Brian Daly v Sister Bernard Mary Murray and Ors [2012] CSOH 109 - 29th June 2012

An action of damages in respect of child abuse at a children's home (Nazareth House) in the 1970s. The defenders pled time bar. The pursuer averred that he did not become aware that his injuries were sufficiently serious to justify bringing an action until 1997 when an article appeared in the News of the World newspaper. In the event that the claim failed to satisfy the statutory facts under section 17 and was therefore time-barred, the pursuer averred that it should proceed out of time by virtue of the court's equitable jurisdiction under section 19A.

It was held on well settled and relatively clear case law;

Firstly, the relevant principles regarding section 17(2)(b) are; i) the totality of the claim must be considered rather than the separate incidents viewed in isolation; ii) the pursuer must properly raise an issue of constructive awareness and not actual awareness of the statutory facts; iii) the overall test for what counts as significant injury is an objective reasonable person test; iv) on these principles, reluctance to bring an action or lack of knowledge of the law is irrelevant: the pursuer's plea that he had not thought that his complaints would be taken seriously until he read the newspaper articles in 1997 were not supported by averments of fact and as such did not satisfy the criteria in section 17(2)(b). 'The statutory facts set out in that provision are not concerned with knowledge of action ability but only with the extent and seriousness of the injuries and the responsibility of the defender'(at [14]).

Secondly, regarding section 19A, the relevant principles as set out in AS v Poor Sisters of Nazareth 2008 SC (HL) 146 are; i) the section operates as an exception to the general rule that the right to bring an action for personal injuries terminates on the expiry of the three year period specified in section 17; ii) the onus is on the pursuer to provide a relevant and cogent explanation for the delay; iii) if there is a likelihood of significant prejudice to the defender as a result of the delay, that will usually result in a decision in favour of the defender; iv) the passage of time may itself result in significant prejudice; v) there is a distinction between not thinking of litigation and deciding not to take action. In the former case it is insufficient to justify the exercise of the court's discretion. In the latter case there is a stronger argument in favour of the court exercising its discretion.'...[T]he decision in AS is firmly against the proposition that pursuers should be permitted to proceed while outwith the triennium merely because they were unaware of a right of action before reading press articles, or merely because they suffered psychological difficulties as a result of childhood abuse' (at [19]).