Duty of care owed to mother of abused child
A local authority failed to strike out a claim for damages brought by the mother of a child she had reported as having been abused by a neighbour’s child (C v Merthyr Tydfil CBC)
C v
Background
The Claimant alleged that she had suffered a psychiatric injury due to the Defendant’s negligence in failing to respond properly to reports that her children had been sexually abused by a neighbour’s child. The Claimant had informed the Defendant of the abuse in 2002 and 2004. On receipt of the second complaint, the Defendant denied knowledge of the first incident. It then allocated a social worker to the Claimant and her family who was the same social worker for the alleged abuser's family. Following a complaint, the Defendant admitted that it had been informed of the first complaint and apologised for failing to offer the Claimant’s family support services, and for allocating the same social worker so as to create a potential for conflict of interest.
The Claimant brought a claim for personal injury and the Defendant applied unsuccessfully to strike out the claim for disclosing no reasonable grounds for bringing the claim, or alternatively for summary judgment.
The Defendant appealed arguing that it did not owe the Claimant a duty of care because:
- the owing of a duty of care to a parent and/or reporter of abuse would potentially conflict with the duty of care that it owed to the children; and
- the Claimant did not fall within the narrow parameters of third parties to whom a duty of care could be owed.
Appeal Judge’s decision
The appeal was dismissed and the matter allowed to proceed to trial.
(1) The Defendant could be subject to a number of duties, provided they were not irreconcilable and, the fact that a local authority owed a duty of care to a child, did not mean it could not also owe a duty to the child's parents. Although D v East Berkshire held that an authority which owed a duty of care to children did not owe a duty of care to those who are suspected of abusing those children (whether parents or not), it did not lay down any general principle that, where an authority owe a duty of care to a child (even where there is a suspicion that that child has been abused), it cannot as a matter of law at the same time owe a duty of care to parents of that child.
(2) A "third party" case is one in which the "third party" (say, a parent) claims the same duty of care as is owed to the primary victim (say, a child). Where a child is negligently killed in an accident or where a doctor negligently fails to diagnose a child’s illness and, as a result, the child’s understandably distraught parents suffer psychiatric harm as a result, those parents cannot recover damages because there is insufficient proximity to give rise to a duty of care being owed to them as well as to the child. The content of the duty of care relied upon in that case by the parents would be the same as that owed by the tortfeasor to the child, and the parents would be true "third parties" in the sense that they would be legal on-lookers of the primary victim. In those circumstances, the law regards the parents as unconnected with the event and refuses to allow a claim, except in narrow exceptional circumstances such as where a parent witnesses his or her child suffering traumatic injuries as a result of the negligence. The concept of "third parties" is therefore based on the premise that the scope and content of the duty of care owed to the primary victim and the third party are the same. However, here the Claimant alleged that as a result of the relevant circumstances, the Defendant had owed her a distinct duty of care from that which it owed her children. Accordingly, she was not a true third party in the manner suggested by the Defendant.
It followed that there was a real prospect of the Claimant succeeding at trial.
Simon Cradick, Partner
T: 029 2038 5464
E: simon.cradick@morgan-cole.com
