Tort XXVIII - Causation XIV
In
Phelps v Hillingdon London Borough Council (2000) the plaintiff was a young
student who suffered from dyslexia (a condition that makes learning difficult).
The plaintiff was not performing up to the expected level in school and with
the help of the local authority an educational psychologist was enlisted to
determine the causes of the plaintiff’s learning difficulties. The psychologist
failed to pick up that the plaintiff suffered from dyslexia and as a result the
plaintiff suffered from much emotional distress. The plaintiff sued and was
successful.
There
is a duty owed by the relevant authorities to ensure that children with
learning difficulties are given the help that they needed and that help would
have been possible and forthcoming if the cause of the child’s learning difficulty
had been identified. Addressing these problems at an early stage could make the
difference between a child achieving his or her full potential or falling short
of what he or she could become.
In
Kent v Griffiths (2001) an action was brought against an ambulance service for
arriving 30 minutes late. The plaintiff was suffering from an asthma attack and
was attended to by a doctor who advised those in attendance to call for an
ambulance. While the plaintiff was waiting for the ambulance she suffered a
respiratory arrest. 2 phone calls were made to the ambulance service by those
in attendance and they were informed that the ambulance was on its way. During
the trial, the doctor gave evidence that had he known that the ambulance would
be delayed he would have instructed the plaintiff’s husband to drive her to the
hospital.
It
was held that the duty owed by the ambulance service was similar to the duty
that was owed by other members or components of the emergency services and had
there been other demands on that day, the delay may have been excusable but
even then, the plaintiff or anyone else who called on her behalf should be
informed of the delay so that alternative transportation could be sought.
However,
having agreed to provide the service it was essential that the ambulance
arrived on time and the failure to do so required an explanation. The plaintiff
was successful.
In
L and another v The CC of the Thames Valley Police (2001) a mother alleged that
the father had sexually abused their son. An investigation was carried out and
it turned out that the mother suffered from a factitious disorder (Munchausen’s
Syndrome) and the allegations she’d made had been fabricated. The reports of
the allegations however had been made public or somehow came into the hands of
third parties and as a result the father claimed that he had been subjected to
much distress and sued. He was successful.
The
situation was comparable to a situation where there was a voluntary undertaking
of responsibility and that undertaking was given at the time the authorities
received the information, in that, it would be treated with confidentiality.
While
the authorities are well within their rights to investigate allegations of
child abuse, news or results of their investigations should not be made public
especially because it involves a minor.
It
is however fair to add that at times it is difficult to conduct investigations
in confidentiality and sometimes no matter how discreet the authorities are the
matter might inadvertently leak out especially if it is a lengthy investigation
which concerns questioning teachers, neighbors and anyone else who had come in
contact with the child. The problem with imposing a duty on the authorities
especially with regards to child abuse is that it might make them reluctant to
conduct investigations into allegations of child abuse.
While
public perceptions matter, they should not matter to the extent that they
supplant the rights of a minor or put the authorities in a position where
they’d be uncomfortable or unable to conduct an investigation.
We
can’t deny the fact that there are a number of cases that are fabricated but
there are also a greater number of cases that go unreported and sometimes it is
a matter of striking a balance between the rights of a minor and the rights of
an adult and when there is a conflict, the rights of the minor should prevail
i.e. if there are valid or legitimate grounds to conduct an investigation the
authorities should do so.
When
a case goes to trial, it is a matter of whether the allegations can be proven
or otherwise and in cases where there is no physical evidence it is difficult
to prove that the accused committed the act and sometimes even if the
investigators know that there has been some form of abuse, they might not be
able to prove it and the only option that may be available to them is to go
public. Some investigators would go to that extent if they believed that the
allegations were indeed genuine without worrying about the consequences or the
repercussions.
Copyright
© 2019 by Dyarne Ward
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