Child Protection Referrals to Tusla – Qualified Privilege?

RP & Another v BK [2018] IEHC 139 – Barr J

The High Court (Barr J) has recently decided that a landlord, who made a child protection referral to Tusla and the HSE, could rely on the defence of qualified privilege in defamation proceedings. It was also held that the landlord could rely on the statutory protection provided under the Protection for Persons Reporting Child Abuse Act 1998.

Facts

The Plaintiffs and the Defendant in this case were involved in an ongoing dispute regarding the repayment of deposit money on rental accommodation. The Defendant (landlord) had alleged that the Plaintiffs (tenants) had caused substantial damage to the rented property, and thus refused to repay a deposit sum when the Plaintiffs’ tenancy came to an end.

As this dispute was ongoing, the Defendant became concerned about how the Plaintiffs treated their six year old autistic child. During an inspection of the rented property, the Defendant discovered a cupboard fitted with an air vent – that had not been fitted previously – and became worried that this confined space was being used by the Plaintiffs to punish their child. The Defendant reported her concerns to Tusla, which would appear to have been investigated and the case was closed without finding.  Upon hearing of the allegation made against them, the Plaintiffs alleged that the report made by the Defendant to Tusla was latent with malice as a result of the already existing conflict between the parties. They took proceedings against the Defendant, alleging that the report to Tusla constituted a breach of the provisions contained within the Defamation Act 2009.

Legal Discussion

According to s6(2) of the 2009 Act, the tort of Defamation is the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the first-mentioned person. This section further provides that a defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

Section 2 of the 2009 Act defines a “defamatory statement” as “a statement that tends to injure a person’s reputation in the eyes of reasonable members of society.” In assessing the law outlined above, Barr J had no issue in finding that the statement made by the Defendant to Tusla was a “defamatory statement”.

The key issue in this case was whether a defence could be provided to the defamatory statement made. The Defendant claimed that the report made to Tusla occasioned Qualified Privilege as set out in section 18 of the 2009 Act. It was submitted by the Plaintiffs that this Defence was lost because the Defendant made these statements, either knowing them to be untrue, or being reckless as to their truth, and did so out of malice, due to the fact she was embroiled in a dispute with the Plaintiffs. The latter point is the subject of section 19 of the 2009 Act – the defence of Qualified Privilege can be lost if the Plaintiff proves that the Defendant acted with malice.

In coming to its decision, the Court accepted that the social worker to whom the complaint was made was a Designated Officer and accordingly, it was appropriate to communicate any concerns that one may have about the safety or welfare of minors to that person. The Court was satisfied that the Defendant landlord was acting honestly and in good faith when she made her concerns known to Tusla and she was therefore entitled to rely on the defence of Qualified Privilege in respect of her statements on that occasion. In determining whether malice was present on the part of the Defendant in making the report, the Court found favour with a quote published by McMahon and Binchy (4th ed.) –

“incidental presence of an improper motive will not always be fatal; provided that the author was primarily and honestly interested in protecting the recognised interest, the incidental presence of disgust, indignation or annoyance will not destroy the privilege.” (para. 34.249)

Finally, the Court also found that the Defendant was entitled to rely on the provisions of section 3 of the Protections for Persons Reporting Child Abuse Act 1998 –

A person who, apart from this section, would be so liable shall not be liable in damages in respect of the communication whether in writing or otherwise, by him or her to an appropriate person of his/her opinion that –

a child has been or is being assaulted, ill-treated, neglected or sexually abused, or
a child’s health, development or welfare has been or is being avoidably impaired or neglected, unless it is proved that he or she has not acted reasonably and in good faith in forming that opinion and communicating it to the appropriate person.

It is clear that the Defendant would only lose the protection afforded by section 3, if it were proven that she had not acted reasonably and in good faith – which was not proven by the Plaintiff in this case.

Conclusion

This case clarifies the burden to be placed on Plaintiffs alleging that a child protection referral constituted a breach of the Defamation Act 2009. It particularly gives an insight into the difficulties of proving malice on the part of an individual making such a referral. It is also quite clear that the provisions of the Protection for Persons Reporting Child Abuse Act 1998 offer significant protection.