Former residents of Argyll children’s home who alleged historic abuse have actions dismissed

The anonymous pursuers, B and C, were residents of a home, Lagarie, operated by the defender, the Sailors’ Society, at various points from 1968 to 1982. They alleged they had been subject to physical, sexual, and psychological abuse while they were resident and sought various damages for the effect the abuse had on their lives going forward.

The cases were heard in the Outer House of the Court of Session by Lady Carmichael. The pursuers were represented by Milligan QC and the defender by Duncan QC.

Consistent theme

The first pursuer, B, was resident at the home from 1968 to 1970. During that time, he alleged he was physically and psychologically abused by the matron, Anne Miller, employed by the defender, and sexually abused by another employee, Norman Skelton. A previous action for damages was raised in 2005, in which the defender denied liability and pled that it was time-barred in terms of the Prescription and Limitation (Scotland) Act 1973. Decree of absolvitor was pronounced in 2006. Following the amendment of the 1973 Act by the Limitation (Childhood Abuse) (Scotland) Act 2017, B raised a new claim.

The second pursuer resided in the home from 1974 to 1982 when the home was closed down. At that time, the home was run by different employees of the defender, William and Mary Barrie. She also alleged that she had been subject to abuse at the time she was in the home, including being struck with or without implements and being sexually abused by visitors to the home, and that the Barries had enabled this.

By the time of the preliminary proof, all of the pursuers’ alleged abusers were either deceased or unable to be found owing to lack of knowledge of their names and details. The financial position of the defenders was described as “precarious”, and it was unclear whether the cost of both actions could be covered by insurance. Affidavits were provided by various other residents of the home who also spoke to being abused by or witnessing abuse by the defender’s employees.

Counsel for the pursuers submitted that the starting point under the new provisions of the 1973 Act were that the claims were not barred by the passage of time. There was a consistent and compelling theme in the accounts of the witnesses that made the lack of records largely irrelevant. In terms of financial prejudice to the defender, there was substantial insurance cover for the period in question.

It was submitted for the defender that the pursuers had no right to insist on an unfair trial where the prejudice to the defender was substantial. The onus was now on them to establish that proceedings should not be permitted to proceed. The defender was now limited to testing the evidence put forward by the pursuers and was unable to investigate the case in any meaningful way, especially as the alleged abusers were long dead and there were no adult witnesses who could give evidence bearing on the standard of care and discipline in the home.

Fundamental difficulty

In her decision, Lady Carmichael said of the relevant provisions: “There is no ambiguity or want of clarity so far as section 17D(2) is concerned. If a defender succeeds in showing that a fair hearing is not possible, then that is an end of the matter. There is no question of attempting to balance the interests of the parties.”

Addressing the fact that the alleged abusers were dead in both cases, she continued: “Whether the death of a wrongdoer will mean that a fair hearing is impossible, or mean that there is substantial prejudice to a defender, will depend on all the circumstances of the case. I am extremely cautious about proceeding on the basis that the strength or cogency of a pursuer’s case can be such that the absence of evidence from someone whose alleged conduct is so central to the case simply could not affect the outcome.”

Evaluating B’s case, Lady Carmichael said: “I recognise that there are number of witnesses who describe similar abuse, both physical and sexual, and that the availability of corroboration may mitigate to some extent the risk of unfairness. I am not, however, prepared to hold that the evidence of NS or AM could make no difference.”

She continued: “Some former members of staff may yet be traced and be willing to provide statements. The possibility that some evidence may yet become available from them does not remedy the fundamental difficulty caused by the absence of evidence from AM and NS.” 

Turning to the case raised by C, Lady Carmichael said: “It is not easy to discern from the pleadings as they currently stand how C hopes to establish liability on the part of the defender for assaults perpetrated by A, R and S. There is no clear indication in the pleadings how WB and MB enabled this alleged abuse, or what they should have done to prevent it.” 

She concluded: “There is additional prejudice to the defender in C’s case in requiring to answer claims in respect of which it is very unclear on what basis the defender is said to be liable (the sexual assaults by A, R and S), and in respect of which the evidence does not appear to be of good quality (the sexual assaults by sailors). Those are matters that indicate that certain aspects of the claim may have relatively poor prospects of success. That is a relevant matter in assessing the pursuer’s interest in the action proceeding.” 

For these reasons, both actions were dismissed.