I've included comments on the following news report at the end
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
"THE DOMINION POST"
28 July 2003
WOMEN CAN SUE, PRIVY COUNCIL SAYS
DAVID McLOUGHLIN
TWO Wellington women have won Privy Council backing to sue a social
worker and a psychologist they claim removed them from their father in
1988 after false allegations of sexual abuse.
In a just-delivered decision, the Privy Council overturned High Court
and Court of Appeal rulings that stopped the women suing for $550,000
damages each for upset to their lives and the trauma of being removed
from their father after one of them falsely made allegations of abuse
when aged five.
The New Zealand courts refused to hear their suit, saying protection
workers investigating abuse allegations might overlook the best
interests of a child if they knew their actions might be subject to
minute evaluation in a damages action.
But the Privy Council decision, written by Lord Nicholls of
Birkenhead, said the suit should be heard despite the "formidable
difficulties in establishing negligence" by the social worker and
psychologist.
However, it rejected the father's similar appeal to claim for damages.
The women were aged five and seven in 1988 and living with their
widower father when the younger told a friend her father had sexually
abused her.
The friend told her mother who then contacted the authorities, which
had the girls interviewed by a psychologist. A social worker then got
a court order to remove the children from their father.
He was interviewed by police, but never charged with an offence,
though separated from his children for months and put under
supervision for three years after they were returned.
According to their claim, the five-year-old said within two weeks that
her allegations were untrue and had been made to "the ladies who had
come to see her and her sister at the school because she was allowed
to tell lies at school".
The older girl denied their father abused them. Their claim says the
psychologist and the social worker were negligent by not investigating
important factual errors in the false claim and for ignoring
statements denying abuse.
They lodged their lawsuits against the attorney-general, a government
department and the two workers in 1993 but their case was struck out
by Justice Gallen in the High Court in 1996.
He said that immediate action might be needed to protect a child on
the basis of limited information and such workers should not have to
fear a lawsuit for doing their job.
"While it is accepted that the effect of false allegations can cause
the utmost distress as far as persons wrongly accused are concerned,
it is also true that in the case of genuine allegations, the effects
on a child can be incalculable."
The Court of Appeal later upheld Justice Gallen's strike-out decision.
The Privy Council said that, as no trial had taken place, the
applications were to be approached on the footing that at the trial,
if one took place, the plaintiffs could succeed in proving the facts
they alleged. It was right to record, however, that all the defendants
denied the alleged negligence.
Identities of all parties to the case, except the attorney-general,
are suppressed.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
My comments on the above report:
ISSUE 1
The Privy Council decision referred to in the following news report
presents another concern about the dropping of an independent appeal
court from New Zealand.
Our judicial system is simply too in-bred. An "Old-Boys" network where
judges cannot easily see past personal loyalties and friendships. The
Ellis case is a good example of our judges totally stuffing up (eg
Eichelbaum).
If the Privy Council goes it is my opinion that we MUST have a system
that has some real independence. Perhaps a higher court where we
invite judges from overseas (eg Britain, Canada, Australia) to take
part.
ISSUE 2
The implications of this decision are potentially enormous for the
large number of New Zealanders affected bt the sexual abuse hysteria
that has existed in our country over the last few years. I'm thinking
as an example of people affected by the Christchurch witch hunts that
_preceded_ the Ellis case. And many more.
ISSUE 3
Justice Gallen's decision in 1996 was simply astounding. The Privy
Council was right to overturn his decision.
Gallen had said that workers should not have to fear a lawsuit for
doing their job. Gallen completely missed the point that negligence
is not part of anybody's job.. No worker should be protected from
negligent practices that harm other people, no matter how worthy the
supposed motivations may be
ISSUE 4
Congratulations to David McLoughlin for his news report.
Brian
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
On Tue, 29 Jul 2003 21:24:15 +1200, Brian <brianr@no-spam> wrote:
>
>I've included comments on the following news report at the end
>
>
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
>
>"THE DOMINION POST"
>28 July 2003
>
>WOMEN CAN SUE, PRIVY COUNCIL SAYS
>DAVID McLOUGHLIN
>
>TWO Wellington women have won Privy Council backing to sue a social
>worker and a psychologist they claim removed them from their father in
>1988 after false allegations of sexual abuse.
Here is the judgment reported.
ADVANCE COPY
Privy Council Appeal No. 1 of 2003
"B"and Others Appellants
v.
The Attorney General and Others Respondents
FROM
THE COURT OF APPEAL OF NEW ZEALAND
--------------
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 16th July 2003
------------------
Present at the hearing:-
Lord Nicholls of Birkenhead
Lord Hutton
Lord Hobhouse of Woodborough
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
[Delivered by Lord Nicholls of Birkenhead]
------------------
1. In Attorney-General v Prince [1998] 1 NZLR 262 a five judge
Court of Appeal, by a majority of four to one, declined to strike out
a claim in negligence brought by a child in respect of an alleged
failure by social workers to investigate a complaint that his adoptive
parents were neglecting him. In the present case a father and his two
daughters (D1 and D2) claim damages in respect of the allegedly
negligent way a social worker and a clinical psychologist investigated
a complaint that the father had sexually abused D2. In Prince's case
the claim was founded on an alleged failure to investigate at all. In
the present case the claim is founded on an alleged failure to
investigate properly. The question raised by this appeal is whether
the present case is distinguishable from the decision in Prince's
case. In addition to the social worker and the psychologist, the
Attorney-General is a defendant. He is sued on behalf of the Minister
of Social Welfare and the Department of Social Welfare.
The history
2. As in Prince's case, the present case comes before the court
on interlocutory applications by the defendants to strike out the
proceedings summarily as proceedings which are bound to fail. No
trial has yet taken place. Thus, in accordance with well established
principles, these applications are to be approached on the footing
that at the trial, if one takes place, the plaintiffs may succeed in
proving the facts they allege in their statement of claim. It is
right to record, however, that all the defendants deny the alleged
negligence. At first instance Gallen J struck out the proceedings: B
v AG [1997] NZFLR 550. The Court of Appeal, comprising Keith,
Blanchard and Tipping JJ, dismissed an appeal: B v Attorney-General
[1999] 2 NZLR 296.
3. The incidents of which the plaintiffs complain took place as
long ago as July 1988. D1 was then aged seven. Her sister, D2, was
five years old. The father was a widower. D2 told a friend at school
that her father had sexually abused her. The friend told her mother
who, in turn, informed the Department of Social Welfare. The
department began an investigation on 18 July 1988. On the following
day at the request of the department the second defendant, a
registered clinical psychologist, separately interviewed the two girls
at their school in the presence of a senior teacher and the third
defendant, a social worker employed by the department. The second
defendant had considerable experience in the field of child sex abuse
and was a member of the sexual abuse team at Wellington.
4. Later on the same day, 19 July, the social worker laid a
complaint under section 27 of the Children and Young Persons Act 1974
on the ground that she reasonably believed the children were in need
of care, protection or control because their physical or mental health
or emotional state was being avoidably impaired or neglected
(subsection (2)(b)) or the children were being, or were likely to be,
neglected or ill-treated (subsection (2)(c)). As a result a warrant
was obtained for the removal of the children from the care of their
father pursuant to section 28 of the 1974 Act. The deputy registrar
of the District Court was satisfied there was reasonable ground for
suspecting the children were likely to be ill-treated, as provided in
section 28(1). The children were then taken from their home and
placed in foster care.
5. At the time the father knew nothing of the allegations, the
interviews or their results. The first he knew of any of these
matters was when, later on the same day, he was interviewed by the
police. He was told the children had been taken away and that he was
not to attempt to find them or get in touch with them. He was not
told where the children were. At all times the father denied the
allegations against him. No charges were ever laid by the police.
6. The father then made arrangements to leave the family home and
for the children to return there in the care of an employee. He also
made arrangements for his parents to return to New Zealand from
England. They had earlier helped him with the care of the children
following the death of his wife.
7. Two days after the interviews, on 21 July, the social worker
arranged for the children to be examined by a doctor. The doctor
concluded there was no evidence to suggest full penile penetration in
respect of either child, but her examination did not rule out lesser
degrees of penetration or other forms of sexual molestation.
8. The statement of claim alleges respects in which, it is said,
the interview carried out by the psychologist, and the investigation
carried out by the social worker, were conducted negligently. For
instance, it is said the psychologist failed to note or evaluate
important factual errors. D2 gave a detailed description of an attic
in her home although the psychologist knew D2's home was a single
storey building. D2 said both she and her elder sister, D1, had been
sexually abused by their father. But the psychologist ignored answers
given by D1 denying sexual abuse of either her or her sister. The
social worker failed to follow up a report made to her by the doctor
that at the outset of the doctor's examination D2 said to the doctor
that sometimes she, D2, told lies. Within two weeks of the issue of
the warrant D2 told a friend of the father that the allegations were
untrue, and that she had told this untruth to the ladies who had come
to see her and her sister at the school because she was allowed to
tell lies at school. This information was passed to the department by
telephone but, it is said, this was not acted upon by any of the
defendants.
9. The complaint made by the social worker came before AB Beatson
DCJ for hearing on 5 December 1988, together with an application by
the father's parents for custody of the children. The hearing
occupied nine weeks of court sitting time. On 13 April 1989, before
the hearing had been completed, the complaint was amended to add
section 27(2)(e) as an additional ground on which the children were in
need of care, protection or control: that the children were exhibiting
behaviour beyond the control of their father. The father admitted
this amended ground of complaint under section 27(2)(e) but not the
original 'abuse' complaints under section 27(2)(b) and (c). With the
consent of all concerned, including the father, the court made a
supervision order and an order giving shared custody of the children
to the father's parents and the father. The father's parents and the
father were also appointed joint guardians of the children.
10. Following this hearing the father's parents went back to the
United Kingdom with D1 and D2. The girls returned to New Zealand with
their grandmother in late January 1990 and were reunited with their
father. The supervision ended by order of the court in April 1991.
11. These proceedings were started in 1993. The children claim
general damages of $50,000 and exemplary damages of $500,000 for upset
to their lives and the trauma of being removed from their father.
Their father claims a like amount of general damages and exemplary
damages, together with special damages in respect of matters such as
child minding expenses, medical expenses and legal costs, and his
parents' air fares and other expenses.
Prince's case
12. Before their Lordships' Board none of the parties challenged
the correctness of the decision of the Court of Appeal in Prince's
case or the reasoning of the majority. Their Lordships are content to
proceed on this basis. The relevant legislation is not now in force
and has not been so for some years. Accordingly, as already noted,
the sole issue before the Board is whether the present case falls
within the principle enunciated by the Court of Appeal in Prince's
case regarding what was there referred to as "the 1983 complaint".
This was a complaint that although the Department of Social Welfare
knew the adoptive parents were not looking after their adopted child
the department "did nothing": it failed to investigate the complaint
"adequately or at all".
13. Whether the manner of discharge of a statutory function admits
of a concurrent common law duty of care depends primarily upon the
scheme and policy of the relevant legislation. As noted by Lord
Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2
AC 633, 739, the statutory framework within which the act or omission
took place is a profoundly influential factor when deciding the
existence and ambit of a common law duty. For this reason the Court
of Appeal in Prince's case left on one side the current New Zealand
legislation, the Children, Young Persons and Their Families Act 1989,
describing this as a very different legislative scheme. The Court of
Appeal also considered that the 1974 Act was "clearly distinguishable"
from the statutes before the House of Lords in X (Minors) v
Bedfordshire County Council [1995] 2 AC 633. The court focused its
attention on the 1974 Act itself.
14. Section 3 of the 1974 Act set out its objects. These included
promotion of the welfare of children by assisting individuals and
families to overcome social problems confronting them, promotion of
the welfare of the family, and assisting parents in the discharge of
their parental responsibilities. Section 4 provided that any person
exercising powers conferred by the Act shall treat the interests of
the child as the first and paramount consideration. Section 5 imposed
positive duties on the Director-General of Social Welfare to undertake
preventive work:
" (1) It shall be the duty of the Director-General to
take positive action and such steps under this Act as in his opinion
may assist in preventing children or young persons from being exposed
to unnecessary suffering or deprivation …
(2) In pursuance of the duty imposed on him by
subsection (1) of this section the Director-General shall arrange -
(a) for prompt inquiry where he knows or has reason to suspect
that any child or young person is -
(i) Suffering or likely to suffer from ill-treatment or from
inadequate care or control …"
15. Against this background Richardson P, in a judgment of
himself, Thomas and Keith JJ, Attorney-General v Prince and Gardiner
[1998] 1 NZLR 263, 282 explained why he considered there was
sufficient proximity to found a duty of care:
"The 1974 Act is directed to the care and protection of children and
young persons. The class of persons for whom the statutory protection
was enacted is clear. The discharge of the particular function calls
for the exercise of special social work skills and responsibilities.
There is a professional relationship between social worker and client
child or young person. Children and young persons are seen as
vulnerable. Because of their youth and immaturity they cannot assert
their own rights and needs. Others must do it for them. Just as it
is right that the department and its professionals have a generalised
duty under the statute to promote the well-being of children and young
persons (s 3), so, too, when exercising their statutory duties in
respect of a particular child or young person they assume a
responsibility to that child or young person (s 4). And the duty to
consider a complaint of neglect is specific to the particular child or
young person, the subject of the complaint (s 5). While a deprived
child or young person may have no particular expectation that the
department will seek to assist him or her, given general community
expectations reflected in the statute it is not unreasonable to
conclude that a child or young person is to be regarded as implicitly
relying on the department and its officers to consider complaints that
they are in need. Finally, it is readily foreseeable that inadequate
consideration of complaints that a young person is neglected might
cause harm. … the department is not in a position to say that the
imposition of a duty of care would expose the officer and the
department to a burden out of proportion to their own moral
culpability."
16. On wider policy considerations, Richardson P observed, at page
284:
"That statutory scheme does not lead inevitably to a conclusion that
there was a common law duty of care to take proper steps to
investigate allegations of neglect and thereafter to take such further
and successive steps as the circumstances required. The question is
whether it is just and reasonable to superimpose a common law duty of
care on the department in relation to the performance of its statutory
responsibilities for the protection and care of children and young
persons. But, given the conclusion that proximity is satisfied, the
statutory framework within which the department and its social workers
act is consistent with the imposition of a common law duty of care.
The narrow argument is that liability may arise where the person
charged with the responsibility either unreasonably fails to carry out
the duty to consider the matter or reaches a conclusion so
unreasonable as to show its failure to do its duty.
… it cannot be said that a common law duty in these terms would cut
across the whole statutory scheme. At that early triggering step a
specific positive duty rests on the Director-General. At that step it
does not require participation with other agencies. The duty
suggested does not conflict with any other duty by the department and
its officers. On the contrary it enhances it."
17. Richardson P rejected a contrary argument based on the
difficulty and delicacy of the social worker's task and its judgmental
nature. A plaintiff will have difficulty in proving that an
assessment made by a social worker fell outside the bounds sanctioned
by professional opinion. But considerations of this kind cannot
absolve the department and social workers from the responsibility of
considering and responding to specific complaints with professional
skill and care. Richardson P also rejected a submission that the
imposition of a duty would or might cause the department and social
workers to adopt a more cautious and defensive approach to their
duties. Like lawyers and doctors, social workers are professionals.
At that triggering step, and at other steps, they should be expected
to have shouldered willingly a standard of reasonable skill and care
that their private sector counterparts were expected to discharge.
Difficulties of reaching conclusions on causation and damages,
although making claims very difficult to establish, are not adequate
justification for ruling out the possibility of any claim for
negligence whatever the circumstances.
18. Tipping J, at page 292, delivered a concurring judgment. The
statutory framework supports a common law duty to investigate with
reasonable care a complaint that a child was not being looked after
properly. To the extent possible the law should reflect the reasonable
expectations of the society it serves. To hold that the
Director-General owed no duty in the circumstances would not only fail
to meet society's reasonable expectations. It would cause legitimate
concern why the breach of an express public duty afforded no private
remedy to a person for whose benefit the public duty existed in the
first place.
19. Henry J disagreed. Failure of an alleged duty to inquire
would, on its own, be insufficient to establish an entitlement to
damages. There would need to be a duty to protect, by taking
reasonable consequential follow-up action. But under the 1974 Act the
avoidance of harmful consequences involves a carefully constructed and
integrated process, including the possible involvement of police,
teachers, doctors and others, resulting ultimately in the court taking
the final necessary steps in the exercise of a discretion. It is not
just or reasonable to impose such a duty.
The decisions of Gallen J and the Court of Appeal
20. In the present case Gallen J delivered his judgment after the
decision of the House of Lords in X (Minors) v Bedfordshire County
Council [1995] 2 AC 633 but before the decision of the Court of Appeal
in Prince's case. In reaching his decision to strike out the
proceedings Gallen J was clearly much influenced by the decision of
the House of Lords.
21. In the Court of Appeal all members of the court seem to have
envisaged that the common law duty of care enunciated in Prince's case
would not subsist in the present case once the social worker had
applied to the court for a warrant under section 28 on 19 July 1988.
The joint judgment of Keith and Blanchard JJ was delivered by Keith J.
He held, at [1999] 2 NZLR 296, 304, para 26, that the duty of care
recognised in Prince's case is "limited in time to the triggering and
closely-related steps":
"[The duty of care] is to be tied to the 'positive duty' stated by
Parliament relating to that initial stage of deciding whether to
arrange a 'prompt inquiry' and when appropriate arranging it."
22. Keith J gave the reason for this temporal limit on the scope
of the duty of care, at para 27:
"… the statutory scheme cuts across a common law duty of care once the
triggering step of the 'prompt inquiry' is completed and the officials
are moving beyond that initial obligation and are assembling relevant
information before considering whether to exercise their statutory
powers."
He then noted, at para 28, that the breaches of duty alleged in the
present case "fall outside that initial period of positive statutory
obligations during which, in accordance with Prince, a common law duty
of care may also arise".
23. In a separate judgment Tipping J, at para 39, drew the same
distinction. There is no duty of care beyond "the triggering step".
This step encompasses "the whole process of investigation up until
steps were taken to obviate the perceived harm to the child". This is
for policy reasons, largely of the kind identified by Lord
Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2
AC 633. Here, it was obtaining and executing the warrant that caused
the father and the children the harm and loss for which they claim
compensatory damages.
The duty to inquire
24. Their Lordships confess to having difficulty with the decision
of the Court of Appeal. They respectfully consider it emasculates the
scope of the common law duty of care recognised in Prince's case.
Their Lordships can see nothing in Prince's case to suggest that the
concurrent common law duty is less extensive temporally than the
statutory duty imposed on the Director-General by section 5(2)(a) of
the 1974 Act.
25. What, then, is the ambit of this statutory duty? Under
section 5(2)(a) of the 1974 Act the Director-General is under a duty
to "arrange for prompt inquiry" where he knows or has reason to
suspect a child is suffering, or likely to suffer, ill-treatment.
This obligation to arrange a prompt inquiry comprehends a duty to
arrange and conduct an adequate inquiry. The Director-General would
not discharge his statutory obligation under section 5(2)(a) by merely
"arranging" for an inquiry, whatever precisely that may mean. He must
conduct whatever inquiry is necessary. A duty to set an inquiry by
his own officials in motion, but no duty to take reasonable steps to
see the inquiry duly proceeded, would be a poor sort of statutory
duty. That cannot be the proper interpretation of section 5.
26. Take the facts in the present case. On being told of what D2
had said at school the Director-General had reason to suspect that D2,
and consequently D1 also, were at risk. He had reason to suspect they
were suffering or likely to suffer from ill-treatment. So he was under
a duty to arrange an inquiry, and under a duty to do so promptly. The
psychologist's visit to the school, along with the social worker, was
a first step in discharge of this duty. The social worker then
proceeded to apply to the court, on the same day, for a warrant for
the removal of the two girls from their home. The warrant was obtained
and executed. That did not end the inquiry or the Director-General's
duty in that regard. The grant of urgent interlocutory relief by the
court did not mean that the department's obligation to conduct an
adequate inquiry was satisfied. Understandably and properly, the
department next arranged for D1 and D2 to be examined by a doctor.
But that also cannot be regarded as the end of the inquiry. Why
should it, especially when the outcome was inconclusive? If, as
alleged, material further information thereafter came to hand the
Director-General's section 5(2) duty required him to follow up that
information. This was so irrespective of whether the information
tended to support or undermine the abuse allegation. It cannot be
that the department was under a duty to investigate further only if
the further information tended to support the allegation.
27. Given that the Director-General's statutory duty under section
5, as distinct from the exercise by him of his discretionary powers,
extends thus far, there seems to their Lordships to be no basis on
which the concurrent common law duty of care recognised in Prince's
case should have a less extensive temporal scope. Substantially the
same considerations apply to the conduct of the inquiry at the later
stage as at the earlier stage. At the later stage, if not at the
outset, other agencies, including the police, would be involved. They
were in the present case, more or less from the very beginning. At
that time inquiry into sexual offences against children was carried
out by a multi-disciplinary sexual abuse team procedure. The police
interviewed the father on the same day as the children were first
interviewed. But this multi-disciplinary procedure is not
inconsistent with the Director-General having a continuing positive
statutory duty to inquire, that is, to investigate. That being so, the
concurrent common law duty he owed the children continued to exist,
reinforcing his statutory duty. Such an investigatory obligation is
of course quite distinct from making decisions and assessments on what
should be done in the light of what is revealed by the investigation.
28. For these reasons their Lordships respectfully part company
with Keith and Blanchard JJ when they express the view that the common
law duty of care enunciated in Prince's case is to be limited to the
"initial stage of deciding whether to arrange a 'prompt inquiry' and
when appropriate arranging it" (paragraph 26) and with Tipping J when
he confined the duty of care to the period ending when steps were
taken to obviate the perceived harm (paragraph 39).
The duty of care
29. It is clear from Prince's case that the Court of Appeal in
that case envisaged that the common law duty of care was owed by the
Director-General. Further, it is reasonably clear that the Court of
Appeal also envisaged that such a duty would be owed by the individual
social worker: see [1998] 1 NZLR 262, 285. Some support for this
view, although of limited weight, is to be found in section 41(8) of
the 1974 Act. This provision exempted a social worker who furnished a
report under that section from civil and criminal liability unless he
acted 'in bad faith or without reasonable care'. If a social worker
owes a common law duty of care to the child, so must a clinical
psychologist, another professional, who undertakes an assessment of
the child. There can be nothing surprising in holding that a
psychologist owes to a child whom she is examining a duty to exercise
due professional skill and care.
30. To whom is the duty of care owed? Clearly the duty is owed to
the child or young person in respect of whom the statutory duty to
arrange for a prompt inquiry exists in the particular case. In the
present case that is D1 as much as D2. If D2's abuse allegation was
well founded D1 also was at risk. But their Lordships consider no
common law duty of care was owed to the father. He stands in a very
different position. He was the alleged perpetrator of the abuse. In
an inquiry into an abuse allegation the interests of the alleged
perpetrator and of the children as the alleged victims are poles
apart. Those conducting the inquiry must act in good faith
throughout. But to impose a common law duty of care on the department
and the individual professionals in favour of the alleged victims or
potential victims and, at one and the same time, in favour of the
alleged perpetrator would not be satisfactory. Moreover, a duty of
care in favour of the alleged perpetrator would lack the juridical
basis on which the existence of a common law duty of care was largely
founded in Prince's case. The decision in Prince's case rests heavily
on the feature that the duty imposed on the Director-General by
section 5(2)(a) of the 1974 Act is for the benefit of the particular
child. Self-evidently this statutory duty was not imposed for the
benefit of alleged perpetrators of abuse. To utilise the existence of
this statutory duty as the foundation of a common law duty in favour
of perpetrators would be to travel far outside the rationale in
Prince's case.
Witness privilege
31. Miss McDonald QC, representing the psychologist, developed a
further ground on which, so she submitted, the proceedings should be
struck out. In substance, she submitted, the claim in the present
proceedings is that the defendants were negligent in deciding to set
the law in motion and in inflicting upon the father and children the
proceedings which followed. It is settled law that damages are
recoverable for setting the law in motion, if at all, only where
malice and absence of reasonable and proper cause can be proved: see
Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667, 673,
per Cooke P. There are no such allegations in the present case. From
the outset the purpose of the investigation in which the psychologist
was involved was to decide whether to bring proceedings to remove the
children from their father's care. The conclusion of the psychologist
was that the children had been abused and it was this conclusion which
led to the decision to seek the warrant. The case is on all fours
with that of the psychologist in the Newham case in X (Minors) v
Bedfordshire County Council [1995] 2 AC 633 regarding whom Lord
Browne-Wilkinson said, at page 755, that her investigations had such
an immediate link with possible proceedings in pursuance of a
statutory duty that they could not be made the basis of subsequent
claims.
32. This submission gives rise to a difficulty which not
infrequently arises in striking out applications. Their Lordships do
not have sufficient factual information to reach a firm decision on
this issue. Their Lordships lack background information about how the
sexual abuse team procedure worked in practice and the role of the
psychologist. Further information would also be desirable on the
detailed sequence of events in the present case, including full
details of all aspects of the psychologist's involvement, together
with a copy of her report or reports. Without this evidence too much
is left to conjecture. This is not a satisfactory basis for
attempting to form a view on whether the link between the
psychologist's report and the court proceedings was sufficiently close
to attract witness privilege. This is an issue on which the facts
should be investigated and found at trial before a decision can
properly be made.
Conclusion
33. For these reasons their Lordships will humbly advise Her
Majesty that the appeal by the two children should be allowed but the
appeal by their father should be dismissed. So far as the claims by
the children are concerned the proceeding should not be struck out but
should be allowed to proceed to trial. To that extent the orders of
Gallen J and the Court of Appeal will be varied. In permitting the
children's claims to proceed their Lordships are mindful of the
formidable difficulties in establishing negligence. But, on the basis
of the decision in Prince's case, it cannot be said that in law there
is no cause of action.
>
>
>My comments on the above report:
>
>
>ISSUE 1
>The Privy Council decision referred to in the following news report
>presents another concern about the dropping of an independent appeal
>court from New Zealand.
>
>Our judicial system is simply too in-bred. An "Old-Boys" network where
>judges cannot easily see past personal loyalties and friendships. The
>Ellis case is a good example of our judges totally stuffing up (eg
>Eichelbaum).
>
>If the Privy Council goes it is my opinion that we MUST have a system
>that has some real independence. Perhaps a higher court where we
>invite judges from overseas (eg Britain, Canada, Australia) to take
>part.
>
>
>ISSUE 2
>The implications of this decision are potentially enormous for the
>large number of New Zealanders affected bt the sexual abuse hysteria
>that has existed in our country over the last few years. I'm thinking
>as an example of people affected by the Christchurch witch hunts that
>_preceded_ the Ellis case. And many more.
>
>
>ISSUE 3
>Justice Gallen's decision in 1996 was simply astounding. The Privy
>Council was right to overturn his decision.
>
>Gallen had said that workers should not have to fear a lawsuit for
>doing their job. Gallen completely missed the point that negligence
>is not part of anybody's job.. No worker should be protected from
>negligent practices that harm other people, no matter how worthy the
>supposed motivations may be
>
>
>ISSUE 4
>Congratulations to David McLoughlin for his news report.
>
>
>Brian
>
>~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
