, Hard cases make bad law: but not always: leadingcounsel.co.uk
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Hard cases make bad law: but not always

It is always easier to state legal principles than to apply them in particular cases where the consequences affect real people. It is also easier to focus on the particular instance rather than the wider principle. This is the problem with bailing out unsuccessful businesses or industries (albeit that it is fair to say that the bailing out banks falls into a different category given the risk of a complete economic collapse). You see the human hardship and misery of the individual collapse, but not the consequence of the strain on potentially productive companies of meeting the tax burden required to prop up the ailing.

It is relatively easy to lambast the compensation culture and to say that things should be different. It is always harder in an individual instance where someone has suffered. The easy temptation is to find a way to allow them to recover. Of course the consequence is that the insurance premiums potentially payable and other effects can end up making it difficult for ordinary activities to continue at all.

In two recent Court of Appeal cases the courts were called upon to make hard decisions in the context of particular cases.

The first case involved a couple with learning difficulties. Their IQs were assessed at being in the 70s, and although they required support they did wish to live in the community. The man was 44, the woman 38, and the woman had two daughters from a previous relationship aged 11 and 8 who lived with them. The couple made the mistake of attempting to be friendly to a group of 4 local youths during the summer of 2000. It appears that at least some of the youths had been allowed a free hand in use of the couple's flat. This led to them taking drugs, engaging in under-age sexual activity, and storing stolen goods, with one youth staying at the flat. On 11 October the man suffered a serious assault at a McDonald's restaurant. This was perpetrated by one of the youths, who believed that the man had "grassed" on him in relation to stolen goods found by the police at the flat on 10th October. On learning of the attack a council social worker sought to involve the police and took various steps in relation to the couple.

The events complained of took place on the weekend of 17th-19th of November. The youths took over the flat and treated the couple abominably, in an inhuman fashion which is almost difficult to comprehend. Not only were they threatened and abused, but the man was made to eat and drink vile matter: urine, dog excrement, excrement of one of the youths. This was done under threat of stabbing. The couple were also made to perform sex acts on one another. The youths put pepper in the man's eyes, sprayed kitchen cleaner in his mouth face and hair, and slashed him on many parts of his body. They made him put a vibrator in his anus and then lick it, and then made the woman lick it as well. The children were also abused and assaulted, and made to watch some of the abuse and assaults of the adults.

Whilst this was undoubtedly horrific, the Court of Appeal allowed the appeal against the 97,000 damages which were awarded in their favour below against the local council. The circumstances did not justify the imposition of responsibility on the council. The social worker involved had not requested emergency accommodation before the social work meeting on the 22nd regarding the couple because she had in no way foreseen that the couple would be subject to the sort of ordeal they faced. Since the youths will not be good for a penny, the temptation is always to extend liability to make sure that victims get compensation, but the court correctly did not do that here.

The second incident related to a school dinner lady. This arose out of an incident in the playground at Corfe Hills School in Corfe Mullen, Dorset. The defendant, 13, and another 13 year old boy were playing in play areas when the defendant, who was running backwards and taunting his playmate, ran into the dinner lady. The back of his head struck her cheek. Although at first her injuries seemed minor they turned out to be serious. The judge at first instance dismissed the claim and the appeal sought to overturn this. As Lord Justice Waller put it, "The accident was of course most unfortunate but the conduct of SL (the Defendant) described seems to me to be simply the conduct to be expected of a 13 year old playing tag.............13 year old boys will be 13 year old boys who will play tag. They will run backwards and they will taunt each other. If that is what they are doing and they are not breaking any rules they should not be held liable in negligence.". The appeal was consequently dismissed.

One obviously feels sympathetic to the victims in each of these cases. However extending liability has damaging side-effects. If councils were at risk of being made liable for doomsday scenarios they would have to divert resources which might be better spent elsewhere in order to avoid all such potential outcomes. Playgrounds or play would be impossible to continue if accidents arising from the normal course of play led to responsibility. These were hard cases, but it is right that on each occasion, they did not make bad law.

Michael J. Booth QC