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eLaw Journal: Murdoch University Electronic Journal of Law |
| Authors: | Barbara Ann Hocking Queensland University of Technology |
| Alison Smith Queensland University of Technology | |
| Issue: | Volume 3, Number 1 (May 1996) |
Authors' Note[1]
1. At the narrow level this paper explores some possible avenues in the law of torts to protect and care for children and young people. At the broader level it looks at the social and political construction of the family in England and Australia and at the public/private divide in feminist analyses. It sets out the approach of the English Court of Appeal in Khorasandjian in formulating a means of protection through the law of nuisance to a harassed and vulnerable young woman. This, and the occasiona l recognition of harassment as a public problem, are set against a refusal to impose accountability where resources are involved.
2. In a paper published in the Alternative Law Journal one of the authors addressed some implications of the United Kingdom's Children Act.[2] The author asked how the dominant principle underlying the legislation, that of safeguarding the welfare o f the children, could be met with the limited resources available to the relevant local authorities in the era of privatisation and economic rationalism. It is the major purpose of this paper to look at some further legal dimensions to the protection of c hildren that have emerged under United Kingdom law and to develop the argument in the Australian context. The narrow focus is on tort law, but the broader aim is to look towards human rights law.
3. Certain aspects of care and protection in relation to children are meritably problematic in the tort context because they are so resource dependent. They therefore fall foul of the uncertain distinction between policy and operational decisions formul ated in several major cases. This has been a major theme in negligence law: that policy dependant decisions cannot be subject to liability in negligence. For example, Mason J pronounced in Sutherland Shire Council v Heyman[3] that policy decisions are decisions dictated by financial, economic, social or political factors. Those are the decisions not subject to review. This could apply to almost any area of public obligation, and therefore the case law dealing with liability of public officials has f ailed to provide coherent guidelines in this regard. This is dealt with in detail in this paper. Three major recent English cases are examined in detail, all dealing with aspects of liability of local or public authorities to young people. These decisi ons stand for the proposition that a tort duty is unlikely to be imposed upon `public bodies having a protective function.[4] The writers contrast this with the increasing allocation of responsibility in private financial situations. We also outline neg ligence liability and school situations before drawing threads together in the concluding part of the paper.
4. In the Australian context, Sawer has argued that an ideological emphasis upon the family at the electoral policy level is "rarely accompanied by a comparable dedication to assessing the role of unpaid caring work in the economy or to achieving equal o pportunity for workers with family responsibilities".[5]
5. This criticism is a particularly crucial one in relation to the United Kingdom, where successive Conservative governments have effectively privatised child welfare and child protection processes. One commentator has recently expressly suggested in rel ation to the law and social policy in the UK in this area that we are witnessing the "privatisation of the public interest in children".[6] It is an inevitable difficulty that the tension to be resolved is between respect for family life and freedom fro m State intervention in that life, and protection and assistance for vulnerable young people. This encroaching privatisation has been the subject of some comments from the feminist perspective. Neave, for example, points to the irony that `at the same t ime that women's identification with home and family is being challenged, other aspects of the public/private dichotomy are being reassessed.[7]
The British public interest in children
6. The processes and priorities implicit in the British privatisation process have however been challenged by various commentators. In 1991, the authors of the Social Policy Paper Childcare in a Modern Welfare System[8] challenged the prevailing and no w long term orthodoxy in the United Kingdom which places responsibility for the reconciliation between work and parental responsibility with the individual family. The authors asserted that the continuing narrow focus of public responsibility implicit in British family law threatens to "reduce public childcare to a disadvantaged and stigmatised ghetto".[9] According to the social policy paper, the narrow scope of public responsibility has been even further undermined by the passage of the Children Act 19 89 which emphasises that local authorities have a duty to protect children "in need". The narrowness of the "need" requirement in the legislative context - governed by an overwhelming emphasis upon parental rights - will, they argue, inevitably simply in stitutionalise the "narrow focus of public responsibility".[10]
7. It is now written into the British child welfare policy that children are in no policy sense a broad based public or social responsibility. Rather, the role of the state is a limited one: the place for children is now back in the private sphere. This narrow conceptualisation of the place for government is reflected in a range of areas, from childcare to employment law and social security in the United Kingdom. This issue can be examined from a range of perspectives which all lead back to the essentia l problem: that of entrenched inequality and countless families in need. Yet that need will often, and invariably, not be included within the narrow legislative formulation.
8. A report by the Institute for Public Policy Research stresses the finding of their earlier publication The Family Way[11] that the essence of Britain's widely recognised gender based discrimination at work is not that women do not participate in the labour force but that they participate unequally in the labour force. Cohen and Fraser's report draws attention to the range of deficiencies and the limited public involvement evidenced in the United Kingdom in this area. They stress that the limited pu blic involvement in relation to the provision of childcare services has been "paralleled over the same period by limited statutory work and family employment provisions".[12] There is no access to paternity leave[13] and access to full maternity leave (i tself a restricted allowance) is restricted by (at least) a two year service requirement.[14] Both these limitations compare unfavourably with the EC, where a range of entitlements is available to working parents.[15] It also compares unfavourably with Australia where the ACTU recently successfully took up the case for paternity leave and where the Keating Government has launched childcare into the mainstream political agenda.
9. While the fact of women's industrial marginalisation and ghettoisation is one equally stressed by Australian legal theorists and public policy analysts,[16] the situation appears particularly critical in Britain. The authors of the IPPR Family Way r eport note that a key reform is "the extension to part-time employees of the legal protection now offered to full-timers"[17] and point out that a series of draft directives were approved by the European Commission in June 1990, requiring that part-time w orkers be given "the same access to vocational training, occupational social services and benefits in cash and kind as permanent full-timers."[18] The directives were "denounced by the Secretary of State for Employment as "misguided and unnecessary"; the intention of the British Government was to "oppose them "vigorously"."[19] Only recently, John Major successfully rejected United Kingdom participation in the European "Social Charter" which would have set minimum standards for maternity rights, child c are, rights of part time workers (usually women) and minimum wages.[20] Clearly, we cannot consider the situation of children in the UK without recognising this background - that of the situation of women, their mothers.
The Children Act (UK): Public and private law?
10. The Children Act 1989 (UK) came into force in the United Kingdom in 1991. It has been described by one commentator as a "major achievement because it brings together both the private law affecting the relationship between parents or other carers an d children and the public law concerned with their welfare and protection, for the first time in one statute."[21] However, it has not met with unanimous approval. In an article in the Sunday Times on 6 October 1991, the Labour MP for Middlesbrough, Stua rt Bell, argues in terms that parallel the Left's denunciation of the use of law as a means of maintaining public order, displacing public order however, with private order. Bell, author of an annotated version of the Children Act, argues that the paren tal British state has increasingly usurped the private rights of parents, relying in particular upon the place of safety order, which represented "an arrogant exercise of power on behalf of the parental state."[22] The place of safety order grew out of t he Children and Young Persons Act 1933 and 1969, which sought to ensure the protection of the child by empowering a justice of the peace to sign a place of safety order in a case where any information given on oath made out that there was "reasonable ca use to suspect the child was at risk."[23] The liberal view, presented by Bell, is that law has increasingly become part of the relationship between parent and child: in this view that relationship is not considered an appropriate place for law.
11. Essentially, the 1989 Act introduces an extended concept of parenthood while attempting to enable parents to both retain and exercise their responsibilities, and to remain closely involved with their children, insofar as this is compatible with the c hildren's welfare. The duty of the state involves an obligation of care in the event of need, while the duty of parents is formulated under the rubric of a new legal concept called parental responsibility. The legal philosophy behind the legislation would appear to be to replace the previous emphasis on care proceedings with a streamlined emphasis upon "an overall strategy of child care and protection."[24]
12. In translating family autonomy into the legislative pivot termed parental responsibility, the Act seeks to achieve a balance previously neglected when weighing up the welfare principle:
"The Act seeks to protect children both from the harm which can arise from failures or abuse within the family and from the harm which can be caused by unwarranted intervention in their family life. There is a tension between those objectives which the Ac t seeks to regulate so as to optimise the overall protection provided for children in general."[25]
13. Equally, however, as Smith has argued, there is a tension inherent in the themes of the legislation and in the provision for children under three headline areas: welfare, protection and rights. Factors which are external to the legislation will inevi tably intensify the policy dilemmas which surround its implementation: there is a conflict between the ideological emphasis on parental responsibility and family based problem solving, and the economic and social pressures inherent in increasing child pov erty and family breakdown.[26]
14. Through the concerted emphasis on parental responsibility in the UK's Children Act, the social philosophy behind the legislation would appear to be a reinforcement that the needs of children are most appropriately met by healthy, functional family life. What this policy approach cannot encompass is the range of situations in which children may be at risk of harm irrespective of their family situation. Clearly economic harm and physical harm are the most vital, but there are many others. The situat ion in Khorasandjian which is outlined in the next section provides one example of a different use of the law, one underpinned by more protective sentiments. It illustrates the extent to which there may be a need for the law as one of the only effective avenues available for the protection of children, particularly young women, in particularly threatening circumstances. It extends the law of torts toward the caring and connection emphasised by feminist theorists: towards the recognition of the intercon nectedness of community members and the responsibility which arises from this "web of relationships."[27]
15. In the decision in Khorasandjian v Bush[28] the English Court of Appeal extended the current framework of the law of torts (civil wrongs) to encompass the harassment by unwanted telephone calls of one young person by another. An injunction was issu ed, framed in traditional domestic violence terms, to stop this behaviour. The two parties involved in this case were a man and a young woman, who had been friends but had never cohabited and never married. The man was, however, unable to accept the situation when the woman told him she wanted nothing more to do with him. He com menced a pattern of harassment of the plaintiff, which involved assaulting her, threatening violence towards her, behaving aggressively towards her when he saw her, following her around shouting abuse and pestering her with telephone calls at her parents' and grandmother's homes to the point where the numbers had to be changed.[29] The specific problem at law here was that there was no relationship between the parties and the recipient of the telephone calls had no propriety interest in the premises wher e the calls were received. The protection of domestic violence legislation itself was not available as the British law is specifically directed at parties who are either married or living with each other in the same household as husband and wife.[30]
16. The decision granting an injunction can be seen to be a radical one therefore because the law of nuisance has traditionally been more connected to property rather than to personal rights. Nuisance has traditionally been associated with enjoyment of l and: an appropriate action might be framed in terms of interference with that enjoyment. While that was partially the case here, it was not the significant emphasis in the case: what was most significant was the emphasis upon the harassment and molestatio n of the plaintiff. While the decision was framed within the actionable interference with the ordinary use and enjoyment of the property which nuisance requires, the emphasis is upon the defendant's behaviour: the annoyance occasioned by the harassment is seen as the necessary interference with the reasonable use and enjoyment of the property and the defendant's conduct is stopped as a whole and not only in relation to actual threats.
17. The overall campaign of harassment is stopped by the issuing of a broadly framed injunction. Most importantly, the court recognised the special status of the child in the house and attempted to protect that special status through the law. Furthermore , the court restrained the defendant from harassing, pestering or communicating with the plaintiff although those words did not reflect any tort known to the law, and despite the fact that an interlocutory injunction could only be granted to protect a leg al right of the plaintiff.
The extension to the law in this case
18. The court broke with the traditional emphasis upon the proprietary nature of an action in nuisance by deciding that it had jurisdiction in private nuisance to grant an injunction restraining the persistent harassment that was taking place through the unwelcome telephone calls. This was notwithstanding the fact that the recipient of the calls had no proprietary interest, either freehold or leasehold, in the premises where the calls were received. As has been mentioned, the reason for the action in nui sance lay in the fact that the parties did not fall within the domestic violence legislation: hence the plaintiff had to attempt to rely upon tort law for legal relief.
19. The defendant for his part challenged the authority of the trial judge to grant an injunction and claimed that the plaintiff as a mere licensee could not invoke the tort of private nuisance or complain of the unwanted telephone calls in her mother's home. The defendant also contended that English law did not recognise any tort of harassment or invasion of privacy or, save in the context of a case such as Rookes v Barnard, intimidation. Therefore, the defendant claimed the defendant's conduct, even on the plaintiff's version of it, to be:
"... under the English civil law legitimate conduct of which the plaintiff has no power or right to complain."[31]
In effect, however, the court saw the law differently and a "special status" protection is granted in this case. The essence of the decision is that the common law provides protection of a child against harassment by an intruder into her home life where t he child lives in the family unit when the harassment takes place. The child is essentially held to have a special status within the family, which gave her rights to the quiet enjoyment that parents and guardians enjoyed.
The "special status" concept
20. The concept of "special status" which emerges in this case has been developed from the case of Motherwell v Motherwell[32] in which Clement JA in the Alberta Supreme Court protected the "special status" of a wife who was harassed by unwanted telep hone calls in the matrimonial home owned by her husband. The harassment in that case also consisted of protracted, persistent and countless phone calls and letters sent by one family member to several others, many being hostile and falsely accusatory.
21. The essence of that decision is again not the physical property linked basis to a nuisance action, but a far broader principle concerning the need for protection against invasion of privacy and harassment by unwanted telephone calls. There is specif ic reference in the course of judgement in the Canadian case to the need for the law to meet changed social conditions. Referring to the appellant's attempt at drawing a distinction between nuisance and invasion of privacy Clement JA said:
"It is said that invasion of privacy does not come within the principle of private nuisance, and that it is a species of activity not recognised as remedial by the common law. It is urged that the common law does not have within itself the resources to re cognise invasion of privacy as either included in an existing category or as a new category of nuisance, and that it has most its original power, by which indeed it created itself, to note new ills arising in a growing and changing society and pragmatical ly to establish a principle to meet the need for control and remedy; and then by categories to develop the principle as the interests of justice make themselves sufficiently apparent."[33]
22. The Canadian court proceeded on the basis that the unwanted phone calls constituted such a severe invasion of privacy that it warranted the creation of a new category of private nuisance, one predicated upon invasion of privacy by abuse of the teleph one system. The protection is not confined to the two men seeking it, that is, to the property owners. It is contended that there is authority that a claim in nuisance is not necessarily restricted to an occupier who has some legally demonstrable and enfo rceable right of occupation. It is suggested that the wife is also being harassed in her matrimonial home: that she possesses "a status, a right to live there with her husband and children."[34] The court therefore argued that the protection to her on th e basis that her occupancy of the matrimonial home is not sufficient to found an action in nuisance would be "absurd."[35]
Lines of authority
23. The line of authority pursued in the only similar case in the United Kingdom was that pursued in a case called Burnett v George.[36] The line of authority in that case is that available through the clearly identifiable legal remedy available under the principle established in Wilkinson v Downton,[37] which has provided a remedy for wilful actions calculated to cause physical harm, and can be coupled in this respect with Janvier v Sweeney. To be actionable, there must be a wilful false statement or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical harm, that is physical injury in the form of nervous shock.
24. An injunction to protect a wife was also granted in Kendrick v Kendrick. These cases have all been concerned in one way or another with the plaintiff's right to personal safety. They aim to stop or compensate for the behaviour which is causing her physical or emotional harm. A limited line of authority which might have provided the plaintiff with a remedy was therefore available to the court in Khorasandjian. Yet the court did not appear to feel bound to fit the case into this specific area and f ound a remedy in private nuisance.
25. It is the view of the majority of the court in Khorasandjian that a wider view of the phone harassment under the heading of private nuisance could be taken in the light of the interference with the ordinary and reasonable enjoyment of the property. This was not actually considered in Burnett, because that decision was concerned with the pursuit of the Wilkinson v Downton line of authority.
What did the court decide in Khorasandjian?
26. The court granted an injunction (which is granted when the court considers it just and convenient and justified at law) framed in broad terms to endeavour to restrain the conduct of the defendant in molesting and harassing the plaintiff. The protecti on accorded the plaintiff is very broad: effectively, it has been suggested that the court created a tort of unreasonable harassment. It is against harassment and pestering, although there is no tort of either harassment or pestering. The words in the inj unction even included "communicating with" the plaintiff. The court does not appear to be overly concerned with whether or not the behaviour caught by the injunction might actually be tortious, as the wording of the injunction allows for the inclusion of non-tortious behaviour. Certainly, it is recognised in the decision in Khorasandjian that many forms of molestation may be tortious yet that not every form of molestation is a tort.[38] Justice Peter Gibson emphasises that there is no tort of unreasonabl e harassment: there is no tort of harassment and the addition of the word unreasonable does not "convert harassing conduct into tortious conduct."[39] On the specific issue of the injunction, Peter Gibson J looks to the need for an injunction restraining conduct to be framed in extremely specific terms so that the person to whom it is directed knows what he must stop doing. Yet, it is also suggested that the injunction must be sufficiently broadly worded so as to stop the harm. Therefore:
"... it must also be general enough to cover other objectionable behaviour so as to prevent easy evasion of the order."[40]
Hence, it is considered that there are: "... advantages in framing the injunction in what might be called traditional domestic violence form to restrain"[41] the behaviour. For this reason, the words harassing or pestering are not considered too uncertain to be included in an injunction. The court takes a liberal view of the interests of the plaintiff.
27. Lord Justice Dillon in Khorasandjian actually refers to the need for protection of the vulnerable plaintiff here and recognises the extent to which fortitude is variable, and harassment is distressing rather than a mishap of life:
"The law expects the ordinary person to bear the mishaps of life with fortitude and, as was put in a case cited by Lord Bridge in McLoughlin v O'Brian, customary phlegm, but it does not expect ordinary young women to bear indefinitely such a campaign of persecution as that to which the defendant has subjected the plaintiff."[42]
28. This seems a long way from the more dispassionate view expressed by Lord Oliver in the House of Lords' recent and highly significant deliberation in the Hillsborough nervous shock case, Alcock and Others v Chief Constable of the South Yorkshire Poli ce.[43] There, we can point to the mismatch of law and protection: the essence of the decision is that sorrow must be sustained without compensation even where our loved ones are harmed by another's negligence and we care for them or suffer breakdown ov er them:
"Grief, sorrow, deprivation and the necessity of caring for loved ones who have suffered injury or misfortune must, I think, be considered as ordinary and inevitable incidents of life which, regardless of individual susceptibilities, must be sustained wit hout compensation. It would be inaccurate and hurtful to suggest that grief is made any the less real or deprivation more tolerable by a more gradual realisation, but to extend liability to cover injury in such cases would be to extend the law in a direc tion for which there is no pressing policy need and in which there is no logical stopping point."[44]
Criticism of Khorasandjian
29. What we have to confront in this new use of the law of nuisance is the extent to which certain bursts of judicial creativity are a positive social and legal good. As Stanton has observed, the concept of harassment is a broad one, potentially covering a wide range of conduct. The question is whether the law should develop a new tort to deal with the issue or whether the law should "rely on adaptations of well tried and tested torts and a number of specific, but limited, statutory provisions."[45] Wit h the first approach, we run the "risk that judicial creativity will produce a body of unpredictable and open ended law"[46] and with the second, we leave open "the possibility that deserving cases will go unremedied."[47]
30. Stanton's observation points to the fact that this decision has not been universally welcomed. It has been pointed out, for example, that the decision is simply one means of masking an inadequacy in the British statutory scheme dealing with domestic violence. This raises the question of whether such statutory schemes should protect more parties and against a broader range of harms. It has been observed that nuisance is meant to be tied to enjoyment of land and that the nature of the action, since it deals with invasion of privacy, is not that of a legally protected right. On this point, commentators seem to differ as to the extent to which the constant phone calls might genuinely represent an interference with lawful enjoyment of land.
31. Furthermore, it has been suggested that while the tort of negligence has developed to cover many aspects of careless conduct which cause damage to others, there are gaps in the law of torts dealing with intentional conduct. Indeed, that "some deliber ate conduct cannot easily be accommodated within defined patterns of tort."[48] But whether nuisance is the appropriate legal remedy to fill the gap is contentious. By this view, the most appropriate approach would be reclassification of such conduct as a trespass to the person of the Wilkinson v Downton line of authority. This would mean that a plaintiff could sue without the need to show damage, as it would be actionable per se. Should this approach prevail, any intentional conduct seeking to damage another would then be actionable without proof of damage. This would extend to persistent phone callers or intrusive photographers.
32. Cooke suggests that the case, in drawing upon Motherwell, draws upon an authority which is a "departure from authority"[49] and yet then "goes a great deal further"[50] than that authority. Furthermore, that the order made in both cases was unneces sarily wide: that the range of behaviour restrained in "Khorasandjian", especially, was particularly broad. That is, it might have nothing to do with enjoyment of the land, but could include phoning the plaintiff at work or on a mobile phone, or talking t o her in the street. By this view, the use of the law of nuisance to fill a clear lacuna in the British statutory framework dealing with domestic violence is not appropriate or sufficient: the more appropriate response is for the categories of person for whom this protection is available under this statutory framework to be broadened. The British law at present, even under proposals from the Law Commission to widen the categories, does not extend to couples who have been closely involved with each other w here that relationship has not been "sexual" (although it may not have involved sexual intercourse). Yet this may exclude extremely vulnerable victims[51] who have then to seek protection under the less flexible avenue of the law of torts. Broadening the categories of persons to whom protection under the domestic violence laws might be available would provide cheaper, simpler and more flexible remedies and would "leave the law of tort intact from the ad hoc manipulations needed to fit it to situations it was not designed to meet."[52] This leads to a final criticism: whether judicial creativity is a universal good. Where nuisance was expanded in the industrial context, it was the subject of considerable criticism. The essence of that criticism lay in the reservation for the courts of the definition of harmful conduct. To now call for a regeneration of this reserve power may solve some problems and raise others.
The significance of nuisance, harassment and special protection under Australian law
33. The use of the law of torts in family situations is long standing but is not commented upon widely in legal texts. However, as Bennett has noted, tort law is for the most part a fluid and flexible area of law which provides the judiciary with conside rable scope for policy decisions within the parameters of the relevant legal doctrines and concepts:
"Tort law is characterised by loose sets of relatively abstract principles which allow maximum discretion to be exercised (in the main) by reference to `common sense' values."[53]
This fluidity may give the law some potential but it is difficult to assess the precise potential of the law in future family situations. There has however been some theoretical comment about the potential applicability of the law to deal with a range of harms. That range of harms may well include situations that are now recognised as potentially likely to lead to violence against women or children. Yet there are difficulties associated with the use of the law. As Sinha has noted in a consideration of a t ort of sexual harassment and tort law's concept of the "reasonable person", "formulating separate standards based on each and every social inequality would lead to a seemingly endless proliferation of categories of reasonableness."[54] More generally, Mac Kinnon has argued that tort law sees injury within an individualistic framework and has as its essential purpose to "compensate individuals one at a time for mischief which befalls them as a consequence of the one-time ineptitude or nastiness of other ind ividuals."[55] By this view, tort law "considers individual and compensable" something which is "fundamentally social and should be eliminated."[56]
34. As Piotrowicz has observed, the emphasis upon the element of molestation in the British decision in Khorasandjian can be contrasted with the Australian situation where molestation of itself will not be enough to activate the law of private nuisance in situations of harassment between individuals. All attempts to make the law more protective inevitably appear incremental: yet, in some situations, there are few other options available. It might be appropriate at this concluding point to note that the recognition of women's harms through the law underpins domestic violence laws in all jurisdictions. The central problem is that the law tends to be narrowly focused. The intention of those laws is to provide, inter alia, for the protection of a person wh o has been in some sort of relationship with the party causing the harm. The relationship involved is usually that of a spouse,[57] which, while it may be broadly defined, is nevertheless a requirement.[58] Once past that first base, the law aims at prote cting the integrity of the person in just the same way that the court endeavoured to protect the young plaintiff in Khorasandjian. Those laws can reach to protect relationships of the vulnerable spouse. In at least one Australian State, the law has gone further. The Queensland Parliament has also enacted anti-stalking laws that can protect against unlawful stalking which "would cause a reasonable person ... to believe that an offensive act ... is likely to happen."[59]
35. At times it is clear that the Australian courts will use their power to injunct nuisances where damages are an inadequate remedy and hence that private nuisance could form an adjunct to the domestic violence laws. For example, in O'Kane v Fogarty,[ 60] Young J in the New South Wales Supreme Court was concerned with the operation of the New South Wales De Facto Relationships Act 1984, which provided, in s 53, that a court may grant an injunction for the personal protection of a de facto partner or of a child ordinarily residing within the same household as the de facto partners or who at any time ordinarily so resided. Justice Young suggested in the course of judgement that the required link between nuisance and a proprietary interest was already s imply a technicality in Australian law, and made it plain that restraint or molestation under this law also rests upon a notion of particular need for special personal protection:
"Of course, the technical basis for the law of nuisance is that the plaintiff has a proprietary right to protect, but in modern society, and this is reflected in what appears in the De Facto Relationships Act, it is equally, if not more, important to pr otect a right to personal integrity than it is to protect a right of property and as in previous years injunctions would be given freely to protect people from nuisances to property, so now the community expects this Court to make orders to protect integr ity of persons."[61]
36. This form of protection was clearly what concerned the court in Khorasandjian. However, while we may applaud the social perspicacity of the court, the decision in Khorasandjian does raise problems. Most importantly, it causes us to reflect upon w hether the British statutory scheme for dealing with domestic violence is inadequate and in need of reform. However, it also causes us to reflect upon the potential of the law of torts. By way of conclusion, it might be suggested that this decision is a step in the right direction because it provides one specific legal response to the ever critical question: how can we adequately recognise, translate and compensate women's experience (of fears of harm to their children or to themselves) into law. Wheth er the counterpart to that is to raise men's awareness of risk running and responsibility is, as always, a vexed question in the torts context.
Are there other dimensions to tort law that may protect vulnerable young people?
37. A relatively recent dimension to the law concerns liability of local and school authorities. Although it might be argued that there are now recognisable pockets of local authority case law involving negligence,[62] what is interesting about recent ca ses in this area is the uniformity with which they hark back to the reliance principle and often to broader principles in "Hedley Byrne v Heller". This reliance principle if expanded further may provide another tort avenue of protection for young childre n from any risk prove behaviour of their peers or those in control. Translating that further into liability of local authorities as regards care, resources and protection has been presaged but is yet to emerge as a pocket of case law. The House of Lords has already allowed for an extension of the Hedley Byrne principle to bring within the notion of assumption of responsibility the provision of an employment reference.[63] Could this be an avenue for parental obligations of the future?
The special relationship principle
38. It is well established that tort law may impose a duty of care where a special relationship exists between the plaintiff and the defendant. In some cases, this duty can extend to third parties, where damage is caused to that third party by a person u nder the care and control of the defendant. For the purposes of protection of children, the two relationships of particular interest are that of school/pupil and parent/child. Interestingly, the duty placed on schools, who are essentially acting in loco p arentis, is more onerous than that placed on parents, if, indeed, such a duty is placed. It has been suggested that the reason for this anomaly is because schools can and do insure against liability, whereas parents cannot and do not.[64] With respect, i t is submitted that this type of justification is typical of the lack of compassion evidenced by the judiciary, implying as it does that economics are more important than the care and protection of children.
The school/pupil relationship
39. The duty imposed on a teacher, and through them, a school, is to take reasonably care to protect the children under their care and control from a reasonable foreseeable risk of injury. While the duty does not extend to placing the school in the posit ion of being an insurer against all harm, it does require the school to take positive steps to ensure the safety of its pupils. In Richards v Victoria,[65] the plaintiff, a sixteen year old student, received injuries, which resulted in spastic paralysis , in a fight in a classroom with another schoolboy. The evidence established that the teacher, who had been present but done nothing to stop the fight, had failed to maintain discipline for a number of months prior to the altercation. The Supreme Court of Victoria held that the teacher was guilty of negligence for failing to take steps to stop the fight. Chief Justice Winneke held that it is "now clearly established" that a schoolmaster is under a duty to "take reasonable care to avoid harm being suffered ."[66] His Honour went on to say that foreseeability of harm is relevant only to breach of that duty, but it is not relevant to the existence of that duty, which "arises from the relationship of schoolmaster and pupil."[67] It has since been established, in Geyer v Downs[68] that this duty, which centred in this case around the question of adequate supervision, commences from the time the school gates open in the morning, irrespective of whether this is outside normal school hours or not.
40. In cases where such a special relationship has been established, the defendant will also owe a duty of care to all those whom it is reasonably foreseeable may suffer injury or damage if he or she fails to take reasonable care to control the party wit h whom the defendant has a special relationship. It was held, in Dorset Yacht Co. Ltd v Home Office[69] that the defendant prison authority owed a duty to the plaintiff company to "take such care as in all the circumstances was reasonable in the hope of preventing ... damage to the company"[70] by the boys under the defendant's care and control. In a sense, this provides another avenue for tort law to protect children, in that it prevents liability attaching to children for committing acts they may not be aware are wrong, or may not be capable of being aware of consequences which may flow from their actions.
41. However the English courts have prevaricated in considering the nature of any duty owed by a school to parents. In Van Oppen v Clerk to the Bedford Charity Trustees[71] the Court of Appeal was confronted with a pupil seriously injured playing rugby football at school only five months after the mooted introduction of an obligatory insurance scheme for personal accident insurance for pupils that would cover all sporting activities, but before the actual introduction of the scheme. The Court of Appeal refused to impose a greater duty on the school in relation to a pupil than rested on the pupil's parents. The circumstances were not seen to give rise to a duty on the school to have regard to its pupils' economic welfare by advising on the dangers of th e football or taking out insurance. In the absence of such a duty on the school, it could not be said to have voluntarily assumed a duty to advise parents on the question of insurance against injury. Quite why the case was characterised as an economic lo ss case is not clear: had it been seen as physical injury the issues would have been more straightforward. However, under "Hedley Byrne" the reliance principle could have been expanded. In any event, there was considered to be no evidence that the parent s relied on the school for advice in connection with insurance against personal accident. Accordingly, the defendant school trustees were held not liable in negligence.
42. It cannot be overemphasised that what is particularly interesting about this case is the influence of the Hedley Byrne reliance analysis upon the legal outcome. Whether the plaintiff or his father actually relied upon the school to give advice or t ake out insurance was considered material (by the trial judge and in the Court of Appeal) in assessing the scope of the duty owed by the school to the plaintiff. The plaintiff was, of course, contending that a duty existed not only to take reasonable care for his health and safety as a pupil at the school but further to provide information. This duty was said to arise from a general obligation on the school to have regard to the economic welfare of the pupils in its care. Another related duty - to advise - was claimed to advise either as a consequence of failure to provide information or as a result of the actions of the school's officers in relation to the insurance issue. The third claimed duty - to insure - was said to arise either as a consequence of the failure to advise or again as a result of the actions of the school's officers. The plaintiff's case is summarised by Balcombe LJ as depending on the existence of either: (a) a duty to have regard to the economic welfare of its pupils arising from the relationship of school and pupil; or (b) a duty arising from an assumption by the school of specific responsibility in relation to personal accident insurance.[72]
43. Therefore the court considered whether liability in negligence can ever arise under Hedley Byrne principles where there has been a mere failure to speak or a failure to provide information in the school situation. The two essential conditions for t his had been formulated in Banque Keyser Ullmann S.A v Skandia (UK) Insurance Co. Ltd[73] as a voluntary assumption of a responsibility and reliance on that assumption. In the instant case, the school's obligations are narrowly confined:
"A duty to insure is not a necessary adjunct to its primary undertaking to educate; a duty to take reasonable care of person and property whilst the pupils are in its charge clearly is."[74]
Furthermore, according to Balcombe LJ, the results of the imposition of the duty to insure or protect economic welfare which was contended in Van Oppen would be to enlarge the scope of the duty resting upon the school. The case clearly illustrated a pro blem with the increasing use of the term proximity as legal currency in the determination of both duty and breach of duty. For it is clearly acknowledged by the court that there was a proximity between Bedford School and the pupil. For Croom-Johnson LJ su ch proximity "unquestionably"[75] exists. But the "only question"[76] is the scope of the school's duty to the plaintiff. No duty exists to prevent economic loss to the pupils.
44. The question of a duty of care owed by a teacher to a pupil was also considered under English law recently in Hippolyte v Bexley London Borough Council,[77] where a sixteen year old pupil suffered severe brain damage following an asthma attack whil e at school. The plaintiff alleged that the brain damage could have been avoided by the exercise of reasonable care by the teacher, namely that calling an ambulance some half an hour earlier than one was in fact called. The main issue considered at tria l was that of foreseeability: was it foreseeable that the plaintiff's condition could worsen to such an extent that injury of the type that occurred should have been foreseen by the teacher? The court held that, given the fact that the incident took plac e in 1986, when knowledge of the dangers of asthma was limited, the teacher was not in breach of duty, as a reasonable teacher in loco parentis would not have foreseen the events that took place. The plaintiff also argued that the school had negligently failed to provide the teacher with information about the plaintiff's medical condition. This argument was rejected on the facts, as the court considered that the plaintiff's previous hospitalisations would have meant very little to the teacher.
45. One interesting point raised in that case was an argument put forth by the defendants based on the decision in Gillick v West Norfolk Area Health Authority.[78] In Gillick, the House of Lords held that as a child's capacity and maturity grows, p arental power to consent to medical treatment on behalf of that child diminished proportionally. In Hippolyte, the defence argued that an education authority owes no duty to take affirmative steps to obtain medical attention for a pupil over sixteen, o r for a pupil under sixteen, where that pupil is of sufficient competence, even though that pupil may require urgent medical attention. However, the court held that Gillick was irrelevant to the instant case, as it is well established that a teacher ma y owe a pupil a duty to take positive steps to protect the pupil from harm. Therefore, the court held that notwithstanding the Gillick principle, a school and its teachers owe a duty of care to pupils in their care, and this will require them to summon medical assistance where it appears necessary. On the facts, however, it was considered that this duty had not been breached given the state of knowledge about asthma at the time of the actual incident. However, it must be noted that should that situat ion arise today, where general knowledge of the dangers of asthma is far more widespread, the finding may well be different. One might query who, at any stage, has a duty with regards to childrens' economic welfare.
Duty attaching to parents?
46. As has been noted, the parent/child relationship may fall within the ambit of the special relationship principles outlined above. The Supreme Court of South Australia held, in Robertson,[79] that while a duty of care may arise if a parent's actions create risk of injury to the child, the familial relationship does not in and of itself give rise to a duty of care from the parent to the child. This appears to be based on the view that it is "somehow "wrong" for a child to sue its parents".[80] Howeve r, Davies suggests that it is "questionable" whether this decision is consistent with the High Court decision in Geyer.[81] It is interesting to note that while the principles concerning harm to third parties have been applied in the case of a parent/ child relationship, the court in Curmi v McLennan[82] appear to base this on the duty owed by someone providing a dangerous object rather than on the bases of a special relationship between a parent and a child.
Child Sexual Abuse
47. In a recent paper, Graycar and Morgan have drawn attention to a particular deficiency in the law, even if we should reach the point where childhood sexual abuse might realistically be appropriately categorised as a legal harm.[83] It is that "the dy namics of abuse that delay knowledge raise particular legal difficulties in relation to the time limits within which a civil action for compensation may be brought against the person responsible."[84] In this regard, the authors point to the critical dif ferences in approach to the issue of when a cause of action accrues in the Canadian case of M(K) v M(H)[85] where an incest victim brought an action against her father for damages for abuse suffered from age 8 until leaving home at 17. The Supreme Cour t of Canada view is contrasted with that of the Australian and English courts, for it was decided that a cause of action accrues "at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history."[86] The court talks in terms of responsibility for the wrong and sees the cause of action as accruing when the victim becomes fully cognisant of the nature of the wrong, and hence recognises who bears responsibility for the wrong. By this reasoning, the t ort claim "does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and the plaintiff's injuries."[87]
48. There have now been several cases decided in the United Kingdom which have been curiously expansionary in imposing a duty of care upon local authorities even while reaffirming that "the law of England recognises a category of government decisions whi ch are not justiciable in tort."[88] The finding of a breach of duty may be positioned against the seriousness of the harm in at least one recent case which involved physical injury to children. The injury was caused by the negligent register of child mi nding information. In T (a minor) v Surrey County Council[89] the local authority failed to de-register a child minder although a child left in her care had suffered severe unexplained injury. T's mother placed him with the child minder after ascertain ing that the carer was registered and the child suffered extremely serious injury. T's claim against the local authority for personal damages was based on (i) breach of statutory duty for failure to cancel the registration of the child minder in complianc e with the 1948 Act, (ii) breach of a common law duty of care for failure to cancel the registration and (iii) negligent misstatement by the local authority's officer. A claim was also made against the child minder for breach of contract, negligence and a ssault.
49. The claim for breach of statutory duty failed, as the court maintained the reluctance to impose on local authorities liability for breach of statutory duty other than that expressly imposed in the statute. The issue of breach of statutory duty and co mmon law negligence in respect of the exercise of power by a local authority under the 1948 Act are considered by the court to run in parallel. The Council was therefore under no common law duty to take reasonable care in the exercise of their obligations to register or de-register child minders. The instant situation of the local authority actually informing a parent that there was no reason why a child should not be placed in a particular child minder's care where the local authority knew or ought to ha ve appreciated that there was a significant risk in placing the child in that person's care might however be liable for negligent misstatement.
Council had information which an inquiring parent could reasonably expect would be passed on
50. The decision stems directly from the application of the principles in Hedley Byrne. This requires reliance and a special relationship or voluntary assumption of responsibility, although all may be subsumed within proximity. The local authority offi cer is censured for placing the interests of the child minder above what should have been the child's "paramount"[90] interest. Crucial to the breach of duty in this case is the fact that the local authority was in possession of "information which an inq uiring parent could reasonably expect would be passed on."[91] The case is a particularly enlightening one, in that it had already been pointed out in X and ors (minors) v Bedfordshire CC[92] that no tort of negligence by a local authority towards childr en had been recognised. Indeed, Hodgson has written of the change of tone and extremely "orthodox" line of reasoning by Lord Browne-Wilkinson in Bedfordshire.[93] Justice Scott Baker is cautious in T v Surrey County Council in deciding therefore tha t a duty does exist in the instant case, for it is "breaking new ground."[94] The effect of the recognition of the duty is seen not to hinder the increasingly wide measure of power and responsibility over children entrusted to local authorities by Parlia ment but rather "to bring a particular, but limited, category of child under the umbrella of the duty leaving others outside."[95]
A special relationship of proximity due to reliance upon the information and advice: a stronger position where the harm suffered is physical
51. The duty imposed is one that "falls four square"[96] within the principles laid down in Hedley Byrne v Heller, for the local authority officer acted as the authority's nursery and child minding adviser, and was the only person employed in that area . He was consulted and spoke as a professional officer possessed of special knowledge and responsibility. He knew, or ought to have known, that what he said would be relied upon. Finally, what was said related directly to the safety of the infant plaintif f. These circumstances are seen by Scott Baker J to give rise to a special relationship of proximity between the local authority officer and the plaintiff. Further, the plaintiff's position is stronger due to the suffering of physical injury rather than m ere economic loss.
The Local Authority as Protector?
52. In X (minors) v Bedfordshire CC two cases confronted the House of Lords. In the Bedfordshire case the plaintiffs were five children of the same parents, who sued by the Official Solicitor as their next friend. There was evidence of extensive negl ect of the children, and the defendant council was the local authority responsible for social services in the area where the children lived. There had been many reports to the department at certain periods of the children's lives, commencing in 1987, indi cating that the children were at risk, including the risk of sexual abuse. A case conference held in January 1991 decided not to place any of the children on the child protection register.
The Newham case
53. This case was brought by a mother and daughter as a result of dealings with the local authority's social services department and health authority. The precise claim related to a misunderstanding on the part of a psychiatrist and social worker who int erviewed the child following a social worker expressing concern that the child was being sexually abused. The professionals wrongly interpreted the child's interview and thought that the abuser of the child was the mother's current boyfriend. However, tha t man simply had the same name as the actual person to whom the child referred, who was a cousin who had once also lived in the mother's house. It was felt that the mother could not protect the daughter from further abuse and the mother and child were sep arated, and the child being placed with foster parents. It was not until nearly a year later that the mother saw a video recording of the child's interview with the professionals and realised that the identity of the alleged abuser had been the result of confusion over the names of the relative once resident in the house and the name of the boyfriend. The mother and child alleged that the failure to investigate the mother's domestic circumstances fully led to the professionals making this mistake and both mother and child claimed that the enforced separation caused them to suffer a positive psychiatric disorder diagnosed as anxiety neurosis. The negligence claim was essentially based upon the professionals' alleged failure to fully investigate the facts w ith due care and thoroughness and failure to discuss their conclusions with the mother.
54. At various points, the mother and father of the children asked that they be taken into care for adoption. At one point the mother told the county council that should the children not be taken from her, she would batter them. The children were, as a r esult, placed with foster parents and placed on the child protection register. However, the council took no steps to seek care orders, although it did accept that they should not return to live with their parents. Final care orders were in fact made by th e council in 1993 and the children commenced these proceedings soon after.
Liability of child care and educational special needs professionals
55. The Court of Appeal had unanimously decided in both child abuse cases that the claims based on breach of statutory duty simpliciter should be struck out, but was divided on the issue whether the local authorities and the professionals (in the Newham case) were under any duty of care whether direct or vicarious. Staughton and Gibson LJJ held that there was no common law duty owed either to the child or the mother. However, Sir Thomas Bingham MR agreed that the mother's claim could not succeed but co nsidered that a duty of care could be owed to the children.
56. Lord Browne-Wilkinson referred briefly to the Court of Appeal decision then turned to the statutory framework to the appeals. Various pieces of legislation had been set in train to provide protection for children in need of care and protection. The Children and Young Persons Act 1969 placed a duty of care on the local authority in relation to the care order in care proceedings it could pursue if it received information suggesting grounds for bringing those proceedings. The Child Care Act 1980 pro vided a duty in respect of the local authority making available advice, guidance and assistance to promote the welfare of children by diminishing the need to receive children into or keep them in care, and also gave the Secretary of State power to direct an inquiry in relation to the child care services.[97]
57. The Children Act 1989 came into force on 14 October 1991 and was therefore relevant to the later stages of the Bedfordshire case. Part III of that Act includes provision for the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need and to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children's needs. The local authority is to take various reasonable ste ps to safeguard the child's welfare, including to apply to the court for a care order. A statutory complaints procedure relating to all the local authorities duties and functions under the Children Act 1989 had also been established in April 1991.
58. The Local Authority Social Services Act 1970 provided that local authorities shall exercise their social services functions in accordance with the general guidelines of the Secretary of State, this including the child welfare functions of a local a uthority.[98] Guidance had been provided with a publication called Working Together Under the Children Act 1989 (1991) which publication possessed "statutory force."[99] This emphasised the need for inter-disciplinary and inter-agency links, as well as providing for the child protection conference bringing professionals and family together and subsequently deciding whether the child should be put on the child protection register.
59. Lord Browne-Wilkinson expresses the view that this statutory scheme is "concerned to establish an administrative system designed to promote the social welfare of the community."[100] There is no indication in the language of that statutory scheme, h owever, of any intention to create a private law cause of action. Lord Browne-Wilkinson concedes that the legislation was introduced "primarily for the protection of a limited class"[101] that is, children at risk, and that the duty imposed is not a speci fic one. Other factors militate against any intention to create a private law cause of action:
"The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts."[102]
Furthermore, in relation to the "Bedfordshire" case, all the statutory provisions relied upon are made dependent upon the subjective judgement of the local authority:
"To treat such duties as being more than public law duties is impossible."[103]
60. It is indisputable that to impose negligence obligations in this area may result in overaction when the aim has simply been to produce some action to counter neglect. Further, if there is no private law duty imposed upon the parents, or at least no enforceable one, should we impose one on the public authorities, who are acting in loco parentis? That is to say, could it be said that to place greater obligations on authorities than the parties they are acting in place of is too onerous a burden?
61. What is clear is that it might be argued that there are now recognisable pockets of local authority case law[104] and, further, pockets of case law dealing with what has come to be known as breach of statutory duty. In relation to breach of statutory duty, Lord Browne-Wilkinson recently classified private law claims for damages into four different categories in X (minors) v Bedfordshire County Council.[105] The precise aim of such a classification was to "set out a logical approach to the wide ran ging arguments"[106] confronting the House of Lords. The four categories are (i) actions for breach of statutory duty simpliciter (irrespective of carelessness); (ii) actions based solely on the careless performance of a statutory duty in the absence of a ny other common law right of action; (iii) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (iv) misfeasance in public office (the failure to exercise, or the exercise of, s tatutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.
62. In the first category, no common law duty of care is alleged and Lord Browne-Wilkinson interprets the decision in Home Office v Dorset Yacht Co. Ltd[107] to mean that the careless performance by the officers of statutory functions does not provide a defence to the common law claim. Careless exercise of a statutory duty or power provides no defence to claim based on a "free-standing common law cause of action."[108] This, in Lord Browne-Wilkinson's view, is also the best interpretation of Geddis v Proprietors of Bann Reservoir.[109]
Common law duty of care
63. In the category of common law duty of care, the claim alleged either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act, or (more often) that in the course of carrying out a statutory duty the defendant brought about such a relationship between themselves and the plaintiff as to give rise to a duty of care at common law. This claim was varied by the plaintiff also claiming that whether or not the authority owed them a duty of care, its servant in the course of performing the statutory function was under a common law duty of care and the authority was vicariously liable for breach of that duty. Lord Browne-Wilkinson suggests the impossibility of identifying any general principles applicable in determining the circumstances in which the law would impose a common law duty of care arising from the exercise of statutory powers or duties. Further, His Honour asserts that neither the wide range of authorities nor academic writings assist in formulating "any such principle de novo."[110] For statutory duties "now exist over such a wide range of diverse activities and take so many different forms that no one principle is capable of being formulated applicable to all cases."[111] Certain points of importance are, however, identified as significant in the resolution of this issue.
Co-existence of statutory duty and common law duty of care
64. The first factor is the "broad distinction"[112] between cases where it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion and cases in which it is alleged that a duty of care arises from the manner in which the statutory duty has been implemented in practice. This point is illustrated with reference to the difference between a decision whether or not to exercise a statutory discretion to close a school and the actual running of a school pursu ant to the statutory duties. A common law duty to take reasonable care for the physical safety of the pupils will arise in the latter case because of the proximate relationship between a school and the pupils it has agreed to accept. The distinction is be tween taking care in exercising a statutory discretion whether or not to do an act and having decided to do that act, taking care in the manner in which it is done.
Discretion, justiciability and the policy/operational test
65. Rejecting Lord Diplock's infusion of public law principles into the decision in the Dorset Yacht case[113] and Lord Wilberforce's similar hints in Anns v Merton London Borough Council,[114] Lord Browne-Wilkinson suggests that public law concepts have no relevance to the issue of liability at common law for negligence. Should a decision be made outside the ambit of the discretion altogether, this may help as a first requirement in establishing that a local authority is liable at common law for neg ligence in the exercise of a discretion conferred by statute. If it was not, the local authority cannot be in breach of any duty of care owed to the plaintiff. The court in deciding whether or not this requirement is satisfied has to assess the relevant f actors taken into account by the authority in the exercise of its discretion. This will often involve the identification of "policy" matters and it is established that the much of these matters are not open to the courts' scrutiny.
What if justiciable? The ordinary principles of negligence apply
66. The critical distinction is therefore between a plaintiff's complaint alleging carelessness not in the taking of some discretionary decision to do some act, but in the "practical manner in which that act has been performed."[115] Such a case is det ermined through the application of the usual principles: the test laid down in Caparo Industries plc v Dickman[116] therefore requires asking whether the damage to the plaintiff was reasonably foreseeable, whether the relationship between the plaintiff and the defendant was sufficiently proximate, and whether it is just and reasonable to impose a duty of care.[117]
67. While applying these familiar principles, Lord Browne-Wilkinson notes that the question whether there is and the ambit of, a duty of care must be "profoundly influenced"[118] by the statutory framework within which the acts complained of were done. T he situation is seen to be "directly analogous"[119] to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. Following the line of reasoning in Henderson v Merrett Syndicates Ltd,[120] where A (the managing agent) had contracted with B (the members' agent) to render certain services for C (the names) and owed a tortious duty of care to C in the performance of those services, that tortious duty could not be inconsistent with the duty ow ed in contract by A to B. Transposing this to the instant case, the common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty would be inconsistent with, or have a tendency to discourage, the due performance o f the local authority's statutory duties.
Direct liability and vicarious liability
68. It has already been noted that certain of the claims in this case were based on the vicarious liability of the local authority for the negligence of its servants. In the Newham case it was alleged solely that two professionals assigned to the case owed professional duties of care to the plaintiff for the breach of which the authorities as their employers should be vicariously liable. Lord Browne-Wilkinson confirms the potential liability of the authority for the negligence of its servants, illustra ting the point with reference to `the hospital cases."[121] Hodgson has observed that the whole approach in the Bedfordshire case is "very orthodox" for the reliance upon traditional doctrine on the extent of breach of duty and common law duties based on reliance.[122] The approach is different from that taken in other recent major cases, notable Spring, Henderson and White v Jones, which all emphasised a Hedley Byrne assumption of responsibility. For Hodgson the key difference may lie in the lack of contractual nexus in Bedfordshire and its prominence i n the other cases which tended to "extend and exalt the role of the assumption of responsibility."[123]
Other local and public authorities
69. It is clear from the cases just outlined that guidelines in this area will not be readily available from the courts. Some of the incoherence in this area stems from the long-standing elevation of negligence claims against public authorities to a spe cial category.[124] Underpinning this, and of increasing significance in recent cases, is the policy/operational distinction whereby discretionary decisions remain outside the ambit of negligence scrutiny. The essence of policy decision making lies in i ts resource based core, but the case law is far from coherent on the matter.[125] There are several other vital cases that indicate the reluctance to impose a duty of care.
70. In Hill v Chief Constable of West Yorkshire[126] the House of Lords was confronted with the negligence obligations of the public authority entrusted with that public duty (police) in relation to the protection of citizens against criminal activity. The mother of the last murder victim of the so-called "Yorkshire Ripper" brought an action in negligence claiming that the police had failed in their duty to exercise reasonable care and skill to catch the criminal and protect vulnerable future victims. The victims had all been young women, and the court had to assume that the murder of this last young woman would have been prevented had reasonable care been exercised by the police in the pursuit of their duties.[127] The specific allegation in the ca se was that the police "negligently failed to collate properly information in their possession pointing to the criminal as a likely suspect, as well as failing to give due weight to certain pieces of information."[128] The House of Lords decided that no duty of care was owed by individual members of a police force, in the course of controlling the incidence of crime, to individual members of the public who may suffer injury to person or property through the activities of criminals, such as to result in l iability in damages, on the grounds of negligence, to anyone who suffers injury by reason of breach of that duty. In its discussion, Lord Keith looked at the concept of special relationship formulated in the Dorset Yacht case[129] and affirmed the stre ngth of policy considerations mitigating against imposition of a duty.
71. Howarth[130] has been particularly critical of this approach, arguing that Lord Keith's reasoning in Hill involves "subterfuge" and "disguise". Englard considers Howarth "too harsh" on the Law Lord and counter argues: "In all fairness, the decisio n should be read as a unity, and on the background of the reasons given in the judgements of the Court of Appeal."[131] However, Englard is critical of the decision in Hill for other reasons, particularly for its disregard for the corrective justice fu nction of tort liability.[132] Certain special relationships will be recognised as involving and requiring special assurance and protection for vulnerable parties, but in this area neither children, nor the rest of the community can find much that is rea ssuring about the case law. Indeed, in this area, economic loss seems to figure more prominently in successful actions than care and protection of young lives.
72. It is the writers' contention that looking at this selection of case law means confronting the need for tortious remedies for a range of harms. The decision in Khorasandjian causes us to reflect upon another possible legal avenue for dealing with t hreats and fears of domestic violence. It causes us to reflect upon an increased judicial awareness and recognition of the much referred to (in feminist analysis) difference in the types of harms women and young children experience. It is also important b ecause it causes us to reflect upon a possible protection against general harassment or bullying in a range of social contexts. This might include street harassment, it might include harassment at work and it might include stalking. There is now some deba te about the possible use of torts in the bullying context which, contra MacKinnon, would remove the gender based focus of sexual harassment.[133]
73. Were we to think more broadly about our uses of the law of torts, we would have to confront Abel's contention which can also be linked to feminist contentions. It is that:
"Tort law fails almost entirely to pass moral judgement on the infliction of risk and injury. Negligent behaviour is a public as well as a private wrong since it endangers many people besides the chance victim."[134]
Yet confronted with shrinking public resources, there is a prevailing reluctance to impose liability upon public authorities and little consideration seems to be given to parental obligations. Perhaps it is appropriate at this stage to look to human righ ts law and to the volume of protections developed in relation to criminal trials. Why has there been no comparable formulation as regards childrens' economic and social welfare?
74. Clearly the law of torts may provide only minimal protection to children from the range of harms that await them in our community. But as a community, what are we to make of the recent private law extensions effected by White v Jones[135] (solicito r liable to intended but deprived beneficiaries for tardiness in preparation of will) and Spring v Guardian Assurance[136] (employer liable to erstwhile employee for careless preparation of a reference)? What do we make of the clear indication that pub lic bodies having a protective function are public bodies where a tort duty has not been imposed, even in cases involving identifiable plaintiffs?[137] What are we to make of the denial of recovery in these direct contemplation cases when White v Jones has been heralded as a "clear contemplation" case. Is an intended benefit under a will really more worthy of remedy than protection from physical harm? Further, if the law is to be confined to the private context, what about parents? In what context o ught we to consider the responsibilities of parents? In some respects, their power seems overwhelming, yet according to the Swedish Public Inquest of Power, parents of children in school are, together with patients in the health care system, "the most powerless groups in our society."[138] Ought we not, as a community, to also be questioning the dimensions to the democratisation of parents and children as citizens? Perhaps it is apt to refer to another more conceptual possibility by way of conclusion . For if the law cannot "accommodate all the untidy complexity of life"[139] then the boundaries of the law of torts, and negligence in particular, must always be tested. What of an adaptation and extension of the attempt in Eland[140] to extend liabil ity in negligence to the supreme legislative body for failure to intervene in social problems? This initiative, had it been successful, could have paved the way for further massive inroads, through negligence, into the sphere of policy decisions. We might have been able to challenge the organisation of work whereby some families with children have too much work and too little time and many other families have the reverse, as well as too little income. Could we, through the law of torts, insist upon more time for children?
1. This is a revised version of a paper presented by BA Hocking at the Crime Prevention Conference, Griffith University, Faculty of Justice Administration, August, 1994. Thanks are due to the Conference Organisers and to Elaine Abery for providing some of the research material. Thanks also to the Lionel Murphy Foundation for financial support to BA Hocking in 1988 and 1989. [return to text]
2. Hocking, BA, "Creating Care for Children" (1992) Alternative Law Journal 27. [return to text]
3. (1985) 60 ALR 1. [return to text]
4. Hilson, C.J. and Rogers, W.V.H, "X v Bedfordshire County Council: Tort Law and Statutory Functions - Probably Not the End of the Story" (1995) 3 Torts Law Journal 221, p 232. [return to text]
5. Sawer, M. "The Battle for the Family: Family Policy in Australian Electoral Politics in the 1980s" (1990) 25 Politics 48 p 48. [return to text]
6. Bainham, A. "Legislation - The Privatisation of the Public Interest in Children" (1990) 53 The Modern Law Review 206. [return to text]
7. Neave, M "Private Ordering in Family Law - Will Women Benefit?" in Thornton, M (ed.) Public and Private Feminist Legal Debates, Melbourne, OUP, 1995, p 145. [return to text]
8. Cohen, B. and Fraser, N. Childcare in a Modern Welfare System (1991) IPPR Social Policy Paper No. 6. [return to text]
9. Ibid. p iii. [return to text]
11. Coote, A., Harman, H. and Hewitt, P. The Family Way (1990) IPPR Social Policy Paper No. 1. [return to text]
12. Cohen and Fraser, op. cit. p 5. [return to text]
13. Ibid. p 29. [return to text]
14. Ibid. p 24. [return to text]
15. Ibid. p 29. [return to text]
16. See Burton, C. The Promise and the Price: The Struggle for Equal Opportunity in Women's Employment (1991); Cass, B. Dawson, M. Temple, D. Wills, S. and Winkler, A. Why so Few? Women Academics in Australian Universities (1983); Scutt, J. Women a nd the Law (1990); Graycar, R. and Morgan, J. The Hidden Gender of Law (1990). [return to text]
17. Coote, Harman and Hewitt, op. cit. p 50. [return to text]
19. Ibid. p 50, quoting from Hansard, 26 June 1990, col. 189. [return to text]
20. Guardian, 12.12.91. [return to text]
21. Douglas, G. "Family Law under the Thatcher Government" (1990) 17 Journal of Law and Society 411 at p 418. [return to text]
22. Bell, S. "Ended: the family terror of a knock at dead of night" The Sunday Times 6 October 1991 p 2. [return to text]
24. Williams, J. The Children Act 1989: The Public Law, Fourmat Publishing, London (1991) p 5. [return to text]
25. In Introduction to The Children Act HMSO, London. (1989) p 5. [return to text]
26. Smith, R. (1991) "Child Care: Welfare, Protection or Rights?" 6 The Journal of Social Welfare and Family Law p 469. [return to text]
27. Orr, G, "Is an Inkeeper Her Brother's Keeper?" (1995) 3 Torts Law Journal 239, p 252 referring to Bender, L, "A Lawyer's Primer on Feminist Theory and Tort" (1988) 38 Journal of Legal Education 3, pp 30-36. [return to text]
28. [1993] 3 All ER 669. [return to text]
29. Headnote. [return to text]
30. Domestic Violence and Matrimonial Proceedings Act 1976 (UK) s 1(2). [return to text]
31. [1993] EWCA Civ 18; [1993] 3 All ER 669 at 675. [return to text]
32. 73 DLR (3d) 62 (1976). [return to text]
33. 73 DLR (3d) 62 at 67. [return to text]
34. 73 DLR (3d) 62 at 78. [return to text]
36. [1992] 1 FLR 525. [return to text]
37. [1897] 2 QB 57. [return to text]
38. [1993] EWCA Civ 18; [1993] 3 All ER 669 at 683, per Peter Gibson J. [return to text]
39. [1993] EWCA Civ 18; [1993] 3 All ER 669 at 683. [return to text]
40. [1993] EWCA Civ 18; [1993] 3 All ER 669 at 685. [return to text]
42. [1993] EWCA Civ 18; [1993] 3 All ER 669 at 677. [return to text]
43. [1991] 4 All ER 907. [return to text]
44. [1991] UKHL 5; [1991] 4 ALL ER 907 at 931. [return to text]
45. Stanton, K. "Harassment: An Emerging Tort?" (1993) Tort Law Review 179 p 179. [return to text]
48. Noble, M. "Harassment - a recognised tort?" (1993) New Law Journal (Nov 26) 1685 p 1686. [return to text]
49. Cooke, E. "A Development in the Tort of Private Nuisance" (1994) 57 The Modern Law Review 289 p 293. [return to text]
51. Cretney observes that by the Law Commission's statutory list of those entitled to seek protection against molestation, "the groupie of man or woman scorned is to remain free to behave in as uncivilised a way as the law of torts permits." Cretney, S . M. "Being a Nuisance" (1993) 109 The Law Quarterly Review 361 p 363. [return to text]
52. Ibid., p 295. [return to text]
53. Bennett, L. "Ideology in Australian Judicial Practice: A Non-Reductionist Account of a Jurisdictional Issue in Labour Law" (1989) 17 International Journal of the Sociology of Law 207 p 216. [return to text]
54. Sinha, S. "Sexual Harassment and the Common Law" (1993) 18 Alternative Law Journal 58 p 61. [return to text]
55. Graycar, R. and Morgan, J. (1990) The Hidden Gender of Law p 354. [return to text]
56. Ibid., p 355. [return to text]
57. As for example, under the Queensland Domestic Violence (Family Protection) Act 1989. [return to text]
58. Queensland Act, section 12(1). [return to text]
59. Criminal Law Amendment Act 1993 s 359A(2). [return to text]
60. [1985] 2 NSWLR 649. [return to text]
61. [1985] 2 NSWLR 649 at 651. [return to text]
62. Stapleton, J. "Duty of Care and Economic Loss: A Wider Agenda" (1991) 107 Law Quarterly Review 249. [return to text]
63. Spring v Guardian Assurance [1994] 3 All ER 129. [return to text]
64. Robertson v Swincer [1989] SASC 1758; (1989) 52 SASR 356 at 361, per King CJ. [return to text]
65. [1969] VR 136. [return to text]
66. Id, at 138-141. [return to text]
68. (1977) 138 CLR 91. [return to text]
69. [1970] AC 1004. [return to text]
70. Ibid., at 1038-9. [return to text]
71. [1990] 1 WLR 235. [return to text]
72. Ibid. at 251. [return to text]
73. [1989] 3 WLR 25. [return to text]
74. [1990] 1 WLR 235 at 261. [return to text]
75. Ibid at 266. [return to text]
77. [1995] PIQR 309. [return to text]
78. [1986] AC 112. [return to text]
79. (1989) 52 SASR 356. [return to text]
80. Balkin, RP & Davis, JLR, (1991) Law of Torts, Butterworths, Australia p 221. [return to text]
81. Davies, M, (1995) Torts (2nd ed.) Butterworths, Australia p 176. [return to text]
82. [1994] 1 VR 513. [return to text]
83. Graycar, R and Morgan, J "Disabling Citizenship: Civic Death for Women in the 1990's" (1995) 17 Adelaide Law Review 49. [return to text]
84. Ibid, p 66. [return to text]
85. [1992] 3 SCR 3. [return to text]
86. Ibid at 35 per LaForest J. [return to text]
87. Ibid at 7. [return to text]
88. Cane, P, "The Inexorable Advance of Negligence" (1995) 3 Torts Law Journal 205, p 211, referring to X v Bedfordshire County Council [1995] 3 All ER 353. [return to text]
89. [1994] 4 All ER 577. [return to text]
90. Ibid, at 593. [return to text]
91. Ibid, at 594. [return to text]
92. (1993) Times 24 November, (1994) 4 All ER 602. [return to text]
93. Hodgson, J, "Hedley Byrne - A New Sacred Cow?" (1995) 4 Nottingham Law Journal 1, p 2. [return to text]
94. [1994] 4 All ER 577 at 599. [return to text]
96. Ibid at 601. [return to text]
97. Lord Browne-Wilkinson notes that those were the only directly relevant statutory duties in force during the events complained of in the Newham case. (1995) 3 All ER at 376. [return to text]
98. Ibid, at 378. [return to text]
100. Ibid. [return to text]
101. Ibid. [return to text]
102. Ibid. [return to text]
103. Ibid, at 379. [return to text]
104. This draws upon Stapleton's identification of pockets of economic loss case law in "Duty of Care and Economic Loss: A Wider Agenda" (1991) 107 The Law Quarterly Review 249. [return to text]
105. [1995] 3 All ER 353. [return to text]
106. Ibid, at 372. [return to text]
107. [1970] 2 All ER 294; [1970] AC 1004. [return to text]
108. [1995] 3 All ER 353 at 366. [return to text]
109. (1878) 3 App Cas 430. [return to text]
110. [1995] 3 All ER at 368. [return to text]
111. Ibid. [return to text]
112. Ibid. [return to text]
113. [1970] UKHL 2; [1970] 2 All ER 294 at 332; [1970] UKHL 2; [1970] AC 1004 at 1068. [return to text]
114. [1977] UKHL 4; [1977] 2 All ER 492 at 501; [1977] UKHL 4; [1978] AC 728 at 755. [return to text]
115. Ibid. [return to text]
116. [1990] UKHL 2; [1990] 1 All ER 568 at 573-574; [1990] UKHL 2; [1990] 2 AC 605 at 617-618. [return to text]
117. [1995] 3 All ER 353 at 371, referring also to Rowling v Takaro Properties Ltd and Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; [1989] AC 53. [return to text]
118. [1995] 3 All ER 353 at 371. [return to text]
119. Ibid. [return to text]
120. [1994] 3 All ER 506; [1994] 3 WLR 761. [return to text]
121. [1995] 3 All ER 353 at 372, citing Gold v Essex CC [1942] 2 All ER 237 at 241; [1942] 2 KB 293 at 301 per Lord Green, Cassidy v Ministry of Health [1951] 1 All ER 574 at 584; [1951] 2 KB 343 at 359 per Denning LJ, and Roe v Ministry of Health [1954] 2 All ER 131; [1954] 2 QB 66. [return to text]
122. Hodgson, op. cit. p 1. [return to text]
123. Ibid, p 2. [return to text]
124. A principle with which Buckley takes issue: RA Buckley, The Modern Law of Negligence (London, 1988) at 218. [return to text]
125. For example, the "policy"/"operational" divide was formulated in Anns v Merton London Borough Council [1977] UKHL 4; [1978] AC 728, but the decision was overruled by the House of Lords in Murphy v Brentwood District Council [1990] 2 All ER 908. However, decis ions such as City of Kamloops v Nielsen (1984) 10 DLR (4th) 641 and Just v The Queen in right of British Columbia (1989) 64 DLR (4th) indicate that the Canadian higher courts are still prepared to follow Anns. In Just, the Supreme Court of Canada both applied Anns and reversed the British Columbia Court of Appeal's decision. It characterised the defendant Province's failure to keep a rocky area adjacent to a highway safe for drivers as an operational and not a policy decision. [return to text]
126. [1989] AC 53. [return to text]
127. Englard, I. The Philosophy of Tort Law Dartmouth, Aldershot, 1993 at 187, citing Hill at 58-9. [return to text]
128. Englard, op. cit. at 187. [return to text]
129. [1970] AC 1004. [return to text]
130. Howarth, D "Negligence After Murphy: Time to rethink" (1991) 50 CLJ 58. [return to text]
131. Englard, op. cit. at 197. [return to text]
132. Ibid. at 189. [return to text]
133. See Dine, J "Moving Harassment Away from Discrimination Law" (1995) Modern Law Review. [return to text]
134. Abel, R "A Critique of Torts" (1994) 2 The Tort Law Review 99 p 110. [return to text]
135. [1995] AC 145. [return to text]
136. [1994] 3 WLR 354. [return to text]
137. Hillson and Rogers, op. cit., p 233, noting that in both Osman v Ferguson [1992] EWCA Civ 8; [1993] 4 All ER 344 (where police were held not liable for failure to protect a schoolboy and his family from an obsessed teacher) and in Bedfordshire the plaintiff was ar guably a member of an identifiable class. [return to text]
138. Petersson, O, et al, Medborgarnas Makt [The Power of Citizens] (1989), pp 57-8. [return to text]
139. Smith v Littlewoods Organisation [1987] UKHL 3; [1987] AC 241 at 280 per Lord Goff of Chieveley. [return to text]
140. [1992] Aust Torts Reports 81-157. [return to text]
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