• In the case of W v Essex CC [2001] 2 A.C. 592, it was held that it was not sufficient for striking out purposes that a claimant might struggle to prove their case, but rather to consider whether, if the facts were proved, the claim would nevertheless fail. At this stage, it could not be determined whether the circumstances were outside the range of psychiatric injury recognised by the law at that time.

Facts of the Case

  • C were the parents of three children. In 1992 C were approved as specialist adolescent foster carers by D.
  • C expressly told the council and the social worker that they were not willing to accept any child who was known or suspected of being a sexual abuser.
  • Despite this, D placed with C a 15-year old who had admitted to indecent assault on his own sister and was being investigated for an alleged rape. C was not made aware of this, although this information was recorded on D’s files.
  • Between 7th April and 7th May 1993 serious acts of sexual abuse against C’s children were alleged.
  • It was also alleged that C and their children suffered injury as described in the reports of an independent child abuse consultant and a consultant child/adolescent psychiatrist.
  • D applied for all claims to be struck out. On appeal the children’s claims in negligence were maintained but C’s were struck out.

Issues

  • Did C’s claim disclose a cause of action that had a chance of succeeding in law, or did striking it out constitute an abuse of power by the courts?

Held by the House of Lords

  • Finding for C, that on the facts alleged regardless of their validity (which had not been demonstrated yet) it was impossible to say that the claim would not succeed so clearly as to justify striking it out.

Lord Slynn

  • In order to justify a claim being struck out, the question is whether the claim must fail if the facts are proven. It is not enough to say that there will be difficulties in establishing the facts are true.
  • It seems to me impossible to say that the psychiatric injury C claims is outside the range of psychiatric injury which the law recognises. As pleaded, it is clearly more than ‘acute grief,’ causing severe disruption in their daily lives and their marriage. Nor could I say that a person of reasonable fortitude could take such circumstances in stride without further investigation.
  • “I do not consider that any of the cases to which your Lordships have been referred conclusively shows that, if the psychiatric injury suffered by the parents flows from a feeling that they brought the abuser and the abused together or that they have a feeling of responsibility that they did not detect earlier what was happening, prevents them from being primary victims. Indeed, in Alcock [1992] 1 A.C. 310 [408F], Lord Oliver said ‘The fact that the defendant’s negligent conduct has foreseeably put the plaintiff in the position of being an unwilling participant in the event establishes of itself a sufficiently proximate relationship between them and the principal question is whether, in the circumstances, injury of that type to that plaintiff was or was not reasonably foreseeable” [601D].

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