Assault and abuse can occur anywhere – in the workplace, at school, after a night out. If, as statistics relate, we live in an ever-more violent society, does our legal system provide the means to bring fairness and satisfaction to either claimants or defendants?

Following the changes to the Criminal Injuries Compensation Scheme, more people may be turning to civil claims for compensation.

Complexity and incoherence

In 1998, the Law Commission reported on the "complexity and incoherence" of the law on limitation. A claimant seeking to pursue a claim arising from assault or abuse must consider which of the following limitation periods might apply:

. six years non-extendable if the claim is for the direct injury caused by the assault;

. six years non-extendable under the Protection from Harassment Act (PHA);

. three years if a claim arising from a negligent act;

. three years from the 'date of knowledge' of the link between the negligent act and the injury;

. such other period as the court sees fit if it exercises its discretion to extend the limitation period for a claim in negligence.

Human rights

The Law Commission's report, now some eight years old, considered that the law needed to be reformed and suggested a three-year period from the date a claimant realised he or she had a legal claim, with a long stop in personal injury cases of 30 years. The recommendations have not progressed any further.

To further complicate matters, the Human Rights Act (HRA) was thrown into the fray last year in the headline-grabbing claim of R v Iorworth Hoare (IH). The HRA was used to argue for what would have been an extension to the law of limitation.

The facts are not in dispute. R was raped by IH who, in turn, was found guilty and imprisoned. On day release he bought a lottery ticket and won £7m. R's claim for damages arising from the assault was clearly out of time. She had not brought a claim before because of IH's previous impecuniousness.

She claimed that Section 3 of the HRA meant that the Limitation Act had to be construed differently and that Article 6 of the Convention on Human Rights required the court to exercise its discretion in appropriate cases and extend the limitation period. The court held that the HRA could not apply retrospectively.

The current limitation period for deliberate assault therefore remains as decided in Lister v Hesley Hall; that there is a non-extendable six-year period from the assault (or date of majority). There is no date of knowledge argument and no court discretion.

Where the claim arises from a negligent act, then the limitation period is a straightforward three years from the negligent act, or a not-so-clear three years from the date of knowledge of an injury having arisen as a consequence of the assault/abuse. Physical injuries are mostly likely to be obvious immediately, but the great difficulty is the psychiatric injury.

The House of Lords in KR v Bryn Alyn concluded that the traumatised claimants had not appreciated that their psychiatric injury had been caused by the abuse. Their date of knowledge only started to accrue when they received a medical opinion informing them of the connection. This has resulted in defendants being advised of claims arguably in advance of the limitation period starting to accrue, as the letter of claim will often be sent before the psychiatric report has been obtained.

This raises the question: how can a claimant instruct a solicitor to pursue a claim at a time when he or she, according to the judgment in Bryn Alyn, has not even been advised by a medical expert of the link between the abuse and the subsequent psychiatric injury?

The issue of limitation in claims of this nature does indeed seem to be complex and incoherent and therefore unsatisfactory for claimants or defendants.

Vicarious liability

If an assault or abuse has occurred, and there is no dispute that it happened and it was in the course of the perpetrator's employment, then the perpetrator's employer may be vicariously liable.

Clearly the perpetrator would not have been working as expected by the employer when the attack or abuse occurred. It is a long-established principle that an employer will be vicariously liable for its employees' acts undertaken during their employment, even where their actions are criminal. The problem arises in assessing where employment ends and personal responsibility starts.

The House of Lords in Lister considered closely the connection between the nature of the employment and the wrong committed. There the perpetrator was a warden employed to care for the boys in his employer's care. There was a clear link between what he was employed to do and the opportunity he had to commit the abuse.

Security guards have similarly been found to have such a close connection between what they were employed to do and the assault they committed, even if, as in Mattis v Pollock, they had gone home from work before the assault occurred.

Both of the above examples appear justifiable, but what of the less clear situations?

The case law to date suggests a trend towards an employer being liable for any employee's violent acts, including a volunteer who assaults or abuses someone, if the claimant can prove that the employer provided the opportunity for the employee and claimant to meet.

Criminal Records Bureau checks are often touted as the answer to the problem but, even ignoring any doubts about their accuracy, such checks do not highlight the individual with no previous record, criminal or otherwise.

Intentional acts wilfully done

The compensation process for assault and abuse may indeed be ripe for change when a rarely used tort from 1897 is used as the alternative basis for a claim.

In the case of Wilkinson v Downtown, the defendant was found liable for the psychiatric harm caused to the claimant as a result of his wilful acts. Some 109 years later in C v D the claimant argued successfully that his headmaster had acted in such a way as to cause harm, and had been reckless as to the consequences of his acts. In R v Iorworth Hoare the use of this tort was brought to the Court of Appeal's attention. No such allegation had been made in that case and the judgment was that it was "preferable for the law to develop along conventional modern lines rather than for a recourse to this obscure tort…" That said, there is nothing to prevent a claimant pursuing a claim for damages for this tort (save possible issues of limitation).

Protection from harassment

The PHA has been in force for nine years now, and was introduced as a response to stalking. Over the past two to three years it has provided a basis for more civil claims arising from alleged bullying, whether physical or verbal.

To date, the reported cases have been in connection with claims in the workplace but, in theory, a claim under the PHA could be brought in other situations. Vicarious liability for such claims remains an issue. Clearly, the PHA is irrelevant for any cases of abuse that took place before 1997, but it is another avenue that may in future be pursued.

Under the current legal system, pitfalls and difficulties remain for both claimants and defendants in claims arising from assault and abuse. But this area of the law is continuing to evolve.

A challenge to limitation under the HRA, where the basis for the claim has arisen since it became effective, may succeed, or a claim for abuse amounting to a breach of the PHA may be brought. Whether in the future the law develops to bring straightforward or satisfactory resolution for any party involved is yet to be seen.

Paula Jefferson is a partner in the injury risk group at Beachcroft.