MYTHS ABOUT LIMITATION 2: THE LIMITATION PERIOD FOR ASSAULT IS SIX YEARS

This is a myth I didn’t know existed until I heard it being propounded in a bar last week (and which led to the start of this series). Strangely, unlike some of the myths were are looking at, it has some historical foundation.  This used to be true. It isn’t now.

HISTORICAL ORIGINS OF THE MYTH

In Stubbings v Webb [1993] AC 498, [1993] 1 All ER 322 the House of Lords decided that an action for assault (in that case a sexual assault) was subject to the six year limitation period.  This meant that after six years the court had no discretion to extend time, Section 33 was not available. In 2008 the House of Lords changed its mind.

THE CHANGE OF MIND

In A -v- Hoare [2008] UKHL the House of Lords departed from its earlier decision in Stubbings.

“25. Lord Reid’s observation [1972] AC 944, 966 that unsatisfactory decisions of the highest court can cause uncertainty because lower courts tend to distinguish them on inadequate grounds is also pertinent to the consequences of Stubbings. Claimants who have suffered sexual abuse but need to seek the discretion of the court under section 33 are driven to alleging that the abuse was the result of, or accompanied by, some other breach of duty which can be brought within the language of section 11. Thus, in addition to having to decide whether the claimant was sexually abused, the courts must decide whether this was the result of “systemic negligence” on the part of the abuser’s employer or the negligence of some other person for whom the employer is responsible. In the appeals before the House, the appellants put forward at least four alternative theories of liability on which they wish to rely if the rule in Stubbings is upheld. These are, in increasing degree of artificiality (1) breach of a direct duty of care owed by the employer to the claimant; (2) breach of a duty of care by other employees; (3) breach of a duty of care by the abuser himself and (4) breach of a duty by the abuser to notify the employer of his own wrongful acts. In KR v Bryn Alyn Community (Holdings) Ltd [2003] QB 1441, para 100 Auld LJ said that the need to frame a claim in one or other of these ways when the real cause of complaint was sexual abuse for which the employer was vicariously liable was causing “arid and highly wasteful litigation turning on a distinction of no apparent principle or other merit.” I therefore think that it would be right to depart from Stubbings and reaffirm the law laid down by the Court of Appeal in Letang v Cooper [1965] 1 QB 232.”

THE CURRENT POSITION

The limitation period for an assault claim (which includes sexual assaults) is three years.  This means it is possible for a claimant to rely on Section 33.