D.S. v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 22095/93

by D.S.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 6 September 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 June 1993 by

D.S. against the United Kingdom and registered on 19 June 1993 under

file No. 22095/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

a. The particular circumstances of the case

The applicant is a British citizen born in 1962 and resident

in Taunton. She is represented before the Commission by Mr. Paul Sykes,

a solicitor practising in Taunton.

The facts as submitted by the parties may be summarised as

follows.

Between 1968 and 1977, the applicant was repeatedly indecently

assaulted by her father, abuse which included acts of incest. She told

her mother about the abuse while it was going on and in a statement to

the police made later stated "having listened to my friends it made me

realise that what my father was doing to me wasn't right."

Her father was convicted on 15 March 1991 of indecent assault

following his guilty plea. He received a sentence of one year

probation.

The applicant alleges that following the abuse, she suffered

increasing feelings of fear, depression, despair and guilt. She had

difficulty with relationships and her two marriages only lasted brief

periods.

The applicant instituted proceedings to claim damages from her

father on 14 August 1992. A report by a psychologist stated that it

would have been impossible for the applicant to have instituted

proceedings earlier since she had largely blocked out the memories as

a means of survival.

Following the judgement of the House of Lords in the Stubbings

case on 16 December 1992 (see No. 22083/93), her action was

discontinued on 24 May 1993, her claims having become statute-barred.

b. Relevant domestic law

The Limitation Act 1980 provides as relevant:

Actions founded on tort:

"2. An action founded on tort shall not be brought after

the expiration of six years from the date on which the

cause of action accrued."

Actions in respect of wrongs causing personal injuries or death:

"11 (1) This section applies to any action for damages for

negligence, nuisance or breach of duty (whether the duty

exists by virtue of a contract or of provision made by or

under a statute or independently of any contract or any

such provision) where the damages claimed by the plaintiff

for the negligence, nuisance or breach of duty consist of

or include damages in respect of personal injuries to the

plaintiff or any other person.

(2) None of the time limits given in the preceding

provisions of this Act shall apply to an action to which

this section applies.

(3) An action to which this section applies shall not

be brought after the expiration of the period applicable in

accordance with subsection (4) or (5) below.

(4) Except where subsection (5) below applies, the

period applicable is three years from -

(a) the date on which the cause of action accrued; or

(b) the date of knowledge (if later) of the person

injured.

...

14 (1) In sections 11 and 12 of this Act references to a

person's date of knowledge are references to the date on

which he first had knowledge of the following facts -

(a) that the injury in question was significant; and

(b) that the injury was attributable in whole or in

part to the act or omission which is alleged to constitute

negligence, nuisance or breach of duty; and

(c) the identity of the defendant; and

(d) if it is alleged that the act or omission was that

of a person other than the defendant, the identity of that

person and the additional facts supporting the bringing of

an action against the defendant;

and knowledge that any acts or omissions did or did not, as

a matter of law, involve negligence, nuisance or breach of

duty is irrelevant.

(2) For the purposes of this section an injury is

significant if the person whose date of knowledge is in

question would reasonably have considered it sufficiently

serious to justify his instituting proceedings for damages

against a defendant who did not dispute liability and was

able to satisfy a judgment.

(3) For the purposes of this section a person's knowledge

includes knowledge which he might reasonably have been

expected to acquire -

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of

medical or other appropriate expert advice which it is

reasonable for him to seek;

but a person shall not be fixed under this subsection with

knowledge of a fact ascertainable only with the help of

expert advice so long as he has taken all reasonable steps

to obtain (and, where appropriate, to act on) that advice."

Extension in the time-limit where a person is under a disability:

"28. (1) Subject to the following provisions of this

section, if on the date when any right of action accrued

for which a period of limitation is prescribed by this Act,

the person to whom it accrued was under a disability, the

action may be brought at any time before the expiration of

six years from the date when he ceased to be under a

disability or died (whichever first occurred)

notwithstanding that the period of limitation has expired.

38 ...

(2) For the purposes of this Act a person shall be

treated as under a disability while he is an infant, or of

unsound mind."

Discretionary exclusion of time limit for actions in respect of

personal injuries or death:

33 (1) If it appears to the court that it would be equitable to

allow an action to proceed having regard to the degree to which-

(a) the provisions of section 11 or 12 of this Act

prejudice the plaintiff or any person whom he represents;

and

(b) any decision of the court under this subsection would

prejudice the defendant or any person whom he represents;

the court may direct that those provisions shall not apply to the

action, or shall not apply to any specified cause of action to

which the action relates.

...

(3) In acting under this section the court shall have regard to

all the circumstances of the case and in particular to-

(a) the length of, and the reasons for, the delay on the

part of the plaintiff;

(b) the extent to which, having regard to the delay, the

evidence adduced or likely to be adduced by the plaintiff

or the defendant is or is less likely to less cogent than

if the action had been brought within the time allowed by

section 11 or (as the case may be) by section 12;

(c) the conduct of the defendant after the cause of action

accrued...

(d) the duration of any disability of the plaintiff arising

after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and

reasonably once he knew whether or not the act or omission

of the defendant, to which the injury was attributable,

might be capable at that time of giving rise to an action

for damages;

(f) the steps, if any, taken by the plaintiff to obtain

medical, legal or other expert advice and the nature of any

such advice which he may have received..."

COMPLAINTS

The applicant complains under Articles 6 and 14 of the

Convention. She submits that she has been denied access to court and

that she has been discriminated against on the grounds of the nature

of the injury which she has suffered.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 June 1993 and registered on

19 June 1993.

On 1 December 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 21 March 1994,

after one extension in the time-limit fixed for this purpose, and the

applicant's observations in reply were submitted on 10 June 1994.

The applicant was granted legal aid on 13 April 1994.

THE LAW

The applicant complains of the denial of access to court as a

result of the limitation period applied to claims arising out of

incidents of abuse suffered during childhood. She invokes Articles 6

and 14 (Art. 6, 14) of the Convention.

Article 6 para. 1 (Art. 6-1) provides as relevant:

"1. In the determination of his civil rights and obligations or

of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law..."

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The respondent Government submit, inter alia, that the essence

of the applicant's right of access to court is not extinguished as a

result of the applicable limitation period since an individual has 6

years in which to bring a claim. This period has a legitimate aim in

providing finality, protecting others from stale claims and preventing

injustice which might result from litigating matters which are

difficult to establish due to lapse of time. The Government further

submit that there is no discrimination since the applicant was treated

the same as any other person claiming to be the victim of intentional

injury. While victims of negligently inflicted harm are subject to

different rules, they fall into a separate category. Even assuming

there was a difference in treatment, it is not on a ground relating to

the applicant's status. Further, even it did so relate to status, there

is in the Government's view an objective and reasonable justification

for any difference in treatment based on the consideration that a

victim of an intentional injury is very likely to be aware of the facts

founding a claim whereas the victim of negligently inflicted injury is

often in a different position being unaware that injury is attributable

to an actionable lack of care.

The applicant submits, inter alia, that the inflexible time-limit

imposed on claims relating to intentional injury which applies

regardless of the circumstances of an individual case is arbitrary and

disproportionate. It may not be possible, as in the case of this

applicant, for a a victim of intentional injury to make a claim until

after the 6 year period. The applicant further contends that imposing

a rigid time-limit on applicants who have suffered psychological damage

amounts to discrimination on the basis of their status which is not

objectively or reasonably justified. She disputes that it is correct

to state that the victims of intentional injury are inherently more

likely to be aware of the facts necessary to make a claim than a victim

of unintentional injury. Victims of other particular types of injury

may be very likely to know some or all of the ingredients of their

cause of action.

The Commission has taken cognizance of the submissions of the

parties. It considers that the applicant's complaints raise serious

issues of fact and law, the determination of which should depend on an

examination of the merits. The application must therefore be declared

admissible, no ground for declaring it inadmissible having been

established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)