Are Victims of Historic Child Abuse Being Denied Access to Justice by the Prescription and Limitation Regime in Scotland? : Proposals for Reform

Abstract

This thesis critically examines the law of prescription and limitation of actions with a particular focus on obligations and actions arising from personal injury suffered by victims of historic abuse. Case law on limitation from the Scottish courts in recent years has been dominated by actions arising from alleged historic abuse yet most of these cases have foundered at the limitation hurdle and the victims, accordingly, have been left uncompensated,notwithstanding that the circumstances giving rise to the civil proceedings have often resulted in criminal convictions. This thesis closely analyses the reasons for the failure of the civil cases. It aims to make an original contribution to knowledge by identifying a clear lacuna in the law which requires to be addressed. It does so through an examination of the author’s prior published works and a critical review thereof. It is argued that the existing legislative provisions have effectively prevented access to justice by those who have suffered grievous injury as a result of abuse in childhood. While the law of limitation has developed to provide a route for redress for those who were initially unaware of their injuries (for example asbestos is victims) and to relieve hardship in difficult cases (a judicial discretion exists to disapply the time bar if equitable to do so), the law remains largely impotent to assist those who suffered abuse in childhood and who suppressed their memories or declined to talk about their experiences. It is only in very rare cases where the defender has declined to state a plea of limitation or where the court has been amenable to an extension of time, on equitable grounds, that survivors of abuse have had any sense of resolution. The demise of “the Carnegie rule”, namely the removal of the separate triennium in respect of later emerging injuries, and the reassertion of the one action rule in the leading case of Aitchison v Glasgow City Council have created further obstacles for victims of historic abuse whose psychiatric injuries emerge only many years after the infliction of physical injury. The thesis and the published works upon which it is based argue that the law as it stands is woefully inadequate and is in urgent need of reform. The writer examines proposals for reform made by the Scottish Law Commission in 2007 and the Scottish Government in 2013 and concludes that such proposals, while welcome, perhaps do not go far enough to address the particular difficulties faced by historic abuse victims in their attempts to obtain compensation through the civil courts. More radical reform may be required in order to bring an end to the scandal which has disgraced Scotland’s civil justice system for too long. Such radical reform was the subject of a consultation exercise which was launched by the Scottish Government in 2015 and which sought views on the removal of the three year limitation period for the survivors of in care historic abuse. The Scottish Government has now announced its intention to remove the three year limitation for civil actions for damages for personal injury for in care survivors of historical child abuse which occurred after September 26, 1964 and a draft Bill to that effect has been published. It is hoped that, following the conclusion of the Parliamentary process, the inadequacies which are evident in the current law will be addressed and justice will finally be delivered to those who have been grievously wronged in childhood.

Date of Award	2016
Original language	English
Awarding Institution	Glasgow Caledonian University
Supervisor	Manos Magkanaris (Supervisor) & James Campbell (Supervisor)