I Wept     Copyright@ 2006-2010 Ann Thompson All Rights Reseved

[1] The pursuers in each of these three actions were at one time residents of a children's home run by the Congregation of the Poor Sisters of Nazareth, an order of nuns who are the second defenders in each case; the first defender is the Religious Superior of the order. In each case damages are claimed on the basis that the pursuer suffered physical abuse during the time when he or she was under the charge of the second defenders; in each case individual nuns are said to have been directly responsible for the abuse. The three actions were raised in May 2000. Approximately 290 other actions were raised at the same time on similar grounds against the same defenders. I was informed that a large number of other broadly similar actions have been raised against other bodies that ran children's homes between the 1950s and the 1980s; these include Quarrier's Homes, Barnardo's and the De La Salle Brothers.

[2] The initial difficultly that confronts each of the pursuers is that the limitation period specified in section 17 of the Prescription and Limitation (Scotland) Act 1973 has expired. Mrs B was resident in the second defenders' home at Nazareth House, Cardonald, between 1966, when she was three years old, and 1979, when she was 16 years old. Her date of birth is 6 January 1963; consequently she attained majority on 6 January 1981, and the basic three-year limitation period laid down in section 17 accordingly expired on 6 January 1984, some 16 years before her action was raised. Mr M was resident in the same home between 1975, when he was six years old, and 1978, when he was nine years old. He was born on 9 January 1969 and attained majority on 9 January 1987; the basic three-year limitation period therefore expired on 9 January 1990, 10 years before his action was raised. Mrs W was resident in Nazareth House, Cardonald, between 1961, when she was seven or eight years old, and 1969, when she was 16 years old. Her date of birth is 25 November 1953. Consequently she attained majority on 25 November 1971, and the three-year limitation period expired on 25 November 1974, 25 years before her action began.

[3] In each of the three present actions the defenders have tabled a plea of time bar. Each action was appointed to the procedure roll on the time bar plea and the defenders' pleas to relevancy; I am not concerned with the relevancy issues that were thereafter discussed. A procedure roll discussion was subsequently held before Lord Johnston. The pursuers sought to argue that the limitation period in section 17 of the Prescription and Limitation (Scotland) Act 1973 did not apply to them because of the terms of section 17(2)(b) of the Act. This provides as follows:

It was argued for the pursuers that they did not have knowledge of the matters set out in section 17(2)(b) until newspaper articles about homes run by the second defenders appeared in 1997; consequently the limitation period only began to run at that time. Lord Johnston rejected this argument, holding that the limitation periods ran from the dates when each of the pursuers attained majority, in accordance with section 17(3) of the Act. He accordingly sustained the defenders' pleas to relevancy to the extent of excluding all reference to section 17(2)(b) from further consideration.

[4] That is not the end of the matter, however. Section 19A of the 1973 Act is in the following terms:

At the procedure roll discussion before Lord Johnston the pursuers sought to rely upon this provision to permit the actions to proceed. Lord Johnston held, however, that he was unable to deal with this issue without evidence. The pursuers had argued that any proof should deal with the merits of the three cases as well as the section 19A issue, but Lord Johnston decided that a proof at large was inappropriate. He expressed his conclusion as follows:

In his interlocutors Lord Johnston allowed a preliminary proof on the issues focused in condescendence 6 and answer 6 in each record in relation to section 19A of the 1973 Act. As indicated in his opinion, the proof is to proceed on the assumption that the factual averments made by the pursuers are correct. I will begin by summarizing those averments. Evidence was led from each of the pursuers in support of those substantive averments. No contrary evidence was led, however, and indeed it is clear that the cases had not been investigated on the merits by the defenders; consequently there was little cross-examination directed to the substantive allegations made by the three pursuers. In the circumstances it was obviously impossible for me to reach any concluded view on the credibility or reliability of the pursuers' evidence on the substance of their claims. All that I intend to do at this stage, accordingly, is to summarize the general nature of the substantive allegations that are made by each pursuer.

1. Mrs J W

[5] Mrs W was resident in Nazareth House, Cardonald, from 1961 to 1969. She was aged seven or eight when she first went to live there. Her younger sister went with her, but Mrs W avers that contact between the sisters was not encouraged by the nuns in charge of them. She avers that she was part of what was known as the red group; the nun in charge of that group was Sister E. When Mrs W was aged about ten or eleven, Sister E was replaced by Sister J M who was assisted by a girl called I M. Mrs W avers that she was taken to Nazareth House by a social worker and immediately afterwards met Sister E. Sister E grabbed the pursuer's hair by her fringe and roughly fixed a grip into her hair, in such a way that her head bled. She told Mrs W that she was filthy, that she was covered in nits and lice, and that she stank. She sent Mrs W to be bathed and deloused by an older girl.

[6] Thereafter, Mrs W avers, she was regularly assaulted by a number of nuns. Sister E assaulted her daily, hitting her with whatever implements were available. On one occasion a hairbrush was used, which broke in consequence of the blow. Mrs W was also hit on the back with wire coat hangers and canes. Canes were used on Mrs W's hands, shoulders and back. On one occasion Sister E nipped and twisted Mrs W's flesh. She hit Mrs W with a wet cloth on one occasion because Mrs W had allowed the cloth to fall on her bed. Sister E also slapped Mrs W's face, pulled her hair and pulled her ears, on occasion causing bruising. Some of the assaults were in front of other children. She had knocked together the heads of the pursuer and another girl called B N. Mrs W was also caned by a nun called Sister N. Sometimes she was punished by being made to wait for two or three hours outside Sister N's cell, waiting for punishment. Mrs W was also occasionally assaulted by Sister M, who on one occasion pulled the pursuer by her hair and swung her round off the floor. Sister M on one occasion encouraged a group of children to jump on Mrs W, kicking her and pulling her hair. Other assaults are averred.

[7] Apart from regular assaults, Mrs W makes complaints about a number of other aspects of life in Nazareth House. These included punishment for bedwetting and for visiting the lavatory during the night. Mrs W was forced to eat food that she disliked, including cabbage, and if she were sick she was made to eat that too. On occasion she was told that she was going to a party but was then prevented from doing so. She was compelled to attend school even when she felt unwell, and on one occasion received very unpleasant medical treatment for a problem with her ear. The nuns also made derogatory remarks about Mrs W's mother and grandmother.

[8] It is fair to say that Mrs W's complaints about life in Nazareth House are wide-ranging, and apply to many aspects of her life in the institution. She avers that she was unable to complain about her treatment. On two occasions she complained to Sister N about Sister E's actions, but Sister N told her that she was a liar and a troublemaker, and caned her. Mrs W avers that the nuns did not allow her mother to visit her, and that her father visited her on about four occasions. Social workers visited her on two occasions, but nuns were present throughout the visits.

[9] On the basis of the allegations of fact summarized above, Mrs W avers that throughout her time at Nazareth House she was subjected to a brutal, violent and cruel régime by the nuns working there. She was subjected to degrading and inhumane methods of punishment; she was ill-treated by the nuns; and the standard and quality of care provided for her welfare were poor. Such treatment was systematic and regular, continuing throughout the entire period of Mrs W's residence at Nazareth House. As a result it is said that she suffered loss, injury and damage. The individual nuns were acting in pursuance of the operation of Nazareth House as a residential children's home, and were doing so under the control of the defenders. Consequently it is said that the defenders were responsible for the nuns' acts. It is further averred that the defenders failed in their duty to take reasonable care for the health, safety and welfare of the children residing at Nazareth House, including Mrs W. The particular duties of care cover both inadequate supervision of individual nuns and the general running of the premises. In addition, a statutory case is pled based on the Administration of Children's Homes (Scotland) Regulations 1959. In this connection, it is averred that the defenders did not make adequate arrangements for the well-being of the children resident in Nazareth House, administered punishment in a manner inconsistent with the Regulations, and failed to keep adequate records as required by the Regulations.

2. Mrs A B

[10] Mrs B was a resident at Nazareth House, Cardonald, from about 1966, when she was three years old, to about 1979, when she was sixteen. Initially she was in the nursery section , but subsequently she was placed in the green group, along with her two older sisters; the girls were separated from their brother. During her time in Nazareth House Mrs B was under the charge of a series of nuns, namely Sister Do, Sister Ca, Sister Cu, Sister J, Sister J S and Sister B. A carer named M K was also responsible for her for much of her childhood.

[11] Mrs B avers that children in Nazareth House, including her, were regularly subjected to assaults and cruel punishments. The assaults regularly had no reason. Details are given of a number of assaults on Mrs B. These relate particularly to Sister Ca, who had a club foot and placed that on children to prevent them from escaping while she assaulted them. Sister Ca also punished Mrs B by making her kneel on tiles with her arms above her head or with her arms stretched out in front of her, and force fed her. Force feeding continued after a child had vomited, and was sometimes followed by assaults in full view of everyone in the dining hall. Mrs B avers that she was subjected to that treatment on several occasions. Sister Ca also punished her by putting carbolic soap in her mouth. Particulars are given of a number of specific assaults on the pursuer by Sister Cu, Sister J S and Sister B. The assaults are averred to have included kicking and punching. On one occasion Mrs B avers that she was knocked unconscious when Sister B pushed her against a wall; when she recovered consciousness Sister B was on top of her, battering her head against the floor.

[12] In addition to the averments relating to repeated assaults, Mrs B avers that she and other children in Nazareth House were regularly punished for bedwetting. She also makes allegations about poor food and poor personal care. On the basis of those averments of fact, she states that the defenders failed in their duty to take adequate care for the safety and welfare of the children resident in Nazareth House, including her. She alleges breach of the defenders' duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. She also alleges a series of failures in the defenders' supervision of Nazareth House. In this connection various particular duties are averred; these include caring for and nurturing the children in the home, serving adequate food, providing adequate personal care, taking reasonable care to see that children were not humiliated and ridiculed, and encouraging family relationships where possible. As a result of those breaches of duty it is said that Mrs B suffered loss, injury and damage. An alternative statutory case is made under the Children's Homes (Scotland) Regulations 1959. This is broadly similar to be case made by Mrs W.

3. D M

[13] Mr M was resident at Nazareth House, Cardonald, from about 1975, when he was six years old, until about 1978, when he was nine years old. Thereafter he was sent to another home at Smyllum Park, Lanark, run by another order of nuns. Two of his brothers were resident in Nazareth House at the same time. The nuns responsible for his care were Sister D and Sister J S. Mr M avers that he and the other children were assaulted regularly for no reason. Sister D assaulted him approximately twice a day every day, using implements that included a hockey stick and a garden cane. She assaulted him on all areas of his body, but particularly his head. On one occasion Mr M ran away, but was found by the police in Greenock. He told the police that he had been assaulted by the nuns but they did not believe him and they returned him to Nazareth House. As a punishment he was made to stand naked all night in a corridor. Children including Mr M were regularly assaulted at mealtimes by Sister D. It is averred that Mr M was punished for bedwetting. Sister J S also punished him. On one occasion he saw her hit his brother R on the head with a hockey stick, rendering him unconscious. Mr M and his other brother were made to clean up the blood, and were terrified.

[14] In addition to the allegations of assault by the nuns, Mr M avers that he was punished by a violin teacher, who rapped his knuckles on Mr M's head if he made mistakes. He claims that he was punished by the nuns when an attempt to have him fostered did not work and he was sent back to the home. He was made to eat carbolic soap as a punishment for lying, and became terrified of dying because of remarks that the nuns made to him. Mr M's father died when he was in Nazareth House, but he was not allowed to attend the funeral. The nuns told him that his father was a "drunk", and said that he should not want to go to the funeral. Mr M became very upset as a result. He avers that he frequently tried to run away and was assaulted for doing so. When he was taken on bus trips his socks and shoes were removed and he was made to sit on the floor in an attempt to prevent him from trying to run away. Mr M also makes complaints about the very structured régime in Nazareth House and the poor quality of the food there.

[15] On the basis of the foregoing averments of fact, Mr M alleges that the defenders failed in their duty to take care for the safety and welfare of the children resident in Nazareth House, including him. He also alleges breach of duties not to assault children and not to sanction or use excessive, cruel and unusual punishments. Further breaches of duty are averred in relation to the inadequate supervision of the home. Generally speaking, these averments are very similar to those made on behalf of Mrs B. As a result of the breaches of duty, it is said that Mr M suffered loss, injury and damage. An alternative statutory case is pled, based on the Children's Homes (Scotland) Regulations 1959; this is similar to the statutory case made by Mrs W.

[16] All three pursuers aver that they were injured in the assaults that they suffered. In addition all three make averments about the long-term consequences of the treatment that they received in Nazareth House. These involved various forms of psychological injury and problems with personal relationships and obtaining employment.

[17] Mrs W avers that she suffered trauma and psychological damage as a result of her treatment. In 1998 she was diagnosed as suffering from severe depression and anxiety. It is averred that her symptoms are comparable to those experienced by persons suffering from post-traumatic stress disorder. I comment on this matter in detail in the part of this opinion dealing with psychological and psychiatric evidence, but only for the purpose of assessing the explanations advanced for the pursuers' failure to make claims at an earlier date; what I say there should not be taken as affecting the substance of the pursuers' claims, which I am obliged to assume are well-founded. Mrs W further avers that she has suffered from insomnia, has low self-esteem, has been involved in abusive relationships and has had difficulty forming relationships. She is socially isolated and has a poor quality of life. It is further averred that she did not have the self-confidence to proceed to further education, although she was intellectually capable of doing so. Consequently she has been employed in less rewarding jobs and has been unemployed.

[18] Mrs B avers that she felt humiliated and degraded as a result of her treatment in Nazareth House, and experienced fear and distress when she witnessed assaults on other children. She avers that she has no confidence in herself, and suffered psychologically for many years. It is averred that she has suffered intrusive thoughts about her experiences and has made conscious attempts to avoid such thoughts. As in the case of Mrs W, it is averred that Mrs B's symptoms are similar to PTSD symptoms, and fulfil the criteria for PTSD. She avers that she has suffered from bulimia and had a breakdown in 1996. She has been prescribed Prozac and Valium. She does not feel safe outside her home, and has difficulty functioning in any area of life outwith her home. Her estranged husband and children have to go to the shops for her, and she has a very poor quality of life. She has had difficulties in forming relationships, and has separated from her husband. She has difficulty in relating to her children. She suffers from anxiety, in particular that she may wet the bed, and that causes her practical difficulties. She avers that she has difficulty sleeping and concentrating. She was intellectually able to undertake further education, but instead had only been employed as a machinist, cleaner and meat packer.

[19] Mr M avers that he was humiliated by things that the nuns at Nazareth House said to him, and was distressed at not knowing where his father was buried. He has been prescribed anti-depressant medication since 1997. He was referred for psychological intervention in 1997 but did not continue with the treatment. He avers that he currently suffers from moderate to severe anxiety and severe depression. It is also averred that he experiences intrusive thoughts and avoidance behaviour associated with PTSD. In addition, he is said to exhibit obsessive compulsive symptoms to a high level. It is averred that he has attempted suicide and has suffered from nightmares, during which he attempted to jump out of the window. It is said that he was unable to form relationships with women, and found it difficult to trust the partner with whom he lived for a number of years. His quality of life is extremely poor. It is further said that his relationship with his own children has been severely affected by his treatment in Nazareth House. A reference is made at this point to sexual abuse, but the averments of fact do not contain any such allegation. It is further averred that Mr M had a number of criminal convictions and had been sentenced to periods of imprisonment. He had also abused alcohol.

[20] I intend next to consider the general approach of the law to questions of limitation. This falls into two parts. First, I consider the policy underlying limitation statutes in general. Secondly, I give more detailed consideration to the factors that may be relevant in an application under section 19A of the Prescription and Limitation (Scotland) Act 1973, by reference to cases decided both in Scotland and under the equivalent English legislation

[21] I have found the most helpful discussion of the policy underlying limitation statutes to be that by McHugh J. in Brisbane Regional Health Authority v Taylor, [1996] 186 CLR 541, a decision of the High Court of Australia. That case involved the interpretation of section 31(2) of the Queensland Limitation of Actions Act 1974. That section provided that the court might order the extension of a limitation period by one year if two conditions were satisfied. The conditions were, first, that a material fact of a decisive character relating to a right of action was not within the means of knowledge of a prospective plaintiff until a date after the commencement of the year last preceding the expiration of the limitation period and, secondly, that there was evidence to establish the right of action apart from the effect of limitation. The section is clearly different from section 19A, but McHugh J.'s discussion of limitation statutes generally is nevertheless illuminating. He stated (at 186 CLR 551-554):

[22] The rationales identified by McHugh J. for the setting of limitation periods by the legislature are in my opinion manifestly relevant to the interpretation of the limitation provisions of the Prescription and Limitation Act 1973. All of them apply to the present case. The first, the loss of evidence, is of particular importance; this comprehends both the actual loss of items of evidence and a decline in the quality of the evidence that is available. This is closely related to the initial consideration discussed by McHugh J., the general deterioration of the whole quality of justice with the lapse of time. The loss of evidence and the decline in its quality are especially important when the delay following the events complained of is measured in decades rather than years. Cases involving such a delay present one particularly difficult feature. This is the proper understanding and assessment of events that occurred at a time when social attitudes were markedly different from those that now prevail. It would be quite unfair to judge events by any standards other than those that prevailed at the time; the social attitudes of today cannot be the test of matters that occurred twenty or thirty years ago. Consequently a judge who is called upon to decide a question relating to events of the 1950s, 1960s and 1970s must assess the propriety of what happened against the standards that then prevailed in society. That is not easy. It involves historical reconstruction not of events themselves but of the underlying perceptions and attitudes that underlay those events, which is a much more subtle exercise. This point is especially well illustrated by the present cases. The pursuers' complaints relate in large measure to the administration of corporal punishment. In the 1960s, and probably also in the 1970s, corporal punishment was the norm in Scottish schools and homes. Now it has been abolished in schools, and is to be substantially restricted even in the home. It can scarcely be doubted that these changes in practice reflect changes in the general attitudes that prevail in society. Nevertheless, the allegations of excessive corporal punishment must be assessed not against the norms that would be considered reasonable today but against the norms that were considered reasonable between twenty-five and fifty years ago. No doubt it can be said that anyone who was at school in the 1950s and 1960s will be aware that attitudes to corporal punishment were different, and will indeed probably have had direct experience of those different attitudes. It may also be possible to point to contemporary documents that indicate the sort of standards that were considered acceptable at the time. What is required for a proper assessment of events, however, is an appreciation of the cultural climate that prevailed in schools and homes at that time. This is relevant not merely to determining whether there was an excess of corporal punishment in any particular case. It is also relevant, if there was such an excess, to determining how serious the resulting injury is likely to have been, and what is reasonable compensation for such an injury. Such compensation must be measured against the standards of the time when the individual pursuers were in the care of the defenders, not the standards of today. A beating that today seems clearly excessive might have seemed only slightly above the norm at that time, and the compensation for it would have to be reduced accordingly. Moreover, it must be borne in mind that the most serious injuries complained of by the pursuers are psychological in nature. What they seek compensation for is not so much the pain and suffering caused by any particular beating but the cumulative psychological effects of repeated physical punishment. Once again, the relevant standard is the social and educational norms of the 1960s and 1970s, not to those of today. When physical punishment was widespread, the effect of any individual instance was clearly less than would be the case today. All of these matters make the judge's task, at a range of between 25 and 45 years, peculiarly difficult.

[23] The problem of the decline in the quality of evidence is not restricted to the assessment of corporal punishment and its effects on the individual pursuers. It also extends to other factors that might have had a significant impact on the ultimate psychological state of a particular pursuer. One of these is the effect of institutional care. Once again this is an area where there has been a profound change in social attitudes since the 1970s; institutions for the care of children such as the homes run by the defenders have been closed, and the fostering of children in ordinary households is now the almost universal practice. What must be considered in the present cases, however, is the effect that institutionalization of the sort encountered twenty-five to fifty years ago is likely to have had on an individual pursuer; that includes a whole range of matters such as the lack of affection, the lack of continuous personal contact with any single adult, and the impersonal nature of the discipline that is almost inevitable in an institution. Once again this involves a substantial degree of historical reconstruction. Once again, too, the underlying attitudes and perceptions of society are relevant, and once again assessing these is a peculiarly difficult task. This is not to say that such assessment is impossible; clearly some sort of exercise can be performed to reach a judgment on past events, in the same way as a social historian might reach an opinion. Nevertheless, in any such exercise there is a plain decline in the quality of the evidence that is available by comparison with the evidence that would be found in a case involving events during the last five or ten years. The evidence available to a social historian is rarely, if ever, as good as the evidence that is normally available to a court.

[24] Two further aspects of McHugh J.'s opinion call for particular comment in the present case. The first of these is his comment that important, and perhaps decisive, evidence may have disappeared without anyone now "knowing" that it ever existed. That consideration is particularly important in a case where events occurred more than twenty years before any action was raised, and where the actual disputes are likely to relate not merely to one or two vivid incidents but to the everyday currency of the daily life of those involved. The present cases are of that nature; while a few specific incidents are highlighted in the pursuers' pleadings, the major part of their complaints relates to a culture where repeated physical punishment was the norm. It seems very obvious that many of the details of daily life so long ago will have been forgotten, and will be incapable of retrieval. That inevitably results in a marked deterioration in the quality of justice.

[25] Secondly, McHugh J. points out that a limitation period should not be seen as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents rather the considered judgment of the legislature that the welfare of society is best served if causes of action are litigated within the specified period, even if in consequence good causes of action may be defeated. The limitation period must accordingly be regarded as the general rule and the extension provision as an exception designed to deal with the justice of individual cases. Two important conclusions follow from this analysis. First, the onus is on the prospective pursuer to establish that in his or her case justice requires an extension. Secondly, in determining whether an extension should be granted, the court must evaluate the injustice or prejudice that either side may suffer by a reference to the rationales that underlie the limitation statute.

[26] McHugh J. subsequently considered the issue of such prejudice. On this matter he stated (at 186 CLR 554-555):

[27] In my opinion the foregoing approach follows inevitably from the earlier analysis of the rationales and structure of limitation provisions, and I consider it highly pertinent to the present case. Three points are significant. First, in considering prejudice to a defender, it is important to keep in mind that an extension period reimposes a liability that the defender would otherwise have escaped. Secondly, because of that, it is not material that the prejudice suffered by the defender is no worse than would have been the case had the action been raised towards the end of the limitation period. Thirdly, if a defender can show actual prejudice in defending the action, or the real possibility of significant prejudice, it will normally not be appropriate to grant an extension. This is because the fundamental legislative policy underlying limitation statutes is to avoid the possibility of such prejudice, and if the prejudice can be shown to be real, rather than merely a possibility, that legislative policy applies with its full force and must be given effect. Consequently the existence of actual prejudice to a defender must always be of the greatest importance in considering whether an extension should be granted.

[28] The approach taken by McHugh J. to questions of prejudice is closely paralleled in Scotland by the opinion of Lord President Hope in McCabe v McLellan, 1994 SLT 346, a case where the pursuer raised a claim against the general practitioners who had treated him as a child for failure to treat congenital glaucoma. In respect of one of the doctors, the action was raised one month after the pursuer's 21st birthday, when the limitation period expired. That doctor had no memory of the pursuer's family and would accordingly have been prejudiced even if the action had started timeously, within the limitation period. The court refuse to allow the action to proceed against that doctor. Lord President Hope stated (at 354):

[29] Section 19A has been the subject of considerable judicial discussion. The same is true of its English equivalent, section 33 of the Limitation Act 1980; section 33 is framed differently from section 19A, but it fulfils the same essential function and the authorities on its interpretation are accordingly of assistance in Scotland: Donald v Rutherford, 1984 SLT 70. A number of matters have been clearly established. First, the court has a general discretion under section 19A; the crucial question that must be considered has been stated to be "where do the equities lie?": Forsyth v AF Stoddard & Co. Ltd., 1985 SLT 51 at 55, per LJC Wheatley; Elliott v J & C Finney, 1989 SLT 605 at 608F per LJC Ross. Secondly, the onus is on the pursuer to satisfy the court that it would be equitable to allow his claim to proceed: Thompson v Brown, [1981] 1 WLR . 744, at 753 per Lord Diplock. Thirdly, the conduct of a pursuer's solicitor may be relevant to the exercise of the court's discretion, and the pursuer must take the consequences of his solicitor's actings: Forsyth, supra, at 1985 SLT 54. Fourthly, relevant factors that the court may take into account include, but are not restricted to, three matters identified by Lord Ross in Carson v Howard Doris Ltd., 1981 SC 278, at 282; these are "(1) the conduct of the pursuer since the accident and up to the time of his seeking the Court's authority to bring the action out of time, including any explanation for his not having brought the action timeously; (2) any likely prejudice to the pursuer if authority to bring the action of time were not granted; and (3) any likely prejudice to the other party from granting authority to bring the action out of time". Fifthly, each case ultimately turns on its own facts, a principle which applies even if a number of claimants present similar claims against the same person: ibid.; KR v Bryn Alyn Community (Holdings) Ltd., [2003] QB 1441, at paragraph 45 per Auld LJ.

[30] One issue relevant to the present case that has been discussed in earlier decisions is the significance of a pursuer's ignorance of the legal right to claim damages. This must obviously be distinguished from the pursuer's ignorance of facts that are material to his or her claim; ignorance of facts is dealt with by section 17 of the 1973 Act. It is clear that ignorance of a legal right is a material circumstance in the exercise that a court must perform under section 19A. Indeed, McIntyre v Armitage Shanks Ltd., 1980 SC (HL) 46, the decision of the House of Lords that prompted the enactment of section 19A, was a case where the pursuer was ignorant of the existence of a right of action, albeit one induced by statements made by a trade union official. Nevertheless, there appears to be only one case where ignorance of the existence of a legal right was treated as decisive in allowing an action to proceed. That case is Comber v Greater Glasgow Health Board, 1989 SLT 639. The pursuer in that case had been disfigured in an operation, and partly as a result of her disfigurement she tended to withdraw from the world. Lord Morton of Shuna appeared to accept that she was ill-informed about modern society to a degree described as "strange"; he also accepted that neither the pursuer nor her parents had any appreciation of what lawyers do and what remedies the law provides. He held, accordingly, that until a relatively late stage the pursuer did not know that there was any possible right to claim compensation for her condition. The case is accordingly a fairly extreme one. It is also significant that in that case there was no suggestion that the defenders had suffered any prejudice other than losing the right to claim limitation; there was no suggestion that any witness had been lost or that any witness could not remember any crucial matter or that the relevant medical records were in any sense incomplete.

The case must therefore be seen as somewhat exceptional. It was distinguished in Kane v Argyll & Clyde Health Board, 1999 SLT 823, a case where the pursuer claimed that she had had no knowledge of lawyers, legal remedies or the availability of legal aid, but her evidence on the matter was not accepted. The Lord Ordinary, Lady Cosgrove, described the pursuer as having a degree of worldliness and self-confidence, and she held that no reasonable explanation had been provided for the failure to seek legal advice. Her decision was upheld in the Inner House. Kane is also significant because of certain of the observations made by Lord Prosser in delivering the opinion in the Inner House. He stated (at 1999 SLT 828):

The emphasis in this passage on the importance of prejudice to the defender echoes the analysis of McHugh J. in Brisbane Regional Health Authority v Taylor, supra. In Kane it was held that the defenders had suffered prejudice as a result of the delay, in that one of the surgeons who had dealt with the pursuer could not recall her case and the relevant records had been destroyed. That provided an additional reason for refusing to allow the action to proceed. It should be noted that in Kane the defenders were not deprived of any evidence; the surgeon who performed the operation was available to give evidence, and expert evidence would be available as to proper medical and surgical practice at the relevant time. What matters, accordingly, is whether the loss of evidence is material, not whether it is total.

[31] Certain cases decided in England and Wales also contain pertinent observations on the application of section 33 of the Limitation Act 1980, the equivalent of section 19A of the Prescription and Limitation (Scotland) Act.

[32] The most significant of these cases is KR v Bryn Alyn Community (Holdings) Ltd., supra. That case has a close parallel with the present case because it involved a number of claims for abuse suffered by children in care homes. The abuse varied in nature, and included sexual abuse as well as physical and emotional abuse. The abuse was said to have given rise to long-term psychiatric injury. The Court of Appeal allowed all of the claims to proceed on the basis that, until the plaintiffs received counselling several years after the abuse complained of, they could not be said to have had knowledge of the fact that the psychiatric injury that they had suffered was significant. Section 11 of the Limitation Act 1980 provided that the three-year limitation period should run from the later of the date on which the cause of action accrued and the date of knowledge of the person injured. Section 14 of the Act defined the date of knowledge as the date when the plaintiff first had knowledge that he or she had suffered a "significant" injury. In holding that the plaintiffs had no knowledge that they had suffered significant injuries, therefore, the Court of Appeal delayed the date from which the triennium was held to run. Sections 11 and 14 of the Limitation Act 1980 are the equivalents of section 17 of the Prescription and Limitation (Scotland) Act 1973; in particular, they can be said to parallel section 17(2). Thus this part of the Court of Appeal's decision is relevant to the application of section 17, the matter that was considered by Lord Johnston in the procedure roll discussion conducted last summer. Counsel for the pursuers submitted that it was also relevant to the construction of section 19A, in that it reduced the extent to which a Scottish court could place reliance on English decisions under section 33. His submission, if I understood it correctly, was that the English courts had adopted a particularly wide construction of the equivalent of section 17(2), and that this might lead them to take a narrower construction of section 33, the equivalent of section 19A. In Scotland, by contrast, a wide construction of section 17(2) had not, or not yet, been adopted, with the result that the courts should take a more expansive view when considering whether an action should be allowed to proceed under section 19A. In my opinion such an argument must be rejected. The test imposed by section 17(2) is quite independent of the exercise that a court may perform under section 19A; that is obvious both from the differences in the wording of the two sections and from the fact that, if the test in section 17(2) is satisfied, the court is obliged to allow the action to proceed, whereas under section 19A it has a discretion. Exactly the same can be said of sections 11 and 14 and section 33 of the Limitation Act 1980. I am accordingly of opinion that the cases in England and Wales on the interpretation of section 33 remain highly relevant to the exercise of the court's discretion under section 19A. I should add that that reflects well-established practice, dating back to at least the decision in Donald v Rutherford, supra. In the present case, any issues that arise under section 17 have already been decided by Lord Johnston, and they do not form any part of the subject matter of the present proof.

[33] In KR v Bryn Alyn Community (Holdings) Ltd., supra, the judge at first instance, Connell J., decided that the court's discretion under section 33 should be exercised in the plaintiffs' favour. The Court of Appeal reversed his decision on this point in respect of the majority of claims. In doing so they made a number of important observations on the discretionary power. Their treatment of the individual claims is also of interest, as illustrating how the power may be exercised in cases with close similarity is to the present. The Court of Appeal stated the starting points for the exercise of the court's discretion as follows (at paragraph 74):

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