(back to preceding text)

    79.  Understandably, Mr Langstaff QC did not contend for such a broad proposition. He did not submit that the health professionals owe a duty to whomsoever may be suspected of abuse. His submission was more restricted. He submitted that the health professionals' duty to exercise due professional skill and care is owed only to the child's primary carers, usually the parents, as well as the child himself. Mr. Langstaff submitted there was no good policy reason to deny the existence of such a restricted duty, which would not oblige a health professional to do more than he has to do anyway. The interests of the child and the parent would not be in conflict unless the parent was the abuser, which was not so in the present cases.

    80.  My initial difficulty with this submission is that the distinction between primary carers, to whom this duty would be owed, and other suspects, to whom it would not, is not altogether convincing. It is difficult to see why, if a health professional owes no duty to a childminder or school teacher suspected of abuse, he should nevertheless owe such a duty to a parent suspected of abuse. An erroneous suspicion that a childminder or school teacher has been abusing a child in his or her care can be very damaging to him or her. In the present case the complaints are that the parents suffered psychiatric injury. This could occur equally in the case of the childminder or school teacher.

    81.  There is, however, one major difference between parents and childminders or school teachers. In the case of a parent suspicion may disrupt the parent's family life. That will not be so with the childminder or school teacher. So the crucial question on these appeals is whether this potential disruption of family life tilts the balance in favour of imposing liability in negligence where abuse by a parent is erroneously suspected.

    82.  There is little authority directly on this point. This is not surprising because the law has been developing remarkably swiftly in the field of child protection. Until recently it would have been unthinkable that health professionals owed a duty to parents; they did not owe a duty even to the child. But the law has moved on since the decision of your Lordships' House in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. There the House held it was not just and equitable to impose a common law duty on local authorities in respect of their performance of their statutory duties to protect children. Later cases, mentioned by my noble and learned friend Lord Bingham of Cornhill, have shown that this proposition is stated too broadly. Local authorities may owe common law duties to children in the exercise of their child protection duties.

    83.  This development in the law gives no guidance on how 'wrongly suspected parent' cases should be decided. There have been a number of cases, in this country and in Strasbourg, involving claims by parents against local authorities in respect of the latter's discharge of their responsibilities regarding children. In only two cases, it seems, was the claimant a parent wrongly suspected of having abused his or her child. In L (A Child) v Reading Borough Council [2001] 1 WLR 1575 the Court of Appeal's decision concerned a striking out application. A police authority sought to strike out a claim in negligence brought by a father wrongly suspected of having sexually abused his daughter. Otton LJ held the police assumed no responsibility towards the father by interviewing him as a suspect. But it was arguable there was a legal assumption of responsibility when, there being no evidence to support criminal proceedings, the police officer nevertheless came to the conclusion that the mother's complaint was sufficient to show that the daughter was at risk of further abuse from her father. So the striking out application failed. The Court of Appeal left open the question whether there was a 'legal assumption of responsibility' on the alleged facts.

    84.  More recently a case concerning a wrongly suspected parent came before the European Court of Human Rights in Venema v Netherlands (2002) 39 EHRR 102. A young child aged 11 months was separated from her mother because of fears the mother was suffering from Munchausen syndrome by proxy. The child was returned five months later, following medical reports which found the child's arrested breathing had a physical explanation and that there was no sign the mother was suffering from any psychiatric disorder. The court noted that its approach in cases where a child has been taken into care is that it must be satisfied the circumstances justified taking such a step:

'In this respect, [the court] must have particular regard to whether, in the light of the case as a whole, the reasons adduced to justify the measure were relevant and sufficient such as to allow the conclusion that it was "necessary in a democratic society"'(para 90, emphasis added).

    In that case the court held there had been a breach of article 8 because the parents had not been sufficiently involved in the decision-making process. They had not been able to put forward their point of view before the court order was made.

    85.  In my view the Court of Appeal reached the right conclusion on the issue arising in the present cases. Ultimately the factor which persuades me that, at common law, interference with family life does not justify according a suspected parent a higher level of protection than other suspected perpetrators is the factor conveniently labelled 'conflict of interest'. A doctor is obliged to act in the best interests of his patient. In these cases the child is his patient. The doctor is charged with the protection of the child, not with the protection of the parent. The best interests of a child and his parent normally march hand-in-hand. But when considering whether something does not feel 'quite right', a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.

    86.  This is not to suggest doctors or other health professionals would be consciously swayed by this consideration. These professionals are surely made of sterner stuff. Doctors often owe duties to more than one person; for instance, a doctor may owe duties to his employer as well as his patient. But the seriousness of child abuse as a social problem demands that health professionals, acting in good faith in what they believe are the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child may have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The duty they owe to the child in making these decisions should not be clouded by imposing a conflicting duty in favour of parents or others suspected of having abused the child.

    87.  This is not to say that the parents' interests should be disregarded or that the parents should be kept in the dark. The decisions being made by the health professionals closely affect the parents as well as the child. Health professionals are of course fully aware of this. They are also mindful of the importance of involving the parents in the decision-making process as fully as is compatible with the child's best interests. But it is quite a step from this to saying that the health professionals personally owe a suspected parent a duty sounding in damages.

    88.  The claimants sought to meet this 'conflict of interest' point by noting that the suggested duty owed to parents has the same content as the duty owed to the child: to exercise due skill and care in investigating the possibility of abuse. This response is not adequate. The time when the presence or absence of a conflict of interest matters is when the doctor is carrying out his investigation. At that time the doctor does not know whether there has been abuse by the parent. But he knows that when he is considering this possibility the interests of parent and child are diametrically opposed. The interests of the child are that the doctor should report any suspicions he may have and that he should carry out further investigation in consultation with other child care professionals. The interests of the parent do not favour either of these steps. This difference of interest in the outcome is an unsatisfactory basis for imposing a duty of care on a doctor in favour of a parent.

    89.  This was the conclusion reached by the High Court of Australia in Sullivan v Moody (2001) 207 CLR 562. In Australia, as in this country, the professional and statutory responsibilities of doctors and other health professionals involve investigating and reporting allegations that a child has suffered serious harm or is at risk of doing so. The High Court held unanimously that it would be inconsistent with the proper and effective discharge of these responsibilities that those charged with these responsibilities should be subjected to a legal duty, sounding in damages, to take care to protect persons suspected of being the source of that harm. Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ said, at para 62:

'The duty for which the [appellant fathers] contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the [medical practitioners and others investigating allegations of child sex abuse], or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.'

    90.  For these reasons I am not persuaded that the common law should recognise the duty propounded by Mr Langstaff. In principle the appropriate level of protection for a parent suspected of abusing his child is that clinical and other investigations must be conducted in good faith. This affords suspected parents a similar level of protection to that afforded generally to persons suspected of committing crimes.

    91.  This should be the general rule, where the relationship between doctor and parent is confined to the fact that the parent is father or mother of the doctor's patient. There may, exceptionally, be circumstances where this is not so. Different considerations may apply then. But there is nothing of this sort in any of these three cases. The fact that a parent took the unexceptional step of initiating recourse to medical advice is not a special circumstance for this purpose. Nor is the fact that the parent took the child to a general practitioner or to a hospital to see a consultant.

    92.  A wider approach has also been canvassed. The suggestion has been made that, in effect, the common law should jettison the concept of duty of care as a universal prerequisite to liability in negligence. Instead the standard of care should be 'modulated' to accommodate the complexities arising in fields such as social workers dealing with children at risk of abuse: Fairgrieve, Andenas and Bell, 'Tort Liability of Public Authorities in Comparative Perspective', page 485. The contours of liability should be traced in other ways.

    93.  For some years it has been all too evident that identifying the parameters of an expanding law of negligence is proving difficult, especially in fields involving the discharge of statutory functions by public authorities. So this radical suggestion is not without attraction. This approach would be analogous to that adopted when considering breaches of human rights under the European Convention. Sometimes in human rights cases the identity of the defendant, whether the State in claims under the Convention or a public authority in claims under the Human Rights Act, makes it appropriate for an international or domestic court to look backwards over everything which happened. In deciding whether overall the end result was acceptable the court makes a value judgment based on more flexible notions than the common law standard of reasonableness and does so freed from the legal rigidity of a duty of care.

    94.  This approach, as I say, is not without attraction. It is peculiarly appropriate in the field of human rights. But I have reservations about attempts to transplant this approach wholesale into the domestic law of negligence in cases where, as here, no claim is made for breach of a Convention right. Apart from anything else, such an attempt would be likely to lead to a lengthy and unnecessary period of uncertainty in an important area of the law. It would lead to uncertainty because there are types of cases where a person's acts or omissions do not render him liable in negligence for another's loss even though this loss may be foreseeable. My noble and learned friend Lord Rodger of Earlsferry has given some examples. Abandonment of the concept of a duty of care in English law, unless replaced by a control mechanism which recognises this limitation, is unlikely to clarify the law. That control mechanism has yet to be identified. And introducing this protracted period of uncertainty is unnecessary, because claims may now be brought directly against public authorities in respect of breaches of Convention rights.

    95.  For these reasons, and the reasons given by my noble and learned friends Lord Rodger of Earlsferry and Lord Brown of Eaton-under-Heywood, I would dismiss these appeals.

LORD STEYN

My Lords,

    96.  I have had the advantage of reading the opinions of my noble and learned friends Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry and Lord Brown of Eaton-Under-Heywood. I agree with their opinions. I would dismiss the appeals.

    LORD RODGER OF EARLSFERRY

My Lords,

    97.  The appellants, it must be assumed, developed a psychiatric illness and, in some cases, suffered financial loss as a result of a doctor or social worker, for whom the respondents are responsible, negligently concluding that their child had suffered abuse at their hands. While one could only sympathise with anyone in that plight, the question for your Lordships is whether the appellants have an arguable case for obtaining damages against the respondents for their illness and loss. (Since no separate issue arises in connexion with the social workers, for the sake of brevity, I shall simply refer to the position of the doctors.)

    98.  Plainly, if the issue depended simply on whether the doctors' careless acts caused their illness and loss, the appellants would have pleaded a powerful case for damages. Equally plainly, however, while foreseeability and causation are necessary elements in any successful claim for damages based on negligence, they are not sufficient: in the contemplation of the law, the respondents are liable to the appellants only if the doctor owed them a duty of care. The concept of the duty of care was famously described, some seventy years ago, as "an unnecessary fifth wheel on the coach", but it remains an integral part of the way the courts determine whether there is liability for negligence.

    99.  On this occasion the issue comes before the House in an appeal from a decision by the Court of Appeal to strike out the appellants' claims. Often the question of liability may depend on nuances of fact which may well only emerge at trial. If so, the case must, of course, proceed to trial. But a court can strike out a claim where the statement of claim discloses no reasonable grounds for bringing the claim. In the present cases it is fair to assume that the evidence at any trial might throw up new facts about the conduct of the doctors and social workers. But on behalf of the appellants Mr Langstaff, QC, did not suggest that any unresolved issues of fact might be decisive in determining the existence of a duty of care. On the contrary, he contended that the pleadings and the agreed statement of facts already disclosed a situation where, in each case, the defendants owed a duty of care to the claimants. That being so, if your Lordships are satisfied that the pleadings and agreed facts do not in fact disclose a valid cause of action, it is to the advantage of all concerned that the claims should not proceed to what would be a costly but inevitably fruitless trial. The relevant events all occurred long before the Human Rights Act 1998 came into force. But, if, for the purposes of the European Convention or otherwise, there were a need to investigate what happened in these cases, other appropriate means could be found.

    100.  In the field of negligence the common law "develops incrementally on the basis of a consideration of analogous cases where a duty has been recognised or desired": Marc Rich & Co AG v Bishop Rock Marine Co Ltd [1996] AC 211, 236B - C per Lord Steyn. The test to be applied is whether the situation is one "in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other": Caparo Industries plc v Dickman [1990] 2 AC 605, 618A per Lord Bridge of Harwich. In applying that test, the court has regard to analogous cases where a duty of care has, or has not, been held to exist. On the other hand, when applying the test, I do not actually find it helpful to bear in mind - what is in any event obvious - that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied. Harm which constitutes a "wrong" in the contemplation of the law must, of course, be remedied. But the world is full of harm for which the law furnishes no remedy. For instance, a trader owes no duty of care to avoid injuring his rivals by destroying their long-established businesses. If he does so and, as a result, one of his competitors descends into a clinical depression and his family are reduced to penury, in the eyes of the law they suffer no wrong and the law will provide no redress - because competition is regarded as operating to the overall good of the economy and society. A young man whose fiancée deserts him for his best friend may become clinically depressed as a result, but in the circumstances the fiancée owes him no duty of care to avoid causing this suffering. So he too will have no right to damages for his illness. The same goes for a middle-aged woman whose husband runs off with a younger woman. Experience suggests that such intimate matters are best left to the individuals themselves. However badly one of them may have treated the other, the law does not get involved in awarding damages.

    101.  Other relationships are also important. We may have children, parents, grandparents, brothers, sisters, uncles and aunts - not to mention friends, colleagues, employees and employers - who play an essential part in our lives and contribute to our happiness and prosperity. We share in their successes, but are also affected by anything bad which happens to them. So it is - and always has been - readily foreseeable that if a defendant injures or kills someone, his act is likely to affect not only the victim but many others besides. To varying degrees, these others can plausibly claim to have suffered real harm as a result of the defendant's act. For the most part, however, the policy of the law is to concentrate on compensating the victim for the effects of his injuries while doing little or nothing for the others. In technical language, the defendants owe a duty of care to the victim but not to the third parties, who therefore suffer no legal wrong.

    102.  So, when someone negligently kills another, at common law his relatives have no right to recover damages for the distress and loss which this causes them. Of course, sections 1(1) and 1A of the Fatal Accidents Act 1976 modify the common law by providing that the wrongdoer is liable to certain dependants for the loss they suffer due to the death of the victim, and to certain relatives for their bereavement. But the defendant is liable only if he would have been liable to the victim if he had lived. The statute thus remains true to the common law position that the tortfeasor owed a duty of care to the victim but not to the dependants. So, for instance, a surgeon operating on a child will readily foresee that, if he is careless and the child dies, her parents will suffer extreme distress which may well make them ill. Nevertheless, her parents will have no common law right to damages for that distress or illness. They may have a claim for bereavement damages under section 1A of the 1976 Act - but only because the surgeon owed a duty of care to their daughter, as his patient.

    103.  The common law is to the same effect where the victim does not die, but is severely injured: it provides compensation to the victim but not to others, however severely they may be affected. Lord Morton of Henryton explained the position in Best v Samuel Fox & Co Ltd [1952] AC 716, 734:

"it has never been the law of England that an invitor, who has negligently but unintentionally injured an invitee, is liable to compensate other persons who have suffered, in one way or another, as a result of the injury to the invitee. If the injured man was engaged in a business, and the injury is a serious one, the business may have to close down and the employees be dismissed; a daughter of the injured man may have to give up work which she enjoys and stay at home to nurse a father who has been transformed into an irritable invalid as a result of the injury. Such examples could easily be multiplied. Yet the invitor is under no liability to compensate such persons, for he owes them no duty and may not even know of their existence."

When, for a moment, in Dick v Burgh of Falkirk 1976 SC (HL) 1, 23, it looked as though some members of your Lordships' House had been prepared to contemplate the idea of a defender owing a common law duty of care to the victim's relatives, their Lordships soon saw the need to recant: Robertson v Turnbull 1982 SC (HL) 1. Consistently with this overall approach, it is the victim who sues the tortfeasor for the value of any gratuitous care provided by a relative and then holds the damages in trust for the carer. This somewhat cumbersome approach is necessary because the carer herself is owed no duty and cannot sue.

    104.  Lord Oliver of Aylmerton analysed these aspects of the law of negligence in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, 410E - G:

"The failure of the law in general to compensate for injuries sustained by persons unconnected with the event precipitated by a defendant's negligence must necessarily import the lack of any legal duty owed by the defendant to such persons. That cannot, I think, be attributable to some arbitrary but unenunciated rule of 'policy' which draws a line as the outer boundary of the area of duty. Nor can it rationally be made to rest upon such injury being without the area of reasonable foreseeability. It must, as it seems to me, be attributable simply to the fact that such persons are not, in contemplation of law, in a relationship of sufficient proximity to or directness with the tortfeasor as to give rise to a duty of care, though no doubt 'policy', if that is the right word, or perhaps more properly, the impracticability or unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity, necessarily plays a part in the court's perception of what is sufficiently proximate."

In the present case it is apposite to recall that, a fortiori, the common law does not give damages "for the mental anguish and even illness which may flow from having lost a wife, parent or child or from being compelled to look after an invalid...": [1992] 1 AC 310, 409G - H per Lord Oliver. So, for instance, if a doctor carelessly fails to diagnose a child's illness and, as a result, her distraught parents, who have to nurse her over many months, suffer psychiatric harm, they recover nothing by way of damages - because, in the contemplation of the law of tort, the doctor and the patient's parents are not in a relationship of sufficient proximity or directness as to give rise to a duty of care to them on the part of the doctor.

    105.  For the most part, then, the settled policy of the law is opposed to granting remedies to third parties for the effects of injuries to other people. The appellants are seeking to introduce an exception to that approach.

    106.  The defendants now accept that the doctors owed a duty of care to the children whom they examined and assessed. As the precedents show, it by no means follows that they owed any similar duty of care to the parents. Here the appellants formulate the alleged duty in this way: the doctors were under a duty not to cause harm to a parent foreseeably at risk of suffering harm by failing to exercise reasonable and proper care in making a diagnosis of child abuse. Despite the terms of the alleged duty, counsel for the appellants was at pains to argue that in substance it was the same as the duty which the doctors already owed to the child: if they performed their duty to the child, they would ipso facto perform their duty to the parents. As I shall suggest in a moment, assimilating the two duties in this way tends to conceal the real nature of the appellants' complaint. But, even on counsel's formulation, the similarity in the content of the two duties is no reason for holding that the supposed duty was owed to the parents. The content of a duty of care and the range of persons to whom it is owed are quite separate matters, the latter raising issues of proximity. For instance, when riding his motorbike, John Young owed certain other road users a duty of care to avoid injuring them, but he did not owe that duty to Mrs Bourhill alighting on the other side of the tram - even though, in substance, any duty of care to her in the way he drove his motorbike would have been the same as the one he already owed to the other road users: Bourhill v Young [1943] AC 92. In Alcock v Chief Constable of South Yorkshire Police the House dismissed the plaintiffs' claims, even although, again, as a practical matter the content of the duty which they said was owed to them was no different from the content of the duty which the chief constable admittedly owed to the people killed or injured in the crush. The plaintiffs were simply not persons to whom he owed that duty.