W v Essex CC [2000] UKHL 17

Approved foster parents told the local authority they would not accept a child known or suspected to be a sexual abuser. The authority nevertheless placed such a boy, who abused their children. The House of Lords held the parents’ psychiatric injury claim was arguable and should not be struck out.

Facts

The plaintiffs W.1 and W.2 were the parents of W.3 to W.6, four children (one boy and three girls). In October 1992 the parents had been approved by Essex County Council as specialist adolescent foster carers. They expressly informed the council and a social worker that they were not willing to accept any child who was known or suspected of being a sexual abuser.

Despite this stipulation, the council, through its social worker, placed a 15-year-old boy, G., with the family. G. had admitted and been cautioned by the police for an indecent assault on his own sister and was being investigated for an alleged rape. These facts were recorded on the council’s files and known to the social worker but were not disclosed to the parents.

It was alleged that between 7 April and 7 May 1993, after G. arrived in the home, he committed serious acts of sexual abuse against the children, including anal and vaginal penetration and oral sex. As a result of this abuse, both parents and children were said to have suffered psychiatric and other injury, supported by medical reports from an independent child abuse consultant and a consultant child and adolescent psychiatrist.

The parents claimed damages in negligence (and also in contract, misfeasance in public office and negligent mis-statement, though those were not material to the appeal) for personal injury, including severe depression and post-traumatic stress disorder. They alleged that their marriage, health, employment and family life had been seriously affected.

The defendants applied to strike out the claims under R.S.C., Ord. 18, r. 19(1)(a) and (d). Hooper J struck out all the parents’ claims but allowed the children’s negligence claims to proceed. The Court of Appeal upheld the striking out of the parents’ claim in negligence. By the time of the House of Lords hearing, the defendants accepted that the children’s claim should proceed; the sole remaining issue was whether the parents’ claim for their own injury should also proceed to trial.

Issues

The central issues were:

• Whether, assuming the pleaded facts to be true, the council and its social worker arguably owed a duty of care in negligence to the parents as well as to the children in relation to the placement of G.
• Whether the parents’ pleaded psychiatric injuries could, in law, amount to recoverable damage, having regard to the distinction between primary and secondary victims in psychiatric injury cases and the control mechanisms established in authorities such as Alcock, McLoughlin, Page v Smith and Frost.
• Whether, given the developing state of the law on psychiatric injury and public authority duties, it was appropriate to strike out the parents’ claim at a preliminary stage as disclosing no cause of action.

Judgment

Approach to strike out

The House emphasised that, on a strike out application, the factual averments must be assumed to be true, even if denied, and that the jurisdiction must be exercised cautiously, especially where the law is unsettled or developing.

Lord Slynn referred to X (Minors) v. Bedfordshire County Council, noting Lord Browne-Wilkinson’s guidance 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”

and the agreement with Sir Thomas Bingham MR 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.”

He also cited Barrett v. Enfield London Borough Council as reaffirming that legal development should proceed on the basis of facts found at trial rather than hypothetical assumptions.

Applying these principles, Lord Slynn held that it could not be said that the claim that a duty of care was owed to the parents, and was breached, was unarguable. Whether it was just and reasonable to impose a duty, and whether it had been breached, depended on a full investigation of the facts, including what was known to the defendants and the factors influencing their decision.

Pleaded psychiatric injury

The parents alleged a range of psychiatric and consequential injuries, including reactive depression, post-traumatic stress disorder, sleep disturbance, nightmares, exacerbation of existing physical conditions, loss of work as foster carers and youth worker, marital breakdown and serious stress in the family. Lord Slynn set out the pleaded consequences, including the expert report:

“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.’ “

Lord Slynn held that, as pleaded, this went beyond “acute grief” and could not be said to fall outside the kind of psychiatric injury recognised by the law. Nor could it be ruled out at this stage that a person of reasonable fortitude might suffer such injury on being told of the sexual abuse of their young children, particularly where they had, even innocently, brought the abuser into the home.

Primary and secondary victims

The defendants argued that, since the parents were not within the range of foreseeable physical injury, and were neither present at nor direct witnesses of the abuse or its immediate aftermath, they could only be secondary victims and failed to satisfy the control mechanisms in Alcock and related cases. They submitted there was no liability for psychiatric injury merely on learning of harm to others, nor on the basis of feelings of guilt or responsibility.

Hooper J and Stuart-Smith LJ had treated the parents as secondary victims whose shock arose only from learning of their children’s injuries, holding that they did not meet the requirement of a “sudden appreciation by sight or sound of a horrifying event”. The trial judge had summarised the position as follows:

“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 AC 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 LJ stated that the parents were secondary victims and that they did not satisfy the Alcock criteria, and further observed:

“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 AC 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.”

Lord Slynn accepted that the parents had not suffered physical injury and that physical injury to them from the abuse was not reasonably foreseeable. However, he considered that the categorisation of claimants as primary or secondary victims was not closed and remained capable of development. He cited Lord Goff in Frost noting that Lord Oliver had not attempted to give a comprehensive definition of primary victims, and referred to Scottish authority suggesting that a belief in being an unwitting cause of another’s death might, in some circumstances, ground a claim.

He concluded that nothing in the authorities conclusively prevented the parents from being treated as primary victims if their psychiatric injury flowed from a sense that they had brought the abuser and abused together or had failed to detect the abuse earlier. He quoted Lord Oliver in Alcock:

“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.”

As to secondary victims, Lord Slynn recognised that temporal and spatial limits must apply, but considered that the concept of “immediate aftermath” must be assessed in its factual context. All incidents occurred in the four weeks before the parents learned of them; a trial judge might, after full investigation, conclude that the control mechanisms were or were not satisfied. It was not possible to rule out the claim at this stage.

Conclusion

Lord Slynn held that it was not clear beyond reasonable doubt that the parents could not, on the facts alleged, succeed either as primary or secondary victims. The claim was arguable and should not have been struck out. He stressed that no view was being expressed on the ultimate merits, only that the parents should not be barred from pursuing their claim to trial.

Lord Steyn, Lord Hope of Craighead, Lord Hobhouse of Woodborough and Lord Millett each agreed with Lord Slynn and would allow the appeal.

Implications

This decision underscores the cautious use of strike out powers where the law is developing, particularly in relation to psychiatric injury and public authority negligence. It confirms that:

• Claims involving novel applications of the concepts of primary and secondary victims, and the scope of duty of care, should generally be tested at trial on full facts rather than determined on assumed facts at a preliminary stage.
• Psycho­logical harm arising from profound guilt and a sense of unwilling participation in another’s injury may, in some circumstances, arguably bring a claimant within the scope of primary victim status, or at least present a triable issue.
• The boundaries of “immediate aftermath” and the control mechanisms for secondary victims remain fact-sensitive and are not to be applied mechanically.

The case is significant in the law of tort for its treatment of psychiatric injury, for its guidance on the proper limits of strike out in complex negligence claims against local authorities, and for acknowledging the need for flexibility and incremental development in this area.

Verdict: Appeal allowed; the strike out of the parents’ negligence claim was set aside and their claims were permitted to proceed to trial.

Source: W v Essex CC [2000] UKHL 17