W v Essex CC [2000] UKHL 17

Foster parents were assured they would not receive a known child abuser, but the council placed one who then sexually abused their own children. The parents suffered psychiatric injury and sued. The House of Lords held their claim was arguable.

Facts

The plaintiffs, Mr and Mrs W, were experienced foster parents. They specifically informed the defendant, Essex County Council, that they were unwilling to foster any child known or suspected to be a sexual abuser. The council, needing to place a 15-year-old boy, G, assured the plaintiffs that there was no history of such behaviour. In reality, G was a known perpetrator of sexual abuse, a fact the council’s social workers failed to disclose. G was placed with the family and subsequently sexually abused the plaintiffs’ own four children. Upon discovering the abuse, both Mr and Mrs W suffered lasting and recognised psychiatric illness. They brought a claim for damages against the council for negligence.

Issues

The central legal issue was whether the Essex County Council owed a duty of care to the foster parents for the psychiatric harm they suffered. The Court of Appeal had struck out the claim, holding that the parents were ‘secondary victims’ and did not satisfy the strict control mechanisms established in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, particularly regarding the requirement of witnessing the event or its immediate aftermath with their own unaided senses. The House of Lords had to decide if it was arguable that the parents could be categorised as ‘primary victims’ or if a duty of care could be established on another basis, thus allowing the case to proceed to trial.

Judgment

The House of Lords unanimously allowed the appeal, setting aside the Court of Appeal’s order and permitting the case to proceed to trial. The Law Lords held that it was at least arguable that the foster parents were primary victims, and that the claim should not be struck out at a preliminary stage.

Reasoning of the Court

Their Lordships, particularly Lord Slynn and Lord Steyn, expressed dissatisfaction with the rigid application of the primary and secondary victim categories. Lord Slynn noted the difficulty in categorisation and believed the plaintiffs’ case deserved to be heard at trial:

It seems to me that the plaintiffs’ case that they were primary victims is at least an arguable one… I share the view… that the categorisation of those claiming damages for psychiatric injury as primary or secondary victims is not as I read the cases a rigid one.

Lord Steyn provided a more detailed analysis. He considered the argument that the parents were unwilling participants in the events, having been induced by the council’s negligence to bring the abuser into their home. This active, albeit unintentional, participation distinguished them from mere bystanders. He concluded that their classification was not straightforward:

But I am not convinced that the House is in a position to say, as a matter of law, that the plaintiffs are not entitled to be classified as primary victims. It is sufficient to say that in my view the classification of the plaintiffs as primary or secondary victims is not a straightforward matter.

Crucially, Lord Steyn also identified an alternative basis for a duty of care based on an assumption of responsibility by the council towards the parents. By giving a specific assurance regarding the child’s history, the council had assumed a direct responsibility for the parents’ welfare in this context:

Moreover, there is a separate and distinct basis for saying that a duty of care was owed to the parents. There was an assumption of responsibility by the council to the parents. The council knew that the parents were concerned about the risk of sexual abuse. The council specifically assured them that G was not a known or suspected sexual abuser.

Implications

The decision in W v Essex CC is significant for the law of negligence concerning psychiatric injury. It signalled a retreat from the rigid categorisation of victims established in Alcock. It opened the door for claims from individuals who, due to a defendant’s negligence, become unwilling participants in a tortious event, thereby suffering psychiatric harm as primary victims. Furthermore, it reinforced the principle of ‘assumption of responsibility’ as an independent basis for establishing a duty of care, particularly where a defendant with special knowledge makes a specific assurance to a claimant, who then relies upon it to their detriment. The case allowed for a more flexible, fact-sensitive development of the law in this complex area, rather than summary dismissal based on rigid doctrinal classifications.

Verdict: Appeal allowed; the case was permitted to proceed to trial.

Source: W v Essex CC [2000] UKHL 17