W v Essex [2001] 2 AC 592

• Plaintiff wanted to foster a child, but not one who had a record of child abuse.

• The council, R, falsely claimed that the child had no such record when actually he did and went on to abuse Plaintiff’s children, which they soon discovered and as a result suffered psychological injury.

• HL said that the claim shouldn’t be struck out, since the council owed a duty of care to Plaintiffs.

  • (1) There was a case that Plaintiffs were primary claimants if they blamed themselves for their children’s suffering (since they had brought the victims and abuser together), under Lord Oliver’s definition of primary victims in Alcock.

  • (2) Plaintiffs could also possibly be secondary victims since R owed them a duty of care and made a person close to them “in love and affection” suffer and it was not clear that the spatial and temporal limitations inhibited their claim + their psychiatric illnesses were those which any reasonable person would suffer in the circumstances.

• Therefore the issue should go to trial. 

Lord Slynn

• Reaffirmed Lord Steyn’s distinction between acute grief and psychiatric harm, so as to limit the number of claims and avoid imposing disproportionate costs on the negligent defendant.

• Holds that the categories of who can be a primary/secondary claimant are not closed, i.e. Lord Oliver’s illustration of primary victims was merely a list of examples.

• The principle supporting Plaintiffs claim to be primary victims is that of Lord Oliver in Alcock (making Plaintiff an “unwilling participant”). The parents found out about the attacks 4 weeks after they occurred - this might satisfy time and space requirements (!) or it might not.

  • This undermines the idea of control mechanisms, since it ignores the “immediacy” requirement of Lord Keith in Alcock. They were no more direct witnesses than the plaintiffs in Alcock so it is ridiculous for Lord Slynn to speculate that the categories are so flexible. 

RELATED CASES

• Alcock v Chief Constable of South Yorkshire