Merthyr Tydfil County Borough Council v C
| Jurisdiction | England & Wales |
| Judge | HICKINBOTTOM J |
| Judgment Date | 21 January 2010 |
| Court | Queen's Bench Division |
Local authority – Negligence – Child abuse – Duty of care to parent – Claimant’s children being sexually abused by neighbour’s child – Claimant seeking damages for psychiatric injury allegedly caused by defendant local authority’s negligence in failing properly to deal with reports of abuse – Defendant unsuccessfully applying to strike out claim and/or for summary judgment – Defendant appealing on basis that no duty of care owed to claimant – Whether potential for conflict of duties rendering defendant immune from negligence suit at hands of parent – Whether parent constituting ‘third party’ so as to exclude duty of care – Whether claimant having real prospect of showing imposition of duty of care to be fair, just and reasonable.
In 2002, the claimant became aware that her children, A and B, had been the subject of inappropriate sexual behaviour by a neighbour’s child, D. She reported the abuse to the NSPCC and the information was passed on to the defendant local authority, which advised her to keep A and B indoors. She initially followed that advice but over time allowed them to play outside since D did not appear to be doing so. In 2004, D abused A and B again. When the claimant reported the abuse directly to the defendant, its representatives denied that the claimant had reported an incident in 2002 and refused to contact the NSPCC in that regard. The same social worker was assigned to D’s family and the claimant’s family. Although D was later removed from her family and placed into foster care, the claimant was unhappy with the handling of her reports and pursued an internal complaint. The defendant responded by letter, acknowledging that it had received a referral from the NSPCC in 2002 which should have been recorded on A and B’s files. It apologised for that failure and for allocating the same social worker to both families involved. The claimant nevertheless brought proceedings against the defendant in 2007, seeking damages for personal injury in the form of a psychiatric condition allegedly caused by its negligence in failing properly to deal with the reports of sexual abuse. She relied on reports of a consultant psychiatrist which suggested that her experience of the defendant disbelieving that she had previously reported abuse, along with her knowledge that A and B had been subjected to further abusive incidents, had caused her to experience a panic disorder with agoraphobia. In 2009, the defendant applied to strike out the claim pursuant to CPR 3.4(2)(a) or, in the alternative, for summary judgment pursuant to
CPR 24.2, contending that the particulars of claim disclosed no reasonable ground for pursuing the claim and that the claimant had no real prospect of success. The application was dismissed and the defendant appealed. Its case was based on the premise that the House of Lords in D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2005] 2 FCR 81 (D v East Berkshire) had held that a duty of care was not owed by the local authority and healthcare professionals in that case on two grounds, namely (i) that a duty of care to a parent would necessarily be in conflict with the (paramount) duty of care it owed to the relevant children, and (ii) as a third party, a parent was not in a sufficiently proximate relationship to a local authority to trigger a duty of care. The defendant submitted that those grounds were discrete and independent so that either was sufficient to dispose of the claim in its favour.
Held – (1) D v East Berkshire had held that the usual consonancy of interests between parents and children was displaced, as a matter of law, where the parent was suspected of abusing the child. It had not laid down any general principle that, whenever there was any bare potential for some future conflict of interest between a child and his/her parents, then an authority was immune from owing any duty of care to the parents; the duty of care owed by an authority to a child was not ‘paramount’ in that sense. Whilst the potential for conflict of duties was a matter which had to be taken into account as a circumstance that might contribute to it being unfair, unjust or unreasonable to impose a duty of care, the fact that there was some conceivable potential for such a conflict in the future was insufficient to make an authority immune from a suit in negligence at the hands of a parent. Potential conflict was not a trump card in relation to whether a duty of care was owed; it was simply one factor which the court had to take into account. In the instant case, the claimant was the parent of the children whom she suspected had been abused by another child; she was not suspected of any abuse. In those circumstances, her interests and those of the children were consonant; D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2005] 2 FCR 81 considered.
(2) The concept of ‘third parties’ was based on the premise that the scope and content of the duty of care owed to the primary victim and the third party were the same. Outside narrow exceptions, a third party was not permitted to hang onto the coat tails of the duty of care owed to the primary victim. In the instant case, however, the claimant asserted that the defendant owed her a different duty of care from that which it owed to her children. That duty arose because of her engagement with the defendant in reporting the incidents of abuse and in meeting with its representatives in 2004 when they had denied the earlier report had ever been made. It was not merely parasitic upon the duty of care a local authority might owe a child; it had a different basis and was of different scope, meaning that the claimant
was not a true ‘third party’ at all; D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2005] 2 FCR 81 considered.
(3) The issue for the House of Lords in D v East Berkshire had been whether, in all the circumstances of the case, it was fair, just and reasonable to impose on the local authority a duty of care owed to parents who were suspected of abusing their own children. The House, taking into account all of the circumstances (including both the ‘conflict’ and ‘third party’ aspects), had found that it was not. However, the opinions did not suggest that the conflict and third party aspects were two entirely discrete grounds for the refusal to find that a duty of care existed as a matter of law; rather they suggested consideration of one ground in respect of which the potential for conflict of interest and the fact that in that case the parents were true ‘third parties’ were relevant factors, namely that it would not be fair, just and reasonable for a duty of care to be imposed. Accordingly, the defendant’s analysis of the grounds as discrete and independent was unsound; D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2005] 2 FCR 81 considered.
(4) In all the circumstances of the instant case, there was a real prospect of the claimant showing that it was fair, just and reasonable that the defendant had owed her a duty of care; the judge had been both entitled and correct to come to that conclusion. The appeal would therefore be dismissed.
Cases referred to in judgmentA v Essex CC[2003] EWCA Civ 1848, [2004] 1 FCR 660, [2004] 1 WLR 1881, [2004] 1 FLR 749.
Barrett v Enfield London BC[1999] 2 FCR 434, [1999] 3 All ER 193, [2001] 2 AC 550, [1999] 3 WLR 79, [1999] 2 FLR 426, HL.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2003] EWCA Civ 1151, [2003] 3 FCR 1, [2003] 4 All ER 796, [2004] QB 558, [2004] 2 WLR 58, [2003] 2 FLR 1166; affd[2005] UKHL 23, [2005] 2 FCR 81, [2005] 2 All ER 443, [2005] 2 AC 373, [2005] 2 WLR 993, [2005] 2 FLR 284.
Lambert v Cardiff CC[2007] EWHC 869 (QB), [2007] 3 FCR 148.
Lawrence v Pembrokeshire CC[2007] EWCA Civ 446, [2007] 2 FCR 329, [2007] 1 WLR 2991, [2007] 2 FLR 705.
Sullivan v Moody (2001) 207 CLR 562, Aus HC.
W v Essex CC[2000] 1 FCR 568, [2000] 2 All ER 237, [2001] 2 AC 592, [2000] 2 WLR 601, [2000] 1 FLR 657, HL.
X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC[1995] 3 FCR 337, [1995] 3 All ER 353, [1995] 2 AC 633, [1995] 3 WLR 152, [1995] 2 FLR 276, HL.
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AppealOn 6 August 2007, the claimant (C) brought proceedings against Merthyr Tydfil County Borough Council (the local authority), seeking damages for personal injury in the form of a psychiatric condition allegedly caused by the local authority’s negligence in failing properly to deal with reports made by C that her children (A and B) had been sexually abused by a neighbour’s child in 2002 and 2004. On 9 July 2009, the local authority applied to strike out the claim pursuant to CPR 3.4(2)(a) or, in the alternative, for summary judgment pursuant to CPR 24.2, contending that the particulars of claim disclosed no reasonable ground for pursuing the claim and that C had no real prospect of success. The application was dismissed by Judge Jarman QC sitting in the Cardiff County Court on 17 September 2009 and the local authority appealed. The facts are set out in the judgment.
Matthew White (instructed by Dolmans) for the local authority.
Robert Weir (instructed by Hugh James) for the mother.
HICKINBOTTOM J.[1] 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.
[2] 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...
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