Merthyr Tydfil County Borough Council v C
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HICKINBOTTOM |
| Judgment Date | 21 January 2010 |
| Neutral Citation | [2010] EWHC 62 (QB) |
| Docket Number | Case No: 7MT00682 |
| Court | Queen's Bench Division |
| Date | 21 January 2010 |
[2010] EWHC 62 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM CARDIFF COUNTY COURT
Cardiff Civil Justice Centre
Cardiff CF10 1ET
(HIS HONOUR JUDGE JARMAN QC)
Before: Mr Justice Hickinbottom
Case No: 7MT00682
Matthew White (instructed by Dolmans) for the Appellant
Robert Weir (instructed by Hugh James) for the Respondent
Hearing dates: 12 & 13 January 2010
MR JUSTICE HICKINBOTTOM:
The Claimant, C, has two children, A born in 1996 and B born in 1998. They have at all material times lived as a family at addresses within the area for which the Defendant local authority (“the Council”) is obliged to provide social services.
In these proceedings, the Claimant seeks damages for personal injury in the form of a psychiatric condition which she alleges was caused by the negligence of the Council in failing properly to deal with reports made by C in relation to sexual abuse of A and B by another child.
The Claimant relies upon the following factual basis for her claim which of course will be subject to proof if the claim proceeds. In 2002, C became aware that her children had been the subject of inappropriate sexual behaviour by a neighbour's child, D, who was born in 1994. In August 2002 she reported the abuse to the NSPCC who passed on the complaint to the Council. Direct contact between C and the Council followed, and the Council advised her to keep her children indoors. C followed that advice but, over time, as the child D did not appear to be playing outdoors, C allowed A and B to play outside.
In August 2004, D abused A and B again and, on 24 August 2004, the Claimant reported that abuse direct to the Council. That same day, at a meeting between the Claimant and Council representatives, those representatives denied that the Claimant had ever reported an incident in 2002, and refused to contact the NSPCC regarding the 2002 incident and report. Following the meeting, the Council allocated a social worker, Ms Sian McDermott, to the Claimant and her family. That person was also the social worker allocated to D's family.
Following the August 2004 meeting, C suffered psychiatric symptoms. She relies upon three reports of a Consultant Psychiatrist, Dr Webster, which describe the Claimant as suffering “irrational guilt feelings that she has been unable to protect her children and [that] she felt tormented by uncertainty about how she could protect them in the future” (11 October 2007 Report, paragraph 2). In Dr Webster's opinion, she suffered “an acute anxiety attack triggered by her experience of the Social Services disbelieving she had previously reported abuse in 2002” (18 April 2007 Report, conclusion (ii)): and that experience, “along with her intense distress at the knowledge that her children had been subjected to further abusive incidents, caused her to suffer a psychiatric illness in the form of a panic disorder with agoraphobia (DSM IV 300.21)” (11 October 2007 Report, paragraph 4).
D was later removed from her family by the Council, and placed with foster parents.
However, C was unhappy and concerned about the way in which her complaints in respect of D's abuse of her children had been dealt with by the Council, and pursued an internal complaint. Mr Leighton Rees, Head of Children and Families at the Council, responded to the complaint by letter of 21 February 2005, as follows:
“… [W]ith regard to the referral from the NSPCC I can confirm that we did receive this referral as a telephone call. This referral was placed on the file of the other child [i.e. D]. This was a mistake on our part as it should also have been recorded on a file for [A] and [B]. It is for this reason that we were unable to find the referral two years later. It also meant that we did not offer your family [a] service to support them following the incident, which would have been good practice, and I apologise about this.
The record also show that this referral was investigated at the time. However what is not on the file is a written copy of the referral from NSPCC…. [I]f we did not receive the report we should have taken further steps to obtain another copy, and if we did we should not have mislaid it, so either way we need to improve the way in which we handle documents. Furthermore when you identified that we did not have a copy from the NSPCC we did not take sufficient steps to obtain a copy from them.
With regard to the allocation of Sian McDermott as a social worker I would accept that there would have been potential for conflict of interest as Sian was allocated to both families. I therefore apologise for this, and would like to reassure you that from now on, in a similar situation, unless there is a very good reason we will allocate a different social worker to each family….
To summarise we have several lessons to learn. In 2002 our response was to the other family only without thinking about what services were offered to [A] and [B]. In 2004 we had improved in some ways as we responded to yourself as a family and I understand that via Sian you have been offered keep safe work… and, although [A] chose not to continue with this, [B] did. However we still could have offered a better service in 2004, in particular when we chose to allocate the same social worker, a decision which in retrospect caused you some difficulties. Also we need to improve the way in which we obtain and store reports for our files as we should have ensured we had a copy of the NSPCC report on file.”
In this action, supported by the evidence of Dr Webster, C claims her psychiatric illness was caused by the negligence of the Council. In paragraph 13 of her Particulars of Claim, ten particulars of negligence are identified to the effect that the Council failed properly to respond to and deal with the 2002 and 2004 complaints, and failed to take adequate steps to prevent the abuse of A and B by D in 2004.
Proceedings were issued on 6 August 2007. On 9 July 2009, the Council applied to strike out the claim pursuant to CPR Rule 3.4(2)(a) or alternatively for summary judgment for the Defendant pursuant to CPR Rule 24.2, on the basis that the Particulars of Claim disclosed no reasonable ground for pursuing the claim and the Claimant had no real prospect of success in the claim. Both limbs of the application were based on the premise that the Council owed no duty of care to the Claimant because “where child care decisions are being taken, no common law duty of care should be owed to the parents”, that being a quote from Lord Phillips of Worth Matravers MR in the consolidated appeals in the Court of Appeal in D v East Berkshire Community NHS Trust, MAK v Dewsbury Health Care NHS Trust and RK v Oldham NHS Trust [2003] EWCA Civ 1151; [2004] QB 558 at [86]. For convenience, I shall refer to that case as simply D v East Berkshire.
In D v East Berkshire, parents brought actions in negligence against a social services department and various healthcare professionals claiming damages for psychiatric harm allegedly caused by allegations that the parents themselves had abused their own children. Those allegations ultimately proved to be false. The Court of Appeal held that, in the circumstances, the Council owed no duty of care to those parents, a decision upheld by the House of Lords ( [2005] UKHL 23; [2005] 2 AC 373). In this claim, in its application of 9 July 2009, the Council submitted that they owed no duty of care to C “pursuant to inescapable analogy with [ D v East Berkshire]”.
The application came before His Honour Judge Jarman QC on 17 September 2009. He refused the application, and an appeal against that ruling is now made with the permission of Kitchen J. I should say for the sake of completeness that a two day trial of the action has been set down for hearing in Cardiff on 10 March 2010.
Generally, as identified in Caparo Industries plc v Dickman [1990] 2 AC 605 at pages 617H-618B per Lord Bridge, a common law duty of care is owed when three criteria are satisfied, namely:
(i) it was foreseeable that the claimant would suffer damage if the defendant acted as alleged:
(ii) there is a relationship of sufficient proximity between the parties: and
(iii) it is fair, just and reasonable to impose a duty of care on the defendant in all the circumstances.
Mr White conceded before Judge Jarman and me that the question of whether or not it was reasonably foreseeable that C would suffer psychiatric damages if the Council had acted as C alleges they did act in relation to the 2002 and 2004 complaints is reasonably arguable and is not suitable for summary determination. That concession was properly made. However, he submitted that the second and third limbs of the Caparo test are not even arguably met: it is not arguable that there was sufficient proximity between C and the Council, nor is it arguable that it is fair, just and reasonable to impose a duty of care on the Council towards the Claimant in all of the circumstances of this case. As Mr White pointed out (Skeleton in Support of the Application, paragraph 7), and as stressed in D v East Berkshire, there is considerable overlap between limbs (ii) and (iii) of Caparo, with the concept of proximity going to whether it is fair, just and reasonable in all the circumstances for the law to impose a duty of care. He therefore understandably concentrated upon whether, as a matter of law, it would be fair, just and reasonable that a duty of care should be imposed upon the Council to C in the circumstances of this case. He contended that a submission that a duty of care exists in these circumstances stands no real prospect of success and, given the inability of the Claimant to show a duty of care was owed, the Particulars of Claim disclose no reasonable ground...
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