D— D—(Married Woman) (Plaintiff (Appellant) The National Society for the Prevention of Cruelty to Children (Defendants (Respondents)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE SCARMAN,SIR JOHN PENNYCUICK |
| Judgment Date | 06 May 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0506-4 |
| Docket Number | 1974 D No, 1749 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 May 1976 |
[1976] EWCA Civ J0506-4
The Master of the Rolls (Lord Denning)
Lord Justice Scarman and
Sir John Pennycuick
In The Supreme Court of Judicature
Court of Appeal
Queen's Bench Division
Judge in Chambers (Mr. Justice Croom-Johnson)
MR. DAVID HIRST Q. C. and MR. T. MORRISON (instructed by Messrs. Ashurst Morris Crisp & Co., Solicitors, London) appeared on behalf of the Plaintiff (Appellant).
MR. T. BINGHAM Q. C. and MR. J. WILLIAMS (instructed by Messrs. Hempsons, Solicitors, London) appeared on behalf of the Defendants (Respondents).
The question raised in this case is: When a man gives a pledge that he will treat information as confidential, how far will the law compel him to break his pledge and disclose the information to others?
"Battered babies" is a tendentious phrase. It is designed to evoke sympathy. They are babies who have been beaten or ill-treated by father or mother. No normal parent would ever do it. But the father or mother of a "battered baby" is neurotic or psychotic - dating back to his or her own childhood - and under much emotional stress. Some trifling incident - dirty napkins or the baby crying - may trigger it off. Often enough the father or mother will forget it, or deny it afterwards as a protective device.
Now that the suffering is known, the conscience of the country has been stricken. Some one or some body must do something. Many look to the National Society for the Prevention of Cruelty to Children. It is a Society of high repute. It was incorporated by Royal Charter over 80 years ago. It is specially authorised by the Secretary of State under Statute to bring proceedings for the care of children. It does all it can to help. It receives information as to babies in need. It gives an assurance that the information will be treated as confidential: and that the names of informants will not be disclosed, except with his or her consent. It issues a leaflet containing this pledge: "Do you know of a child who may be suffering because of misfortune, ignorance, neglect or ill-treatment? If so, please tell your nearest NSPCC Inspector at (giving his or her address). Your name, and the information you give for the purpose of helping children, will be treated as confidential. Your immediate action may prevent a child from suffering".
The appeal has had a large response. In one year over 5,000 cases were brought to the notice of the Society by the general public, and another 5,000 by hospitals, social workers, school-teachers, and so forth. In the great majority (over 90% of the cases) the child was found to be at risk. Much help was given. Much good was done.
The Society regard themselves as in honour-bound to keep the pledge of confidence. Not only in honour, but also in order to do their work effectively. If the Society were to disclose the names of the informants, the flow of information would dry up, and the suffering of children increased.
Now we have the question: Should the Society be compelled by law to break their pledge and give away the names of informants?
Now for the story as told by the two sides. This case concerns a baby girl only 14 months old. No evidence has yet been taken. So we only have the stories told by each side.
Looking at it from the Society's point of view, it starts with a telephone call at about 4.30 p.m. on 13th December, 1973. The caller was concerned about a baby. I will assume the caller was a lady, but I do not know. She gave her own name and address and that of the baby: and gave the reasons for her concern. Inquiries were made. In consequence, at about a quarter past eight, Mr. Jenkins, one of the Society's inspectors, went to the baby's home. He wanted to help. He saw the mother and the baby. He dealt with it as tactfully as he could. No doubt he told the mother that they had received a complaint, and felt that they should inquire into it. The mother was very upset. She called the doctor, who said the baby was perfectly well. The father came back. He wanted to know the name and address of the person who made the complaint. But the Inspector said that he could not give it
Looked at from the mother's point of view, she had put the baby to sleep in her cot and was downstairs waiting for her husband to come back from work. There was a knock at the door. She answered it. A man produced a visiting-card showing that he was a representative of the National Society for the Prevention of Cruelty to Children. She thought he was coming for some charitable purpose for the Society. She asked him in. He asked her how the baby was She said, "Very well". He said, "We have an allegation that you have been beating your child". She said, "You must be mad". She was terribly upset. She went upstairs and awakened the baby. She took her out of her cot and showed her to the Inspector. The baby looked fine. The mother was distraught. She telephoned the doctor. He came and examined the child. The doctor said she was a perfect baby. The Inspector gave the impression both to the mother and the doctor that he thought the allegations were true, though not proved. Her husband then came in. He, too, was very upset. He said that it was essential that they be told the name of the informant, but the Inspector would not give it. By this time the doctor had noticed how upset the mother was. He gave her a tranquilliser that very evening. But for days she remained terribly shocked. She even thought of doing away with her own life.
Later on a consultant-psychiatrist saw the mother. He found her in a definitely depressive state. He said that "her symptoms indicated that she suffered a severe degree of clinical depression following the visit of the NSPCC". He said of the mother: "There is no family history of psychiatric illness, although she may have been highly strung and easily upset as a child. She is vulnerable to upsets such as the one she suffered".
Now for the attempts to get the name of the informant. The father and mother felt that a grievous wrong had been done tothem. They were anxious to know who it was who had told the Society. On 21st December 1973, their Solicitors wrote to the Society. They set out the facts as they understood them, and said that the allegations made by the complainant were completely unfounded. They required the Society to disclose the name and address of the. informant: and said, if it was not forthcoming, they proposed to take proceedings to compel the Society to disclose it. They referred to the recent case in the House of Lords of Norwich Pharmacal (1974) A. C. 133, where the House had ordered the Customs to give the name of a wrongdoer.
The Society declined to disclose the name. So the solicitors took out a summons under the new procedure so as to get the name in advance of bringing an action. On 18th June, 1974, Master Jacob refused the application. On the next day, 19th June, the solicitors issued a writ against the NSPCC claiming damages. They served a Statement of Claim in which it was alleged the inspector, Mr. Jenkins, was negligent in that he failed to make proper inquiries about the informant: or to check that the complaint was made bona fide, and not maliciously; and that, on visiting the mother, he carried out his investigation improperly. The Statement of Claim contained this paragraph: "The identity of the complainant is unknown to the plaintiff who requires discovery of the documents to enable her to initiate proceedings against the complainant, if so advised".
The NSPCC delivered a defence in which they said that the identity was expressly disclosed to them in confidence.
On 11th December, 1974, Master Jacob ordered disclosure: but on 27th June, 1975. Mr. Justice Croom-Johnson held that the name should not be disclosed. The mother appeals to this Court.
Now for the nature of the action. On the hearing of the appeal, we were asked to assume that the Statement of Claimdiscloses a viable cause of action. I am ready to do this, but I would like to say that, if the claim against the Society were to succeed, it would only be done by making a considerable extension of the present law. The leading case is Wilkinson v. Downton (1897) 2 Queen's Bench, page 57. A man there played a cruel practical joke. He called on a lady and told her that her husband had met with an accident and had both his legs broken, and she was to go at once to fetch him. It was all false. She suffered a severe shock and was ill for some months. She recovered £100 damages. That was followed and approved in Janvier v. Sweeney (1919) 2 King's Bench, page 316, when a private detective deliberately terrified a woman by saying, quite untruly, that he was from Scotland Yard and wanted her for corresponding with a German spy. I can understand that where a false statement is made knowingly and intentionally without just cause or excuse and when it causes emotional distress, it may give rise to a cause of action. But, it is a big step forward - or backward - to extend it to a statement which is made honestly in good faith. Many a person has occasion to investigate a complaint. It may be an employer or a police officer. Someone may report to him that goods have been stolen and that he believes that a man named A. B. is the thief. The employer or police officer sees the man A. B. and tells him that he is suspected. He is so shocked that he has a nervous breakdown. Has he a cause of action against the employer or police officer on the ground that he conducted the inquiry negligently? The question has only to be posed to see what an extension this would be.
Now for the object of the action. We are also asked to assume that the object of the action is to obtain damages from the NSPCC and not merely to...
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