Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 22095/93

D.S.

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 22 February 1995)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1-16) . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5-11). . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 12-16) . . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-33). . . . . . . . . . . . . . . . . . . . . . . . 3

A. Particular circumstances of the case

(paras. 17-22) . . . . . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 23-33) . . . . . . . . . . . . . . . . . . . . . 3

III. OPINION OF THE COMMISSION

(paras. 34-56). . . . . . . . . . . . . . . . . . . . . . . . 9

A. Complaint declared admissible

(para. 34) . . . . . . . . . . . . . . . . . . . . . . . 9

B. Point at issue

(para. 35) . . . . . . . . . . . . . . . . . . . . . . . 9

C. Article 6 taken alone and in conjunction with

Article 14 of the Convention

(paras. 36-55) . . . . . . . . . . . . . . . . . . . . . 9

CONCLUSION

(para. 56) . . . . . . . . . . . . . . . . . . . . . . .13

APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .14

APPENDIX II : DECISION OF THE COMMISSION AS TO THE

ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .15

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant, D.S., 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.

3. The application is directed against the United Kingdom. The

respondent Government are represented by Mr. Martin Eaton, Foreign and

Commonwealth Office, as Agent.

4. The case concerns the complaints of the applicant that she is

denied access to court in respect of her claim for compensation for

psychological injury caused by abuse suffered in her childhood as a

result of the operation of the applicable rules of prescription and

that the difference in the rules as applied to herself and other

categories of claimants discloses discrimination. It raises issues

under Articles 6 para. 1 and 14 of the Convention.

B. The proceedings

5. The application was introduced on 14 June 1993 and registered on

19 June 1993.

6. On 1 December 1993, the Commission (First Chamber) decided to

communicate the application to the respondent Government for their

written observations on the admissibility and merits of the

application.

7. The Government submitted their written observations on

21 March 1994. The applicant submitted her written observations in

reply on 10 June 1994.

8. On 6 September 1994, the Commission (First Chamber) declared the

application admissible.

9. The parties were then invited to submit any additional

observations on the merits of the application.

10. On 23 November 1994, the Government submitted further

observations.

11. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, placed itself

at the disposal of the parties with a view to securing a friendly

settlement of the case. In light of the parties' reactions, the

Commission now finds that there is no basis on which a friendly

settlement can be effected.

C. The present Report

12. The present Report has been drawn up by the Commission (First

Chamber) in pursuance of Article 31 of the Convention and after

deliberations and votes, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

13. The text of the Report was adopted by the Commission on

22 February 1995 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

14. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

15. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

16. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

17. The applicant was born in 1962.

18. 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."

19. Her father was convicted on 15 March 1991 of indecent assault

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

probation.

20. 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.

21. 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.

22. Following the judgment 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

as being outside the six year time-limit imposed by section 2 of the

Limitation Act 1980.

B. Relevant domestic law and practice

23. The Limitation Act 1939 imposed a six year time-limit from the

date of the cause of action on claims founded on simple contract or

tort. A two year time-limit was imposed on claims against local

authorities. Since the vast majority of actions against public

authorities were for personal injuries arising out of accidents, the

question as to the fairness of a short time-limit arose. A report

presented to Parliament by the Tucker committee in 1949 recommended

that the period of limitations for actions in respect of personal

injuries should be 2 years irrespective of the defendant but that

courts should have discretion to grant leave for claims up to be

brought six years later. The committee excluded trespass to the person

from their definition of personal injury. In the ensuing Law Reform

(Limitation of Actions) act 1954 a three year period with possible

extension to six years was provided for actions for personal injuries

which were formulated as actions for negligence, nuisance or breach of

duty.

24. In the case of Letang v. Cooper (1965 1 Q.B. 232), where the

plaintiff had been injured as she sunbathed on the grass by a car which

ran over her legs, the plaintiff sought to evade the three year

time-limit imposed on personal injury by framing her action as a claim

in trespass to the person. In the Court of Appeal, Lord Denning found

that for injury inflicted unintentionally the only cause of action was

in negligence not trespass but that if he was wrong he would hold that

the phrase "breach of duty" covered a breach of any duty under the law

of tort.

25. With the discovery of injuries to health resulting from exposure

to noxious substances many years previously (eg. Cartledge v. Jopling,

1963 AC 758), the law on limitation periods was reformed further to

confer a judicial discretion to extend the three year time limit

(Limitation Act 1963 later replaced by the Limitation Act 1975). The

legislation currently in force is the Limitation Act 1980.

26. 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 likely to be 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..."

The case of Stubbings v. Webb

27. The issue arose in the case of Stubbings v. Webb as to the time-

limit applicable under the 1980 Act to claims concerning sexual abuse

which took place during childhood. In the case, the plaintiff alleged

abuse which occurred up until 1971 when she was 14, but contended that

it was not until September 1984 that she first became aware of the

possibility of a connection between the serious psychological problems

which she suffered and the alleged abuse.

28. On 18 August 1987, she commenced proceedings in trespass against

her adoptive parents and their son, S., seeking damages for the alleged

sexual and other abuse. The defendants sought to strike out the claim

as being time-barred under the Limitation Act 1980 which imposed a

time-limit of three years from the date on which she had knowledge that

she had grounds to bring a claim.

29. The High Court Master held on 14 December 1989 that on the facts

of the case the plaintiff's "date of knowledge" was more than three

years prior to the date of commencement of proceedings and that there

were no grounds for exercising the discretion in section 33 of the 1980

Act to waive the time-limit.

30. On appeal, the High Court judge and the Court of Appeal both took

a different view, holding first that the proceedings had been commenced

within three years of the relevant "date of knowledge" and secondly

that, even if they had not been, it would be appropriate to exercise

the section 33 discretion to allow the claim to continue. In his

judgment in the Court of Appeal dated 27 March 1991, Lord Justice

Bingham, found that the plaintiff could not reasonably have been

expected to acquire knowledge at an earlier date of the causal link

between her health problems and the childhood abuse from facts

observable or ascertainable by her, since mental impairment, such as

this allegedly was, almost necessarily produced a lack of insight. He

agreed with the High Court judge that she was entitled to pursue her

action as of right since it had been introduced with three years of the

date of knowledge that she had suffered significant injury. On

considering whether, if applicable, the discretion to allow the claim

should be exercised under section 33, he found that notwithstanding the

lapse of time (twenty years in respect of the latest of the acts

complained of) the delay did not prejudice the defendants' ability to

rebut the claims. In this context, he noted that the alleged acts took

place in private without other witnesses and that, though the

defendants' recollection of time and place might have deteriorated, as

regarded the essential point in the case -whether the acts took place

or not- there was no room for doubt or mistake and the case would turn,

as it would at any point in time, on whether the judge could accept the

plaintiff's evidence as honest and reliable.

31. Before the Court of Appeal, the defendants also contested that

the three year "date of knowledge" time-limit was applicable at all

since the plaintiff's claim was not a claim based on "negligence,

nuisance or breach of duty" but was rather one "founded on tort" within

the meaning of section 2, subject to section 28 of the 1980 Act. The

defendants claimed that the date of the plaintiff's knowledge was

accordingly irrelevant and that the Court had no discretion under

section 33 to mitigate against the consequences of the applicable

limitation period. In its judgment of 27 March 1991, the Court of

Appeal rejected this argument. Lord Justice Bingham held, inter alia:

"On behalf of the a submission was made to us, not

made to the master and the judge, that sections 11, 14 and

33 of the Act do not apply to the plaintiff's claims, with

the result that they are subject to a non-extendable 6 year

limitation period which irretrievably expired in January

1981, 6 years after the plaintiff reached her majority.

The grounds of this submission were

(1) that the plaintiff's claims were of battery, i.e.

intentional trespass to the person;

(2) that such a cause of action does not fall within the

reference in section 11 (1) of the Act 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";

and

(3) that the claims are therefore subject to the six year

time-limit prescribed by section 2 of the Act for claims in

tort not covered by section 11.

At the risk of apparent discourtesy, I shall deal with this

submission very briefly. In Letang v. Cooper [1965] 1 QB

232 the Court of Appeal (Lord Denning MR, Danckwerts and

Diplock L.JJ) construed the language here in question as

embracing a claim based on unintentional and intentional

trespass to the person. Cooke J so understood the

judgments in Long v Hepworth [1968] 1 WLR 1299, and I

consider the Court of Appeal's ruling to be binding upon us

as he held it binding upon him. The Limitation Acts of

1975 and 1980 were enacted in the same terms against the

background of this authority, which they must be taken to

have endorsed. Even in the absence of authority I would,

like Cooke J, reach that conclusion on construction of the

statutory language alone, unless I could see some reason

why Parliament should have intended to draw the suggested

distinction, and I can see none. I am satisfied that this

is an action falling within section 11 (1) of the Act."

32. The defendants successfully appealed on this point to the House

of Lords and the plaintiff's claim was dismissed on 16 December 1992.

The House of Lords based their decision on what they held to be

Parliament's intended meaning for the words in section 11. It was

clear from the records of the parliamentary debate introducing the 1954

Limitation Act that the Government and consequently Parliament had not

intended the words "negligence, nuisance or breach of duty" to extend

to cases concerning intentional as opposed to accidental infliction of

injury. Given the identical language carried over into the subsequent

legislation, the House of Lords felt bound to accept the defendants'

submissions that the plaintiff's claim, framed as it was in terms of

intentional infliction of injury, did not fall within the ambit of

section 11 nor, consequently, of sections 14 and 33 of the 1980 Act.

33. The result of this decision was that the standard and inflexible

limitation period of six years provided by section 2 of the Limitation

Act 1980 applied to the plaintiff's claim, subject to the delayed

starting point established by section 28 of the Act ie. the age of

majority for injuries suffered in childhood. The House of Lords

accordingly concluded that the claim was time barred and should be

dismissed.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

34. The Commission has declared admissible the applicant's complaints

that she is denied access to court as a result of the limitation period

applied in respect of her claims arising out of incidents of abuse

which she suffered during childhood.

B. Point at issue

35. The issue to be determined is:

- whether there has been a violation of Article 6 para. 1

(Art. 6-1) alone or taken in conjunction with Article 14

(Art. 6-1+14) of the Convention in that the applicant is denied

access to court to obtain a determination of her civil rights as

a result of the applicable limitation period;

C. Article 6 para. 1 (Art. 6-1) of the Convention alone and taken

inconjunction with Article 14 (Art. 6-1+14)

Article 6 para. 1 (Art. 6-1) of the Convention

36. Article 6 para. 1 (Art. 6-1) of the Convention provides in its

first sentence:

"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."

37. The applicant's claims relate to alleged psychological injury

caused by sexual abuse during her childhood. The Commission finds, and

the Government have not contested, that Article 6 para. 1 (Art. 6-1)

is applicable, the applicant's complaints relating to the determination

of rights of a civil character.

38. The applicant submits that the six year time-limit imposed on

injuries resulting from intentional injury (trespass, assault etc)

effectively bars her access to court in the determination of her claims

of psychological injury resulting from childhood abuse. The applicant

submits 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 victim of intentional

injury to make a claim until after the expiration of the six year

period and application of an inflexible rule in these circumstances

causes obvious injustice.

39. 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

six 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 argue

that a period of six years for this purpose is reasonably

proportionate, pointing out that less generous time-limits are common

in international conventions eg. a one year limitation period for

claims under the Convention on the Contract for International Carriage

of Goods by Road and two years under the Warsaw Convention on the

Carriage of Goods by Air. The Government consider that it is extremely

unlikely that the victim of an intentional injury will be unaware of

the ingredients of his cause of action. In their submission, a line has

to be drawn at some point, the right of access to court by its very

nature calling for regulation, and Contracting States must enjoy a

certain margin of appreciation in laying down such regulation.

40. The Commission recalls that the case-law of the Convention organs

establishes that Article 6 para. 1 (Art. 6-1) secures to everyone the

right to have any claim relating to his or her civil rights and

obligations brought before a court or tribunal (eg. Eur. Court H.R.

Golder judgment of 21 February 1975, Series A no. 18 p. 18, para. 36).

The right of access to court guaranteed by Article 6 para. 1 (Art. 6-1)

is however not absolute, but may be regulated by States, which have a

certain margin of appreciation, provided that any limitation applied

does not restrict or reduce the access left to the individual in such

a way or to such an extent that the very essence of the right is

impaired. Furthermore, a limitation will not be compatible with

Article 6 para. 1 (Art. 6-1) if it does not pursue a legitimate aim and

if there is not a reasonable relationship of proportionality between

the means employed and the aim sought to be achieved (see Eur. Court

H.R,, Ashingdane judgment of 28 May 1985, Series A no. 93, pp. 24-25

paras. 55-57).

41. The Commission has in previous cases found that it must generally

be accepted in the interests of good administration of justice that

there are time-limits within which prospective proceedings must be

introduced. It agrees with the Government that time-limits imposed on

the introduction of claims pursue the legitimate aim of preventing

stale claims and the possible injustice to defendants faced with

evidential difficulties in contesting allegations relating to distant

events and of promoting legal certainty.

42. The Commission's case-law has further established that the need

for legal certainty may justify the imposition of time-limits which

cannot be waived. In a case dealing with a three year time-limit on the

introduction of claims by a father to challenge the paternity of a

putative child, the Commission considered that, in the interests of the

good administration of justice, it had to be accepted that the time-

limit was final and that there was no possibility to institute

proceedings even when new facts had arisen after the expiry of the

time-limit (No. 9707/82, Dec. 6.10.82, D.R. 33 p. 223).

43. The Commission notes that the applicant claims that in the

circumstances of her case an inflexible time-limit is disproportionate

since it is not infrequent that knowledge of the factors necessary to

bring a claim based on sexual abuse in childhood arises only after a

considerable number of years. This is however a situation which may

arise, for different reasons, in the context of other types of claims

eg. the paternity case referred to above.

44. The applicant's principal argument is that the application of a

rigid time-limit to claims brought by victims of intentional injury is

unreasonable and disproportionate when compared with the position of

victims of unintentional injury: in the latter case, the law provides

for flexibility by treating the date of the victim's knowledge of the

facts necessary to found a claim as the starting date for the

limitation period and by conferring a discretion on the courts to set

aside the time-limit in a particular case if it would be equitable to

allow the action to proceed. Consequently, the Commission considers

that the essence of the applicant's complaints is that she is, without

good reason, subject to a time-limit which is final, whereas victims

of other injuries, unintentionally inflicted, benefit from different

and more favourable regulations. This raises issues of discrimination

which the Commission finds appropriate to examine in conjunction with

Article 14 (Art. 14) of the Convention which has also been raised by

the applicants.

Article 6 para. 1 (Art. 6-1) of the Convention in conjunction

with Article 14 (Art. 6-1+14)

45. 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."

46. The applicant contends that imposing a rigid six year time-limit

on applicants who have suffered psychological damage, rather than the

three year time-limit from the date of knowledge which applies to

claims of unintentional injury combined with the power of the courts

to extend the period beyond the three years, amounts to discrimination

on the basis of her status which is not objectively or reasonably

justified. There is, she submits, no rational or credible justification

for distinguishing between cases of intentional or unintentional injury

in regard to limitation periods. 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.

47. The Government 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.

48. The Commission recalls that Article 14 (Art. 14) of the

Convention safeguards individuals placed in analogous situations from

any discrimination in the enjoyment of the rights and freedoms set out

in the Convention and Protocols (see eg. Eur. Court H.R. Van der

Mussele judgment of 21 November 1982, Series A no. 70). The Government

contend that the applicants, victims of intentionally inflicted harm,

cannot seek to compare themselves to victims of unintentionally

inflicted harm, who are in a separate and distinct category. The

Commission does not accept this submission. It notes that there may

be cases where it is unclear whether harm was inflicted deliberately

or negligently and that the two categories cannot be said to be

exclusive. Where a person suffers an injury in respect of which a civil

claim for compensation may lie, the Commission finds no basis for

drawing a distinction based on the intention or culpability of the

wrongdoer which would exclude comparison under Article 14 (Art. 14) of

the Convention.

49. The Commission finds therefore that the applicant may claim to

be in an analogous position to victims of negligently inflicted injury

for the purposes of Article 14 (Art. 14) of the Convention.

50. As regards the alleged discriminatory treatment, the Commission

recalls that victims of trespass to the person, such as the present

applicant, are subject to a six year time-limit with no discretion in

the courts to allow the action to proceed in particular cases, while

victims of negligently inflicted injury are subject to a three year

time-limit which runs from the date of knowledge of the facts necessary

to found the cause of action and may be held by the courts not to apply

where it is equitable to do so in the circumstances of a particular

case. The applicant may therefore, in the Commission's view, claim to

be victim of a difference of treatment as regards the regulation of her

access to court in the determination of her claims. The difference in

treatment is based on the fact that the injuries of which she claims

to be a victim were intentionally inflicted and the Commission

considers that this is a factor relating to personal status which falls

within the scope of Article 14 (Art. 14) of the Convention.

51. However, the Commission recalls that whether a difference in

treatment constitutes discrimination in the sense of Article 14

(Art. 14) of the Convention depends on whether or not there exists an

objective and reasonable justification. This requires that the

difference pursues a legitimate aim and that there is a reasonable

relationship of proportionality between the means employed and the aim

sought to be realised. In this assessment of whether and to what extent

differences in otherwise similar situations justify a different

treatment, Contracting States enjoy a margin of appreciation which will

vary according to the circumstances, subject-matter and background (see

eg. Eur. Court H.R., Lithgow and Others judgment of 8 July 1986,

Series A no. 102, pp. 66-67, para. 177).

52. Having regard to the above, the Commission recalls that the

Government state that the justification for the difference in treatment

is that victims of intentional injury are generally in the position

that they are aware of the facts necessary to found a claim for

compensation, whereas victims of negligently inflicted injury such as,

for example, a patient who has been subject to an actionable lack of

care in surgery may not be aware of either the injury or its cause for

years afterwards.

53. The Commission finds that the Government's argument is convincing

but only up to a certain point. As the applicant states, victims of

unintentional injury are also generally in a position where they are

aware of the grounds for bringing a claim in the courts. The Commission

is not satisfied that it is reasonable or proportionate to allow

flexibility in the application of the time-limits in cases where a

victim of unintentional injury lacks the knowledge required to bring

an action but to exclude it entirely where a victim of intentional

injury lacks the requisite knowledge. The arguments as to legal

certainty, prevention of stale claims and injustice to defendants

applies equally to both categories of victim. There is no apparent

obstacle to allowing the courts to examine whether it is equitable to

proceed in cases other than those of negligent injury.

54. The Commission notes also the case of Letang v. Cooper referred

to in the judgments of the Court of Appeal and House of Lords in the

Stubbings case where the plaintiff had been run over by a car while

sunbathing on the grass and an issue arose as to whether the time-limit

for unintentional or intentional injury should apply to the victim's

claim. It seems to the Commission anomalous that a victim's access to

court could turn on whether the alleged wrongdoer inflicted an injury

accidentally or deliberately.

55. Consequently, the Commission finds that the application of the

six year time-limit to the applicant's claims is not objectively or

reasonably justified and discloses discriminatory treatment in the

regulation of her access to court for the determination of her civil

rights.

CONCLUSION

56. The Commission concludes, unanimously, that there has been a

violation of Article 14 of the Convention in conjunction with Article 6

para. 1 (Art. 14+6-1)) of the Convention.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

APPENDIX I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

14.06.93 Introduction of the application

19.06.93 Registration of the application

Examination of admissibility

01.12.93 Commission's decision to invite the parties to

submit observations on the admissibility and

merits

21.03.94 Government's observations

13.04.94 Commission's grant of legal aid

10.6.94 Applicant's reply

06.09.94 Commission's decision to declare the application

admissible

Examination of the merits

06.09.94 Commission's deliberations

23.11.94 Government's observations

17.01.95 Examination of the state of proceedings

22.02.95 Commission's deliberations on the merits, final

votes and adoption of the Report

Menu

D.S. v. THE UNITED KINGDOM

D.S. v. THE UNITED KINGDOM

LEXI