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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.