Closing the "public interest' loophole

Local authorities are finding it more difficult to avoid responsibility for the actions of their employees, writes Roger Pearson.

In the past there has been a string of cases in which local authorities have side-stepped a variety of claims on the basis that it would not be in the public interest for them to be held accountable for what had happened.

But now the veil of the public policy defence has been at least pierced, if not lifted. A recent Appeal Court decision has upheld a district judge's ruling that Devon County Council is not entitled to plead public policy in order to avoid a damages claim by a man who says he was the victim of sex abuse as a child while in its care.

This has been hailed in legal circles as an "exciting" development, which renders local authorities more accountable for the actions of their employees.

The claim in the recent case centres on allegations that the claimant suffered a psychotic breakdown after being subjected to sex abuse at a council-run school and home near Exeter.

The plaintiff claims that the authority is liable for the actions of the key worker who carried out the assaults in that it was negligent for failing to prevent the abuse.

The claimant, identified only as "C', claims that while he was a minor under the care of the authority, assaults, including oral sex, masturbation and buggery took place, normally in the care worker's caravan.

Initially, a judge at Torquay and Newton Abbot County Court followed the traditional line in such cases and ruled that the action should be struck out.

He held that the council owned no duty of care to the claimant.

But on appeal to the same court, that decision was reversed and the claim, valued at about £60,000, was reinstated. Leave to appeal that decision was refused.

The council then sought leave to appeal to the Court of Appeal, but this request has now been refused twice.

The second of those refusals came in a signpost decision on 29 June in which Lords Justices Kennedy and Thorpe ruled that the county council is not entitled to side-step the claim by pleading the public policy defence.

Penny Ayles, a partner at Torquay firm Woollcombe Beer Watts, who represents the claimant, says the decision to allow this case to go on is based on the individual facts and cannot be seen as a major policy swing which will pave the way for a flood of claims against local authorities that would previously have been barred.

Nonetheless, she says the decision does represent a loophole in the blanket defence because it goes against the weight of case law in which many local authorities have succeeded in having claims against them struck out.

It opens up an avenue of attack for those who have suffered as a result of the actions or lack of action on the part of local authorities, she says.

Ayles adds that a key factor is that prior to the allegations there was already concern about the worker in question. Despite that concern, the local authority still allowed him to have contact with the claimant and subsequently the abuse took place.

In those circumstances, she says, where there was already concern and the abuse alleged could have been regarded as foreseeable, it would have been wrong for the council to be able to hide behind public interest immunity.