BONNYRIGG (UNITED KINGDOM)
Scottish Legal News [Dundee, Scotland]
September 12, 2023
By Michael Skilling
A woman who claimed she was abused by a priest and staff in a care home in Bonnyrigg run by the Sisters of Nazareth in 1973 has successfully established that it would be possible for a fair trial to take place.
About this case:
- CITATION: [2023] SC EDIN 27
- JUDGMENT: External link
- COURT: Sheriff Court
- JUDGE: Sheriff G.S. Primrose KC
Pursuer GD sought solatium damages for abuse she said occurred over three weeks in the summer of 1973, when she was aged 11. It was argued by the defender that, even if a fair trial could take place, it would be substantially prejudiced were the action to proceed.
The case was heard by Sheriff Graham Primrose, with Langlands, advocate, appearing for the pursuer and Brown, advocate, for the defender.
Seemingly no reason
Together with her three sisters and two brothers, the pursuer was a resident at the defender’s care home, Nazareth House, for three weeks in July and August of 1973. She averred that, during this time, she was sexually abused by a male priest in the shower, with the knowledge of the Sisters that looked after their group. It was further averred that the Sisters, particularly a Sister Y, had physically assaulted her, often for seemingly no reason.
It was averred that direct liability arose from the defender’s failure to have proper systems in place, such that it was possible for the abuser to have access to the showers and perpetrate the acts of abuse. Vicarious liability arose from the fact that three named Sisters knowingly permitted the sexual abuse to happen and did nothing to prevent it, and in respect of the assaults allegedly perpetrated by Sister Y.
Of the twelve Sisters present during the pursuer’s stay, three survived. These included Sister Y, who was capable of giving evidence. However, the defender had not been able to identify the male priest or other adult whom the pursuer averred had sexually abused her. The defender further averred that no male priests were detailed in the visitor’s book for the time period specified, and the pursuer’s account of events had evolved over the course of the action.
For the defender it was submitted that its task in investigating the pursuer’s claim was made more difficult by the absence of records. The case law outlined a consistent theme as to the circumstances in which the court would find a fair trial was not possible, including a lack of criminal convictions resulting from the alleged abuse and the death of an alleged abuser. These same factors would result in substantial prejudice were a proof to be allowed.
Positive lines of defence
In his decision, Sheriff Primrose observed: “The present case is highly unusual on its facts and parallels cannot be drawn with the circumstances in which abuse is alleged to have occurred in other cases, nor with the decisions in those cases. Whilst the party who actually carried out the physical act of abusing the pursuer has not been traced, and it appears likely it can be said that this person never will be traced now, one of the three Sisters who are said to have facilitated the abuse and permitted it to happen, Sister Y, remains alive.”
He continued: “In the absence of a detailed statement or affidavit from Sister Y about the very particular allegations made against her, it is difficult to reach the view that it would not be possible for the defender to receive a fair trial. The court does not know the full extent of the available evidential material or its relevance or weight in advance of the trial itself. Given that Sister Y denies the allegations she may well be able to provide the defender with useful testimony which will enable positive lines of defence to be advanced and which will allow cross-examination of the pursuer and her sister on those lines of defence. Their evidence can be tested on this basis.”
On the impact of other features said to be prejudicial, Sheriff Primrose said: “Whilst it is fair to say that the pursuer’s pleadings have changed during the course of the litigation both in respect of the acts allegedly perpetrated against her and the identity of those who perpetrated those acts, I do not consider that the defender is prejudiced in this regard as they are able to cross-examine the pursuer as to why this change has occurred, and part of the reason for that change may have been that the original formulation of the case, that the defender was liable for the acts of priests, was erroneous.”
He concluded: “Whilst undoubtedly the passage of such an amount of time since the alleged acts will cause prejudice I am not satisfied that it can be described as “substantial” to the degree that the case ought not to proceed any further. Had I been required to do so, I would, in any event, have reached the view that even if there was substantial prejudice caused to the defender, the pursuer’s interest outweighed that prejudice, and I would have found that the action ought to proceed.”
The sheriff went on to fix a procedural hearing in order to determine the how the case should proceed and the length of any diet required.