Latest Case Law relating to Child Abuse from the UK
As a member of ACAL a specialist personal injury group for solicitors acting in the area of child abuse we regularily get updates on developments in the area of UK case law. Some of these cases can be of assistance in dealing with similar Irish cases. A series of these decisions are set out for the information of the readers.
Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
Paul Tracey Solicitor is a member of ACALNewsletter July 2010
The Association of Child Abuse Lawyers (ACAL) provides practical support for survivors and professionals working in the field of abuse. Formed 13 years ago, ACAL maintains a telephone help line and web site presence to sign-post survivors of abuse to lawyers who have the expertise and experience to assist them in obtaining the redress to which they are entitled. ACAL also campaigns in this area, and provides training, a mentoring service for members, access to databases and an information exchange to members to assist them in their work. ACALs membership is made up of solicitors, barristers, psychiatrists and social work experts who are all specialists in this field.
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Merthyr Tydfil v C [2010] EWHC 62 (QB)
In the case of Merthyr Tydfil v C [2010] EWHC 62 (QB) the Claimant had two children who were sexually abused by a neighbours child. She initially reported the abuse to the NSPCC who passed on the complaint to the local authority. They duly advised her to keep her children inside, but the abuse occurred again. The Claimant suffered psychiatric damage as a result. The Defendants counsel argued that because of the decision in JD v East Berkshire, the local authority could not owe the parent a duty. Justice Hickinbotham rejected that argument. He said that there were cases where it was held that a duty could be owed to parents, such as A v Essex County Council [2003] EWCA Civ 1848 and W v Essex County Council [2001] 2 AC 592. It was also argued by the Defendants counsel that there was no duty of care. Again the judge rejected that argument.
Maga v Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010] EWCA Civ 256
The Claimant was abused as a boy by an assistant priest, Father Clonan, serving at a church in Coventry. He had suffered brain damage at birth, and was recognised as educationally subnormal. It was alleged that in 1974, a Father McTernan, Fathers Clonans immediate superior was informed by the parents of another boy, M, that M had been abused by Father Clonan, but he had taken no action. It was uncertain when the abuse of the Claimant began, but it was pleaded as occurring over a period of many months in about 1976. Before Mr Justice Jack ([2009] EWHC 780 (QB)) it was held that although the Claimants story of abuse was substantially as he alleged, the Defendant was not vicariously liable for the abuse by Father Clonan. Moreover although the Defendant had been negligent in not acting on the report of Father Clonans abuse in 1974, the Defendant owed no duty to the Claimant.
The Court of Appeal took a different view. They said that the law on this issue had been authoritatively laid down by the House of Lords in Lister v Hesley Hall Ltd [2002] 1 AC 215. The correct test laid down by Lord Steyn was whether the abusers torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. Father Clonans sexual abuse of the Claimant was so closely connected with his employment as a priest at the church that it would be fair and just to hold the Defendant vicariously liable.
In relation to breach of duty, Father McTernan was plainly under a duty to keep a careful eye on Father Clonan, and if he had, he would have seen enough to know that action had to be taken. Lord Neuberger in the Court of Appeal said that he found it hard to see why it should not be fair, just and reasonable to impose such a duty on Father McTernan, for which the Defendant would be vicariously liable.
Webster v Ridgeway School [2010] EWHC 318 (QB)
In this case two boys agreed to have a fight at a school. The fight ended up in one boy being
seriously injured, and he brought a claim against the school. Evidence was adduced to show that the school had failed in a number of respects to do all that a school should in relation to discipline. In particular the school had not built a perimeter fence to prevent people from outside the school entering the school grounds. However in a lengthy judgement, Mr Justice Nicol dismissed the claim. Whilst he found that the School did owe the Claimant a duty of care to take reasonable care to keep him reasonably safe while he was on the schools premises, there was no breach of that duty. In relation to the multiple allegations of negligence, the Claimant could not establish the necessary causal link between the things that the school did not do and the injuries that the Claimant received. Moreover those injuries were not a foreseeable consequence of some of the alleged omissions.
MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB).
The issue of disability came up in the case of MAGA (by his litigation friend) v the Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2009] EWHC 780 (QB). The Claimant was aged 45 at trial and he alleged that he had been abused by a Catholic priest in the 1970s. It was alleged that he had been under a disability throughout the material time of some 30 years. Mr Justice Jack considered the caselaw on this subject including the following cases:-
- Kirby v Leather [1965] 2 QB 367
- White v Fell 12th November 1987 Unreported
- Masterman-Lister v Brutton [2003] 1 WLR 1511
- Lindsay v Wood [2006] EWHC 2895
The oral evidence of the Claimant in the present case did suggest lack of capacity, together with the evidence from his psychiatrist, although the Defendants psychiatrist suggested otherwise. Therefore the Claimant had been under a disability for the material period. The Defendant appealed on this issue and the matter came before the Court of Appeal in [2010] EWCA Civ 256. Neuberger LJ said that the judge had concluded that he needed to consider only one question, namely whether the Claimant was able to conduct the instant proceedings, in the sense of being able to deal rationally with the problems which would arise in their course. Lord Neuberger said that there was some doubt in his mind as to whether this was the correct formulation. However the Claimants counsel had said that the correct test was the Claimants ability to conduct the litigation and the Defendants counsel had said that there was no difference between the capacity to conduct proceedings and the capacity to commence proceedings. Lord Neuberger said that he would deal with the test in the same way as the trial judge, and he was far from convinced that this was the wrong approach. Lord Neuberger considered the evidence. This had caused the judge some difficulty and he accepted that the case was borderline. In the event, the judge had preferred the evidence of the Claimants psychiatrist and had held that the Claimant did not have capacity to conduct the proceedings. The issue was not one of discretion nor of primary fact, but only judgment. An appellate court should not interfere. Therefore the appeal on this issue would be dismissed.
pwt@traceysolicitors.ie
