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Cite as: [2003] Lloyd's Rep Med 527, [2003] 4 All ER 833, [2003] UKPC 61

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B & Ors v. Attorney General & Ors (New Zealand) [2003] UKPC 61 (16 July 2003)

ADVANCE COPY

Privy Council Appeal No. 1 of 2003

"B"and Others Appellants

v.

The Attorney General and Others Respondents

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 16th July 2003

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Present at the hearing:-

Lord Nicholls of Birkenhead

Lord Hutton

Lord Hobhouse of Woodborough

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

[Delivered by Lord Nicholls of Birkenhead]

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In Attorney-General v Prince [1998] 1 NZLR 262 a five judge Court of Appeal, by a majority of four to one, declined to strike out a claim in negligence brought by a child in respect of an alleged failure by social workers to investigate a complaint that his adoptive parents were neglecting him. In the present case a father and his two daughters (D1 and D2) claim damages in respect of the allegedly negligent way a social worker and a clinical psychologist investigated a complaint that the father had sexually abused D2. In Prince's case the claim was founded on an alleged failure to investigate at all. In the present case the claim is founded on an alleged failure to investigate properly. The question raised by this appeal is whether the present case is distinguishable from the decision in Prince's case. In addition to the social worker and the psychologist, the Attorney-General is a defendant. He is sued on behalf of the Minister of Social Welfare and the Department of Social Welfare.

The history

As in Prince's case, the present case comes before the court on interlocutory applications by the defendants to strike out the proceedings summarily as proceedings which are bound to fail. No trial has yet taken place. Thus, in accordance with well established principles, these applications are to be approached on the footing that at the trial, if one takes place, the plaintiffs may succeed in proving the facts they allege in their statement of claim. It is right to record, however, that all the defendants deny the alleged negligence. At first instance Gallen J struck out the proceedings: B v AG [1997] NZFLR 550. The Court of Appeal, comprising Keith, Blanchard and Tipping JJ, dismissed an appeal: B v Attorney-General [1999] 2 NZLR 296.

The incidents of which the plaintiffs complain took place as long ago as July 1988. D1 was then aged seven. Her sister, D2, was five years old. The father was a widower. D2 told a friend at school that her father had sexually abused her. The friend told her mother who, in turn, informed the Department of Social Welfare. The department began an investigation on 18 July 1988. On the following day at the request of the department the second defendant, a registered clinical psychologist, separately interviewed the two girls at their school in the presence of a senior teacher and the third defendant, a social worker employed by the department. The second defendant had considerable experience in the field of child sex abuse and was a member of the sexual abuse team at Wellington.

Later on the same day, 19 July, the social worker laid a complaint under section 27 of the Children and Young Persons Act 1974 on the ground that she reasonably believed the children were in need of care, protection or control because their physical or mental health or emotional state was being avoidably impaired or neglected (subsection (2)(b)) or the children were being, or were likely to be, neglected or ill-treated (subsection (2)(c)). As a result a warrant was obtained for the removal of the children from the care of their father pursuant to section 28 of the 1974 Act. The deputy registrar of the District Court was satisfied there was reasonable ground for suspecting the children were likely to be ill-treated, as provided in section 28(1). The children were then taken from their home and placed in foster care.

At the time the father knew nothing of the allegations, the interviews or their results. The first he knew of any of these matters was when, later on the same day, he was interviewed by the police. He was told the children had been taken away and that he was not to attempt to find them or get in touch with them. He was not told where the children were. At all times the father denied the allegations against him. No charges were ever laid by the police.

The father then made arrangements to leave the family home and for the children to return there in the care of an employee. He also made arrangements for his parents to return to New Zealand from England. They had earlier helped him with the care of the children following the death of his wife.

Two days after the interviews, on 21 July, the social worker arranged for the children to be examined by a doctor. The doctor concluded there was no evidence to suggest full penile penetration in respect of either child, but her examination did not rule out lesser degrees of penetration or other forms of sexual molestation.

The statement of claim alleges respects in which, it is said, the interview carried out by the psychologist, and the investigation carried out by the social worker, were conducted negligently. For instance, it is said the psychologist failed to note or evaluate important factual errors. D2 gave a detailed description of an attic in her home although the psychologist knew D2's home was a single storey building. D2 said both she and her elder sister, D1, had been sexually abused by their father. But the psychologist ignored answers given by D1 denying sexual abuse of either her or her sister. The social worker failed to follow up a report made to her by the doctor that at the outset of the doctor's examination D2 said to the doctor that sometimes she, D2, told lies. Within two weeks of the issue of the warrant D2 told a friend of the father that the allegations were untrue, and that she had told this untruth to the ladies who had come to see her and her sister at the school because she was allowed to tell lies at school. This information was passed to the department by telephone but, it is said, this was not acted upon by any of the defendants.

The complaint made by the social worker came before AB Beatson DCJ for hearing on 5 December 1988, together with an application by the father's parents for custody of the children. The hearing occupied nine weeks of court sitting time. On 13 April 1989, before the hearing had been completed, the complaint was amended to add section 27(2)(e) as an additional ground on which the children were in need of care, protection or control: that the children were exhibiting behaviour beyond the control of their father. The father admitted this amended ground of complaint under section 27(2)(e) but not the original 'abuse' complaints under section 27(2)(b) and (c). With the consent of all concerned, including the father, the court made a supervision order and an order giving shared custody of the children to the father's parents and the father. The father's parents and the father were also appointed joint guardians of the children.

Following this hearing the father's parents went back to the United Kingdom with D1 and D2. The girls returned to New Zealand with their grandmother in late January 1990 and were reunited with their father. The supervision ended by order of the court in April 1991.

These proceedings were started in 1993. The children claim general damages of $50,000 and exemplary damages of $500,000 for upset to their lives and the trauma of being removed from their father. Their father claims a like amount of general damages and exemplary damages, together with special damages in respect of matters such as child minding expenses, medical expenses and legal costs, and his parents' air fares and other expenses.

Prince's case

Before their Lordships' Board none of the parties challenged the correctness of the decision of the Court of Appeal in Prince's case or the reasoning of the majority. Their Lordships are content to proceed on this basis. The relevant legislation is not now in force and has not been so for some years. Accordingly, as already noted, the sole issue before the Board is whether the present case falls within the principle enunciated by the Court of Appeal in Prince's case regarding what was there referred to as "the 1983 complaint". This was a complaint that although the Department of Social Welfare knew the adoptive parents were not looking after their adopted child the department "did nothing": it failed to investigate the complaint "adequately or at all".

Whether the manner of discharge of a statutory function admits of a concurrent common law duty of care depends primarily upon the scheme and policy of the relevant legislation. As noted by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739, the statutory framework within which the act or omission took place is a profoundly influential factor when deciding the existence and ambit of a common law duty. For this reason the Court of Appeal in Prince's case left on one side the current New Zealand legislation, the Children, Young Persons and Their Families Act 1989, describing this as a very different legislative scheme. The Court of Appeal also considered that the 1974 Act was "clearly distinguishable" from the statutes before the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. The court focused its attention on the 1974 Act itself.

Section 3 of the 1974 Act set out its objects. These included promotion of the welfare of children by assisting individuals and families to overcome social problems confronting them, promotion of the welfare of the family, and assisting parents in the discharge of their parental responsibilities. Section 4 provided that any person exercising powers conferred by the Act shall treat the interests of the child as the first and paramount consideration. Section 5 imposed positive duties on the Director-General of Social Welfare to undertake preventive work:

" (1) It shall be the duty of the Director-General to take positive action and such steps under this Act as in his opinion may assist in preventing children or young persons from being exposed to unnecessary suffering or deprivation …

(2) In pursuance of the duty imposed on him by subsection (1) of this section the Director-General shall arrange -

(a) for prompt inquiry where he knows or has reason to suspect that any child or young person is –

(i) Suffering or likely to suffer from ill-treatment or from inadequate care or control …"

Against this background Richardson P, in a judgment of himself, Thomas and Keith JJ, Attorney-General v Prince and Gardiner [1998] 1 NZLR 263, 282 explained why he considered there was sufficient proximity to found a duty of care:

"The 1974 Act is directed to the care and protection of children and young persons. The class of persons for whom the statutory protection was enacted is clear. The discharge of the particular function calls for the exercise of special social work skills and responsibilities. There is a professional relationship between social worker and client child or young person. Children and young persons are seen as vulnerable. Because of their youth and immaturity they cannot assert their own rights and needs. Others must do it for them. Just as it is right that the department and its professionals have a generalised duty under the statute to promote the well-being of children and young persons (s 3), so, too, when exercising their statutory duties in respect of a particular child or young person they assume a responsibility to that child or young person (s 4). And the duty to consider a complaint of neglect is specific to the particular child or young person, the subject of the complaint (s 5). While a deprived child or young person may have no particular expectation that the department will seek to assist him or her, given general community expectations reflected in the statute it is not unreasonable to conclude that a child or young person is to be regarded as implicitly relying on the department and its officers to consider complaints that they are in need. Finally, it is readily foreseeable that inadequate consideration of complaints that a young person is neglected might cause harm. … the department is not in a position to say that the imposition of a duty of care would expose the officer and the department to a burden out of proportion to their own moral culpability."

On wider policy considerations, Richardson P observed, at page 284:

"That statutory scheme does not lead inevitably to a conclusion that there was a common law duty of care to take proper steps to investigate allegations of neglect and thereafter to take such further and successive steps as the circumstances required. The question is whether it is just and reasonable to superimpose a common law duty of care on the department in relation to the performance of its statutory responsibilities for the protection and care of children and young persons. But, given the conclusion that proximity is satisfied, the statutory framework within which the department and its social workers act is consistent with the imposition of a common law duty of care. The narrow argument is that liability may arise where the person charged with the responsibility either unreasonably fails to carry out the duty to consider the matter or reaches a conclusion so unreasonable as to show its failure to do its duty.

… it cannot be said that a common law duty in these terms would cut across the whole statutory scheme. At that early triggering step a specific positive duty rests on the Director-General. At that step it does not require participation with other agencies. The duty suggested does not conflict with any other duty by the department and its officers. On the contrary it enhances it."

Richardson P rejected a contrary argument based on the difficulty and delicacy of the social worker's task and its judgmental nature. A plaintiff will have difficulty in proving that an assessment made by a social worker fell outside the bounds sanctioned by professional opinion. But considerations of this kind cannot absolve the department and social workers from the responsibility of considering and responding to specific complaints with professional skill and care. Richardson P also rejected a submission that the imposition of a duty would or might cause the department and social workers to adopt a more cautious and defensive approach to their duties. Like lawyers and doctors, social workers are professionals. At that triggering step, and at other steps, they should be expected to have shouldered willingly a standard of reasonable skill and care that their private sector counterparts were expected to discharge. Difficulties of reaching conclusions on causation and damages, although making claims very difficult to establish, are not adequate justification for ruling out the possibility of any claim for negligence whatever the circumstances.

Tipping J, at page 292, delivered a concurring judgment. The statutory framework supports a common law duty to investigate with reasonable care a complaint that a child was not being looked after properly. To the extent possible the law should reflect the reasonable expectations of the society it serves. To hold that the Director-General owed no duty in the circumstances would not only fail to meet society's reasonable expectations. It would cause legitimate concern why the breach of an express public duty afforded no private remedy to a person for whose benefit the public duty existed in the first place.

Henry J disagreed. Failure of an alleged duty to inquire would, on its own, be insufficient to establish an entitlement to damages. There would need to be a duty to protect, by taking reasonable consequential follow-up action. But under the 1974 Act the avoidance of harmful consequences involves a carefully constructed and integrated process, including the possible involvement of police, teachers, doctors and others, resulting ultimately in the court taking the final necessary steps in the exercise of a discretion. It is not just or reasonable to impose such a duty.

The decisions of Gallen J and the Court of Appeal

In the present case Gallen J delivered his judgment after the decision of the House of Lords in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 but before the decision of the Court of Appeal in Prince's case. In reaching his decision to strike out the proceedings Gallen J was clearly much influenced by the decision of the House of Lords.

In the Court of Appeal all members of the court seem to have envisaged that the common law duty of care enunciated in Prince's case would not subsist in the present case once the social worker had applied to the court for a warrant under section 28 on 19 July 1988. The joint judgment of Keith and Blanchard JJ was delivered by Keith J. He held, at [1999] 2 NZLR 296, 304, para 26, that the duty of care recognised in Prince's case is "limited in time to the triggering and closely-related steps":

"[The duty of care] is to be tied to the 'positive duty' stated by Parliament relating to that initial stage of deciding whether to arrange a 'prompt inquiry' and when appropriate arranging it."

Keith J gave the reason for this temporal limit on the scope of the duty of care, at para 27:

"… the statutory scheme cuts across a common law duty of care once the triggering step of the 'prompt inquiry' is completed and the officials are moving beyond that initial obligation and are assembling relevant information before considering whether to exercise their statutory powers."

He then noted, at para 28, that the breaches of duty alleged in the present case "fall outside that initial period of positive statutory obligations during which, in accordance with Prince, a common law duty of care may also arise".

In a separate judgment Tipping J, at para 39, drew the same distinction. There is no duty of care beyond "the triggering step". This step encompasses "the whole process of investigation up until steps were taken to obviate the perceived harm to the child". This is for policy reasons, largely of the kind identified by Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633. Here, it was obtaining and executing the warrant that caused the father and the children the harm and loss for which they claim compensatory damages.

The duty to inquire

Their Lordships confess to having difficulty with the decision of the Court of Appeal. They respectfully consider it emasculates the scope of the common law duty of care recognised in Prince's case. Their Lordships can see nothing in Prince's case to suggest that the concurrent common law duty is less extensive temporally than the statutory duty imposed on the Director-General by section 5(2)(a) of the 1974 Act.

What, then, is the ambit of this statutory duty? Under section 5(2)(a) of the 1974 Act the Director-General is under a duty to "arrange for prompt inquiry" where he knows or has reason to suspect a child is suffering, or likely to suffer, ill-treatment. This obligation to arrange a prompt inquiry comprehends a duty to arrange and conduct an adequate inquiry. The Director-General would not discharge his statutory obligation under section 5(2)(a) by merely "arranging" for an inquiry, whatever precisely that may mean. He must conduct whatever inquiry is necessary. A duty to set an inquiry by his own officials in motion, but no duty to take reasonable steps to see the inquiry duly proceeded, would be a poor sort of statutory duty. That cannot be the proper interpretation of section 5.

Take the facts in the present case. On being told of what D2 had said at school the Director-General had reason to suspect that D2, and consequently D1 also, were at risk. He had reason to suspect they were suffering or likely to suffer from ill-treatment. So he was under a duty to arrange an inquiry, and under a duty to do so promptly. The psychologist's visit to the school, along with the social worker, was a first step in discharge of this duty. The social worker then proceeded to apply to the court, on the same day, for a warrant for the removal of the two girls from their home. The warrant was obtained and executed. That did not end the inquiry or the Director-General's duty in that regard. The grant of urgent interlocutory relief by the court did not mean that the department's obligation to conduct an adequate inquiry was satisfied. Understandably and properly, the department next arranged for D1 and D2 to be examined by a doctor. But that also cannot be regarded as the end of the inquiry. Why should it, especially when the outcome was inconclusive? If, as alleged, material further information thereafter came to hand the Director-General's section 5(2) duty required him to follow up that information. This was so irrespective of whether the information tended to support or undermine the abuse allegation. It cannot be that the department was under a duty to investigate further only if the further information tended to support the allegation.

Given that the Director-General's statutory duty under section 5, as distinct from the exercise by him of his discretionary powers, extends thus far, there seems to their Lordships to be no basis on which the concurrent common law duty of care recognised in Prince's case should have a less extensive temporal scope. Substantially the same considerations apply to the conduct of the inquiry at the later stage as at the earlier stage. At the later stage, if not at the outset, other agencies, including the police, would be involved. They were in the present case, more or less from the very beginning. At that time inquiry into sexual offences against children was carried out by a multi-disciplinary sexual abuse team procedure. The police interviewed the father on the same day as the children were first interviewed. But this multi-disciplinary procedure is not inconsistent with the Director-General having a continuing positive statutory duty to inquire, that is, to investigate. That being so, the concurrent common law duty he owed the children continued to exist, reinforcing his statutory duty. Such an investigatory obligation is of course quite distinct from making decisions and assessments on what should be done in the light of what is revealed by the investigation.

For these reasons their Lordships respectfully part company with Keith and Blanchard JJ when they express the view that the common law duty of care enunciated in Prince's case is to be limited to the "initial stage of deciding whether to arrange a 'prompt inquiry' and when appropriate arranging it" (paragraph 26) and with Tipping J when he confined the duty of care to the period ending when steps were taken to obviate the perceived harm (paragraph 39).

The duty of care

It is clear from Prince's case that the Court of Appeal in that case envisaged that the common law duty of care was owed by the Director-General. Further, it is reasonably clear that the Court of Appeal also envisaged that such a duty would be owed by the individual social worker: see [1998] 1 NZLR 262, 285. Some support for this view, although of limited weight, is to be found in section 41(8) of the 1974 Act. This provision exempted a social worker who furnished a report under that section from civil and criminal liability unless he acted 'in bad faith or without reasonable care'. If a social worker owes a common law duty of care to the child, so must a clinical psychologist, another professional, who undertakes an assessment of the child. There can be nothing surprising in holding that a psychologist owes to a child whom she is examining a duty to exercise due professional skill and care.

To whom is the duty of care owed? Clearly the duty is owed to the child or young person in respect of whom the statutory duty to arrange for a prompt inquiry exists in the particular case. In the present case that is D1 as much as D2. If D2's abuse allegation was well founded D1 also was at risk. But their Lordships consider no common law duty of care was owed to the father. He stands in a very different position. He was the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims are poles apart. Those conducting the inquiry must act in good faith throughout. But to impose a common law duty of care on the department and the individual professionals in favour of the alleged victims or potential victims and, at one and the same time, in favour of the alleged perpetrator would not be satisfactory. Moreover, a duty of care in favour of the alleged perpetrator would lack the juridical basis on which the existence of a common law duty of care was largely founded in Prince's case. The decision in Prince's case rests heavily on the feature that the duty imposed on the Director-General by section 5(2)(a) of the 1974 Act is for the benefit of the particular child. Self-evidently this statutory duty was not imposed for the benefit of alleged perpetrators of abuse. To utilise the existence of this statutory duty as the foundation of a common law duty in favour of perpetrators would be to travel far outside the rationale in Prince's case.

Witness privilege

Miss McDonald QC, representing the psychologist, developed a further ground on which, so she submitted, the proceedings should be struck out. In substance, she submitted, the claim in the present proceedings is that the defendants were negligent in deciding to set the law in motion and in inflicting upon the father and children the proceedings which followed. It is settled law that damages are recoverable for setting the law in motion, if at all, only where malice and absence of reasonable and proper cause can be proved: see Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667, 673, per Cooke P. There are no such allegations in the present case. From the outset the purpose of the investigation in which the psychologist was involved was to decide whether to bring proceedings to remove the children from their father's care. The conclusion of the psychologist was that the children had been abused and it was this conclusion which led to the decision to seek the warrant. The case is on all fours with that of the psychologist in the Newham case in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 regarding whom Lord Browne-Wilkinson said, at page 755, that her investigations had such an immediate link with possible proceedings in pursuance of a statutory duty that they could not be made the basis of subsequent claims.

This submission gives rise to a difficulty which not infrequently arises in striking out applications. Their Lordships do not have sufficient factual information to reach a firm decision on this issue. Their Lordships lack background information about how the sexual abuse team procedure worked in practice and the role of the psychologist. Further information would also be desirable on the detailed sequence of events in the present case, including full details of all aspects of the psychologist's involvement, together with a copy of her report or reports. Without this evidence too much is left to conjecture. This is not a satisfactory basis for attempting to form a view on whether the link between the psychologist's report and the court proceedings was sufficiently close to attract witness privilege. This is an issue on which the facts should be investigated and found at trial before a decision can properly be made.

Conclusion

For these reasons their Lordships will humbly advise Her Majesty that the appeal by the two children should be allowed but the appeal by their father should be dismissed. So far as the claims by the children are concerned the proceeding should not be struck out but should be allowed to proceed to trial. To that extent the orders of Gallen J and the Court of Appeal will be varied. In permitting the children's claims to proceed their Lordships are mindful of the formidable difficulties in establishing negligence. But, on the basis of the decision in Prince's case, it cannot be said that in law there is no cause of action.