contact with the pursuer in February 2005. We have ultimately come to the conclusion that as respects those anterior injuries, occurring prior to the mental problems averred to have followed consequent to the police making contact with the pursuer in February 2005, we cannot say that on the pleadings the action is plainly time-barred. We would add that, as in the C.G. case, no question of constructive knowledge arises. M.W. knew everything respecting her experiences. It was not suggested that there was anything latent requiring investigatory steps.

[12] By way of some amplification of the reasons for the conclusion which we have just expressed, the actual incidents of assault of which the pursuer complains are on any view minor, or insignificant - even assuming the absence of the possible justifying reasons for the staff having taken the course of restraining the pursuer, the presence of which are perhaps implicit from the pursuer's averments. We have therefore come to the view that in this case we cannot say, on averment, that the actual actionable complaints individually or collectively would clearly have warranted the taking of proceedings prior to a date earlier than three years before the raising of the action. This case, we think, may be one of the borderline cases envisaged by the court in AS v Poor Sisters of Nazareth.

[13] We therefore consider that the pursuer's plea-in-law 3, respecting section 17 of the Act, cannot be disposed of without inquiry before answer. The acceptance by counsel for the defenders that inquiry was also necessary on the application under section 19A which was made in the C.G. case also extended to this case. The reasons for which in the C.G. case we consider that, given a section 19A inquiry before answer, there should also be an inquiry as to the general merits apply also in this case given that the defences are in essentially identical terms.

[14] In these circumstances we shall refuse the reclaiming motion and uphold the Lord Ordinary's interlocutor allowing a proof before answer with all pleas standing.