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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