In a recent decision, which received widespread media attention, the House of Lords changed the law on the time limits within which a claimant can bring a claim for deliberately inflicted personal injury, including sexual assault.

The primary time limit within which a claim for personal injury can be brought is either three years from the date of injury caused by negligence, nuisance or breach of duty or three years from the date of knowledge (if later) of the person injured. Knowledge means knowledge: (a) that the injury was significant; (b) that it was caused by the acts of the defendant; and (c) of the identity of the defendant (or any third party who caused the injury that permits the claim against the defendant). The court also has a discretion to extend this period.

Prior to the recent House of Lords decision, the above time limits did not apply to injury caused by deliberate assault (as opposed to negligent breaches of duty). In cases of deliberate assault the claimant had to bring a claim within six years of the injury caused by the assault. The claimant could not rely on a time limit that ran from the date on which he had the required knowledge. Nor did the court have a discretion to extend this time period.

But in A v Hoare & Others, the House of Lords decided

  1. a victim of a deliberate assault does in fact have three years from the injury caused by the assault or from the date of knowledge (if later) to bring a claim;
  2. the court has a discretion to extend this period;
  3. whether or not a claimant "knows" he has a significant injury for the purposes of starting the time limit is essentially objective. It depends on (a) what he actually knows about his injury; (b) what he might reasonably be expected to know in the circumstances; and (c) whether a reasonable person would in those circumstances reasonably (and objectively) have considered it sufficient to allow him to bring a claim; and
  4. that the court will consider whether the actual claimant could reasonably have been expected to commence proceedings when deciding whether or not to exercise the discretion to extend the time limits.

So does this decision increase insurers’ exposure, as has been reported?

Potential claimants will now have three years from date of knowledge to bring claims, rather than six years from the date of injury. Further, claimants will be able to ask the court to exercise its discretion to extend the time limits. [At least one of their Lordships expect that "a substantially greater number of allegations… are now likely to be made many years after the abuse complained of…" suggest instead: The House of Lords commented that there could be a substantial increase in allegations made many years after the alleged abuse occurred.]

The main area of exposure may be to Employer’s Liability and Public Liability insurers, particularly of local authorities, providers of care homes, detention centres, hospitals and schools. This is particularly so given the House of Lords’ decision roughly seven years ago that employers can be vicariously liable for sexual abuse by employees provided there is a sufficiently close connection between the work which the employee was employed to do, and the acts of abuse. Victims may now conclude that they have an arguable case for abuse many years ago against organisations backed by perceived deep pockets, where their claim would previously have been timed barred.

It is not clear, however, that insurers’ exposure will in reality be as significantly increased as has been suggested. First, the primary limitation period has in fact been reduced from six years to three. It is by no means the case that a claimant who can bring a claim within three years of the date of knowledge is always in a better position than one who was able to claim within six years of the date of injury. Secondly, and crucially, the House of Lords emphasised that the discretion to extend the time limit will not necessarily be exercised in favour of claimants. In many cases, a fair trial will be found impossible after a long delay.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

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The original publication date for this article was 28/02/2008.