NA V NOTTINGHAMSHIRE COUNTY COUNCIL [2014] EWHC 4005 (QB)
Child Abuse Compensation Claims – Limitation and non delegable duty of care
FACTS:-
The Claimant (who was born in 1977) made three claims against the defendant local authority:
i) First, she says that while in her mother's care she suffered physical and emotional abuse by her mother and her mother's partner, that the defendant failed in the common law duty of care which it owed her by failing either to remove her from her mother's care at a young age or to put in place measures to protect her from the abuse which she suffered.
ii) Second, she said while in the foster care of Mr and Mrs A between March 1985 and March 1986 when she was aged 7 and 8, she suffered physical and emotional abuse by Mrs A for which the defendant is responsible in law.
iii) Third, she said that while in the foster care of Mr and Mrs B between October 1987 and February 1988 when she was aged ten, she suffered sexual abuse by Mr B and physical abuse by Mrs B for which again the defendant is responsible in law.
JUDGMENT:-
Mr Justice Male said that it was common ground that when providing social work services to the claimant pursuant to its statutory responsibilities, the defendant owed the claimant a common law duty of care to take reasonable steps to ensure that she was not exposed to a reasonably foreseeable risk of injury, whether to her physical or mental health. It was also common ground also that the standard of care required pursuant to this duty was that of a reasonably competent social worker in the particular role and circumstances under consideration, assessed against the professional standards of the time. (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).
All of the claimant's claims were time barred. It was common ground that in accordance with the guidance given in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, the right approach was to hear the evidence before making any decision as to disapplying the limitation period.
The defendant contended that although a substantial volume of documents were available, some documents had not survived, while others which had were difficult to read; that witnesses' memories had faded and, in some cases, potential witnesses had died; and that it was in practice difficult or impossible to recreate the dynamic and fluid situation with which the social workers responsible for the claimant had to deal or to assess their conduct by reference to the standards which prevailed at the time, without the benefit of hindsight or the different understanding of social work and child abuse which has evolved over the intervening years
Sadly the claimant's expert psychiatrist was diagnosed with cancer not long before the trial, making his attendance impossible, at a time when it was not practicable for a new expert to be instructed. Rather than adjourn a trial which was otherwise ready, the solution adopted was to order that breach of duty and limitation should be dealt with now, leaving causation and quantum to be dealt with later if necessary.
Males J went over the Claimant’s childhood. The Claimant had been through a number of placements in the care system and by the time of her adulthood was suffering from severe mental heath problems which continued to the present day. Males J turned to limitation and section 33 of the Limitation Act 1980, which contained the power to disapply the limitation period.
The basic question to be addressed in considering the exercise of discretion under section 33 was identified by Smith LJ in Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 namely that in the exercise of the discretion, the basic question to be asked was whether it was fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516.
i) The burden was on the claimant to show that it would be equitable to disapply the limitation period.
ii) Where more than one claim was brought by a claimant, the discretion should be exercised separately in relation to each claim.
iii) The longer the delay, the more likely it is that the defendant wouldl be prejudiced, but this would always depend on the issues and the nature of the evidence going to those issues. Delay was not critical in itself, but only to the extent that it had an effect on the defendant's ability to defend the claim.
iv) If a fair trial was no longer possible, that would be the end of the matter.
v) The troubled background of many claimants complaining of child abuse must be taken into account.
vi) Developments in the law relating to vicarious liability (and, I would add, non-delegable duties) had made it easier for a claimant to establish liability against an employer or similar defendant.
vii) Ultimately the discretion was wide and unfettered, with all relevant circumstances needing to be taken into account, including those mentioned in section 33 itself, although this list is not exhaustive.
Males J went over the Claimant’s reasons for delay. The Defendant’s counsel submitted that, just as a claimant could not claim damages based upon his or her own illegal conduct (cf. Gray v Thames Trains Ltd [2008] EWCA Civ 713), so too the claimant here could not excuse her delay in bringing this claim by relying on her illegal drug use. Males J did not accept this as a bald proposition of law. The Court of Appeal recognised in B v Nugent Care Society that many claimants in historic sex abuse cases had lifestyles which deteriorated into alcohol and drug abuse and crime, and that the abuse which they had suffered or claimed to have suffered might be a contributing factor in bringing this about, but did not suggest that periods of drug use which resulted from the fact of the abuse should be excluded from consideration as a matter of law.
In relation to prejudice, the Defendant's solicitors did succeed in tracing and adducing evidence from most of the social workers who dealt with the Claimant. Their evidence was valuable in describing the social work practices and attitudes of the late 1970s and 1980s which, in some important respects, were rather different from those of today, even if they could add little or nothing to the documents regarding the claimant's specific case. Whether the recollections of those witnesses would have been materially better or their evidence would have been any more detailed if they had been giving evidence following intimation of a claim in 1998 must be a matter of speculation. Common sense suggested that a time would come when all recollection has faded and that the passage of further time will make no real difference. The problem for the defendant's social workers was that even by 1998 the relevant events were well in the past and that the claimant represented only one case (and that not a particularly unusual one) in a busy caseload.
Some social workers could not be traced, though that did not apply to any against whom the principal allegations of negligence were advanced. Some had died. Nevertheless substantial contemporary documentation had survived, even if some of it was difficult to read. The claimant's social work files were available. Further, the expert evidence was important in this case. The parties' experts were able to express their views on the conduct of the defendant's social workers without apparently having greater difficulty as a result of the passage of time either since 1998 or at all.
Overall for the most part the evidence available to determine whether physical or sexual abuse of the claimant occurred during these placements was probably not significantly different from what it would have been if these claims had been advanced in 1998. Accordingly, although the defendant has suffered some prejudice as a result of the delay, this was relatively limited in the case of all three claims, negligence by the defendant's own social workers and abuse by Mrs A and the Bs.
Balancing these factors overall, Males J would conclude that a fair trial of all the claimant's claims was possible and that it was fair and just to disapply the limitation period in this case. It was, in his view a material consideration in reaching this conclusion that if the claimant's claims were well founded in fact, she had been let down by a system designed to protect her and it would therefore be unsatisfactory to reject her claim on limitation grounds in circumstances where a fair trial was possible.
Males J then turned to the issue of negligence. In relation to the first part of the claim, the Claimant’s time with her mother and partner, the Claimant’s own expert evidence did not support either a failure to take into care or a failure to protect. Like any professionals, social workers who were accused of having acted negligently were entitled to know what they are alleged to have done wrong, what they ought to have done instead, and what if any difference that would have made. Sadly, the circumstances of the claimant's mother during the late 1970s and early 1980s were not at all unusual.
Males J considered the evidence of the experts. The Claimant’s expert’s experience of social care provision ended after the 1960’s after which he had taken on an academic role. . His criticisms were also made in many cases by reference to an ideal standard of what social work ought to be, rather than the actual professional standards of reasonable social workers at the relevant time. Indeed, although he has considerable experience of acting as an expert witness, he admitted that he struggled to understand the Bolam test. The defendant's expert was now a social care consultant, who practised as a social worker in three different local authorities between 1976 and 1988. After this she became the team manager of both an adoption team and a child protection team during the 1990s, before progressing to more senior roles. She gave her evidence in a measured and responsive way, making concessions where appropriate, and concluding in short that the actions taken by the defendant's social workers in what became an increasingly difficult situation were reasonable and in accordance with the standards of the day. To the extent that her evidence differs from that of Professor Payne, Males J had no hesitation in accepting it. In the end, however, there were very few if any material differences between the experts.
Males J said that at the conclusion of the expert evidence it appeared that there was nothing left of the case which the claimant had pleaded and advanced in opening. Accordingly he directed that the claimant should serve a document stating precisely what it was that the defendant did or failed to do which was negligent and what it should have done instead. In the light of the evidence it was apparent that these allegations must fail.
Males J referred to the case of Sansom v Metcalfe Hamilton & Co (CA, 19 December 1997), a case of alleged negligence by chartered surveyors.
Males J then turned to the defendant council's responsibility for abuse by foster parents. This case was advanced either on the basis of vicarious liability or in reliance on a non-delegable duty.
Males J found the claimant to be on these matters a credible and truthful witness. Her account of the abuse was to be taken as true.
The starting point was the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case were the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991. It was clear from the section that local authorities had a broad discretion as to the accommodation to be provided for a child in care, although the exercise of that discretion was subject to the general duty to give first consideration to the need to safeguard and promote the welfare of the child.
The relevant regulations were the Boarding-Out of Children Regulations 1955 which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appeared from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life. The regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life.
In relation to vicarious liability, Males J referred to the following cases:-
Males J respectfully agreed with this reasoning. In short, applying the tests referred to in the Various Claimants case, the decisive point was that the defendant local authority not only did not have control over the foster parents, whether to direct what they do or how they do it, but that it was essential to the whole concept of foster parenting that the local authority should not have that control. Males J would agree with the conclusion of HHJ Godsmark QC in the Nottingham County Court on this issue in his valuable judgment in the case of JB v Leicestershire County Council (6 June 2014).
Accordingly the defendant was not liable on the basis of vicarious liability.
In relation to non-delegable duty, Males J referred to the following cases:-
a) The Claimant is a child, patient or vulnerable person dependent on the protection of the Defendant against risk of injury
b) There is an antecedent relationship between the Claimant and the Defendant independent of the negligent act or omission in itself
c) The Claimant has no control on how the Defendant chooses to perform those obligations
d) The Defendant has delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the Claimant and the third party was exercising the Defendant’s custody or care of the Claimant and the element of control that went with it.
e) The third party had been negligent in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
Males J made the following points:-
· First it was necessary to be sensitive about imposing unreasonable financial burdens on those providing critical public services.
· Second, it was the policy of the law to protect those who were both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives.
· Third, liability for the negligence of independent contractors applied only if and so far as the independent contractors were performing functions which the defendant has assumed for itself a duty to perform, as distinct from a duty to arrange for performance of the relevant function.
· Fourth, it was material that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable.
Later in his judgment, Males J said that he would have held that the defendant was responsible in law for the deliberate abuse of a child by the person to whose care the child was committed.
Males J would now consider whether it would be fair, just and reasonable for a non-delegable duty to be imposed on the local authority. He would disagree with Judge Godsmark.
He recognised the importance of the need to protect vulnerable children and the general principle that where there was a wrong, the law should provide a remedy, but it was not correct to say that an abused child would have no remedy if a non-delegable duty was not imposed on the local authority. There would always be a remedy against the abusers and some foster parents would have the means to satisfy a judgment, particularly if they were homeowners. The question was not whether abused children should have a remedy but whether it was fair, just and reasonable to impose an exceptional no-fault duty on the local authority in the case of foster parents by reason of the control which the local authority exercised over the child in determining where the child should live.
His reasons were as follows:-
· Firstly it would impose an unreasonable financial burden on local authorities providing a critical public service. The evidence of the defendant's fostering service manager, was that since the death of Peter Connolly ("Baby P") and the subsequent national scrutiny of social work practice, there had been an unprecedented rise in the number of children in care in Nottinghamshire, from 488 in 2008 to 906 in 2013, with 838 children in care at the end of February 2014. There was no reason to think that this picture of dramatically increased demand was different elsewhere. So far as historic abuse is concerned, there was now nothing which the defendant could do to ensure better protection of children who were in its care. The funds used to compensate the claimants would not be available to meet current urgent needs. If the defendant were held liable for abuse suffered by children at the hands of foster parents even where it had taken all reasonable steps to ensure that the child was safe in the placement, there would be a significant financial impact on the defendant council in terms of increased supervision of foster carers, recruitment practice and increased ongoing training requirements. This evidence gave rise to real concern. It was strongly in the public interest that local authorities such as the defendant should maintain their capacity to provide fostering services at a time of high demand, and that scarce and finite resources should be employed to best effect, that is to say in ensuring that vulnerable children currently in need of foster care are able to benefit from the experience of family life which fostering provides.
· Second, there was a real danger that the imposition of a non-delegable duty would promote, consciously or sub-consciously, "risk averse foster parenting." In other words, even where reasonable steps had been taken to ensure the suitability of foster parents, a local authority could be reluctant to place children with them or to do so without requiring additional and objectively unnecessary further checks.
· Third, there was a fundamental distinction between a placement with foster parents and a placement in a children's home. The former provided the experience of family life which was the cultural norm in our society. The latter did not. It was inherent in foster care placements that the local authority did not have the same control over the day to day lives of children in foster care that it had over children in residential homes.
· Fourth, it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents.
· Fifth, neither of the factors noted above which weighed with the Supreme Court in Woodland had any application to fostering. There was no question of any unfair distinction between those who could pay, and therefore could not obtain the benefit of a contractual non-delegable duty, and those who could not. Nor was there any question of a local authority once having provided fostering services itself, but subsequently deciding to outsource their provision.
· Finally, the majority of the Supreme Court of Canada in KLB v British Columbia (2003) 2 SCR 403 concluded that the applicable Canadian legislation provided no basis for imposing a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents.
Accordingly there must be judgment for the defendant in this action.
Child Abuse Compensation Claims – Limitation and non delegable duty of care
FACTS:-
The Claimant (who was born in 1977) made three claims against the defendant local authority:
i) First, she says that while in her mother's care she suffered physical and emotional abuse by her mother and her mother's partner, that the defendant failed in the common law duty of care which it owed her by failing either to remove her from her mother's care at a young age or to put in place measures to protect her from the abuse which she suffered.
ii) Second, she said while in the foster care of Mr and Mrs A between March 1985 and March 1986 when she was aged 7 and 8, she suffered physical and emotional abuse by Mrs A for which the defendant is responsible in law.
iii) Third, she said that while in the foster care of Mr and Mrs B between October 1987 and February 1988 when she was aged ten, she suffered sexual abuse by Mr B and physical abuse by Mrs B for which again the defendant is responsible in law.
JUDGMENT:-
Mr Justice Male said that it was common ground that when providing social work services to the claimant pursuant to its statutory responsibilities, the defendant owed the claimant a common law duty of care to take reasonable steps to ensure that she was not exposed to a reasonably foreseeable risk of injury, whether to her physical or mental health. It was also common ground also that the standard of care required pursuant to this duty was that of a reasonably competent social worker in the particular role and circumstances under consideration, assessed against the professional standards of the time. (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582).
All of the claimant's claims were time barred. It was common ground that in accordance with the guidance given in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516, the right approach was to hear the evidence before making any decision as to disapplying the limitation period.
The defendant contended that although a substantial volume of documents were available, some documents had not survived, while others which had were difficult to read; that witnesses' memories had faded and, in some cases, potential witnesses had died; and that it was in practice difficult or impossible to recreate the dynamic and fluid situation with which the social workers responsible for the claimant had to deal or to assess their conduct by reference to the standards which prevailed at the time, without the benefit of hindsight or the different understanding of social work and child abuse which has evolved over the intervening years
Sadly the claimant's expert psychiatrist was diagnosed with cancer not long before the trial, making his attendance impossible, at a time when it was not practicable for a new expert to be instructed. Rather than adjourn a trial which was otherwise ready, the solution adopted was to order that breach of duty and limitation should be dealt with now, leaving causation and quantum to be dealt with later if necessary.
Males J went over the Claimant’s childhood. The Claimant had been through a number of placements in the care system and by the time of her adulthood was suffering from severe mental heath problems which continued to the present day. Males J turned to limitation and section 33 of the Limitation Act 1980, which contained the power to disapply the limitation period.
The basic question to be addressed in considering the exercise of discretion under section 33 was identified by Smith LJ in Cain v Francis [2008] EWCA Civ 1451, [2009] QB 754 namely that in the exercise of the discretion, the basic question to be asked was whether it was fair and just in all the circumstances to expect the defendant to meet this claim on the merits, notwithstanding the delay in commencement. The application of this test in cases involving allegations of historic child abuse was considered by the Court of Appeal in B v Nugent Care Society [2009] EWCA Civ 827, [2010] 1 WLR 516.
i) The burden was on the claimant to show that it would be equitable to disapply the limitation period.
ii) Where more than one claim was brought by a claimant, the discretion should be exercised separately in relation to each claim.
iii) The longer the delay, the more likely it is that the defendant wouldl be prejudiced, but this would always depend on the issues and the nature of the evidence going to those issues. Delay was not critical in itself, but only to the extent that it had an effect on the defendant's ability to defend the claim.
iv) If a fair trial was no longer possible, that would be the end of the matter.
v) The troubled background of many claimants complaining of child abuse must be taken into account.
vi) Developments in the law relating to vicarious liability (and, I would add, non-delegable duties) had made it easier for a claimant to establish liability against an employer or similar defendant.
vii) Ultimately the discretion was wide and unfettered, with all relevant circumstances needing to be taken into account, including those mentioned in section 33 itself, although this list is not exhaustive.
Males J went over the Claimant’s reasons for delay. The Defendant’s counsel submitted that, just as a claimant could not claim damages based upon his or her own illegal conduct (cf. Gray v Thames Trains Ltd [2008] EWCA Civ 713), so too the claimant here could not excuse her delay in bringing this claim by relying on her illegal drug use. Males J did not accept this as a bald proposition of law. The Court of Appeal recognised in B v Nugent Care Society that many claimants in historic sex abuse cases had lifestyles which deteriorated into alcohol and drug abuse and crime, and that the abuse which they had suffered or claimed to have suffered might be a contributing factor in bringing this about, but did not suggest that periods of drug use which resulted from the fact of the abuse should be excluded from consideration as a matter of law.
In relation to prejudice, the Defendant's solicitors did succeed in tracing and adducing evidence from most of the social workers who dealt with the Claimant. Their evidence was valuable in describing the social work practices and attitudes of the late 1970s and 1980s which, in some important respects, were rather different from those of today, even if they could add little or nothing to the documents regarding the claimant's specific case. Whether the recollections of those witnesses would have been materially better or their evidence would have been any more detailed if they had been giving evidence following intimation of a claim in 1998 must be a matter of speculation. Common sense suggested that a time would come when all recollection has faded and that the passage of further time will make no real difference. The problem for the defendant's social workers was that even by 1998 the relevant events were well in the past and that the claimant represented only one case (and that not a particularly unusual one) in a busy caseload.
Some social workers could not be traced, though that did not apply to any against whom the principal allegations of negligence were advanced. Some had died. Nevertheless substantial contemporary documentation had survived, even if some of it was difficult to read. The claimant's social work files were available. Further, the expert evidence was important in this case. The parties' experts were able to express their views on the conduct of the defendant's social workers without apparently having greater difficulty as a result of the passage of time either since 1998 or at all.
Overall for the most part the evidence available to determine whether physical or sexual abuse of the claimant occurred during these placements was probably not significantly different from what it would have been if these claims had been advanced in 1998. Accordingly, although the defendant has suffered some prejudice as a result of the delay, this was relatively limited in the case of all three claims, negligence by the defendant's own social workers and abuse by Mrs A and the Bs.
Balancing these factors overall, Males J would conclude that a fair trial of all the claimant's claims was possible and that it was fair and just to disapply the limitation period in this case. It was, in his view a material consideration in reaching this conclusion that if the claimant's claims were well founded in fact, she had been let down by a system designed to protect her and it would therefore be unsatisfactory to reject her claim on limitation grounds in circumstances where a fair trial was possible.
Males J then turned to the issue of negligence. In relation to the first part of the claim, the Claimant’s time with her mother and partner, the Claimant’s own expert evidence did not support either a failure to take into care or a failure to protect. Like any professionals, social workers who were accused of having acted negligently were entitled to know what they are alleged to have done wrong, what they ought to have done instead, and what if any difference that would have made. Sadly, the circumstances of the claimant's mother during the late 1970s and early 1980s were not at all unusual.
Males J considered the evidence of the experts. The Claimant’s expert’s experience of social care provision ended after the 1960’s after which he had taken on an academic role. . His criticisms were also made in many cases by reference to an ideal standard of what social work ought to be, rather than the actual professional standards of reasonable social workers at the relevant time. Indeed, although he has considerable experience of acting as an expert witness, he admitted that he struggled to understand the Bolam test. The defendant's expert was now a social care consultant, who practised as a social worker in three different local authorities between 1976 and 1988. After this she became the team manager of both an adoption team and a child protection team during the 1990s, before progressing to more senior roles. She gave her evidence in a measured and responsive way, making concessions where appropriate, and concluding in short that the actions taken by the defendant's social workers in what became an increasingly difficult situation were reasonable and in accordance with the standards of the day. To the extent that her evidence differs from that of Professor Payne, Males J had no hesitation in accepting it. In the end, however, there were very few if any material differences between the experts.
Males J said that at the conclusion of the expert evidence it appeared that there was nothing left of the case which the claimant had pleaded and advanced in opening. Accordingly he directed that the claimant should serve a document stating precisely what it was that the defendant did or failed to do which was negligent and what it should have done instead. In the light of the evidence it was apparent that these allegations must fail.
Males J referred to the case of Sansom v Metcalfe Hamilton & Co (CA, 19 December 1997), a case of alleged negligence by chartered surveyors.
Males J then turned to the defendant council's responsibility for abuse by foster parents. This case was advanced either on the basis of vicarious liability or in reliance on a non-delegable duty.
Males J found the claimant to be on these matters a credible and truthful witness. Her account of the abuse was to be taken as true.
The starting point was the status of foster parents. The relationship between a local authority and foster parents is defined by statute. The important statutes in this case were the Children and Young Person Act 1969 (CYPA 1969) and the Child Care Act 1980 (CCA 1980), which applied before the coming into force of the Children Act 1989 in October 1991. It was clear from the section that local authorities had a broad discretion as to the accommodation to be provided for a child in care, although the exercise of that discretion was subject to the general duty to give first consideration to the need to safeguard and promote the welfare of the child.
The relevant regulations were the Boarding-Out of Children Regulations 1955 which prescribed the circumstances in which children might be boarded out and the supervisory duties of the local authority. The fundamental purpose of boarding-out appeared from regulation 1 and the undertaking which foster parents were required to give, set out in the Schedule to the regulations. Thus the whole concept of fostering was to give a child something regarded by society as precious, namely the experience of family life. The regulations did not give the local authority or its visiting social workers day-to-day control over the way in which the foster parents provided care for the child. That was a matter for the foster parents, consistently with the objective of giving the child a normal experience of family life.
In relation to vicarious liability, Males J referred to the following cases:-
- Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, [2013] 2 AC 1
- S v Walsall Metropolitan Borough Council [1985] 1 WLR 1150
- KLB v British Columbia [2003] 2 SCR 403
Males J respectfully agreed with this reasoning. In short, applying the tests referred to in the Various Claimants case, the decisive point was that the defendant local authority not only did not have control over the foster parents, whether to direct what they do or how they do it, but that it was essential to the whole concept of foster parenting that the local authority should not have that control. Males J would agree with the conclusion of HHJ Godsmark QC in the Nottingham County Court on this issue in his valuable judgment in the case of JB v Leicestershire County Council (6 June 2014).
Accordingly the defendant was not liable on the basis of vicarious liability.
In relation to non-delegable duty, Males J referred to the following cases:-
- Woodland v Essex County Council [2013] UKSC 66, [2014] AC 537
- Gold v Essex County Council [1942] 2 KB 293
- Cassidy v Ministry of Health [1951] 2 KB 343
a) The Claimant is a child, patient or vulnerable person dependent on the protection of the Defendant against risk of injury
b) There is an antecedent relationship between the Claimant and the Defendant independent of the negligent act or omission in itself
c) The Claimant has no control on how the Defendant chooses to perform those obligations
d) The Defendant has delegated to a third party some function which was an integral part of the positive duty which he had assumed towards the Claimant and the third party was exercising the Defendant’s custody or care of the Claimant and the element of control that went with it.
e) The third party had been negligent in the performance of the very function assumed by the Defendant and delegated by the Defendant to him.
Males J made the following points:-
· First it was necessary to be sensitive about imposing unreasonable financial burdens on those providing critical public services.
· Second, it was the policy of the law to protect those who were both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives.
· Third, liability for the negligence of independent contractors applied only if and so far as the independent contractors were performing functions which the defendant has assumed for itself a duty to perform, as distinct from a duty to arrange for performance of the relevant function.
· Fourth, it was material that until relatively recently, most of the functions now routinely delegated by schools to independent contractors would have been performed by staff for whom the authority would have been vicariously liable.
- Fifth, it was material also that the responsibilities of fee-paying schools were already non-delegable because they were contractual. There was no rational reason why there should be a different result when comparable services were provided by a public authority.
Later in his judgment, Males J said that he would have held that the defendant was responsible in law for the deliberate abuse of a child by the person to whose care the child was committed.
Males J would now consider whether it would be fair, just and reasonable for a non-delegable duty to be imposed on the local authority. He would disagree with Judge Godsmark.
He recognised the importance of the need to protect vulnerable children and the general principle that where there was a wrong, the law should provide a remedy, but it was not correct to say that an abused child would have no remedy if a non-delegable duty was not imposed on the local authority. There would always be a remedy against the abusers and some foster parents would have the means to satisfy a judgment, particularly if they were homeowners. The question was not whether abused children should have a remedy but whether it was fair, just and reasonable to impose an exceptional no-fault duty on the local authority in the case of foster parents by reason of the control which the local authority exercised over the child in determining where the child should live.
His reasons were as follows:-
· Firstly it would impose an unreasonable financial burden on local authorities providing a critical public service. The evidence of the defendant's fostering service manager, was that since the death of Peter Connolly ("Baby P") and the subsequent national scrutiny of social work practice, there had been an unprecedented rise in the number of children in care in Nottinghamshire, from 488 in 2008 to 906 in 2013, with 838 children in care at the end of February 2014. There was no reason to think that this picture of dramatically increased demand was different elsewhere. So far as historic abuse is concerned, there was now nothing which the defendant could do to ensure better protection of children who were in its care. The funds used to compensate the claimants would not be available to meet current urgent needs. If the defendant were held liable for abuse suffered by children at the hands of foster parents even where it had taken all reasonable steps to ensure that the child was safe in the placement, there would be a significant financial impact on the defendant council in terms of increased supervision of foster carers, recruitment practice and increased ongoing training requirements. This evidence gave rise to real concern. It was strongly in the public interest that local authorities such as the defendant should maintain their capacity to provide fostering services at a time of high demand, and that scarce and finite resources should be employed to best effect, that is to say in ensuring that vulnerable children currently in need of foster care are able to benefit from the experience of family life which fostering provides.
· Second, there was a real danger that the imposition of a non-delegable duty would promote, consciously or sub-consciously, "risk averse foster parenting." In other words, even where reasonable steps had been taken to ensure the suitability of foster parents, a local authority could be reluctant to place children with them or to do so without requiring additional and objectively unnecessary further checks.
· Third, there was a fundamental distinction between a placement with foster parents and a placement in a children's home. The former provided the experience of family life which was the cultural norm in our society. The latter did not. It was inherent in foster care placements that the local authority did not have the same control over the day to day lives of children in foster care that it had over children in residential homes.
· Fourth, it would be difficult to draw a principled distinction between liability for abuse committed by foster parents and liability for abuse committed by others with whom a local authority decided to place a child, including its own parents.
· Fifth, neither of the factors noted above which weighed with the Supreme Court in Woodland had any application to fostering. There was no question of any unfair distinction between those who could pay, and therefore could not obtain the benefit of a contractual non-delegable duty, and those who could not. Nor was there any question of a local authority once having provided fostering services itself, but subsequently deciding to outsource their provision.
· Finally, the majority of the Supreme Court of Canada in KLB v British Columbia (2003) 2 SCR 403 concluded that the applicable Canadian legislation provided no basis for imposing a non-delegable duty to ensure that no harm comes to children through the abuse or negligence of foster parents.
Accordingly there must be judgment for the defendant in this action.