PIERCE V DONCASTER METROPOLITAN BOROUGH COUNCIL [2008] EWCA Civ 1416
FACTS:-
The Claimant was a 31 year old man with a long standing history of serious mental health problems. He had been diagnosed as HIV positive and was now receiving appropriate treatment. He was born on the 1st March 1976 into a family of six siblings. In August 1976 a health visitor noted that the Claimant had lost weight and appeared to be neglected, and so he was removed from his parents and placed in foster care from 1976 to 1977.
In 1976 a social worker recorded his opinion that the Claimant and his twin sister should be retained in care.
The Claimant was then returned to his mother and father in November 1977 without any proper assessment or investigation. There was then inadequate follow up and monitoring. A key record dated from May 1979 showed that he had been left with his aunt by his mother, who said that she could not cope with him. She reported scald marks on his buttocks and leg. There were also references to abuse and complaints made by relatives. He was put on the “at risk” register for two years.
He left home at the age of 15 by which time he had suffered severe neglect together with emotional and physical abuse from his parents. He also suffered sexual and physical abuse whilst living on the streets from around the middle of 1990.
The Claimant sued the local authority in common law negligence based upon the allegation that it had failed to take him into care as an infant and in consequence exposed him to abuse and grave neglect by his parents.
Specifically he claimed:-
The trial judge found for the Claimant on (i) but against him on (ii) and (iii). The Local Authority appealed against that decision. The issues raised were:-
There was also an appeal on the quantum of damages.
HELD:-
Lord Justice Hughes in the Court of Appeal outlined the facts of the case. The trial judge’s conclusion that it was negligent to return the Claimant home in November 1977 was founded upon his preference for the evidence of the expert called by the Claimant, Mr Ayre over that of the Defendant’s expert, Mr Lane and Mr Percival.
The Defendant’s counsel argued that on a proper analysis, Mr Ayre’s conclusions were saying no more than that the Claimant’s return to his parents was not based on a proper review of the case, rather than that if such review had been carried out no reasonable local authority could have decided to attempt rehabilitation. Since Mr Lane and Mr Percival felt that it was reasonable to attempt rehabilitation, there was no proper basis (according to the Defendant’s counsel), applying the principle in Bolam v Friern HMC [1957] 1 WLR 582, for concluding that no reasonable local authority would have taken that step.
The statutory powers in question fell under the Children Act 1948 and the Children and Young Persons Act 1969.
Hughes LJ said that Mr Ayre was making further complaints about the local authority’s conduct, and he had asserted that no reasonable local authority, properly assessing the case, could have reached the decision to permit return of the Claimant and that it should have sought (if necessary) compulsory powers to keep the Claimant with his foster parents.
The judge had recognised the need to apply the Bolam test. He endorsed the assertion of Mr Ayre that it was unlikely that any similarly qualified expert would disagree. Hughes LJ said that therefore, it was not possible to say that there was no proper basis for the conclusion that the trial judge had reached.
The trial judge said that an attempt to obtain a care order in 1979 would have been a more uncertain exercise and involved a major change to the status quo- unlike any such decision if taken in October or November 1977. Hughes LJ said that there was nothing inconsistent about that finding. There was a real difference between, on the one hand, a decision in November 1977 that the status quo ought not to be disturbed by moving the child to from foster parents to parent, and on the other hand, a decision in May 1979 that the status quo should be altered and the child should be taken into care.
In other case, the evidence might be different. There might be an issue as to what would have been the likely response of a juvenile court, in a case of neglect rather than violence or abuse. Expert evidence might also consider what would have happened if there had been continuing contact.
The Defendant’s counsel had taken the point that the trial judge had relied on the existence of a duty under the Boarding out of Children Regulations 1955 to carry out a review of the Claimant’s case, due in 1977. However those regulations existed to monitor foster parents, rather than the relationship between a child and his parents. Hughes LJ said that whatever the purpose of the regulations, all the experts were agreed that no return could properly have been made without a thorough review of the Claimant’s welfare, so any additional duty under the 1955 regulations made no difference.
The trial judge had held that if the Claimant had not returned home in November 1977, then it was likely that he would have remained in care indefinitely. That conclusion would not necessarily follow but it depended on the evidence in the case. Hughes LJ said that in this case, there was no evidence from the Defendant that even if the return of the Claimant to his parents had been wrong, it was likely that rehabilitation would have had to have been tried. Therefore the judge was entitled to find as he did.
Damage and foreseeability
The failings of the parents as at 1977 were those of neglect rather than violence or abuse. The Defendant’s counsel submitted that the Claimant should only be able to recover damages for neglect, but not for violence or abuse since these were not foreseeable. Hughes LJ said that this defined the scope of the foreseeable duty too narrowly.
Quantum
The judge awarded £25,000. The trial judge had found that the Claimant’s severe personality disorder was congenital and would have occurred in any event. He had made the distinction between the effects of the negligence and what would have occurred in any event. Consequently the continuing loss and damages for abuse sustained after leaving home was rejected. The award was for neglect and abuse at home. It was impossible to say that the judge’s award lay outside the bracket properly available to him.
Limitation
The action was treated as having been commenced on the 24th August 2004 and so the Claimant had to establish that his cause of action arose after the 24th August 2001 or that he could rely on section 33 of the Limitation Act 1980. There were three questions under the limitation issue:-
The Defendant’s counsel was relying on section 14(3). The Claimant’s case was that he could not reasonably get access to his records before he actually did so in 2004. A request had been made by his foster father in 1992, followed by a further request by the Claimant in 1995 and again in 1996. He had instructed solicitors in 1996, who had requested the file later that year. Appointments were offered to him in 1997 to view the file, but he had not taken these up, because he had felt that it would be too distressing.
The trial judge had dealt briefly with the issue of knowledge, but had found that the only means open to the Claimant to acquire knowledge was in July 2004. Hughes LJ said that there could be only one answer to this question – the Claimant knew where the file was, he knew that he wanted it and he was allowed access to it. The Claimant had said that the Defendant had refused to pay for the travel cost of a companion, but that was not borne out by the correspondence and this was not a sufficient answer. Therefore if the judge had addressed the issue of constructive knowledge, he would have been bound to find that the Claimant had such knowledge. Therefore the Defendant’s appeal in relation to constructive knowledge would be allowed. Otherwise their appeal would be dismissed.
It was now agreed between the parties that the next issue was that of section 33 and this issue should be remitted to the trial judge.
FACTS:-
The Claimant was a 31 year old man with a long standing history of serious mental health problems. He had been diagnosed as HIV positive and was now receiving appropriate treatment. He was born on the 1st March 1976 into a family of six siblings. In August 1976 a health visitor noted that the Claimant had lost weight and appeared to be neglected, and so he was removed from his parents and placed in foster care from 1976 to 1977.
In 1976 a social worker recorded his opinion that the Claimant and his twin sister should be retained in care.
The Claimant was then returned to his mother and father in November 1977 without any proper assessment or investigation. There was then inadequate follow up and monitoring. A key record dated from May 1979 showed that he had been left with his aunt by his mother, who said that she could not cope with him. She reported scald marks on his buttocks and leg. There were also references to abuse and complaints made by relatives. He was put on the “at risk” register for two years.
He left home at the age of 15 by which time he had suffered severe neglect together with emotional and physical abuse from his parents. He also suffered sexual and physical abuse whilst living on the streets from around the middle of 1990.
The Claimant sued the local authority in common law negligence based upon the allegation that it had failed to take him into care as an infant and in consequence exposed him to abuse and grave neglect by his parents.
Specifically he claimed:-
- A failure to take him into care from the age of about 18 months in November 1977
- A failure to take him into care from the age 3 in May 1979
- A failure to take him into care from the age 14 to 15 in 1990 to 1991
The trial judge found for the Claimant on (i) but against him on (ii) and (iii). The Local Authority appealed against that decision. The issues raised were:-
- Whether there was a basis for a finding of breach of November 1977
- If so, whether there was any basis for a finding that the breach caused the Claimant to remain in his family for years when otherwise he would not have
- Whether, if so, damages for injury by violence as distinct from by neglect were recoverable
- Whether the Judge misdirected himself upon section 14(3) Limitation Act 1980.
There was also an appeal on the quantum of damages.
HELD:-
Lord Justice Hughes in the Court of Appeal outlined the facts of the case. The trial judge’s conclusion that it was negligent to return the Claimant home in November 1977 was founded upon his preference for the evidence of the expert called by the Claimant, Mr Ayre over that of the Defendant’s expert, Mr Lane and Mr Percival.
The Defendant’s counsel argued that on a proper analysis, Mr Ayre’s conclusions were saying no more than that the Claimant’s return to his parents was not based on a proper review of the case, rather than that if such review had been carried out no reasonable local authority could have decided to attempt rehabilitation. Since Mr Lane and Mr Percival felt that it was reasonable to attempt rehabilitation, there was no proper basis (according to the Defendant’s counsel), applying the principle in Bolam v Friern HMC [1957] 1 WLR 582, for concluding that no reasonable local authority would have taken that step.
The statutory powers in question fell under the Children Act 1948 and the Children and Young Persons Act 1969.
Hughes LJ said that Mr Ayre was making further complaints about the local authority’s conduct, and he had asserted that no reasonable local authority, properly assessing the case, could have reached the decision to permit return of the Claimant and that it should have sought (if necessary) compulsory powers to keep the Claimant with his foster parents.
The judge had recognised the need to apply the Bolam test. He endorsed the assertion of Mr Ayre that it was unlikely that any similarly qualified expert would disagree. Hughes LJ said that therefore, it was not possible to say that there was no proper basis for the conclusion that the trial judge had reached.
The trial judge said that an attempt to obtain a care order in 1979 would have been a more uncertain exercise and involved a major change to the status quo- unlike any such decision if taken in October or November 1977. Hughes LJ said that there was nothing inconsistent about that finding. There was a real difference between, on the one hand, a decision in November 1977 that the status quo ought not to be disturbed by moving the child to from foster parents to parent, and on the other hand, a decision in May 1979 that the status quo should be altered and the child should be taken into care.
In other case, the evidence might be different. There might be an issue as to what would have been the likely response of a juvenile court, in a case of neglect rather than violence or abuse. Expert evidence might also consider what would have happened if there had been continuing contact.
The Defendant’s counsel had taken the point that the trial judge had relied on the existence of a duty under the Boarding out of Children Regulations 1955 to carry out a review of the Claimant’s case, due in 1977. However those regulations existed to monitor foster parents, rather than the relationship between a child and his parents. Hughes LJ said that whatever the purpose of the regulations, all the experts were agreed that no return could properly have been made without a thorough review of the Claimant’s welfare, so any additional duty under the 1955 regulations made no difference.
The trial judge had held that if the Claimant had not returned home in November 1977, then it was likely that he would have remained in care indefinitely. That conclusion would not necessarily follow but it depended on the evidence in the case. Hughes LJ said that in this case, there was no evidence from the Defendant that even if the return of the Claimant to his parents had been wrong, it was likely that rehabilitation would have had to have been tried. Therefore the judge was entitled to find as he did.
Damage and foreseeability
The failings of the parents as at 1977 were those of neglect rather than violence or abuse. The Defendant’s counsel submitted that the Claimant should only be able to recover damages for neglect, but not for violence or abuse since these were not foreseeable. Hughes LJ said that this defined the scope of the foreseeable duty too narrowly.
Quantum
The judge awarded £25,000. The trial judge had found that the Claimant’s severe personality disorder was congenital and would have occurred in any event. He had made the distinction between the effects of the negligence and what would have occurred in any event. Consequently the continuing loss and damages for abuse sustained after leaving home was rejected. The award was for neglect and abuse at home. It was impossible to say that the judge’s award lay outside the bracket properly available to him.
Limitation
The action was treated as having been commenced on the 24th August 2004 and so the Claimant had to establish that his cause of action arose after the 24th August 2001 or that he could rely on section 33 of the Limitation Act 1980. There were three questions under the limitation issue:-
- What is in this case was the act or omission alleged to constitute negligence for the purposes of section 14(1)(b) Limitation Act 1980?
- If there was actual knowledge of that act, was there constructive knowledge within section 14(3)?
- If there was either actual or constructive knowledge, should a discretionary extension of time nevertheless be granted under section 33?
The Defendant’s counsel was relying on section 14(3). The Claimant’s case was that he could not reasonably get access to his records before he actually did so in 2004. A request had been made by his foster father in 1992, followed by a further request by the Claimant in 1995 and again in 1996. He had instructed solicitors in 1996, who had requested the file later that year. Appointments were offered to him in 1997 to view the file, but he had not taken these up, because he had felt that it would be too distressing.
The trial judge had dealt briefly with the issue of knowledge, but had found that the only means open to the Claimant to acquire knowledge was in July 2004. Hughes LJ said that there could be only one answer to this question – the Claimant knew where the file was, he knew that he wanted it and he was allowed access to it. The Claimant had said that the Defendant had refused to pay for the travel cost of a companion, but that was not borne out by the correspondence and this was not a sufficient answer. Therefore if the judge had addressed the issue of constructive knowledge, he would have been bound to find that the Claimant had such knowledge. Therefore the Defendant’s appeal in relation to constructive knowledge would be allowed. Otherwise their appeal would be dismissed.
It was now agreed between the parties that the next issue was that of section 33 and this issue should be remitted to the trial judge.