The case of W v Essex CC and Another (2000) gives some indication that the House of Lords is now prepared to contemplate extending the scope of the duty of care in special circumstances and that the law in this area is still developing. It is useful to consider this case in detail. The claimants were appointed specialist adolescent foster carers by the defendant council and they had explained, when they were approved by the council, that they were unwilling to accept any child who was known to be, or was suspected of being, a sexual abuser. However, despite that stipulation, the council placed with them 15 year old boy, G, who had admitted to and had been cautioned by the police for an indecent assault on his own sister and who was being investigated for an alleged rape. The claimants were not told that this was the case, even though these facts were recorded on the council’s files and were known to the social worker concerned. Serious acts of sexual abuse against the claimants’ children (who were also claiming against the council) were alleged to have been committed between 7 April and 7 May 1993, after the boy had arrived at the foster home. It was alleged that, because of the abuse, both parents and children suffered injury. The parents’ claim was for psychiatric injury.
The council and the social worker who placed the boy applied to strike out the claims and, at first instance, the court struck out all the claims made by the parents, but refused to strike out the claims by the children. In 1998, the Court of Appeal upheld the judge’s order in respect of the children’s claim in negligence and unanimously upheld the order in respect of the parents’ claim in negligence. By the time of the hearing, the defendants accepted that the claim by the children should proceed. The parents before the House of Lords argued that the claim for their own injury should also proceed to trial. They contended that the defendants were negligent in placing a known sexual abuser in their home when they knew of G’s history and of the parents’
anxiety not to have a sex abuser in their home with four young children.
When they discovered the serious acts of sexual abuse on their children, including anal and vaginal penetration and oral sex, the claimants suffered psychiatric illness and damage, including severe depression and post-traumatic stress disorder.
Lord Slynn explained that the power to strike cases out before they come to a full trial is one which must be exercised cautiously, but that it would not be necessary to prove at this stage that the parents’ claim would definitely succeed if the case came to trial. He referred to X (Minors) v Bedfordshire CC (1995), where the question was whether a duty of care arose in child abuse cases, as well as special educational needs cases.
In W v Essex CC and Another (2000), Lord Slynn ruled that there was an arguable case. The parents had 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 concerned had already committed acts of sex abuse. The risk was obvious and the abuse actually happened.
The defendants had 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 v Chief Constable of South Yorkshire (1991)).
They also argued that only if the parents were within the range of foreseeable physical injury were they primary victims, and, 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)). The defence contended that 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. On that basis, the parents were only secondary victims;
thus, the risk of psychiatric injury to them must be foreseeable in persons of normal fortitude in order for them to be compensated for psychiatric injury . In addition, 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 the defence argued strongly that
they were neither near enough in time or space to the acts of abuse, nor did they have direct visual or oral perception of the incident or its aftermath. The parents only knew about the incidents after they had happened.
The defendants also rejected any suggestion that the parents could claim to be entitled to damages on the ground that they felt that they had participated in, 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.
Lord Slynn pointed out that there have been important developments in the law concerning liability for psychiatric injury which indicate beyond doubt that it can constitute a head of damage.
In his Lordship’s opinion, it was important in the present case to bear in mind all of the policy factors, together with the limitations recognised in Alcock. However, Lord Slynn said that it is right to recall that, in McLoughlin v O’Brien (1983), Lord Scarman recognised the need for flexibility in dealing with new situations not clearly covered by existing case law, and that, in Page v Smith (1996), Lord Lloyd said that, once it is accepted that a defendant could foresee that his or her conduct would expose the claimant to personal injury,
‘there is no justification for regarding physical and psychiatric injury as different “kinds of damage”’.
In the present case, the House of Lords considered that it was impossible to say that the psychiatric injury claimed was outside the range of psychiatric injury which the law recognises as deserving of compensation. It certainly amounted, on the face of it, to more than ‘acute grief’. The parents’ previously happy marriage had broken up, and both had suffered reactive depression and could no longer act as foster parents. Their sex lives had been ruined. The effect on the family had, allegedly, been devastating.
However, this was only the beginning of the claim. The question of whether the parents were primary of secondary victims was not absolutely clear, and the issue of the categorisation of those claiming to be included as primary or secondary victims is not finally closed. It is, in Lord Slynn’s view, a concept still to be developed in different factual situations. 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, that does not necessarily prevent them from being primary victims. Indeed, in Alcock (1991), Lord Oliver said:
The fact that the defendant’s negligent conduct has foreseeably put the claimant 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 claimant was or was not reasonably foreseeable.
Whilst there has to be some temporal and spatial limitation on the persons who can claim to be secondary victims, the concept of ‘the immediate aftermath’ of the incident has to be assessed in the particular factual situation.
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. W v Essex CC and Another (2000) was far from being a clear cut case, and it did not justify being struck out. The House of Lords unanimously dismissed the appeal.
It is important to recognise, as Lord Slynn observed, that the law concerning psychiatric injury is still a developing area of law, in which the courts must proceed incrementally (Caparo Industries plc v Dickman (1990)).
W v Essex CC and Another is a case which suggests that there is considerable scope for clarifying and even developing the law. There are several matters in relation to psychiatric injury which require clarification, and this claim highlights some of them. They include: the exact scope of the category of ‘primary victims’; the extent of the limitations as to time and space placed on claims of secondary victims; whether it is possible to include in the category of those entitled to succeed, individuals who believe that they have failed in their responsibility to primary victims; and the justification for distinguishing between foresight of physical and psychiatric injury. The trial of this case on its facts is awaited with interest.
4.8.1 ‘Bullying’ claims
Recent developments suggest that employees who suffer psychiatric injury as a result of being bullied at work may be awarded damages in civil claims against their employers. In order to succeed it would be necessary to prove that the employer knew of the employee’s tendency to psychiatric illness and took no steps to help (Walker v Northumberland County Council (1994)). There are several cases pending involving teachers who claim that they have been bullied by colleagues. It has also been suggested that head teachers who take no steps to deal with bullying of students by other pupils may face claims (The Times, 9 August 2000). (See 14.2.5).
DUTY OF CARE – PSYCHIATRIC INJURY
Development of the law
The development of the duty of care in relation to ‘nervous shock’ or psychiatric injury is an illustration of the approach of the judges to one of the
‘grey areas’ of liability for negligence.
Note the medical definition and the way in which the law has developed with better understanding of the problems of psychiatric injury by the medical profession.
Originally, there was no duty in relation to nervous shock (Victorian Railway Comrs v Coultas (1888)).
The duty was first recognised, subject to the limitation that the claimant was required to experience fear for his or her own safety in Dulieu v White (1901).
Duty was expanded to encompass fear for other people and includes:
• Relatives: Hambrook v Stokes (1925);
• Dead relatives: Owens v Liverpool Corpn (1933);
• Workmates: Dooley v Cammel Laird (1951). But see Hunter v British Coal (1998).
• Rescuers: Chadwick v British Railways Board (1968); Wigg v British Railways Board (1986); Hale v London Underground (1992); Frost v Chief Constable South Yorkshire (1996); but see White v Chief Constable of South Yorkshire (1999).
• Property damage: Attia v British Gas (1987).