Tort XXVI - Causation XII

In Barrett (AP) v Enfield London Borough Council (1999) the plaintiff was placed in foster care and as a result he suffered from a psychological illness and turned out to be an alcoholic. The plaintiff sued the council for placing him in foster care on the grounds that he may have turned out to be a better person and may not have suffered from a psychological illness had he not been placed in foster care.

The foster care system is not without its faults and it is different from adoption. Under the system children are normally placed by the authorities concerned in the care of carers, groups homes or in the care of care-givers and in the past the system has attracted its fair share of criticism.

The question that is to be asked here is should the council be held responsible if the child is placed in the care of a family or a group home that isn’t quite suited to play the role of foster parents? The answer is yes and the plaintiff was successful. The council owed a duty of care to ensure that all children who were unable to live with their birth parents were placed in suitable homes or homes that were able to meet the standard of care that was required. Any allegations of misconduct by the carers or the council warrants and merits further investigation.

Prior to allowing anyone to foster a child there is a vetting process or an assessment process in place to allow potential foster parents to become acquainted with the duties of a foster parent and to understand what it expected of them and therefore should any foster parent or any foster providers contend that they were uncertain as to what was expected of them, the argument would not hold water.

Furthermore, there is a requirement or stipulation that periodical visits be paid to foster homes to ensure that the required standards are being met.

Is there further a voluntary undertaking of responsibility that imposes on foster parents a duty to ensure that reasonable care is provided for the children that are under their care?

It would appear so. We have to keep in mind that no one is forced or compelled to be a foster parent but having made the decision to do so, foster parents have a duty to provide reasonable care and likewise are entitled to enjoy all the rewards that come with foster parenting.

In Costello v Chief Constable of Northumbria Police (1999) a lady police constable was attacked by a prisoner and her senior officer failed to come to her aid. The plaintiff, the police constable who was attacked, sued. The question before the courts was does a duty of care exist between police officers that compels one officer to come to the aid and assistance of the other, when the other is in difficulty?

The court held that there was. There was a special relationship that existed between members of the police force that required them to assist one another. In addition to that it was also good public policy that police officers be seen to come to the aid of one another and when it comes to the police public perceptions are important.

We have previously discussed the type of risk that members of the protective services and members of the emergency services agreed to accept at the time they signed up and it is fair to say that one of the risks that they did agree to accept was to come to the aid of their colleagues should the circumstances allow or permit it.

In Gibson v Orr, Chief Constable of Strathclyde (1999) the plaintiff and his passengers while driving got on to a bridge that had collapsed as result of a severe rainstorm and the car they were driving in plunged into the river below. Two of the passengers were killed and another was injured. The police were informed that the bridge had collapsed prior to the accident but failed to erect suitable barricades or post warning signs. The plaintiff brought an action in negligence against the police.

Let’s examine the elements of duty, breach and causation. Per se the police do not owe members of the public a duty of care see Hill v Chief Constable of Yorkshire (1989) and Michael v Chief Constable of South Wales (2015) but in this instance the police were not acting in their capacity as police officers or as crime solvers but were rather acting in their capacity as public servants who were required to perform another duty that is more akin to an extension of a civic duty.

When there is an obvious danger to road users for example when there is work being done in a manhole or when construction workers had dug a hole to repair some cables there is a duty to ensure that the public is aware that work is being done and to give members of the public and other road users sufficient notice see Hughes v Lord Advocate (1963) and Haley v London Electricity Board (1965).

The court held that there was a duty of care and that the police had breached its duty by not posting any warnings or by not making any effort to inform other road users of the dangers that lay ahead. If could be said with some certainty that but for the negligence of the police the accident would not have happened. The plaintiffs were successful.

Copyright © 2019 by Dyarne Ward


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