Kelly v. Cox & Anor [2002] ScotCS 140 (20th May, 2002)

Kelly v. Cox & Anor [2002] ScotCS 140 (20th May, 2002)

The pursuer suffered loss, injury, and damage at the time of the abuse (1955-1961), triggering the long negative prescription, which extinguished any obligation to make reparation by 31 December 1981. The subsequent development of psychiatric illness does not create a new obligation. The plea of non valens agere cum effectu does not apply as there was no legal impediment to suing. The Human Rights Act 1998 does not require a different result, as the relevant legislation is clear and unambiguous. The claim is also time-barred by limitation, and there are insufficient averments to justify equitable extension under section 19A. However, sufficient averments of vicarious liability are made to...

Citation
[2002] ScotCS 140
Parties
Pursuer: Joseph Philip McGrath Kelly; First Defender: Mrs. Mary Cox (as executrix of Edward Gilmartin); Second Defender: Glasgow City Council
Jurisdiction
Scotland
Procedural Posture
Reparation (personal Injury) / Debate on Prescription, Limitation, and Relevancy
Outcome
Action dismissed; absolvitor granted to each defender.
Legal Topics
Prescription, Limitation of Actions, Vicarious Liability, Human Rights Act 1998, Personal Injury, Sexual Abuse
Tort Civil Procedure Human Rights Prescription Limitation of Actions Vicarious Liability Human Rights Act 1998 Personal Injury +1 more

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Parties

Joseph Philip McGrath Kelly

Pursuer

Mrs. Mary Cox (as executrix of Edward Gilmartin)

First Defender

Glasgow City Council

Second Defender

Procedural Posture

Reparation (personal Injury) / Debate on Prescription, Limitation, and Relevancy

Legal Issues

  1. 1 Whether the pursuer's claim for damages for psychiatric injury arising from historic sexual abuse is extinguished by the long negative prescription under the Prescription and Limitation (Scotland) Act 1973
  2. 2 Whether the plea of non valens agere cum effectu applies to suspend prescription
  3. 3 Whether the Human Rights Act 1998 or the European Convention on Human Rights requires a different result

Ratio Decidendi

The pursuer suffered loss, injury, and damage at the time of the abuse (1955-1961), triggering the long negative prescription, which extinguished any obligation to make reparation by 31 December 1981. The subsequent development of psychiatric illness does not create a new obligation. The plea of non valens agere cum effectu does not apply as there was no legal impediment to suing. The Human Rights Act 1998 does not require a different result, as the relevant legislation is clear and unambiguous. The claim is also time-barred by limitation, and there are insufficient averments to justify equitable extension under section 19A. However, sufficient averments of vicarious liability are made to...

Court Disposition

Action dismissed; absolvitor granted to each defender.

Orders

  • Repel pursuer's fourth and seventh pleas-in-law.
  • Repel second defenders' seventh plea-in-law.