W v Essex County Council
| Jurisdiction | UK Non-devolved |
| Judge | LORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD MILLETT |
| Judgment Date | 16 March 2000 |
| Judgment citation (vLex) | [2000] UKHL J0316-2 |
| Date | 16 March 2000 |
| Court | House of Lords |
And Another
[2000] UKHL J0316-2
Lord Slynn of Hadley
Lord Steyn
Lord Hope of Craighead
Lord Hobhouse of Wood-borough
Lord Millett
HOUSE OF LORDS
My Lords,
In these proceedings the plaintiffs W.1 and W.2 are the parents of the plaintiffs W.3 to W.6 the children being one boy and three girls. All of the plaintiffs claim inter alia damages for personal injury caused by the negligence of the council and a social worker employed by the council. There were additional claims in contract, for misfeasance in public office and negligent mis-statement but nothing turns on these directly in the present appeal.
Put shortly, the basis of the claim is that the parents, who in October 1992 had been approved as specialist adolescent foster carers by the council expressly told the council and the social worker that they were not willing to accept any child who was known or suspected of being a sexual abuser. Despite that stipulation the council, through the social worker, placed with the parents a 15-year-old boy, G., who had admitted and had been cautioned by the police for an indecent assault on his own sister and who was being investigated for an alleged rape. These facts were not communicated to the parents, although they were recorded on the council's files and were known to the social worker. Serious acts of sexual abuse against the children are alleged to have been committed between 7 April and 7 May 1993 after the boy had arrived at the parents' home. As a result, it is alleged that because of the abuse both parents and children suffered injury as described in reports of an independent child abuse consultant and a consultant child and adolescent psychiatrist.
The council and the social worker applied to strike out the claims pursuant to R.S.C., Ord. 18, r. 19(1)(a) and (d). On 7 July 1997 Hooper J. struck out all the claims made by the parents but refused to strike out the claims by the children [1997] 2 F.L.R. 535. The Court of Appeal on 2 April 1998 [1999] Fam. 90 by a majority upheld the judge's order in respect of the childrens' claim in negligence but unanimously upheld the order in respect of the parents' claim in negligence for the reasons which they gave. Appeals and cross-appeals were launched but by the time of the hearing before your Lordships the defendants accepted that the claim by the children should proceed: the parents contend that their claim for their injury should proceed to trial and that is the sole issue.
The parents contend that the defendants were negligent in placing a known sexual abuser in their home when the defendants knew of G.'s history and of the parents' anxiety not to have a known sex abuser in their home with four young children aged between 8 and 12 at the relevant time. When they discovered the serious acts of sexual abuse including anal and vaginal penetration and oral sex on 7 May the plaintiffs suffered psychiatric illness and damage including severe depression and post-traumatic stress disorder as described in the medical reports they relied on.
Hooper J. after a detailed analysis of the case law and arguments concluded [1995] 2 F.L.R. 535, 563:
"The defendants accept (just) that, arguably, there is evidence of positive psychiatric illness and that such illness was foreseeable. They submit that what the plaintiff parents do not even arguably show is that any such illness was the result of the 'sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind' (Alcock v. Chief Constable of South Yorkshire [1992] 1 A.C. 310, 40lF). Mr. Levy submits that there is sufficient in paragraph 31 as now amended to permit the matter to be fully investigated at trial and that the claim is an arguably incremental extension of the law. I do not agree. Paragraph 31 will be struck out."
Stuart-Smith L.J. held that the defendants owed no duty of care to parents or children but he added in regard to the plaintiffs' claim for psychiatric illness [1999] Fam. 90, 114, para. 57 that in his view the judge was right to hold "that the parents were secondary victims, that is to say, their shock and illness was consequent upon learning of the injury to their children and that they did not satisfy the criterion laid down in Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310, 401F."
Stuart-Smith L.J. added p. 115, para. 58:
"Even if the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not caused by shock. The shock must be sustained through the medium of the eye or ear without direct contact. Shock in this context involves the 'sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind:' [1992] 1 A.C. 310, 401F. It does not include psychiatric illness caused by the accumulation over a period of time of more gradual attacks of the nervous system: see Alcock's case, pp. 400E-401F, per Lord Ackner."
For the application to strike out to succeed it must be shown that the statement of claim discloses no cause of action or constitutes an abuse of process of the court and for that inquiry the factual averments must be taken as true though many of them are denied by the defendants.
Although the power to strike out a claim which really has no chance of succeeding in law is a very valuable one to protect defendants and to prevent the court's time being used (to the detriment of other cases waiting to be heard) in the investigation of the allegations, it has to be exercised cautiously as has so often been said. In X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633 where the question was whether a duty of care arose in child abuse cases and in special educational needs cases Lord Browne-Wilkinson said, at pp. 740-741 "Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts". He added that it could be different where the question depended only on the construction of relevant statutory provisions. At p. 741 he agreed with Sir Thomas Bingham M.R. that:
"if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered."
The complex range of facts in those cases shows how difficult the exercise is.
In Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79 Lord Browne-Wilkinson repeated what he had said in X (minors) and, at p. 83, added that the development of the law should be on the basis of actual facts found at trial "not on hypothetical facts assumed (possibly wrongly) to be true for the purposes of the strike out." At p. 99 I took the view that "the question whether it is just and reasonable to impose a liability of negligence is not to be decided in the abstract for all acts or omissions of a statutory authority, but is to be decided on the basis of what is proved." Causation is largely a question of fact to be proved and the facts needed to be investigated. Lord Hutton, at p. 111, agreed that the claim should not be struck out "on the ground that it gives rise to issues which are non-justiciable."
It seems to me that it cannot be said here that the claim that there was a duty of care owed to the parents and a breach of that duty by the defendants is unarguable, that it is clear and obvious that it cannot succeed. On the contrary whether it is right or wrong on the facts found at the end of the day, it is on the facts alleged plainly a claim which is arguable. In their case the parents made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home. The council and the social worker knew this and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened. Whether the nature of the council's task is such that the court should not recognise an actionable duty of care, in other words that the claim is...
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