SURTEES V KINGSTON UPON THAMES BOROUGH COUNCIL[1991] 2 FLR 559
FACTS:-
The Claimant suffered an accident in August 1966, some 23 years before the date of trial, when she was 2 years of age. She had been placed in the foster care of Mr and Mrs H by the First Defendant, a local authority. The skin on the bottom of her left foot had been completely burnt off after immersion. She herself had no memory of what had happened.
She brought a claim against the local authority, based on the proposition that she should not have been fostered to the foster parents and that there was negligence on the part of the local authority in failing to supervise or visit the Claimant in her placement.
The claim was issued in May 1985, and the local authority were the sole Defendants. Later the foster parents were added into the action. It was common ground that if the foster parents were not liable to the Claimant, the claim against the local authority was bound to fail.
The trial judge found that the injury was not deliberately inflicted. This finding was not challenged but the mechanics of how the accident had happened, was contested. Two plastic surgeons gave evidence. The accident appeared to have happened when the child climbed onto a laundry box, which was high enough to allow her access to the hot tap. She then turned on the hot tap and scalded here herself. The trial judge found that the foster mother reasonably believed that the child could not turn on the hot tap. It was therefore not foreseeable that K would be exposed to a risk of injury from the hot water. To hold the foster mother negligent in these circumstances would be to impose an impossibly high standard, to which few parents would habitually measure up. The foster mother’s explanation was that the child had inadvertently knocked the hot tap on.
HELD:-
Stocker LJ said that the trial judge was entitled to accept the evidence as he did. The question of foreseeability was a factor in establishing the existence of the duty and remoteness of damage. Reasonable foreseeability was limited in a number of respects.
Firstly an accident causing injury of the kind, which did in fact occur, had to be one which was reasonably likely to occur. The question of foreseeability and the extent of the duty and breach, had to be considered in the light of all the existing circumstances, in this instance, the fact that the accident occurred in the home in the course of daily domestic routine.
It was not quite clear from the relevant passage whether the judge was basing his conclusions on the fact that a scalding injury was not reasonably foreseeable by Mrs H in the circumstances, or whether he was holding that to regard the accident which in fact occurred as a breach of duty of care would itself impose an impossibly high standard. In the opinion of Stocker LJ, he reached the correct conclusion on either basis.
In relation to the Second Defendants, Stocker LJ said that the claim in negligence was bound to fail unless the injury was caused deliberately, since any breach of duty was unlikely to have been caused by a failure to visit. The claim would be dismissed.
Beldam LJ said that the investigation carried out by the local authority was unsatisfactory, and the accounts conflicting and perfunctory. He reviewed the evidence, but could find no basis for the foster mother, Mrs H’s belief for holding that the Claimant could not, in fact, turn on the tap. Beldam LJ said that in his view, the Claimant had in fact turned on the tap. The explanation given by the trial judge was a mystery lacking evidence to support it. Mrs H had placed the Claimant on a raised laundry box, where she could both gain access to the basin and become trapped and could accidentally knock into the tap so as to cause this very serious injury. There was plainly a risk of serious injury.
However the distinction between the release of scalding water by a very young child turning on the hot water, and her doing so by accidental contact to be insignificant in principle.
The law had always approached with great caution the problems raised by intruding into a relationship as close as that normally to be found between parent and child. Beldam LJ referred to the case of Carmarthenshire County Council v Lewis [1955] AC 549, McCallion v Dodd [1966] NZLR 710 and Hahn v Conley [1971] 45 ALJR 631.
This accident had arisen from a momentary failure to give thought to an obvious risk. Beldam LJ could see no warrant for saying that to impose a duty of care in such circumstances would impose an impossibly high standard. Mr and Mrs H had not discharged the burden of showing the way in which the accident might have occurred without negligence. Therefore the appeal would be allowed.
Sir Nicholas Browne-Wilkinson agreed with Stocker LJ. He agreed with the findings of the trial judge, and found that the foster mother was not negligent.
Furthermore the court should be wary in its approach to holding parents in breach of a duty of care owed to their children. There were very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings were to be brought into family relationships. The studied calm of the Royal Courts of Justice, concentrating on one point at a time, is light years away from the circumstances prevailing in the average home. We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough and tumble of home life.
The Claimant’s appeal would be dismissed.
FACTS:-
The Claimant suffered an accident in August 1966, some 23 years before the date of trial, when she was 2 years of age. She had been placed in the foster care of Mr and Mrs H by the First Defendant, a local authority. The skin on the bottom of her left foot had been completely burnt off after immersion. She herself had no memory of what had happened.
She brought a claim against the local authority, based on the proposition that she should not have been fostered to the foster parents and that there was negligence on the part of the local authority in failing to supervise or visit the Claimant in her placement.
The claim was issued in May 1985, and the local authority were the sole Defendants. Later the foster parents were added into the action. It was common ground that if the foster parents were not liable to the Claimant, the claim against the local authority was bound to fail.
The trial judge found that the injury was not deliberately inflicted. This finding was not challenged but the mechanics of how the accident had happened, was contested. Two plastic surgeons gave evidence. The accident appeared to have happened when the child climbed onto a laundry box, which was high enough to allow her access to the hot tap. She then turned on the hot tap and scalded here herself. The trial judge found that the foster mother reasonably believed that the child could not turn on the hot tap. It was therefore not foreseeable that K would be exposed to a risk of injury from the hot water. To hold the foster mother negligent in these circumstances would be to impose an impossibly high standard, to which few parents would habitually measure up. The foster mother’s explanation was that the child had inadvertently knocked the hot tap on.
HELD:-
Stocker LJ said that the trial judge was entitled to accept the evidence as he did. The question of foreseeability was a factor in establishing the existence of the duty and remoteness of damage. Reasonable foreseeability was limited in a number of respects.
Firstly an accident causing injury of the kind, which did in fact occur, had to be one which was reasonably likely to occur. The question of foreseeability and the extent of the duty and breach, had to be considered in the light of all the existing circumstances, in this instance, the fact that the accident occurred in the home in the course of daily domestic routine.
It was not quite clear from the relevant passage whether the judge was basing his conclusions on the fact that a scalding injury was not reasonably foreseeable by Mrs H in the circumstances, or whether he was holding that to regard the accident which in fact occurred as a breach of duty of care would itself impose an impossibly high standard. In the opinion of Stocker LJ, he reached the correct conclusion on either basis.
In relation to the Second Defendants, Stocker LJ said that the claim in negligence was bound to fail unless the injury was caused deliberately, since any breach of duty was unlikely to have been caused by a failure to visit. The claim would be dismissed.
Beldam LJ said that the investigation carried out by the local authority was unsatisfactory, and the accounts conflicting and perfunctory. He reviewed the evidence, but could find no basis for the foster mother, Mrs H’s belief for holding that the Claimant could not, in fact, turn on the tap. Beldam LJ said that in his view, the Claimant had in fact turned on the tap. The explanation given by the trial judge was a mystery lacking evidence to support it. Mrs H had placed the Claimant on a raised laundry box, where she could both gain access to the basin and become trapped and could accidentally knock into the tap so as to cause this very serious injury. There was plainly a risk of serious injury.
However the distinction between the release of scalding water by a very young child turning on the hot water, and her doing so by accidental contact to be insignificant in principle.
The law had always approached with great caution the problems raised by intruding into a relationship as close as that normally to be found between parent and child. Beldam LJ referred to the case of Carmarthenshire County Council v Lewis [1955] AC 549, McCallion v Dodd [1966] NZLR 710 and Hahn v Conley [1971] 45 ALJR 631.
This accident had arisen from a momentary failure to give thought to an obvious risk. Beldam LJ could see no warrant for saying that to impose a duty of care in such circumstances would impose an impossibly high standard. Mr and Mrs H had not discharged the burden of showing the way in which the accident might have occurred without negligence. Therefore the appeal would be allowed.
Sir Nicholas Browne-Wilkinson agreed with Stocker LJ. He agreed with the findings of the trial judge, and found that the foster mother was not negligent.
Furthermore the court should be wary in its approach to holding parents in breach of a duty of care owed to their children. There were very real public policy considerations to be taken into account if the conflicts inherent in legal proceedings were to be brought into family relationships. The studied calm of the Royal Courts of Justice, concentrating on one point at a time, is light years away from the circumstances prevailing in the average home. We should be slow to characterise as negligent the care which ordinary loving and careful mothers are able to give to individual children, given the rough and tumble of home life.
The Claimant’s appeal would be dismissed.