LIMPING INTO THE FUTURE: NEGLIGENCE LIABILITY FOR MENTAL INJURY TO SECONDARY VICTIMS

Abstract

[2019] C.L.J. 516) that the fact-specific nature of “assumption of responsibility” means duties of care, in this area, are less abstract questions of law and closer to fact-dependent questions about careless breach. Indeed, many have suggested that a suitably exacting breach threshold would control liability better than the broad-brush of duty of care. In HXA (ibid.) Baker L.J. emphasised that local authorities enjoy a wide discretion in making their complex and difficult decisions – so that there is a “high hurdle” in the way of proving breach. Perhaps this insight should be generalised. It might remove the need to grapple with the mysteries of “assumption of responsibility” and duty of care. The Law Commission thought so in 2008 when it proposed “sufficiently serious breach” as the touchstone of public authority liability: Law Com CP 187, “Administrative Redress” (2008). The Government of the day, eyeing a looming financial crisis, rejected a proposal that might end up damaging the budgets of public services. The climate for reform in the political and economic ruins of 2022 is equally inauspicious. And so a political question – when should child protection services pay for their failings? – remains wrapped within the enigma of assumption of responsibility, or at best deemed a pure question of “fact”.