Mr Justice Eady’s decision in December last year to award Jake Pierce £25,000 damages for “a failure to care” by Doncaster Council is clearly significant. The council had put Pierce, 31, back into an abusive home environment 30 years ago after initially removing him (see The Jake Pierce Case). But, while the case may well give the green light for other negligence claims against social services departments, experts are not expecting the financial floodgates to open.
“We’ve been waiting sometime for a precedent case for what we term ‘failure to care’ cases,” says Peter Garsden, president of the Association of Child Abuse Lawyers. “For years, social services were exempt on the grounds that they shouldn’t be dissuaded from their duty of looking after children by fear of being sued over making wrong decisions in what are often very difficult situations. But the law has moved on and, with European legislation, it is no longer possible to hide behind an exemption of liability.”
Even so, the test for negligence – the so-called Bolam test, named after a medical negligence case in 1957 – remains notoriously tough to apply. Garsden explains: “This test is: would a reasonably competent professional in the same circumstances at the same time make the same decisions? Only if the answer is ‘no’ is there then usually a finding of negligence.”
Protection for social services
According to Jonathan Wheeler, a solicitor with law firm Bolt Burdon Kemp who acted successfully for Pierce, this test still provides “a lot of protection for social services”, so staff shouldn’t fear making mistakes. “Even if they make a decision for the best motives and it turns out to be the wrong one with hindsight, as long as they applied up-to-date and reasonable social work practice they are not going to be found liable,” he says.
Patrick Ayre, senior social work lecturer, child care consultant and an expert witness in the Pierce case, agrees. “It’s really important to emphasise how onerous the test of negligence is,” he says. “The degree of error that you commit has to be so far out of line with accepted practice that no reasonable body of professional opinion would have supported what you did.
“It’s not just a matter of making an error which any competent social worker might make. The fear of being sued shouldn’t get out of hand.”
As well as bad publicity, councils understandably sweat over the potential cost of litigation – part of the reason many such cases are settled out of court. The damages awarded to Pierce, for example, while not massive represent only a tiny proportion of the final costs likely to be incurred by Doncaster Council.
Whether the amount awarded to Pierce is in itself sufficient is open to debate. Garsden believes the award is too low. “People sometimes fail to realise that the effects of abuse stay with you until you die. So if Pierce lives, say, to 70 he will have lived with his abuse for 25,550 days. That means he has been awarded 98p a day. You couldn’t get a cup of coffee for that.”
Amount of harm
However, Wheeler believes the amount in legal terms is about right. Ayre agrees: “It’s a limited award, but the judge had to make a difficult decision about how much damage the claimant had suffered could be laid at the feet of the local authority.
“I don’t think it represents to any extent the amount of harm that this young man has actually suffered. But it does represent the amount of harm that the court could attribute to the local authority.”
For most wanting to bring such cases, their starting point is rarely one of financial gain anyway. “It’s not about money,” says Wheeler. “For a lot of my clients it’s about having society or authority recognise that what was done to them was wrong – and that lifts a huge weight off their shoulders and allows them to move on. People simply wouldn’t go through all of this for the money.”
For Wheeler, the success of Pierce’s case wasn’t the damages, but the findings. “In the face of a very determined defendant, it took my client all the guts he had to carry on with this litigation, which was extremely distressing and difficult.
“[Doncaster Council] didn’t give any ground at all. I was surprised at the stance [they] were taking. They were very confident in their defence, which from our point of view made the judgement all the sweeter.”
The council declined to comment on the matter, other than to say it was “extremely disappointed” at the decision and would be appealing.
Perhaps one of the most striking features of this case was the lack of records. “Record-keeping is a thorn in everybody’s side,” says Garsden. “You could argue that it interferes with professional practice and you can understand why people don’t keep as good records as they should it is almost human nature not to record but to just get on with the job. But if local authorities had much better record-keeping, they often would have a much better case.”
As a result, Justice Eady had to make a decision based on what was said in court. “This is unusual,” explains Ayre. “In my experience, one usually has substantial case records which give very clear evidence as to whether appropriate decisions were made or not. With records lacking, the local authority sought to infer that they must have acted correctly during the period. The judge was unable to take them at their word and he had the testimony from the claimant saying something completely different.”
He describes the case as a “wake-up call for local authorities” in terms of appreciating their financial liability with respect to things that happened in the past.
Garsden adds: “The good thing about litigation is that it improves the standards of professional care. Social services are, of course, allowed to make mistakes. But they are not allowed to be negligent.”Related article
Man sues Doncaster for failure to protect in groundbreaking case
When a failure to care amounts to negligence
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This article appeared in the 14 February issue under the headline “More than just an error”