Thanks for that observation.
On reading the opinion again after your note, I do see that the court states that “it is appropriate to extend the law of tort,” and thus might be confining itself to a new tort claim.
The breach of trust language did alarm me and I didn’t realise criminal lawyers had a more nuanced view of the phrase.
So, it might better be said that the court is suggesting that the new tort would involve “abuse of a confidential relationship” rather than a “breach of trust.” A long look at context (especially after your observation) leads me to suggest that in rewriting, this court might want to abandon the breach of trust language and just stick to breach of a confidential relationship as an element of the new tort. That might make it clear that tort only is intended --- at least for the genetically thick like me.
Andrew’s point about timing is interesting though. Can I be put in apprehension of a harmful touching if I never knew about the threat until later when the threat has been extinguished, and Andrew posits? In other words, assume the parents find out and don’t let on until the child is older. Would that suggest that the new tort is only operative if the plan is carried into effect in some way? Otherwise, is this not like aiming a gun at someone who never notices that he has been in the crosshairs?
---------------------------------------
Matthew P. Harrington
Professeur titulaire
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6105
www.droit.umontreal.ca
---------------------------------------
From: Hedley, Steve<mailto:S.Hedley@ucc.ie>
Sent: Friday, July 10, 2015 10:36 AM
To: obligations@uwo.ca<mailto:obligations@uwo.ca>
It hadn't occurred to me that White J might have fiduciary duties in mind, and for the reasons Matthew gives I agree this seems most implausible. Criminal lawyers by contrast are quite used to talking of 'breach of trust' in assault or assault-like contexts, and in relation to children or vulnerable adults I'd say the meaning was pretty clear. As to whether it’s a good or a bad idea to extend tort in this way, I can’t see why the lack of immediacy should kill the claim, if it was clear what the defendant was working towards.
Steve Hedley
School of Law
University College Cork
9thlevel.ie<
http://9thlevel.ie/>
private-law-theory.org<
http://private-law-theory.org/>
-----Original Message-----
From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
Sent: 10 July 2015 15:21
To: Gerard Sadlier; Andrew Tettenborn
Cc: Hedley, Steve; obligations@uwo.ca
Subject: Re: New tort of sexual grooming?
I suppose I can see the assault theory here, but I am a bit puzzled by the breach of trust claim. I may, of course, be missing something and I hope someone will set me straight, but I don’t see that confidence between “friends” can form the basis of a fiduciary relationship giving rise to trust-like obligations. Granted this is an adult and child, a difficult and fraught relationship in the context of abuse, but I think that it might be going a bit too far to suggest that a relationship without property (intangible or tangible) based solely on friendship can bring about trust obligations.
I realise this is a rather limited and perhaps old-fashioned view, but in Canada, at least, the Supreme Court still takes the position (in the context of remedies) that “the breach of the obligation of trust and utmost good faith” lies only on those “who undertake to control or manage something -- be it property or some other interest -- on behalf of another.” Canson Enterprises Ltd. v. Boughton & Co. [1991] 3 SCR 534.
Thus, the court’s assertion here that befriending a child and establishing trust that is later abused seems to me to adopt a too colloquial view of the word “trust.” If the court does intend to create a trust-like relationship here, one has to ask what other kinds of confidential relationships built on “trust” would be impacted by this? And, to what extent in all these relationships would one be invested with the duty of “utmost good faith.” Moreover, what are the implications for remedies in such cases? Is this a trust-like relationship with tort-like remedies?
One can easily see the slippery slope from here without standing on his toes.
I wonder that recoginising a new tort might have been preferable to creating a new category of trust ---- if that is, in fact, what is intended here.
---------------------------------------
Matthew P. Harrington
Professeur titulaire
Faculté de droit
Université de Montréal
3101 chemin de la Tour
Montréal, Québec H3T 1J7
514.343.6105
www.droit.umontreal.ca<
http://www.droit.umontreal.ca>
---------------------------------------
From: Gerard Sadlier<mailto:gerard.sadlier@gmail.com>
Sent: Friday, July 10, 2015 9:47 AM
To: Andrew Tettenborn<mailto:a.m.tettenborn@swansea.ac.uk>
Cc: Hedley, Steve<mailto:S.Hedley@ucc.ie>, obligations@uwo.ca<mailto:obligations@uwo.ca<mailto:obligations@uwo.ca%3cmailto:obligations@uwo.ca>>
Why not? The tort of assault is completed once one is put in reasonable fear of unlawful physical harm, even if no such harm results. Do you say that in your example relief should be denied because the child only realizes the danger they were in after the event? Presumably, if they themselves realize that all these supposed acts of kindness have an evil intent at some point and that they are in danger of physical harm, they would recover on authedox principles of the law of assault (subject perhaps to arguments about the immediacy of likely harm)?
What reasons of policy or justice can you identify to refuse relief in a case such as you describe, assuming the evidence that grooming was with evil intent is present?
On 7/10/15, Andrew Tettenborn <a.m.tettenborn@swansea.ac.uk<mailto:a.m.tettenborn@swansea.ac.uk>> wrote:
> This programme of abuse was sustained and partly physical. Question:
> if the grooming is done with evil intent but is ultimately
> unsuccessful because the child's parents smell a rat and stop it,
> should there be liability for breach of trust alone? I doubt it, even
> if the child later finds out and feels aggrieved.
>
> Andrew
>
> On 10/07/15 12:14, Hedley, Steve wrote:
>>
>> /Walsh v. Byrne /[2015] IEHC 414 (21 May 2015) involved sexual abuse
>> of the plaintiff by the defendant over a 5-year period (plaintiff
>> then aged between 11 and 16), involving 'serious breach of trust by
>> the defendant, for whom the plaintiff had great respect and relied on
>> for advice and guidance'.
>>
>> Per White J:
>>
>> "22. In this case, the mental trauma suffered by the plaintiff, is
>> not just confined to the acts of assault and battery, but arises also
>> as a result of the consequences of the breach of trust of the
>> defendant who had played such an important role in the plaintiff's
>> life. The court's objective consideration of the purpose of the
>> defendant's kindness, concern and considerable investment of time, to
>> the period when the abuse stopped was for the insidious purpose of
>> satisfying his own sexual desire. For those reasons, it is
>> appropriate to extend the law of tort, to cover what is now a well
>> recognised and established pattern of wrongdoing, where a child is
>> befriended, where trust is established and where that friendship and
>> trust is used to perpetrate sexual abuse.
>>
>> "23. The court would define this as a combination of behaviour by
>> which a child is befriended, to gain his or her confidence and trust
>> and which includes a process by which a person prepares a child,
>> significant adults and the environment for the abuse.
>>
>> "24. The behaviour can involve many acts of individual kindness, but
>> with the aim of gaining access to the child and maintaining the
>> child's compliance with the abuse and secrecy to avoid disclosure."
>>
>> The opinion is here
>> <
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/e93169111d94fa5480257e7d0054fd22?OpenDocument>.
>>
>>
>>
>> */Steve Hedley/*
>>
>> /School of Law/
>>
>> /University College Cork/
>>
>> /9thlevel.ie <
http://9thlevel.ie/>/
>>
>> /private-law-theory.org <
http://private-law-theory.org/>/
>>
>
> --
>
>
> *Andrew Tettenborn*
> /Professor of Commercial Law, Swansea University/
>
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>
> *Andrew Tettenborn*
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>
> *Lawyer (n):*One versed in circumvention of the law (Ambrose Bierce)
>
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>
> ***
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