Jimmy Savile’s access to patients raises the question of whether hospitals have legal liability for his actions.
The outcome of the investigations into Sir Jimmy Savile’s activities at Stoke Mandeville, Broadmoor and Leeds General Infirmary will have real consequences for future civil actions involving hospitals.
There have been reports in the press that nurses in at least one hospital were advising children to pretend to be asleep during Jimmy Savile’s visits - the inference being that they knew of his attentions and were trying to protect the children.
If the nurses had real suspicions that there was inappropriate conduct, then that knowledge of those suspicions would almost certainly be imparted to the hospital management.
Many of the alleged victims have intimated they are considering legal action. This may well be in the form of a personal injury action for assault against Savile’s employers or the hospitals.
Claims against employers for assault (usually by one employee on another) are not uncommon. Such claims have included sexual assault by a warden in a care home, a bouncer stabbing a nightclub customer outside the venue, and an assault by a railway ticket inspector on someone who failed to show his ticket rapidly enough.
In each example the employer of the aggressor was found to be liable, despite the fact they undoubtedly did not encourage or permit the aggression which resulted in the injury.
But while the BBC’s legal team may be squirming slightly at the thought of being on the wrong end of a claim, none of the hospitals concerned employed Savile.
However, that may not let the hospitals off the hook. From the limited and perhaps unreliable reports so far, the DJ, who died a year ago, seems to have had unprecedented access to the hospitals and patients. He was no ordinary hospital volunteer and fundraiser. He was not paid, but he was given a room or flat at the hospitals. If this accommodation was the location of any abuse, the hospitals might find themselves in a tricky legal position.
One of the key elements will be the extent to which Savile was given access without supervision to children and vulnerable adults while at the hospitals. If, for example, the standard restrictions which would have been imposed on any other member of the public would have prevented the abuse, it may be argued that the hospitals failed in the duty of care to their patients.
The courts have been clear (in employee cases) that “mere opportunity is not enough” to bring a claim. Any victim would have to establish that the hospital knew or ought to have known of the abuse or assaults, or that there were reasonable grounds for suspecting that Savile should not have unsupervised access to children or vulnerable patients.
Suspicions and concerns about Savile’s conduct did not suddenly come to light after his death. He was asked directly about allegations of child abuse as far back as 2007 in an interview with Newstalk radio in Ireland. He denied the allegations but they were clearly at large.
We also now know that Savile was interviewed under caution by Surrey police in the same year about an assault claim at a children’s home in the 1970s.
Of course, the alleged assaults involving the hospitals that have come to light so far took place a long time ago. Ordinarily, claims for personal injury have a three-year limitation or when the victim reaches 21, whichever is the later. The “limitation defence”, as it is known, is open to any defendant to which it applies.
But the opprobrium of the popular press directed at hospitals and employers hiding behind a legal technicality, as they will portray it, may not be that palatable for the institutions concerned. The courts now have almost unlimited discretion to waive limitation in appropriate cases and, in a number of well publicised sex scandals (for example, those involving the church), have been prepared to do so.
It is not only the victims who will be waiting for the outcome of the investigation. The lawyers will be, too. Victims denied the opportunity to pursue a criminal case may now feel their only route to justice is via the civil courts.
Colm Nugent is a barrister in the insurance division of Hardwicke chambers in London.