W 1 – 6 V ESSEX COUNTY COUNCIL AND ANOTHER [2000] UKHL 17
FACTS:-
The Claimants, W1 and W2 were the parents of the Claimants W3 to W6, the children being one boy and three girls. All of the Claimants claimed damages fro personal injury caused by the negligence of the Defendant council and a social worker employed by the council. There were also claims in contract, for misfeasance in public office and negligent mis-statement but nothing turned on these directly in the appeal before the House of Lords.
The parents had been approved a specialist adolescent foster carers by the council but they expressly told the council that they were not willing to accept any child who was known or suspected of being a sexual abuser. However the council through the social worker placed with the parents a 15 years old boy, G who had admitted an indecent assault on his own sister and who was being investigated for an alleged rape. The boy then committed serious acts of sexual abuse against the children, and as a result it was alleged that because of the abuse both parents and children suffered injury. The parents in particular were unable to carry on as foster parents, their marriage was placed under stress and they separated. The functioning of the family deteriorated markedly.
The trial judge struck out the claims by the parents but not the children. The Court of Appeal upheld the order in respect of the parents’ claim in negligence. By the time the matter came before the House of Lords, the Defendant accepted that the claim by the children should proceed. The sole issue therefore was the claim made by the parents.
HELD:-
Lord Slynn said that for an application to strike out to succeed, it had to be shown that the statement of claim disclosed no cause of action nor did it constitute an abuse of process of the court. For that inquiry the factual averments had to be taken as true although many of them were denied by the Defendants.
Although the power to strike out a claim was a useful one, it had to be exercised with caution. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 said that where the law was not settled, but was in a state of development, it was normally inappropriate to decide novel questions on hypothetical facts. It could be different where the question depended only on the construction of relevant statutory provision. He made the same statement in Barrett v Enfield London Borough Council [1999] 3 WLR 79 and added that the development of the law should be on the basis of actual facts found at trial.
It could not be said here that there was a duty of care owed to the parent and a breach of that duty by the Defendants was unarguable. Whether the nature of the Defendants’ task was such that the court should not recognise an actionable duty of care, in other words that the claim was not justiciable, and whether there was a breach of that duty, depended on an investigation of the full facts known to and the factors influencing the decision of the Defendants.
A more difficult question was whether, as the Defendants contended, nothing was alleged by way of damage flowing from the breach to justify the case going to trial. There was a distinction between “primary victims” and “secondary victims”. Reference had been made to the cases of Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 255, Hunter v British Coal Corporation [1999] QB 140 and McLoughlin v O’Brien [1983] 1 AC 410. Primary victims were those who were involved in the event causing the psychiatric injury immediately as participants. Secondary victims were no more than the passive and unwilling witnesses of injury caused to others and to be compensatable in damages, psychiatric injury had to be foreseeable in persons of normal fortitude. Moreover there had to be a sufficiently proximate relationship with the person causing physical harm to that other person. In this case the parents had the necessary ties to their children, but they were neither near enough in time or space to the acts of abuse, and they did not have direct visual or oral perception of the incident or its aftermath.
Lord Slynn said that on a strike out application, it was not necessary to decide whether the parents’ claim must or should succeed if the facts they alleged were proven. In fact it would be wrong to express any view on the matter. The question was whether, if the facts were proved the claims had to fail. It was not enough to recognise that the parents might have difficulties in establishing their claim. It was impossible to say that the psychiatric injury that they claimed was outside the range of psychiatric injury which the law recognised. Similarly it was not possible to say that person of reasonable fortitude would be bound to take in his or her strike being old of the sexual abuse of his or her young children.
That however was only the beginning. Was it was clear beyond reasonable doubt that the parents could not satisfy the necessary criteria as “primary” or “secondary” victims? In relation to being primary victims, it was beyond doubt that they were not physically injured by the abuse nor was it reasonably foreseeable that there was risk of sexual abuse of the parents. However the categorisation of those claiming to be included as primary and secondary victims was not finally closed. The available caselaw did not conclusively show that the parents were not primary victims. The concept of the immediate aftermath of the incident had to be assessed in the particular factual situation. Lord Slynn was not persuaded that in a situation like the present, the parents had to come across the abuser or the abused “immediately” after the sexual incident had terminated.
Therefore the parents’ claim could proceed although there was no indication given as to the outcome of the case.
Lords Steyn, Hope, Hobhouse and Millett agreed.
FACTS:-
The Claimants, W1 and W2 were the parents of the Claimants W3 to W6, the children being one boy and three girls. All of the Claimants claimed damages fro personal injury caused by the negligence of the Defendant council and a social worker employed by the council. There were also claims in contract, for misfeasance in public office and negligent mis-statement but nothing turned on these directly in the appeal before the House of Lords.
The parents had been approved a specialist adolescent foster carers by the council but they expressly told the council that they were not willing to accept any child who was known or suspected of being a sexual abuser. However the council through the social worker placed with the parents a 15 years old boy, G who had admitted an indecent assault on his own sister and who was being investigated for an alleged rape. The boy then committed serious acts of sexual abuse against the children, and as a result it was alleged that because of the abuse both parents and children suffered injury. The parents in particular were unable to carry on as foster parents, their marriage was placed under stress and they separated. The functioning of the family deteriorated markedly.
The trial judge struck out the claims by the parents but not the children. The Court of Appeal upheld the order in respect of the parents’ claim in negligence. By the time the matter came before the House of Lords, the Defendant accepted that the claim by the children should proceed. The sole issue therefore was the claim made by the parents.
HELD:-
Lord Slynn said that for an application to strike out to succeed, it had to be shown that the statement of claim disclosed no cause of action nor did it constitute an abuse of process of the court. For that inquiry the factual averments had to be taken as true although many of them were denied by the Defendants.
Although the power to strike out a claim was a useful one, it had to be exercised with caution. Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 said that where the law was not settled, but was in a state of development, it was normally inappropriate to decide novel questions on hypothetical facts. It could be different where the question depended only on the construction of relevant statutory provision. He made the same statement in Barrett v Enfield London Borough Council [1999] 3 WLR 79 and added that the development of the law should be on the basis of actual facts found at trial.
It could not be said here that there was a duty of care owed to the parent and a breach of that duty by the Defendants was unarguable. Whether the nature of the Defendants’ task was such that the court should not recognise an actionable duty of care, in other words that the claim was not justiciable, and whether there was a breach of that duty, depended on an investigation of the full facts known to and the factors influencing the decision of the Defendants.
A more difficult question was whether, as the Defendants contended, nothing was alleged by way of damage flowing from the breach to justify the case going to trial. There was a distinction between “primary victims” and “secondary victims”. Reference had been made to the cases of Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 255, Hunter v British Coal Corporation [1999] QB 140 and McLoughlin v O’Brien [1983] 1 AC 410. Primary victims were those who were involved in the event causing the psychiatric injury immediately as participants. Secondary victims were no more than the passive and unwilling witnesses of injury caused to others and to be compensatable in damages, psychiatric injury had to be foreseeable in persons of normal fortitude. Moreover there had to be a sufficiently proximate relationship with the person causing physical harm to that other person. In this case the parents had the necessary ties to their children, but they were neither near enough in time or space to the acts of abuse, and they did not have direct visual or oral perception of the incident or its aftermath.
Lord Slynn said that on a strike out application, it was not necessary to decide whether the parents’ claim must or should succeed if the facts they alleged were proven. In fact it would be wrong to express any view on the matter. The question was whether, if the facts were proved the claims had to fail. It was not enough to recognise that the parents might have difficulties in establishing their claim. It was impossible to say that the psychiatric injury that they claimed was outside the range of psychiatric injury which the law recognised. Similarly it was not possible to say that person of reasonable fortitude would be bound to take in his or her strike being old of the sexual abuse of his or her young children.
That however was only the beginning. Was it was clear beyond reasonable doubt that the parents could not satisfy the necessary criteria as “primary” or “secondary” victims? In relation to being primary victims, it was beyond doubt that they were not physically injured by the abuse nor was it reasonably foreseeable that there was risk of sexual abuse of the parents. However the categorisation of those claiming to be included as primary and secondary victims was not finally closed. The available caselaw did not conclusively show that the parents were not primary victims. The concept of the immediate aftermath of the incident had to be assessed in the particular factual situation. Lord Slynn was not persuaded that in a situation like the present, the parents had to come across the abuser or the abused “immediately” after the sexual incident had terminated.
Therefore the parents’ claim could proceed although there was no indication given as to the outcome of the case.
Lords Steyn, Hope, Hobhouse and Millett agreed.