Surtees v Kingston-upon-Thames Borough Council; Surtees v Hughes and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER,LORD JUSTICE BELDAM,THE VICE-CHANCELLOR |
| Judgment Date | 26 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0326-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0281 |
| Date | 26 March 1991 |
[1991] EWCA Civ J0326-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LEGGATT)
Royal Courts of Justice
The Vice-Chancellor
(Sir Nicolas Browne-Wilkinson)
Lord Justice Stocker
Lord Justice Beldam
91/0281
MR A.F.B. SCRIVENER Q.C. and MR K.L. MAY, instructed by Messrs Joynson-Hicks, appeared for the Appellant (Plaintiff).
MR DERMOD O'BRIEN Q.C. and MR EDWARD FAULKS, instructed by Messrs Barlow Lyde & Gilbert, appeared for the Royal Borough of Kingston upon Thames.
MR NIGEL WILKINSON Q.C. and MR RICHARD LYNAGH, instructed by Messrs Cameron Markby Hewitt, appeared for Mr and Mrs Hughes.
This is an appeal from a judgment of Leggatt J. (as he then was) given on 19th May 1989 whereby he dismissed the plaintiff's claim for damages for personal injuries and ordered that judgment be entered for the defendants.
At the time of trial the plaintiff was 25 years of age. An incident or accident had occurred on 9th August 1966, some 23 years before the date of trial, when she was two years old, having been born on 8th April 1964. At that time she had been placed in the foster care of Mr and Mrs Hughes by the first defendant, the local authority. The plaintiff had no personal recollection of the accident or any of the circumstances in which it had occurred. The injuries were very serious and included virtually complete destruction of the skin and tissues of the sole of her left foot. It is common ground that these injuries were caused by immersion in water hot enough to cause third degree burns. The dispute concerns the circumstances in which such immersion occurred.
It will be necessary in due course to consider in some detail the contentions of the parties in respect of those circumstances, but at this stage, at the risk of over-simplification, it is sufficient to state that the plaintiff's case was that the immersion must have been due to her foot being placed in a receptacle which contained hot water at a time when she had been left alone in the vicinity of such a receptacle. The defence version was that the injuries were caused by running, not static water, in a washbasin, the plaintiff having put her foot into the basin when empty, the hot water having subsequently been released by the activation in some way of the hot water tap by the plaintiff herself. This difference is vital to the outcome of the case, since if the water was already in the receptacle the plaintiff must have been left in dangerous proximity to it or, as was contended on behalf of the plaintiff at trial (but not before this court) having been deliberately immersed into the water by Mrs Hughes. On either of these hypotheses liability would be established.
The case against the first defendant, the local authority, was based upon the proposition that the plaintiff should never have been fostered to the Hughes in the first place and that the authority failed sufficiently to supervise the fostering or to visit the plaintiff or the foster parents sufficiently often or to remove the plaintiff from the foster parents when a proper appraisal of the situation required that this should have been done.
Before turning to consider the issues which arise in this case in detail, it is appropriate to relate in short compass some of the background facts concerning the persons principally concerned, the general circumstances concerning the fostering arrangements, the development of the litigation and the pleaded issues.
The plaintiff was taken into care very shortly after her birth. Her mother was a Roman Catholic. For the first two years of her life she had lived in nurseries run by the Children's Department of the local authority. It seems that during this period she appeared to be a somewhat unprepossessing infant with an unattractive physical appearance. It was also feared that she might also be mentally retarded, or even the victim of Down's Syndrome. It was anticipated therefore that there might be difficulty in finding suitable foster parents if fostering were to be considered an appropriate course to adopt.
At that time the children's officer principally concerned was a Mrs McDerment, a lady of Swedish birth who had come to this country in 1965 having married a Scotsman. She was highly qualified in care work and children's welfare and was the most highly qualified member of the staff in the child care department. She believed that fostering gave children a better opportunity to develop than residence in a nursery, but was appreciative of the difficulty in the case of this plaintiff of finding a suitable foster home. After the consultant paediatrician had agreed that the plaintiff could be placed with foster parents she interviewed some potential foster parents, but they were not considered suitable. She enlisted the aid of a Roman Catholic organisation, "The Catholic Crusade of Rescue", in the task of finding potentially suitable foster parents. That institution suggested Mr and Mrs Hughes. They were themselves Roman Catholics and Mrs Hughes was a trained nurse.
On 11th February 1966 Mrs McDerment visited Mr and Mrs Hughes and on 22nd February she introduced them to the plaintiff in her office. Thereafter she arranged for weekly visits to the nursery. Mr and Mrs Hughes had three children of their own, the eldest being a girl aged seven and the youngest a boy of about the plaintiff's own age. In March permission was given for the plaintiff to visit the Hughes in their own home and to meet their children, and some weekly visits occurred. On 22nd April, the plaintiff was placed with Mr and Mrs Hughes on a fostering basis, the intention being that if possible in due course there might be an adoption.
There is no doubt that the plaintiff profited very substantially from this placement, acquiring some of the social skills appropriate to her age which had been lacking before and it also became apparent that she was not mentally retarded. In a file note Mrs Hughes has been described as "highly strung", but the source of this comment is unknown. The judge found that the motivation of the Hughes for the fostering of the plaintiff was to enable their family to consist of four children, but owing to the difficulties of delivery Mrs Hughes had undergone at the birth of her three children, it was not their intention to have a fourth child of their own.
Mrs McDerment saw the Hughes on 21st April and felt some apprehension with regard to Mrs Hughes' somewhat exaggerated fears over some stomach or bowel abnormality exhibited by the plaintiff in respect of which the plaintiff had been examined in hospital. From about the end of June, the Hughes showed an ambivalence with regard to whether or not they wished to continue the fostering of the plaintiff. It is unnecessary to recite in this judgment the whole history of this ambivalence. It is sufficient to record that on 30th June Mrs McDerment formed the view that the worries which seemed to be besetting Mr and Mrs Hughes were not so much their fears about the health of the plaintiff but with regard to the continuance of the fostering itself. Mrs McDerment therefore offered to remove the plaintiff. Mrs Hughes then said that she had undertaken too much and asked Mrs McDerment to find other foster parents, which Mrs McDerment agreed to do.
In July there were numerous telephone conversations between Mr and Mrs Hughes and Mrs McDerment with regard to the continuance of the fostering. Clearly they were vacillating. It was during this period that Mrs Hughes discovered that she was pregnant again. The vacillation referred to is exemplified by the fact that on 1st August Mr Hughes asked if the plaintiff could go with them on holiday abroad before her removal from their care, but on 9th August he telephoned them to say that he wanted the plaintiff removed before they went on holiday. It was later on that same day that the accident to the plaintiff occurred. Immediately after it occurred the plaintiff was taken by Mr and Mrs Hughes to the local general practitioner, a Dr Gent, who carried out some treatment and dressed the wound. Mrs Hughes is said to have told him at the time that the child had "burnt her foot in the wash bowl". The doctor continued to dress the wound daily. The judge found that Mrs Hughes did not inform the local authority of occurrence of this accident until 16th August. On that date she told Mrs McDerment that the plaintiff "had burnt her foot badly when she put it in hot water".
After the injury had occurred, the plaintiff had a scarlatina infection and some further treatment to the wound was carried out at Dr Gent's surgery. On 19th August the plaintiff was transferred to different foster parents, a Mr and Mrs Hunt. On the advice of the district nurse given to Mr and Mrs Hunt she was taken to hospital on 26th August and was retained as an in-patient for a considerable time.
The plaintiff contends that her injury did not consist solely of the physical damage to her foot and the consequent disabilities resulting therefrom, but also depression and anxiety.
As to the course of the litigation, the plaintiff's claim was initiated by writ with indorsed statement of claim dated 13th May 1985 in which the local authority were the sole defendants. It alleged against them breach of statutory duty under the "Boarding Out of Children Regulations 1955" and negligence in the same respects and vicariously for the negligence of Mr and Mrs Hughes. A description of the injury is pleaded, but there is no description of the accident,...
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...of his upbringing which could be shown to be wrong, and I also agree with the observation of Browne-Wilkinson V.-C. in Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 F.L.R. 559, 583F: "I further agree with Stocker L.J. that the court should be wary in its approach to holding pare......
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