The Law of Negligence - Essay Example

Louisa is a ten-year old girl who lives in Wolverton with her Italian mother, Sandra, following her parents divorce. Her English father, Michael, sees her once a week, when he takes her back to his flat for the day. They enjoy an affectionate relationship. However, Sandra becomes concerned that Michael may be sexually abusing Louisa, when Louisa says that she and her father take a nap together each afternoon, and play games together before they go to sleep. Sandra contracts the Social Services Department of Wolverton District Council. As a result, Louisa is interviewed at her mothers house by Andrea, a police constable employed as a Child Protection Officer by the North Sandshire Police Force, and Sella, a social worker employed by Wolverton District Council. Sandra is present at the interview. Andrea and Sella often work together. They have both received training which stresses the need to deal with.cases of suspected child abuse with sensitivity, and to be alert to the fact that sexually abused children often show no physical signs of maltreatment. However, they both have very heavy caseloads, as their respective offices are understaffed due to budgetary constraints. Hence they agree between themselves that they will only spend time on cases involving children who display obvious physical signs of abuse. Andrea and Sella keep no notes of the interview, which lasts fifteen minutes. During the course of the interview, Louisa tells them that the games she plays with her father are secret and naughty. However, Louisa gives the appearance of being a happy child who is in good health. Andrea and Sella therefore tell Sandra that they see no reason to take things any further. When she remonstrates with them, Sella tells her that she is being typically hysterical and unreasonable - like all Italians - you just dont understand our culture. Three weeks later, Michael is arrested for raping Louisa and breaking her arm. He is subsequently convicted and sentenced to a term of imprisonment. Advise Louisa on any claims that she may have in negligence. In order to be able to advise Louisa on any claims she might have in negligence against either the police or the social worker it is necessary to examine the law on negligence. The staring point is to discuss the basic tenets of the law of negligence. The test for negligence was first established in the case of Donoghue v Stevenson1 which marked the advent of the neighbour test2. The general principle established in this case was that ‘you must not injure your neighbour’. Under the neighbour test all persons have a duty conferred on them to take reasonable care to avoid acts or omissions which that person ought to reasonably foresee might cause harm to another. When assessing a claim for negligence the claimant has to prove that a duty of care existed between the parties3. The claimant than has to show that the duty has been breached4 and as a result of the breach the plaintiff has suffered harm5 or financial loss6 . Claims for personal injuries tend to be simpler to prove then claims for nervous shock or economic loss. When considering if a duty of care is owed the courts will look at the proximity of the plaintiff to the damage caused7. In order to sue a local authority for negligence the claimant has to demonstrate that the three criteria established in the case of Caparo Industries Plc v Dickman (1990)8 are present. The three criteria are foreseeability of damage, proximity of relationship between the parties and the reasonableness of imposing such a duty. With social workers the relationship is sufficiently proximate and any damage caused is reasonably predictable. Difficulties in the past have occurred in deciding whether it is reasonable to impose such a duty on the social worker. In recent times a whole range of cases has been brought before the courts that have affirmed the position that negligence of the local authority should be actionable. In the case of S v Gloucestershire County Council (2000)9 the claimant brought an action against the local authority after having been sexually abused by the foster parents that had been assigned by the authority to care for them. The claimant in Barrett v Enfield London Borough Council (1999)10 also raised an action in negligence against the local authority where the social worker was careless in implementing decisions about the claimant whilst they were in care. Foster parents have also successfully brought negligence claims against the local authority for failing to disclose that the child that they was fostering had been placed into care for abusing his sister (W and Others v Essex County Council (2000)11. The case of X v Bedfordshire County Council12 differs from the others as in this case action was brought on the authorities for failing to take the children into care. In this case the claimant contended that the Council owed them a statutory duty to take them into care and that by ignoring that duty they had been negligent. In the case of Phelps v London Borough of Hillingdon (2000)13 the House of Lords were asked to consider the extent of the duty of care of the local authority when carrying out their statutory duties. It was made clear in this case that the local authorities should be held liable for any professional misjudgements of their staff. The Lords also made it clear that any such breach by a professional employed by the local authority could result in them being sued by the child for the breach. Some cases have been referred to the European Court for Human Rights such as Z and others UK (200114). This case involved the claimants from the earlier mentioned case of S v Bedfordshire County Council, and was taken before the ECHR because their initial claim had been overridden in the UK. The judgment in this case was that the law on negligence in the UK was valid. The ECHR found that the children’s human rights had been breached and that they could not obtain a judgement under negligence. The ECHR awarded substantial damages in this case to reflect the inability of the children to bring an action in negligence. By not taking the children into care they had suffered physical and emotional abuse over four and a half years. A duty of care is not always owed by the social workers and such a duty is only imposed where on the facts of the case it is reasonable and just to impose a duty. One such case where the court refused to impose a duty was the case of D v East Berkshire Community NHS Trust (2003)15. In this case the parents were attempting to sue the local authority for psychiatric harm caused by false allegations of child abuse purportedly committed by the parents on the child. The court stated in this case that the interests of the child were paramount and that the social workers had to be free from the fear of litigation. Any complaint no matter how outrageous requires investigation by the social worker and in many cases the seizing of the child without sufficient evidence if the life of that child might be at risk in they did not move her to a place of safety. Remedies for such breaches usually result in the payment of damages. In the case of C v Flintshire County Council (2001)16 the child was awarded substantial damages after having being bullied whilst in care. In the case of A and another v Essex County Council [2003]17 the claimants successfully sued the local authority in negligence for failing to disclose the extent of the difficulties of the boy that had been placed in their care. The child had attacked the claimant on many occasions causing injury to her and he had also attacked other children that he had come into contact with. It would seem logically applying the above to the present situation that Louisa should be able to substantiate a claim against the social worker for failing to take action to protect her. Louisa could rely on the case of S v Bedfordshire County Council to assert that they had a statutory duty to remove her from her father’s address to ensure her safety. Having established that Louisa is likely to succeed in a claim against the local authority it is necessary to look at the position with regard to the police officer. In general terms the courts do not entertain claims against the police on the grounds of public policy. In the case of Hill v Chief Constable of West Yorkshire [1989]18 the mother of the last victim of the Yorkshire Ripper tried to bring an action in negligence against the police in failing to catch the killer sooner. The House of Lords held that this action should be barred on the grounds of public policy as well as insufficient proximity between the police and the victim. In this case Lord Keith made the point that The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavours to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. Further it would be reasonable to expect that if potential liability were to be imposed it would be not uncommon for actions to be raised against police forces on the ground that they had failed to catch some criminal as soon as they might have done, with the result that he went on to commit further crime. Other such claims have been attempted by claimants against the police. In Brooks v Commissioner of the Metropolis [2005]19 the claimant sought an action against the police for post traumatic stress disorder after having witnessed his friend’s murder. He claimed that he was suffering from this condition as a direct result of the badly conducted investigation of the murder. Lord Steyn asserted the decision in Hill and the claim failed on the grounds that the breaches of duty were inextricably bound up with the investigation of the case. By contrast in Osman v UK [2000]20 the ECHR stated that the immunity of the police to be prosecuted was a breach of Article 6 which entitles everyone to a hearing. The court held that a blanket immunity was an unjustifiable restriction on the right of the applicant to have a determination of the merits of their claim. In the case of Hill Lord Keith refused to allow the claim but did accept that ‘There is no question that a police officer, like anyone else, may be liable in tort to a person who is injured as a direct result of his actions or omissions. So he may be liable in damages for assault, unlawful arrest, wrongful imprisonment and malicious prosecution, and also for negligence.’ Liability for negligence had been established in Knightley v Johns [1982]21 and Rigby v Chief Constable of Northamptonshire [1985]22 as well as Alcock v Chief Constable of South Yorkshire Police [1992]23. In these cases negligence has been established where the police create a danger. In the present scenario it could be argued that the police created the danger by not removing the child from the care of the father. However, the court might take the view that the police did investigate the initial concerns of the mother but that there was insufficient evidence to give rise to a concern that the child was in danger. It is therefore not possible in the present case to give a definitive answer as to whether any claims made by Louisa might succeed or not. Bibliography Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell Cooke, J, Law of Tort, 7th Ed, 2005, Pearson Education Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education Harvey & Marston, Cases & Commentary on Tort, 3rd Ed, 1998, Pitman Publishing Rogers, W V H Rogers, Winfield and Jolowicz on Tort, 17th Ed, Sweet & Maxwell Rose, FD, Statutes on Contract, Tort & Restitution, 10th Ed, 2000, Blackstone’s Weir, T, A Casebook on Tort, 8th Ed, 1996, Sweet & Maxwell Weir, T, Tort Law, 2002, Oxford University Press Table of Cases A and another v Essex County Council [2003] EWCA Civ 1848 [2004] 1 WLR 1881. Alcock v. Chief Constable of South Yorkshire Police [1992] 1 A.C. 310 Barrett v. Enfield London Borough Council [1999] 3 W.L.R. 79 Brooks v Commissioner Of Police For The Metropolis [2005] UKHL 24 6/11 Burnett v Grampian Fire and Rescue Service 2007 S.L.T. 61 2007 G.W.D. 1-11 C v Flintshire County Council [2001] 2 FLR 33, Caparo Industries Plc v Dickman [1990] 1 All ER 568 [1990] 2 WLR 358 D v East Berkshire Community NHS Trust [2005] 2 WLR 993 Donoghue v Stevenson [1932] A.C. 562 Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 Hill v. Chief Constable of West Yorkshire[1989] A.C. 53 Jain v Trent Strategic HA [2006] EWHC 3019 Knightley v Johns and others [1982] 1 All ER 301 Mountford v Newlands School [2007] EWCA Civ 21 (2007) 151 S.J.L.B. 164 Osman v United Kingdom (1999) 29 EHRR 245 Pearson Education Ltd v Charter Partnership Ltd [2007] EWCA Civ 130 Times, March 7, 2007 Phelps v London Borough of Hillingdon [2000] ELR 499 Rigby v. Chief Constable of Northamptonshire [1985] 1 W.L.R. 1242 S v Gloucestershire County Council [2001] Fam 313 Sasin v Australia (1984) 68 Fed. L.R. 404 W and Others v Essex County Council [2000] UKHL 17; [2000] 2 All ER 237; [2000] 2 WLR 601; [2001] 2 AC 592 X v Bedfordshire County Council [1995] 2 AC 633 Z and Others v United Kingdom 34 EHRR 97 6/11 Read More