CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1994

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)