Sean Fegan v Assistant Chief Constable E W Anderson and the
Chief Constable of the Police Service of Northern Ireland [2010]
NICA 17
Mr Fegan was a social worker in a care home run by the Sisters
of Nazareth from 1987 until 1998. Throughout his employment he had
close daily contact with the 30 residents, aged 5 to 17.
In 1996, as a result of a former resident making an allegation
of sexual misconduct against him, the pursuer was placed on
precautionary suspension. By 6 January 1997, the DPP decided that
no proceedings should be instigated, and on 14 July 1997, he was
reinstated.
Six weeks later, and as a result of additional allegations, the
pursuer was back on precautionary suspension. Although he was
interviewed by the Garda on 10 September 1997, as one of the
complainers lived in the Republic, he was not interviewed by the
RUC. On 9 April 1998 the DPP for the Republic advised against
proceedings, and ultimately no criminal proceedings followed.
The pursuer's employers approached the RUC in April 1998 seeking
clarity of the position. In October 1998, the RUC replied, stating
that, although there would be no prosecution;
"Mr Fegan is not a fit person to continue in employment as a
social worker because of our paramount concern for the safety and
welfare of children".
Following this, disciplinary proceedings were instigated against
the pursuer by his employer and, as a result, he was dismissed. He
raised proceedings for unfair dismissal before an Industrial
Tribunal, but settled on an ex gratia basis, without any
admission of liability. As an express term of the settlement, the
pursuer conceded that his employer had no option, faced with the
information provided by the RUC, but to dismiss him.
The pursuer, in raising an action against the RUC, argued that
they failed to properly investigate the truth of the allegations
made, and failed to advise his employer of this. Therefore, having
failed to advise his employers that the allegations were unfounded
they should not have made a misleading and detrimental statement
about him.
The defendants, relying on Hill v Chief Constable of West
Yorkshire Police [1989] AC 53, argued that they owed no duty
to the pursuer while investigating him as a suspect, as they were
undertaking core police functions of investigation and prevention
of crime. They also stated that the fact that he was not personally
interviewed did not mean that the allegations were not properly
investigated.
The judge at first instance accepted that, as the defendants
were investigating commission of crime and protecting vulnerable
children, they were operating within the core principles identified
in Hill, and accordingly held that there was no duty of
care.
The pursuer appealed and argued that the question of breach of a
duty of care related to the representation made at the close of
investigations and not, largely, to the investigation itself.
The appeal court was referred to the issue of assumption of
responsibility for the consequences of a negligent
misrepresentation, as set out in Hedley Byrne v Heller [1954]
AC 465. The plaintiff argued this was outside the scope of the
protection offered to the police by Hill.
The court considered that key question in deciding where that
applied was:
'Does the evidence point to the conclusion that the maker of
the statement has accepted or ought in the circumstances to have
accepted personal responsibility for the financial consequences
flowing from reliance on his statement if negligently
made?'
It was held that an entitlement to recover damages may not
solely be restricted to the recipient of the misrepresentations,
but may also be extended to any person likely to be detrimentally
affected by the recipient placing reliance on that statement.
The court further held that there would need to be evidence that
the police by their conduct assumed responsibility for the
allegedly negligent misstatement, before a court could conclude
whether a duty existed. It was noted that the police do not, as a
general rule, owe a duty of care to suspects. There was no evidence
of a special responsibility undertaken to this suspect.
Although it was foreseeable that if the advice given to the care
home was wrong, loss would flow, the giving of a view did not
constitute evidence of an intention to create such a special
relationship between the police and the claimant as to create a
duty of care. The court decided that the view was proffered as part
of the police function of preventing crime, and so the reasoning
followed in Hill should apply. It also held that, even if
there was a duty, there was no evidence that there was negligence
or that the duty was breached. The court held that there was no
duty owed to the claimant and the appeal was accordingly
dismissed.
The importance of Fegan lies in demonstrating the
limits to circumstances where the courts will find a party has
assumed responsibility for their negligent misstatement. At the
same time it confirms that where a duty does exist a person can
claim damages where a misrepresentation affects them, even if the
misrepresentation is made to a third party.
Contributed by Lesley Allan