“NOTHING SHORT OF A RECOGNISED PSYCHIATRIC INJURY CAN AMOUNT TO A PERSONAL INJURY”: SECTION 33 CANNOT APPLY WHERE THE CLAIMANTS SUFFERED “FEAR”

The judgment of Mr Justice Stewart in Kimathi & Ors v The Foreign and Commonwealth Office [2018] EWHC 1305 (QB) (24 May 2018) considers the question of what is an “injury” for the purpose of Section 33 of the Limitation Act 1980.  It was held that “fear” did not amount to an injury. A claimant who based his action on “fear” could not, therefore, rely on section 33.

THE CASE

The action concerns a large number of claims brought for assault, battery and negligence relating to detention in Kenya in the 1950s. There are over 40,000 claimants. There are 25 test claimants.  The claimants have given evidence.  The trial started in April 2017.  It is unlikely to finish before the long vacation in 2018.  The claimants have served final submissions and the court is due to start hearing those submissions in June 2018. The case has already given rise to numerous judgments on interlocutory matters, there have been seven posts on this blog so far in relation to some (but not all) of the interlocutory judgments.

THE ISSUE IN THIS JUDGMENT

The claimants were bringing an action outside the three year or six year limitation period.  The judge found that the defendant had not been guilty of deliberate concealment.    Several of the claimants have a cause of action based on the defendant causing fear.  The issue was, therefore:

“Whether fear, caused either by the tort of negligence or trespass, amounts to personal injury so that the Court has the discretionary power to exclude the 3-year limitation period which arises under section 11 of the 1980 Act.”

THE JUDGE’S FINDINGS: FEAR DID NOT AMOUNT TO INJURY

  • Fear did not amount to injury. The judge considered the claimants’ submissions and held “None of these submissions, in my judgment, changes the position clearly founded in the authorities that anything short of a recognised psychiatric condition cannot amount to a personal injury”
  • It was important that there was consistency between statutes:
    “the same definition of “personal injury” used in s.38 of the Limitation Act 1980 is to be found in other statutes[22]. The approach of the courts has been to adopt a consistent construction of “personal injury”. So in the Adams case Lord Hoffman said at para 18 “it also seems to me that although strictly speaking the Anderton case decides only that the claim was for personal injury within the meaning of section 33 (2) of the Supreme Court Act 1981, the reasoning is equally applicable to section 11 of the Limitation Act 1980, which by section 38 (1) defines “personal injury” as including any disease and any impairments of a person’s physical or mental condition.”
  • The Human Rights Act did not make any difference to this construction:
(1) There is no question but that “fear” is not a personal injury. Therefore, there is no balance to tip. The authorities are clear. Nothing has been said in any subsequent case before the House of Lords or the Supreme Court which undermines what Lord Bridge said in Hicks.
(2) The Claimants have a right to action in trespass to the person[32] subject to a limitation bar:
(i) If the trespass causes personal injury then:
(a) There is a 3-year limitation period from the date of the injury, or the date of knowledge, whichever is the later.
(b) This is subject to section 26 Limitation Act 1939 and section 32 (1) (b) of the Limitation Act 1980.
(c) Even if the limitation period has expired and the fraud/deliberate concealment provisions do not apply, there is then a section 33 discretion.
(ii) If the trespass does not cause personal injury, then:
(a) There is a 6-year limitation period.
(b) This is subject to section 26 Limitation Act 1939/ section 32 (1) (b) Limitation Act 1980.
(3) This application deals only with the question of into which category the right of action in trespass falls, i.e. (i) or (ii), in order to determine the applicable limitation period. It is not about whether there is a right of action in trespass at all.
(4) The European Court of Human Rights refused to intervene when the House of Lords (erroneously)[33] decided that section 11 Limitation Act did not apply to a case of deliberate indecent assault: see Stubbings v UK[34]. The court dealt with its reasoning in paras 49-54 and concluded:
“However, since the very essence of the applicants’ right of access was not impaired and the restrictions in question pursued a legitimate aim and were proportionate, it is not for the court to substitute its own view for that of the state authorities as to what would be the most appropriate policy in this regard.”[35]
(5) There is therefore no lack of a domestic remedy and Article 13 ECHR is irrelevant[36].
(6) After further consideration of the potentially extensive consequences of his central submission on the law of trespass and negligence generally, Mr Myerson said that it might be possible to restrict the effect to the situation where a State was the alleged tortfeasor. It seems to me that this interpretation of sections 11, 33 and 38 of the Limitation Act 1980 cannot possibly be justified.