Council’s ‘Hopeless’ Bid to Avoid Paying Damages

Relevant Cases: A v Hoare H v Suffolk County Council X and Y v Wandsworth London Borough Council [2006] EWCA Civ 395, [2006] All ER (D) 203 (Apr); A v Hoare and other appeals [2008] UKHL 6, [2008] All ER (D) 251 (Jan)

Jurisdiction: UK

Article:

A local council has been criticised by an Appeal judge for its ‘hopeless’ bid to avoid paying damages to a children’s home rape victim. Jonathan Wheeler, director of the Association of Child Abuse Lawyers discusses the issues with Grania Langdon-Down

The victim, now 44, was just 14 when she was raped by Kevin Donaldson, who was jailed for 15 years in 2006 for two rapes and nine indecent assaults while he was principal at a Coventry City Council children’s home in the 1970s and 1980s.

The woman was a central witness at Donaldson’s Birmingham Crown Court trial. Her rape accusation was also believed by Mr Recorder Spink who awarded her £59,500 damages against Coventry City Council in September last year.

The council has already been granted permission to appeal against the damages on the grounds that the award was ‘arguably’ too high, with the hearing set for July. However, it went back to the Court of Appeal to seek permission to appeal against liability. It insisted that at the time the victim was a “manipulative liar” whose word could not be relied upon and argued that it was prejudiced by the almost 20 year delay in the claim coming to court.

However, Lord Justice Sullivan, sitting with Lady Justice Smith, said that the council’s attempts to avoid liability were “fairly described as hopeless”, adding: “Her allegation of rape has been believed not just by a jury but by a judge, both of whom had the advantage of hearing her oral evidence”.

Wheeler is head of the child abuse team at London solicitors Bolt Burdon Kemp and an executive committee member of the Association of Personal Injury Lawyers. “It is very difficult for victims of child abuse to be heard and believed,” he says.

He was involved in the landmark case on limitation time periods for child abuse claims in January last year. X & Y v London Borough of Wandsworth were related appeals in the case of A v Hoare [2008] UKHL 6, which allowed the victim of the serial rapist who won £7 million in the lottery while still in prison to sue him for damages even though it was nearly 20 years since the attack.

Wheeler explains: “Up until the Lords’ ruling the time limit for bringing a claim for assault was six years or, if the victim was a child, their 24th birthday. But that created grave injustices.

“Now these assaults are treated like any other personal injury claims. While these have a three year time limit to bring a claim, judges have the discretion to disapply that time limit if a fair trial is still possible.”

Local authorities, or their insurance companies, increasingly try to find ‘creative’ ways to defend claims from abuse victims, he says, because they are worried that if they pay damages, it will open the floodgate to other claims. “The time issue is often the only defence local authorities have where the abuser has been convicted in a criminal court. But if the evidence is still there to convict then surely the evidence is there to bring a compensation claim.”

He says the system has been “bedding down” since the January 2008 ruling. “We are dealing with a lot more claims which couldn’t have been brought before then, including ones against the Scouts and a private school. The decision was fantastic because it put child abuse victims on the same level as anyone else who sues over a personal injury.”

Article published in Butterworths Law Leader UK Legal News Analysis 3rd April 2009