Siblings’ action alleging abuse at children’s home run by nuns refused on prejudice grounds

About this case:

• Citation:
  [2022] CSOH 8
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Weir

It was submitted by the defender that the actions raised by pursuers B and W could not be allowed to proceed in terms of section 17D of the Prescription and Limitation (Scotland) Act 1973. The defender argued that it would be substantially prejudiced were the action allowed to proceed. Both pursuers sought an award of £750,000 in damages.

The cases were heard jointly by Lord Weir. Hofford QC appeared for the pursuers and Brodie QC for the defender.

Limited evidence

Both pursuers lived in the home operated by the defender from 8 July to 12 August 1974 while their mother was in hospital. B averred that she was physically and emotionally abused because she was a bed-wetter and specifically named two Sisters as persons who had abused her. In his own pleadings, W stated that he was also punished for wetting the bed and had food stuffed in his ears when he did not eat it.

In their pleadings, the pursuers named a Sister X as one of their abusers. Sister X was convicted of four charges of assaulting children in 2000, with the fourth charge relating to her time at the home. The first pursuer also named another sister, Sister M, however information provided by the defender showed that there was no Sister M working at the home at the time, although another Sister with a similar name was.

The sum of £750,000 was based on each pursuer developing symptoms of post-traumatic stress disorder, as well as solatium, loss of past and future earnings, and the costs of psychiatric treatment. Counsel for the pursuers submitted that the defenders had failed to discharge the onus under section 17D of the 1973 Act to establish that a fair hearing was impossible. The conviction of Sister X reflected a consistency between the allegations of the pursuers and what was found to have been going on in the home at the material time.

It was submitted for the defender that the limited nature of the available evidence prevented a fair hearing. Of the 12 sisters present in the home at the material time, only four were still alive, including Sister X, who had not provided a statement, and three others who did not remember the pursuers. Further, the available documentary evidence was very limited and shed no light on any of the pursuers’ allegations.

Cannot explore credibility

In his opinion, Lord Weir said of his approach to the cases: “I do not consider that the defender’s criticism of lack of cogency in the pursuers’ allegations renders a fair hearing impossible. Lack of cogency may have greater potential traction were it necessary to consider whether or not the defender would be substantially prejudiced by having to answer the claims so many years after the events said to underpin them occurred.”

Turning to causation, Lord Weir said: “The fact that the conduct in each case is alleged to have occurred over a period of time measurable in weeks – perhaps not even very many weeks - against a background in which, as the social work records reveal, the pursuers’ childhood was one disrupted by domestic difficulty and admission to care, might suggest that proof of the component losses in both cases will be a tall order.”

On the lack of documentary evidence, Lord Weir added: “It is reasonable to conclude that the passage of such a long period of time has deprived the defender of the ability to source a potentially more compendious administrative archive relating to the organisation and operation of the Home which may have contained material relevant to the plausibility of the pursuers’ claims that they were subjected to physical abuse by multiple Sisters (including those they have been unable to identify). The inability to do so is a potentially significant factor especially in view of the limited evidence which does exist.”

He concluded: “There is no means of identifying the alleged abusers from the pleadings. That precludes the defender from obtaining from such unidentified individuals’ responses to the allegations on record. It cannot explore with such individuals the essential credibility and reliability of the allegations. It cannot explore with the alleged abusers whether they were in a position within the Home to commit the kind of abuse alleged by these particular pursuers. It cannot even investigate with those individuals the veracity of the allegations made against the two individuals who have been named.”

Both actions were therefore dismissed.