VL (by her litigation friend, the Official Solicitor) v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Date | 2010 |
| Court | Queen's Bench Division |
Local authority – Negligence – Duty of care – Child sustaining permanent brain damage due to violent shaking by father – Defendant local authority acquiring parental responsibility over child – Defendant postponing application for criminal injuries compensation in bid to focus on rehabilitating family – Application being made subsequent to introduction of less favourable compensation scheme – Child alleging defendant in breach of duty of care by failing to make application under more favourable scheme – Whether duty of care arising – Whether defendant in breach of duty.
The claimant, who was one year old, sustained permanent brain damage and severe developmental delay as a result of being shaken violently in 1994. An interim care order was made, the effect of which was that the defendant local authority acquired parental responsibility over the claimant, with the mother retaining shared parental responsibility. In the course of the care proceedings, the judge made a finding of fact that the father had caused the claimant’s injury. The care order stayed in force, periodically renewed, until it was made final in 1996. Prior to its discharge in 2000, the defendant’s aim was to reunite the family and rehabilitate the father. That process was made more difficult by the fact that, for a long time, the parents refused to accept the judge’s finding that the father had caused the claimant’s injury. The family’s social worker was aware that, as a victim of violent crime, the claimant could make an application to the Criminal Injuries Compensation Board (CICB). Under the scheme then in existence, awards were calculated (broadly speaking) by reference to common law damages. Given the difficulties of the situation, the social worker decided to wait until the father was fully rehabilitated to the family before making an application on the claimant’s behalf. After extensive treatment and rehabilitation, the father was able to return to the family in 1996. In the same year, a new tariff-based compensation scheme was brought into force by the Criminal Injuries Compensation Act 1995. The scheme was administered by the Criminal Injuries Compensation Authority and applied to all claims lodged after 1 April 1996, regardless of the date of injury. The central government gave no advance notice of the reforms and did nothing to inform those injured by crimes committed before 1 April 2006 that they had to make their claims
before that date if they wished to benefit from the more favourable basis of calculation used in the old scheme. In 2001, following an application under the new scheme, the claimant was awarded £500,000, the maximum available under the scheme. The claimant duly brought proceedings (by her litigation friend, the Official Solicitor) against the defendant, claiming that she would have received a larger award under the old scheme and that the defendant had been negligent in failing to make an application before the new scheme was introduced. She submitted, inter alia, that (i) the defendant’s parental responsibility extended to taking steps to mitigate the consequences of the injury which had precipitated the care proceedings, and (ii) the defendant had assumed responsibility for making CICB claims for children in its care by promulgating a document in 1992, emphasising the local authority’s responsibility in that area and providing guidance on how to make claims. The defendant denied that it owed a duty of care to make an application by the particular time or at all and submitted that, even if such a duty was owed, it had not been breached.
Held – (1) While the categories of negligence were never closed and the law of tort was a living thing, to impose a duty of care of the type and scope suggested in the instant case would not be fair, just or reasonable in the circumstances. Although the defendant had had the power to make a CICB claim on the claimant’s behalf, that power did not mean that it was under a duty in tort to maximise the economic position of a child in care by allocating time and resources to a pursuit of all available financial claims in a situation where a parent retained a share of parental rights. The primary focus of the defendant was on the physical welfare and safety of the child and the rebuilding of the family unit. The assumption of responsibility relied on, in the form of the 1992 document, was a factor to which considerable weight had to be given. However, it was not of itself determinative of a duty actionable in private law, whatever the document said. Above all, the delicacy of the relationship between the mother and the defendant had to be considered. In the circumstances, careful thought had to be given, and probably had been given, as to whether the introduction of a claim signed by the mother naming the father as a criminal would have been seen as consistent with the entire rehabilitation process. The social worker’s reason for putting the claim aside had been a sensible one. It would not be fair, just or reasonable to impose the duty alleged to promote the claimant’s financial security over the unity of the family, or even to run the risk of doing so (see [41], [44]–[50], below); X (minors) v Bedfordshire CC, M (a minor) v Newham London BC, E (a minor) v Dorset CC[1995] 3 FCR 337 and Gorringe v Calderdale Metropolitan BC [2004] 2 All ER 326 applied.
(2) Even if a duty of care had arisen in the instant case, the court would have found that there had been no breach. On the evidence, there had been no effort by the central government to notify those wanting to have access to the compensation scheme of the very significant changes taking place. The statute which brought the new scheme into force did not alert the reader as
to what the scheme was, when it would come into force or that it would affect existing rights under the previous scheme. In those circumstances, a failure on behalf of any of the defendant’s child care legal team (viewed individually or collectively) to be aware of the draconian effect of the 1 April 1996 deadline did not constitute a professional failure to achieve the standard to be expected of a reasonable, competent person acting in the field in which they were acting (see [54], below).
Accordingly, the claim would be dismissed.
Cases referred to in judgmentBarrett 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.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Connor v Surrey CC[2010] EWCA Civ 286, [2010] 3 All ER 905.
D v East Berkshire Community Health NHS Trust, K v Dewsbury Healthcare NHS Trust, K v Oldham NHS Trust[2005] UKHL 23, [2005] 2 FCR 81, [2005] 2 All ER 443, [2005] 2 AC 373, [2005] 2 WLR 993, [2005] 2 FLR 284.
Glaister v Appleby-in-Westmorland Town Council[2009] EWCA Civ 1325, [2009] All ER (D) 79 (Dec).
Gorringe v Calderdale Metropolitan BC[2004] UKHL 15, [2004] 2 All ER 326, [2004] 1 WLR 1057.
Gwilliam v West Hertfordshire Hospital NHS Trust[2002] EWCA Civ 1041, [2003] QB 443, [2003] 3 WLR 1425.
Kitchen v Royal Air Forces Association [1958] 2 All ER 241, [1958] 1 WLR 563, CA.
O’Rourke v Camden London BC [1997] 3 All ER 23, [1998] AC 188, [1997] 3 WLR 86, 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.
X v Hounslow London BC[2009] EWCA Civ 286, [2009] 3 FCR 266, [2009] 2 FLR 262.
ApplicationThe claimant, VL, brought a claim by her litigation friend, the Official Solicitor, alleging that the defendant, Oxfordshire County Council, had breached its duty of care to her by failing to make an application for compensation for criminal injuries before the introduction of a less favourable scheme in 1996. The injuries had been sustained in 1994, when one-year-old VL had been shaken violently by her father. The facts are set out in the judgment.
Frank Burton QC and Freya Newbery for the claimant.
Edward Faulks QC and Andrew Warnock for the defendant.
Mackay J.[1] The claimant, VL, was born in May 1993 to a young woman of just 18, and a father of 21. On 22 July 1994 when her mother was pregnant with her second child (in due course born [in] November 1994) the claimant suffered a serious injury which has left her with right-sided hemiplegia and severe developmental delay. This was the result of her being violently shaken by her father on that date. She has suffered permanent brain damage as a result of that criminal assault.
[2] An interim care order was made in respect of the claimant on 10 August 1994, the effect of which was that the defendant acquired parental responsibility over VL, with the mother retaining shared parental responsibility. The care order stayed in force, periodically renewed, until it was made final on 19 March 1996. It was eventually discharged on 24 March 2000. In the course of those care proceedings on 4 April 1995 Wall J (as he then was) found as a fact that it was the father who had caused her injury, a finding which he expressed in these words: ‘in a moment of temper and in a loss of control … this father shook this child and caused the injuries which she suffered. I am in no doubt whatsoever about that’.
[3] The defendant’s strategy, at Wall J’s direction, was to keep this family together. The strategy succeeded, largely as a result of assiduous and thoughtful work by the social worker involved, Mrs Thompson. Initially VL lived with her mother’s parents, but she went back to live with her mother in August 1995. One of the problems was that for a long time the father and the mother did not or could not accept the judge’s finding, albeit there was no appeal against it. It was therefore necessary to reintroduce the father to VL very carefully. He had to undergo extensive psychiatric therapy and treatment to...
To continue reading
Request your trial