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The Dominion Post
July 28, 2003
Women can sue, Privy Council says
by David McLoughlin
Two Wellington women have won Privy Council backing to sue a social worker
and a psychologist they claim removed them from their father in 1988 after
false allegations of sexual abuse.
In a just-delivered decision, the Privy Council overturned High Court and
Court of Appeal rulings that stopped the women suing for $550,000 damages each
for upset to their lives and the trauma of being removed from their father
after one of them falsely made allegations of abuse when aged five.
The New Zealand
courts refused to hear their suit, saying protection workers investigating
abuse allegations might overlook the best interests of a child if they knew
their actions might be subject to minute evaluation in a damages action.
But the Privy Council decision, written by Lord Nicholls of Birkenhead,
said the suit should be heard despite the "formidable difficulties in
establishing negligence" by the social worker and psychologist.
However, it rejected the father's similar appeal to claim for damages.
The women were aged five and seven in 1988 and living with their widower
father when the younger told a friend her father had sexually abused her.
The friend told her mother who then contacted the authorities, which had the
girls interviewed by a psychologist. A social worker then got a court order
to remove the children from their father.
He was interviewed by police, but never charged with an offence, though
separated from his children for months and put under supervision for three
years after they were returned.
According to their claim, the five-year-old said within two weeks that her
allegations were untrue and had been made to "the ladies who had come to
see her and her sister at the school because she was allowed to tell lies at
school".
The older girl denied their father abused them. Their claim says the
psychologist and the social worker were negligent by not investigating
important factual errors in the false claim and for ignoring statements
denying abuse.
They lodged their lawsuits against the attorney-general, a government
department and the two workers in 1993 but their case was struck out by
Justice Gallen in the High Court in 1996.
He said that immediate action might be needed to protect a child on the basis
of limited information and such workers should not have to fear a lawsuit for
doing their job.
"While it is accepted that the effect of false allegations can cause the
utmost distress as far as persons wrongly accused are concerned, it is also
true that in the case of genuine allegations, the effects on a child can be
incalculable."
The Court of Appeal later upheld Justice Gallen's strike-out decision.
The Privy Council said that, as no trial had taken place, the applications
were to be approached on the footing that at the trial, if one took place,
the plaintiffs could succeed in proving the facts they alleged. It was right
to record, however, that all the defendants denied the alleged negligence.
Identities of all parties to the case, except the attorney-general, are
suppressed.
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