A claim in negligence based on the alleged failure of a social worker and a clinical psychologist to investigate properly alleged sexual abuse of a child by her father, fell within the scope of the common law duty of care enunciated by the New Zealand Court of Appeal in Attorney-General v Prince (1998) 1 NZLR 262.Appeals by two children ('D1' and 'D2') and their father ('B') against the striking out of their claim for damages in negligence. In 1988 D2 had told a friend at school that her father had sexually abused her. The Department of Social Welfare was notified and it began an investigation. A clinical psychologist, the second defendant, interviewed D1 and D2 in the presence of a teacher and a social worker, the third defendant. Consequently, the social worker laid a complaint under s.27 of the Children and Young Persons Act 1974 (New Zealand) and obtained a warrant for the removal of the children from B's care under s.28 of the Act. The children were placed in foster care. B did not know of these events until he was interviewed by police. B denied the allegations against him at all times and the police never laid any charges. The social worker arranged for the children to be examined by a doctor. The appellants' negligence claim was based on the alleged failure of a social worker and a clinical psychologist to investigate properly allegations that B had sexually abused D2. The claim was struck out at first instance and an appeal to the New Zealand Court of Appeal was dismissed. That court found that there was a temporal limit on the scope of the common law duty of care in Attorney-General v Prince (1998) 1 NZLR 262 such that the duty of care did not exist once the social worker had applied for a warrant under s.28 of the Act. In Prince the New Zealand Court of Appeal declined to strike out a negligence claim brought by a child on the basis of social workers' alleged failure to investigate a complaint that his adoptive parents were neglecting him. The Director-General was found to have a common law duty of care concurrent to his statutory duty under s.5(2)(a) of the Act to conduct a prompt inquiry into complaints of neglect of children.HELD: (1) There was nothing in Prince (supra) to suggest that the common law duty was less extensive in terms of temporal scope, than the associated statutory duty imposed on the Director-General by s.5(2)(a). The statutory duty to conduct an adequate inquiry did not end with the grant of a warrant and it required the Director-General to follow up further information that came to light whether or not it supported the abuse allegation. The fact that the police were also carrying out an investigation was not inconsistent with the Director-General's statutory duty to inquire. Therefore the common law duty of care in Prince was not limited to the "initial stage of deciding whether to arrange a 'prompt inquiry'" and arranging it if appropriate. (2) Given that a social worker owed a common law duty of care to a child, so must a clinical psychologist. (3) The relevant duty was owed to the child or young person in respect of whom the statutory duty for a prompt inquiry existed, namely D1 and D2 in this case. No common law duty of care was owed to B. It would be unsatisfactory and contrary to the rationale in the Prince decision to impose a duty of care in favour of both the alleged victim and the alleged perpetrator. (4) On the basis of the decision in Prince, it could not be said that D1 and D2 had no cause of action. (5) The appeal by D1 and D2 would be allowed and their claim would be permitted to proceed to trial. B's appeal was dismissed.Judgment accordingly.

[2003] UKPC 61

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