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Judgments - W 1-6 (A.P.) v. Essex County Council and Another


Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Hobhouse of Wood-borough Lord Millett



W 1-6 (A.P.)





ON 16 MARCH 2000


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 not justiciable, and whether there was a breach of the duty depend, in the first place, on an investigation of the full facts known to, and the factors influencing the decision of, the defendants.

    A more difficult question is whether as the defendants contend nothing is alleged by way of damage flowing from the breach to justify the case going to trial.

    Mr. Faulks has forcefully submitted that where it is accepted that damages may lie for psychiatric injury the law recognises a distinction between "primary victims" and "secondary victims." The former are those who were involved in the event causing the psychiatric injury "mediately or immediately as [participants]" (Alcock [1992] 1 A.C. 310, 407D-E). Moreover it was only if the parents were within the range of foreseeable physical injury that they were primary victims: Frost v. Chief Constable of South Yorkshire Police [1999] 2 A.C. 455. If such physical injury had been foreseeable then a claim might lie for psychiatric injury even if it was not itself foreseeable: Page v. Smith [1996] A.C. 155. The parents were not participants in this sense in the injury to their children nor was it foreseeable that if G. was placed with the family the parents would suffer physical injury.

    A secondary victim on the other hand is "no more than the passive and unwilling witness of injury caused to others" (Alcock p. 407D-E per Lord Oliver of Aylmerton) and to be compensatable in damages psychiatric injury must be foreseeable in persons of normal fortitude. Moreover there must be a sufficiently proximate relationship with the person causing physical harm to that other. Here the parents had the necessary ties of love for their children but they were neither near enough in time or space to the acts of abuse and they did not have direct visual or oral perception of the incident or its aftermath as the House, agreeing with the speech of Lord Oliver, required that they would have to have in order to claim for psychiatric injury. The parents only knew about the incidents after they had happened.

    The defendants also reject any suggestion that the parents can claim to be entitled to damages because they feel that they had participated in or contributed to or laid the foundation for the commission of the acts of abuse on their children by arranging for G. to be brought into their home. They were for example much less involved in the accident than the claimant in Hunter v. British Coal Corporation [1999] Q.B. 140. The parents are in no different position from a person who suffers shock on being told of the death of a loved one. Such a claim is not recognised by the law.

    There have been important developments in the cases dealing with liability for psychiatric injury which beyond doubt can constitute a head of damage. For example, Lord Wilberforce in McLoughlin v. O'Brien [1983] 1 A.C. 410 recognises that a claim can be made for nervous shock even where there is no direct impact or fear of immediate personal injury to the claimant. He accepted that there are, however, limitations to the category of persons not suffering physical injury who can claim as, for example, when they are not within sight or sound of the aftermath of the event causing injury to someone else. These limitations were spelled out in Alcock in which it was accepted that the person claiming who was not directly involved in the incident must have seen or heard the incident or come upon it in the immediate aftermath (per Lord Ackner and Lord Oliver). In Frost [1999] 2 A.C. 455, 493-494 Lord Steyn analysed the reasons why the law draws a distinction between physical and psychiatric harm and why the law has proceeded cautiously in recognising as valid claims for psychiatric harm. It is, for example, difficult to distinguish between acute grief and psychiatric injury and to widen the scope of recognised claims might not only provoke further claims but also impose a disproportionate liability on defendants where physical harm to the claimant could not reasonably have been foreseen.

    It is important in the present case to bear in mind these factors together with the limitations recognised in Alcock.

    On the other hand it is right to recall that in McLoughlin Lord Scarman, at p. 430C-E recognised the need for flexibility in dealing with new situations not clearly covered by existing decisions; that in Page v. Smith [1996] A.C. 155, 197G Lord Lloyd of Berwick said that once it was accepted that the defendant could foresee that his conduct would expose the claimant to personal injury "there is no justification for regarding physical and psychiatric injury as different 'kinds of damage'"; that in this still developing area the courts must proceed incrementally (Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605).

    On a strike out application it is not necessary to decide whether the parents' claim must or should succeed if the facts they allege are proved. On the contrary, it would be wrong to express any view on that matter. The question is whether if the facts are proved they must fail. It is not enough to recognise, as I do recognise at this stage, that the parents may have difficulties in establishing their claim.

    On the other hand, it seems to me impossible to say that the psychiatric injury they claim is outside the range of psychiatric injury which the law recognises. Prima facie pleaded it is more than "acute grief." Thus in the case of the parents it is said:

    "The mother has suffered reactive depression, sleep disturbance, nightmares, tearfulness, exacerbation of her condition of diabetes and from hypertension. She is no longer able to work as a foster parent.

    The father has suffered reactive depression and post-traumatic stress disorder with sleep disturbance, nightmares and he was unable to continue work as a foster parent or a youth worker.

    The parents' marriage, which had previously been a happy one, was placed under extreme stress and they have subsequently separated. Their sexual relationship was affected and they suffered guilt characterised by feelings of helplessness and powerlessness. Dr. Bawden, in the report dated 11 September 1994 describes how:

    'The effect on the family as a whole has been devastating … From a previously well-functioning family since they were assessed as being able to foster disturbed adolescents, their functioning has deteriorated markedly. They have lost employment. Their marital relationship has deteriorated and both parents have had increased ill-health since the disclosure of these events.' "

    Nor do I find it possible to say that a person of reasonable fortitude would be bound to take in his or her stride being told of the sexual abuse of his or her young children when that person had even innocently brought together the abuser and the abused. A judge might find on a full investigation of the circumstances that they might. I do not feel sufficiently informed on the detailed facts at this stage to rule it out.

    This, however, is only the beginning. Is it clear beyond reasonable doubt that the parents cannot satisfy the necessary criteria as "primary" or "secondary" victims? As to being primary victims it is beyond doubt that they were not physically injured by the abuse and on the present allegations it does not seem reasonably foreseeable that there was risk of sexual abuse of the parents. But the categorisation of those claiming to be included as primary or secondary victims is not as I read the cases finally closed. It is a concept still to be developed in different factual situations. Lord Goff of Chieveley (dissenting) in Frost [1999] 2 A.C. 455, 472G said that Lord Oliver "did not attempt any definition of this category [i.e. of primary victims] but simply referred to a number of examples." In Robertson v. Forth Road Bridge Joint Board 1995 S.C.L.R. 466 at p. 475D Lord President (Hope) said "Nor is there any basis in the evidence for attributing their illnesses to a belief that they had been the unwitting cause of Smith's death." That seems to recognise that if there had been such a basis a claim might have been arguable. See also the discussion in Young v. Charles Church (Southern) Limited, (unreported), 24 April 1997; (Civil Division) Transcript number 810 of 1997, as to whether the claimant there was a primary or a secondary victim.

    I do not consider that any of the cases to which your Lordships have been referred conclusively shows that, if the psychiatric injury suffered by the parents flows from a feeling that they brought the abuser and the abused together or that they have a feeling of responsibility that they did not detect earlier what was happening, prevents them from being primary victims. Indeed, in Alcock [1992] 1 A.C. 310, 408F Lord Oliver said "The fact that the defendant's negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable."

    Reference has been made to the "rescue" cases but these do not seem to be necessarily relevant: the plaintiffs here are in no sense claiming as rescuers.

    Whilst I accept that there has to be some temporal and spatial limitation on the persons who can claim to be secondary victims, very much for the reasons given by Lord Steyn in Frost, it seems to me that the concept of "the immediate aftermath" of the incident has to be assessed in the particular factual situation. I am not persuaded that in a situation like the present the parents must come across the abuser or the abused "immediately" after the sexual incident has terminated. All the incidents here happened in the period of four weeks before the parents learned of them. It might well be that if the matter were investigated in depth a judge would think that the temporal and spatial limitations were not satisfied. On the other hand he might find that the flexibility to which Lord Scarman referred indicated that they were.

    If this were, on the authorities, a clear cut case I would not hesitate to strike it out. However I wholly agree with the decision of Hooper J. and the majority of the Court of Appeal as to the children's claim and I have come to the conclusion that the parents' claim cannot be said to be so certainly or clearly bad that they should be barred from pursuing it to trial. I stress to the parents that I am not giving any indication either way as to the outcome of the case but, win or lose, if they wish to pursue the claim they should not be barred from doing so. I would allow the appeal.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he has given I would also allow the appeal.


My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend Lord Slynn of Hadley. I agree with it, and for the reasons which he has given I too would allow the appeal.


My Lords,

    I agree that this appeal by the parents should be allowed and that their claims should be permitted to go to trial as proposed by my Noble and Learned Friend, Lord Slynn of Hadley.


My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he gives I too would allow the appeal.


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