LORD REED: (with whom Lady
Hale, Lord Wilson, Lord Hodge and Lady Black agree)
1.
This appeal is concerned with the liability of a local authority for
what is alleged to have been a negligent failure to exercise its social
services functions so as to protect children from harm caused by third parties.
The principal question of law which it raises is whether a local authority or
its employees may owe a common law duty of care to children affected by the
manner in which it exercises or fails to exercise those functions, and if so,
in what circumstances.
The facts
2.
The claimants, who have been given anonymity for the purposes of these
proceedings and whom I shall refer to as Colin and Graham (not their real
names), seek damages for personal injuries suffered while they were children
living in the area of the respondent council. There has been no investigation
of the facts, but the matters on which they rely, as set out in the particulars
of claim, can be summarised as follows.
3.
In May 2006 the claimants and their mother, whom I shall refer to as Amy
(not her real name), were placed by the council in a house on an estate in
Poole, adjacent to another family who to the council’s knowledge had
persistently engaged in anti-social behaviour. Colin was then nine years old
and Graham was seven. Colin is severely disabled both mentally and physically,
and requires constant care. The council made extensive adaptations to the house
in order to meet his needs, and provided him with a “care package” through its
child health and disability team. He had an allocated social worker. The
support provided in respect of Colin was kept under review over the relevant
period by the child health and disability team together with Colin’s social
worker. A core assessment of his needs was updated in November 2006.
4.
Following the placement an incident occurred when children belonging to
the neighbouring family sat on Amy’s car and kicked a football against it. When
she remonstrated with them they abused and threatened her. She reported the
matter to the council’s chief executive. As a result the police attended and
issued a warning to the neighbouring family. This resulted in their targeting
Amy and her family for harassment and abuse which persisted over a period of
several years. It included vandalism of Amy’s car, attacks on the family home,
threats of violence, verbal abuse, and physical assaults on Amy and Graham.
These incidents were reported to the council. Various measures were taken
against the neighbouring family, including eviction, the obtaining of
injunctions, proceedings for contempt of court, anti-social behaviour orders,
and the imposition of sentences of imprisonment, but the harassment
nevertheless continued. When Amy’s requests for assistance from the council and
other agencies failed to bring the abuse to an end or to secure the rehousing
of her family, she contacted councillors and Members of Parliament, prompting
coverage by local and national media. This resulted in the Home Office
commissioning an independent report, which was critical of the police and of
the council’s failure to make adequate use of powers available under
anti-social behaviour legislation.
5.
Graham expressed suicidal ideas during 2008, and in September 2009, aged
ten, ran away from home leaving a suicide note. He was then provided with
psychotherapy by the local health authority. A social worker undertook an
initial assessment of his needs in October 2009, concluding that Amy should be
referred to mental health services and that a core assessment of Graham’s needs
should be carried out by the council’s family support team. That assessment was
completed in February 2010. Graham was then allocated the same social worker as
Colin. In May 2010 the strategic manager for children’s services acknowledged
that the initial assessment had been flawed. In July 2010 a child protection
strategy meeting decided that the risk of Graham’s harming himself should be
managed under a child in need plan rather than through the child protection
system. The child in need plan was completed later that month. In November 2010
the council concluded that its assessment of Graham’s needs had been flawed and
that a revised core assessment should be undertaken by Graham’s social worker.
Following its completion in June 2011, the council decided to undertake an
investigation in relation to Graham under section 47 of the Children Act 1989
(“the 1989 Act”). The following month a child protection conference decided to
make Graham subject to a child protection plan.
6.
In the meantime it had been decided that the family should be rehoused
away from the estate. A suitable house was identified, and the necessary
adaptations were made. Amy and the children moved into their new home in
December 2011.
7.
It is alleged that the abuse and harassment which the children underwent
between May 2006 and December 2011 caused them physical and psychological harm.
The history of the proceedings
8.
The claim form which instituted the present proceedings was issued on
behalf of Amy and the children in December 2014, following the striking-out of
an earlier claim issued in 2012. The council is the sole defendant. Particulars
of claim were served in April 2015. They advanced allegations under two limbs.
The first was to the effect that the council, in the exercise of its housing
functions, owed Amy and the children a duty of care to protect them from abuse
and anti-social behaviour by rehousing them. The second limb was to the effect
that the council owed the children a duty of care in relation to the exercise
of its functions under sections 17 and 47 of the 1989 Act, which are explained
below, and failed to protect them from harm by allowing them to continue to
live on the estate.
9.
In April 2015 the council applied for the claim to be struck out. On 2
October 2015 Master Eastman acceded to the application and struck out the
claim. The main focus of the hearing before him was on the first limb of the
claim, and he dealt relatively briefly with the second limb. Referring to X
(Minors) v Bedfordshire County Council [1995] 2 AC 633 and to the
discussion in Charlesworth & Percy on Negligence, 10th ed (2001), he
concluded that no duty of care arose out of the statutory powers and duties of
local authorities under the 1989 Act.
10.
The claimants appealed in relation to the second limb of the claim only.
On 16 February 2016 Slade J allowed the appeal: [2016] EWHC 569 (QB); [2016] HLR 26. She considered that the principal issue arising was whether the
decision of the Court of Appeal in D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151; [2004] QB 558, in which it declined to strike out a child’s claim
against a local authority arising from action which it had taken to separate her
from her father following a negligent investigation of suspected child abuse,
had been impliedly overruled by the decisions of the House of Lords in Mitchell
v Glasgow City Council [2009] UKHL 11; [2009] AC 874 and of this court in Michael
v Chief Constable of South Wales [2015] UKSC 2; [2015] AC 1732. She
concluded that it had not, and that there was no absolute bar to a negligence
claim by a child against a local authority for failure to safeguard him or her
against abuse. Whether a common law duty of care was owed by the council to the
claimants would in her view depend upon a full examination of the facts. By an
order of the same date she gave the claimants permission to amend their
particulars of claim.
11.
Amended particulars of claim were served in March 2016. These allege
both a common law duty of care owed by the council and a duty of care owed by
its social workers, social work managers and other staff allocated to the
claimants or tasked with investigating their situation, for the breach of which
the council is said to be vicariously liable. It is said that the claimants
“rely in terms of the statutory backdrop giving rise to a common law duty of
care on the statutory duty to safeguard the welfare and promote the upbringing
of all children in a local authority’s geographical area, as set out in
sections 17 and 47 of [the 1989 Act].”
12.
In relation to the council itself, it is said that it had a duty to
protect children in its area, and in particular children reported to it as
being at foreseeable risk of harm. Such a risk is alleged to have been
communicated to the council in the present case from July 2006, placing it
under a duty to investigate whether the claimants were at foreseeable risk of
harm, and thereafter to take reasonable steps to protect them from any such
risk. The council is said to have “accepted a responsibility for the claimants’
particular difficulties” in “purporting to investigate the risk that the
claimants’ neighbours posed to them and subsequently in attempting to monitor
the claimants’ plight”. It is said that “in so far as such investigation is
shown to have been carried out negligently and/or negligently acted on, the
defendant is liable for breach of duty”.
13.
In relation to vicarious liability, it is said that each of the social
workers and social work managers who was allocated as the social worker or
manager for the claimants or tasked with investigating their plight owed them a
duty of care. That duty is said to have included a duty to protect them from
physical and psychiatric damage, to monitor their welfare, to arrange for the
provision of such medical treatment as they required, to visit them and
ascertain their views, wishes, anxieties and complaints, to ascertain whether
either of them was at risk of harm from which their mother was unable to
protect them, and in the event of such risk to remove them from such risk
“using the discretion of the defendant to remove the claimants to a home where
they would be safe”. It is said that the social workers and social work
managers knew or ought to have known that the claimants and their mother were
being subjected to violence and abuse from which she was unable to protect them
“due mainly to her own position and vulnerability as a victim of such violence
and abuse”, that Colin was being targeted for mockery because of his
disabilities, and that Graham was being assaulted and was threatening to commit
suicide.
14.
In relation to breach of duty, it is said that the council “failed to
assess the ability of the claimants’ mother to protect her children from the
level of abuse and violence they were subjected to”, and “failed to assess that
the mother was unable to meet the claimants’ needs whilst she lived on the
estate with them”. As a result, it failed to remove the children from their
home:
“On the balance of probabilities
competent investigation at any stage would have led to the removal of the
claimants from home. A child in need assessment should with competent care have
been carried out in respect of each claimant by September 2006 at the latest.
By September 2006 no competent local authority would have failed to carry out a
detailed assessment and on the balance of probabilities such detailed
assessment if carried out competently would and should have led to the
conclusion that each of the claimants required removal from home if the family
as a whole could not be moved. With the information obtained by competent
assessment in September 2006 on application to the court the defendant would
have obtained at least respite care and if necessary by (sic) interim care
orders in respect of each claimant. Any competent local authority should and
would have arranged for their removal from home into at least temporary care.”
15.
The council appealed against Slade J’s decision. On 21 December 2017 the
Court of Appeal allowed the appeal: [2017] EWCA Civ 2185; [2018] 2 WLR 1693.
Irwin LJ gave the main judgment, with which Davis and King LJJ agreed. Having
considered the authorities in detail he concluded that two considerations in
particular militated against liability. The first was the concern articulated
in X (Minors) v Bedfordshire County Council and in Hill v Chief
Constable of West Yorkshire [1989] AC 53 that “liability in negligence will
complicate decision-making in a difficult and sensitive field, and potentially
divert the social worker or police officer into defensive decision-making”. The
second was the principle, illustrated by cases such as Mitchell v Glasgow
City Council and Michael v Chief Constable of South Wales, that in
general there is no liability for the wrongdoing of a third party, even where
that wrongdoing is foreseeable. In his view, none of the exceptions to that
general principle applied, since this was not a case in which the council,
performing its social services functions, brought about the risk of harm or had
control over the individuals representing the risk, nor had it assumed
responsibility towards the claimants. The decision of the Court of Appeal in D
v East Berkshire was in his view inconsistent with the subsequent decision
of this court in Michael, where the majority had rejected an argument,
based explicitly on D v East Berkshire, that the common law should be
developed in order to achieve consistency with Convention rights. In his view
the Court of Appeal was therefore not bound to follow its decision in the East
Berkshire case, applying the doctrine of stare decisis as explained in Young
v Bristol Aeroplane Co Ltd [1944] KB 718, 725-726. In those circumstances,
there was no basis for holding the council liable for the wrongdoing of third
parties.
16.
King LJ added, in relation to the pleading quoted at para 14 above, that
there appeared to be no understanding of the statutory basis upon which an
order resulting in the removal of the claimants from their mother could have
been made. She explained that where a mother did not consent to the removal of
her children from her care under an interim care order, the local authority
must satisfy the court, pursuant to section 38(2) of the 1989 Act, that there
were reasonable grounds for believing that the threshold criteria mentioned in
section 31(2) were satisfied: in particular, that the child concerned was
suffering, or likely to suffer, significant harm attributable to the care given
to him not being what it would be reasonable to expect a parent to give to him.
On the facts of the case it seemed highly unlikely that it could be shown that
there were reasonable grounds to conclude that the threshold criteria could be
satisfied. Further, numerous Court of Appeal decisions had made it clear that satisfaction
of the threshold criteria should not be equated with satisfaction of the case for
the removal of a child from its parent. A care plan for the immediate removal
of a child from its parent should only be approved by the court if the child's
safety demanded immediate separation: see for example In re G (Interim
Care Order) [2011] EWCA Civ 745; [2011] 2 FLR 955. There was no such order
as a “respite care order”. She added that the pleadings should have
particularised the broad basis on which it was said that the threshold criteria
were capable of being satisfied, and why the council would have been permitted
to remove the children from their mother. Had that been done, it would have
been apparent that the proposal that they should be removed from their mother
was legally unsustainable.
17.
Davis LJ added at paras 117-118, in relation to the alleged duty to seek
and obtain a care order under the 1989 Act:
“It was never said that the mother
was an unfit mother. She loved and cared for her (vulnerable) children. They
loved and needed her. Nothing she did or did not do caused them any harm: it
was the harassment of the neighbours which did. … In the circumstances of this
case, there was no justification for potentially separating, without the mother’s
consent, mother from children, children from mother by use of care proceedings.
To countenance care proceedings in the Family Court in order to overcome (or
provide a subsequent remedy for) the problems caused by the neighbours on the
estate would be, I would have thought, tantamount to an abuse of the process of
that court.”
The legislative context
18.
The particulars of claim focus on sections 17 and 47 of the 1989 Act,
although mention is also made of the Children Act 2004. No reliance is placed
on the functions of local authorities under legislation relating to the
provision of support to carers, the provision of housing, or protection from
anti-social behaviour.
19.
Section 17 appears in Part III of the 1989 Act, which is concerned with
support for children and families. In particular, section 17 is concerned with
the provision of services for children in need, their families and others.
Section 17(10) defines a child in need:
“a child shall be taken to be in
need if -
(a) he is unlikely to
achieve or maintain, or to have the opportunity of achieving or maintaining, a
reasonable standard of health or development without the provision for him of
services by a local authority under this Part;
(b) his health or
development is likely to be significantly impaired, or further impaired,
without the provision for him of such services; or
(c) he is disabled …”
Colin was a child in need as so defined, since he was
disabled. Graham was also assessed to be a child in need in July 2010.
20.
Under section 17(1) it is the “general duty” of every local authority “(a)
to safeguard and promote the welfare of children within their area who are in
need; and (b) so far as is consistent with that duty, to promote the upbringing
of such children by their families, by providing a range and level of services appropriate
to those children’s needs”. For the purpose of facilitating the discharge of
that general duty, every local authority has the specific duties and powers set
out in Schedule 2. These include a duty to take reasonable steps to identify
the extent to which there are children in need within their area, a duty to
assess the needs of any child who appears to be in need, and a duty to take
reasonable steps, through the provision of services under Part III of the Act,
to prevent children suffering ill-treatment or neglect: paragraphs 1, 3 and 4
respectively. Under section 17(6) the services provided under that section may
include providing accommodation.
21.
Section 17(1) does not impose a duty to meet the needs of any particular
child. Rather, it is to be read as imposing a duty on the local authority to
provide a range and level of services appropriate to meet the various needs of
children in its area: R (G) v Barnet London Borough Council [2003] UKHL 57; [2004] 2 AC 208, para 109. In relation to the provision of accommodation,
it is necessary to bear in mind the observations of Lord Hope of Craighead in
that case at paras 92-93, with which Lord Millett and Lord Scott of Foscote
agreed:
“92. … Although the services
which the authority provides may ‘include’ the provision of accommodation (see
section 17(6)), the provision of residential accommodation to rehouse a child
in need so that he can live with his family is not the principal or primary
purpose of this legislation. Housing is the function of the local housing
authority, for the acquisition and management of whose housing stock detailed
provisions are contained in the Housing Acts. Provisions of that kind are
entirely absent from this legislation.
93. … A reading of that
subsection [section 17(1)] as imposing a specific duty on the local social
services authority to provide residential accommodation to individual children
in need who have been assessed to be in need of such accommodation would sit
uneasily with the legislation in the Housing Acts. As Mr Goudie pointed out, it
could have the effect of turning the social services department of the local
authority into another kind of housing department, with a different set of
priorities for the provision of housing …”
22.
Section 47 appears in Part V of the 1989 Act, which is concerned with
the protection of children. In particular, section 47(1) imposes a duty on
local authorities, where there is “reasonable cause to suspect that a child ...
in their area is suffering, or is likely to suffer, significant harm”, to make
such enquiries as they consider necessary to enable them to decide whether they
should take any action to safeguard or promote the child’s welfare. Under
section 47(3) those enquiries shall, in particular, be directed towards
establishing (so far as material) “(a) whether the authority should make any
application to the court, or exercise any of their other powers under this Act
… with respect to the child”.
23.
Compulsory powers of intervention are provided in Parts IV and V of the
1989 Act. In particular, an application can be made to the court under section
31 for a care order or a supervision order, but in terms of section 31(2) such
an order can only be made by the court if it is satisfied (so far as material):
“(a) that the child concerned
is suffering, or is likely to suffer, significant harm;
and
(b) that the harm, or
likelihood of harm, is attributable to -
(i) the care given to the
child, or likely to be given to him if the order were not made, not being what
it would be reasonable to expect a parent to give to him …”
An interim care order can be made under section 38 of the
1989 Act, but only if the court is “satisfied that there are reasonable grounds
for believing that the circumstances with respect to the child are as mentioned
in section 31(2)”: section 38(2).
24.
Even if these tests are satisfied at what has become known as the
“threshold” stage, it remains to be considered at the “welfare” stage whether
an order ought to be made. The Court of Appeal has held that interim care
orders should be made only where the children’s safety requires removal, and
removal is proportionate in the light of the risks posed by leaving them where
they are: In re G (Interim Care Order), para 22. In relation to care
orders, the court must treat the welfare of the child as the paramount
consideration, and any interference with article 8 rights must be proportionate:
In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33;
[2013] 1 WLR 1911, paras 32, 73 and 194-195.
Relevant developments in the law of negligence
25.
It is accepted that the provisions of the 1989 Act which impose duties
on local authorities do not create a statutory cause of action. The question is
whether local authorities may instead be liable at common law for breach of a
duty of care in relation to the performance of their functions under the Act.
In order to answer that question, it will be necessary to consider a number of
authorities decided over the period between about 1995 and the present day.
Before doing so, it may be helpful to begin with an overview, necessarily
stated in general and simplified terms, of how legal thinking about the
liabilities of public authorities in negligence developed over that period. As
will become apparent, the period has been marked by shifting approaches by the
highest court. In its recent case law this court has attempted to establish a
clearer framework.
26.
As was explained in Robinson v Chief Constable of West Yorkshire
Police [2018] UKSC 4; [2018] AC 736, paras 31-42, public authorities other
than the Crown were traditionally understood to be subject to the same general
principles of the law of tort, at common law, as private individuals and
bodies: see, for example, Entick v Carrington (1765) 2 Wils KB 275
and Mersey Docks and Harbour Board v Gibbs (1866) LR 1 HL 93.
That position might be altered by statute, by imposing duties whose breach gave
rise to a statutory liability in tort towards private individuals, or by
excluding liability for conduct which would otherwise be tortious at common
law: see respectively Gorris v Scott (1874) LR 9 Ex 125 and Geddis v
Proprietors of Bann Reservoir (1878) 3 App Cas 430.
27.
In particular, as Lord Reid explained in Dorset Yacht Co Ltd
v Home Office [1970] AC 1004, 1030, a person performing a statutory duty
was liable for an act which, but for the statute, would be actionable at common
law, if he performed the act carelessly so as to cause needless damage. His
liability arose because the defence which the statute provided extended only to
the careful performance of the act. The rationale, Lord Reid explained, was
that:
“Parliament deems it to be in the
public interest that things otherwise unjustifiable should be done, and that
those who do such things with due care should be immune from liability to
persons who may suffer thereby. But Parliament cannot reasonably be supposed to
have licensed those who do such things to act negligently in disregard of the
interests of others so as to cause them needless damage.”
Lord Reid added at p 1031 that the position was not the
same where Parliament conferred a discretion. If the discretion was exercised
lawfully, then the act in question would be authorised by Parliament:
“But there must come a stage when
the discretion is exercised so carelessly or unreasonably that there has been
no real exercise of the discretion which Parliament has conferred. The person
purporting to exercise his discretion has acted in abuse or excess of his
power. Parliament cannot be supposed to have granted immunity to persons who do
that.”
28.
Like private individuals, public bodies did not generally owe a duty of
care to confer benefits on individuals, for example by protecting them from
harm: see, for example, Sheppard v Glossop Corpn [1921] 3 KB 132 and East
Suffolk Rivers Catchment Board v Kent [1941] AC 74. In this context I am
intentionally drawing a distinction between causing harm (making things worse)
and failing to confer a benefit (not making things better), rather than the
more traditional distinction between acts and omissions, partly because the
former language better conveys the rationale of the distinction drawn in the
authorities, and partly because the distinction between acts and omissions
seems to be found difficult to apply. As in the case of private individuals,
however, a duty to protect from harm, or to confer some other benefit, might
arise in particular circumstances, as for example where the public body had
created the source of danger or had assumed responsibility to protect the
claimant from harm: see, for example, Dorset Yacht Co Ltd v
Home Office, as explained in Gorringe v Calderdale Metropolitan Borough
Council [2004] UKHL 15; [2004] 1 WLR 1057, para 39.
29.
This traditional understanding was departed from in Anns v Merton
London Borough Council [1978] AC 728, where Lord Wilberforce laid down a
new approach to determining the existence of a duty of care. It had two stages.
First, it was necessary to decide whether there was a prima facie duty of care,
based on the foreseeability of harm. Secondly, in order to place limits on the
breadth of the first stage, it was necessary to consider whether there were
reasons of public policy for excluding or restricting any such prima facie
duty. These included, in the case of public authorities exercising discretionary
powers, the supposed non-justiciability of decisions falling into the category
of policy as opposed to operations. That two-stage approach had major
implications for public authorities, as they have a multitude of functions
designed to protect members of the public from foreseeable harm of one kind or
another, with the consequence that the first stage inquiry was readily
satisfied, and the only limits to liability became public policy, including the
distinction between policy and operations.
30.
The Anns decision led to a period during which the courts
struggled to contain liability, particularly for “pure” economic loss (ie,
economic loss which was not the result of physical damage or personal injury)
and for the failures of public authorities to perform their statutory functions
with reasonable care. Clarification of the general approach to establishing a
duty of care in novel situations was provided by Caparo Industries plc v
Dickman [1990] 2 AC 605, but the decision was widely misunderstood as
establishing a general tripartite test which amounted to little more than an
elaboration of the Anns approach, basing a prima facie duty on the
foreseeability of harm and “proximity”, and establishing a requirement that the
imposition of a duty of care should also be fair, just and reasonable: a
requirement that in practice led to evaluations of public policy which the
courts were not well equipped to conduct in a convincing fashion.
31.
Although the decision in Anns was departed from in Murphy v
Brentwood District Council [1991] 1 AC 398, its reasoning in relation to the
liabilities of public authorities remained influential until Stovin v Wise [1996] AC 923, where a majority of the House of Lords reasserted the importance of the
distinction in the law of negligence between harming the claimant and failing
to confer a benefit on him or her, typically by protecting him or her from
harm. The distinction between policy and operations was also rejected. The
resultant position, as explained by Lord Hoffmann in a speech with which the
other members of the majority agreed, was that “[in] the case of positive acts,
therefore, the liability of a public authority in tort is in principle the same
as that of a private person but may be restricted by its statutory
powers and duties” (p 947: emphasis in original). In relation to failures to
perform a statutory duty, Lord Hoffmann stated at p 952 that “[i]f such a duty
does not give rise to a private right to sue for breach, it would be unusual if
it nevertheless gave rise to a duty of care at common law which made the public
authority liable to pay compensation for foreseeable loss caused by the duty
not being performed”.
32.
Further clarification was provided by the decision in Gorringe v
Calderdale Metropolitan Borough Council. In a speech with which the other
members of the Appellate Committee agreed, Lord Hoffmann reiterated at para 17
the importance of the distinction between causing harm and failing to protect
from harm, in the context of a highway authority’s alleged duty of care to
provide warning signs on the road:
“It is not sufficient that it
might reasonably have foreseen that in the absence of such warnings, some road
users might injure themselves or others. Reasonable foreseeability of physical
injury is the standard criterion for determining the duty of care owed by
people who undertake an activity which carries a risk of injury to others. But
it is insufficient to justify the imposition of liability upon someone who
simply does nothing: who neither creates the risk nor undertakes to do anything
to avert it.”
Lord Hoffmann also emphasised the difficulty of finding
that a statutory duty or power generated a common law duty of care, observing
at para 32 that it was “difficult to imagine a case in which a common law duty
can be founded simply upon the failure (however irrational) to provide some
benefit which a public authority has power (or a public law duty) to provide”.
33.
Lord Hoffmann stressed at para 38 that the House was “not concerned with
cases in which public authorities have actually done acts or entered into
relationships or undertaken responsibilities which give rise to a common law
duty of care”. For example, “[a] hospital trust provides medical treatment
pursuant to the public law duty in the [National Health Service Act 1977], but
the existence of its common law duty is based simply upon its acceptance of a
professional relationship with the patient no different from that which would
be accepted by a doctor in private practice.” The duty in such a case “rests
upon a solid, orthodox common law foundation and the question is not whether it
is created by the statute but whether the terms of the statute (for example, in
requiring a particular thing to be done or conferring a discretion) are sufficient
to exclude it”.
34.
It took time for the significance of Stovin v Wise and
Gorringe to be fully appreciated: they were not cited, for example, in Smith
v Chief Constable of Sussex Police [2008] UKHL 50; [2009] AC 225. Confusion
also persisted concerning the effect of Caparo until clarification was
provided in Michael and Robinson. The long shadow cast by Anns
and the misunderstanding of Caparo have to be borne in mind when
considering the reasoning of decisions concerned with the liabilities of public
authorities in negligence which date from the intervening period. Although
the decisions themselves are generally consistent with the principles explained
in Gorringe and later cases and can be rationalised on that basis, their
reasoning has in some cases, and to varying degrees, been superseded by those
later developments.
35.
For the purposes of the present case, it is necessary to consider a
number of decisions of the House of Lords concerned with local authorities’
duties of care to children affected by their discharge of their statutory
functions, together with some other cases in which the Court of Appeal’s
decision in D v East Berkshire was considered, and the decisions in Mitchell,
Michael and Robinson.
X (Minors) v Bedfordshire County Council
36.
The first authority which is germane to the present case is X
(Minors) v Bedfordshire County Council, decided by the House of Lords in
1995. The case concerned a number of claims against local authorities, some
relating to their functions under child care legislation and others to their functions
as education authorities. All of the claims had been struck out as
disclosing no cause of action.
37.
In one of the child care appeals, the Bedfordshire case itself,
five children brought claims for damages against the council for failing to
exercise its statutory powers and duties (including those conferred or imposed
by sections 17, 31 and 47 of the 1989 Act, and similar provisions in earlier
legislation) so as to protect them from harm at the hands of their parents. In
the other child care appeal, M (A Minor) v Newham London Borough Council,
a child and her mother brought claims for damages against the council, the area
health authority and a consultant psychiatrist employed by the latter. The case
against the council was based on vicarious liability for the negligence of a
social worker in its employment. It was alleged that he and the psychiatrist had
been negligent when investigating allegations of child abuse. They interviewed
the child without taking a full history of the mother’s domestic circumstances,
with the consequence that they mistakenly assumed, when the child referred to
her abuser by his first name, that she was referring to the mother’s partner,
rather than to another man with the same first name who had previously lived at
the mother’s address. They then told the mother that her partner was the
abuser, leading her to exclude her partner from her home. On the basis of the
psychiatrist’s and social worker’s conclusion that the mother would be unable
to protect the child from her partner, the child was taken into compulsory care
and placed with foster parents, where she remained for almost a year. Eventually
the mother obtained sight of a transcript of the interview, from which it was
apparent that the child had not identified her partner as the abuser. She then
informed the local authority, and the child was returned to her care.
38.
It should be noted at the outset that the Bedfordshire and Newham
cases were radically different from one another. In the former case,
the allegation was that the council had failed to protect the children from
harm inflicted by third parties. The question therefore arose whether there
were circumstances, such as an assumption of responsibility to protect the
children from harm, which placed the council under a common law duty to protect
them. That question did not arise in the Newham case. There, the
allegation was that the council’s employee had himself harmed the child, by
negligently causing her to be removed from her home and detained against her
will, with the result that she suffered a psychiatric disorder. Unlike in the Bedfordshire
case, there was no need to establish an assumption of responsibility
towards the child: that is not a necessary ingredient either of the tort of
wrongfully depriving a person of her liberty, or of the tort of negligently
inflicting a psychiatric injury. No such distinction was however drawn between
the two claims.
39.
Lord Browne-Wilkinson gave the leading speech, with which Lord Jauncey
of Tullichettle, Lord Lane and Lord Ackner agreed. He began by dispelling
confusion about some aspects of the law governing the liability of public
authorities, concluding at pp 734-735 that “in order to found a cause of action
flowing from the careless exercise of statutory powers or duties, the plaintiff
has to show that the circumstances are such as to raise a duty of care at
common law. The mere assertion of the careless exercise of a statutory power or
duty is not sufficient.” He went on to explain at p 736 that the exercise of a
statutory discretion could not be impugned unless it was so unreasonable as to
fall outside the ambit of the discretion conferred:
“It is clear both in principle and
from the decided cases that the local authority cannot be liable in damages for
doing that which Parliament has authorised. Therefore if the decisions
complained of fall within the ambit of such statutory discretion they cannot be
actionable in common law. However if the decision complained of is so
unreasonable that it falls outside the ambit of the discretion conferred upon
the local authority, there is no a priori reason for excluding all common law
liability.”
In these respects, Lord Browne-Wilkinson’s approach
accords with more recent authorities, as well as the older authorities to which
he referred.
40.
In relation to the Bedfordshire case, Lord Browne-Wilkinson
convincingly rejected the contention that the statutory provisions created a
cause of action for breach of statutory duty. In considering whether the
circumstances were such as to impose a duty of care on the council at common
law, Lord Browne-Wilkinson considered that questions arising from the
policy/operational distinction could not be resolved at that preliminary stage.
Nor could the question whether the council had acted in the reasonable exercise
of its discretion. There remained the three issues mentioned in Caparo:
whether the defendants could reasonably foresee that the claimants might be
injured, whether their relationship with the claimants had the necessary
quality of proximity, and whether it was in all the circumstances just and
reasonable that a duty of care should be imposed. The first two of these issues
were conceded. The only question which required to be decided was whether it
was just and reasonable to impose a duty of care.
41.
In that regard, Lord Browne-Wilkinson concluded at pp 749-751 that there
were a number of reasons of public policy for denying liability: the
multi-disciplinary nature of the system of decision-making, the delicacy and
difficulty of the decisions involved, the risk that local authorities would
respond to the imposition of liability by adopting a defensive approach to
decision-making, the risk of vexatious and costly litigation, and the
availability of administrative complaints procedures. Lord Browne-Wilkinson also
noted that Caparo required that, in deciding whether to develop novel
categories of negligence, the court should proceed incrementally and by analogy
with decided categories. The nearest analogies, in his view, were the cases
where a common law duty of care had been sought to be imposed upon the police,
in relation to the protection of members of the public, and upon statutory
regulators of financial dealings, in relation to the protection of investors.
In neither of those situations had it been thought appropriate to impose a
common law duty of care: Hill v Chief Constable of West Yorkshire and Yuen
Kun Yeu v Attorney General of Hong Kong [1988] AC 175.
42.
No claim was made in the Newham case on the basis of direct
liability. In relation to the question of vicarious liability raised by that
case, and also potentially by the Bedfordshire case, Lord
Browne-Wilkinson accepted at p 752 that the social worker and the psychiatrist
exercised professional skills, and that in general a professional duty of care
is owed irrespective of contract and can arise even where the professional
“assumes to act for the plaintiff” pursuant to a contract with a third party,
as in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145 and White v
Jones [1995] 2 AC 207. The social worker and the psychiatrist had not,
however, assumed any responsibility towards the claimants. Although the
carrying out of their duties involved contact with or a relationship with the
claimants, they were nevertheless employed or retained to advise the local
authority and the health authority respectively, not to advise or treat the
claimants. The position was not the same as in Smith v Eric S Bush
[1990] 1 AC 831, where the purchaser of a house had foreseeably relied on the
advice given by the surveyor to the building society which was going to lend
money on the security of the property. Even if the advice tendered by the
social worker to the local authority came to the knowledge of the child or his
parents, they would not regulate their conduct in reliance on the report. The
effect of the report would be reflected in the way the local authority acted.
Nor was the position the same as in Henderson v Merrett Syndicates, where
the duty of care to the claimants was imposed by the terms of the defendants’
contract with a third party; so also in White v Jones. Lord
Browne-Wilkinson concluded at p 753:
“In my judgment in the present
cases, the social workers and the psychiatrist did not, by accepting the
instructions of the local authority, assume any general professional duty of
care to the plaintiff children. The professionals were employed or retained to
advise the local authority in relation to the well-being of the plaintiffs but
not to advise or treat the plaintiffs.”
Lord Browne-Wilkinson added that in any event, the same
policy considerations which led to the view that no direct duty of care was
owed by the local authority applied with at least equal force to the question
whether it would be just and reasonable to impose a duty of care on the social
worker and the psychiatrist. The psychiatrist also benefited from witness
immunity.
43.
The fundamental problem with this reasoning, so far as relating to an
assumption of responsibility, is that as explained in para 38 above, the
liability of the social worker and the psychiatrist in the Newham case
did not depend on whether they had assumed a responsibility towards the child.
44.
Lord Browne-Wilkinson’s conclusion that there was no assumption of
responsibility in the child abuse cases can be contrasted with his conclusion
in the education cases, which concerned failures to diagnose and address
special educational needs. He concluded in the first of those cases (the Dorset
case) that a direct claim could lie against the local authority on the
basis that it was offering a service to the public, namely the provision of
psychological advice, which the claimant had accepted. By holding itself out as
offering a service, it came under a duty of care to those using the service, in
the same way as a health authority conducting a hospital under statutory powers
was under a duty of care to those whom it admitted. There could also be
vicarious liability for negligence on the part of the educational psychologists
which the local authority employed to provide the service, and on whose
professional advice the claimant’s parents were said to have relied.
45.
The position was similar in the second education case (the Hampshire case),
which was based on vicarious liability for the negligence of a headmaster and
an advisory teacher. Lord Browne-Wilkinson concluded that, whether it was
operated privately or under statutory powers, a school which accepted a pupil
assumed responsibility for his educational needs. The education of the pupil
was the very purpose for which the child went to the school. The head teacher,
being responsible for the school, came under a duty of care to exercise the
reasonable skills of a headmaster in relation to such educational needs. The
position was the same where an advisory teacher was brought in to advise on the
educational needs of a specific pupil, whether he was consulted privately or
was provided by the local authority. If he knew that his advice would be
communicated to the pupil’s parents, he must foresee that they would rely on
such advice. Therefore, in giving that advice, he owed a duty to the child to
exercise the skill and care of a reasonable advisory teacher.
Barrett v Enfield London Borough Council
46.
The next case in the House of Lords concerned with local authorities’
statutory responsibilities towards children was Barrett v Enfield London
Borough Council [2001] 2 AC 550. The House declined to strike out a claim
alleging that, in making or failing to make a number of decisions relating to a
child who had been in its care throughout his childhood, a local authority had
been in breach of a common law duty of care, and also alleging that social
workers employed by the local authority had failed in a duty of care owed by
them in carrying out its obligations to monitor the child’s welfare. Most of
the allegations concerned failures to confer benefits on the claimant.
47.
The critical difference from X (Minors) v Bedfordshire, as Lord
Slynn of Hadley explained in a speech with which Lord Nolan and Lord Steyn
agreed, was that the claim in Barrett v Enfield related to conduct
occurring after the child had been taken into care. Lord Slynn drew on the
analogy of a school which accepted a pupil and thereby assumed responsibility
for his educational needs, giving rise to a duty of care, as Lord
Browne-Wilkinson had stated in X (Minors) v Bedfordshire, and that of a
prison which had a prisoner in its custody, and consequently assumed
responsibility for his physical wellbeing, again giving rise to a duty of care,
as had been held in R v Deputy Governor of Parkhurst, Ex p Hague [1992] 1 AC 58. As Lord Hutton explained in his concurring speech, with which Lord
Nolan and Lord Steyn agreed, the effect of taking the child into care was that
the local authority assumed responsibility for his care. The statutory powers
and duties might have provided the local authority with defences in respect of
its specific acts or omissions, but that could not be decided without an
investigation of the facts.
48.
The committee rejected the argument that to impose liability on local
authorities for careless acts or omissions in relation to a child in their care
would be contrary to public policy. Lord Slynn approved at p 568 an observation
in the Court of Appeal that the argument that imposing a duty of care might
lead to defensive conduct “should normally be a factor of little, if any,
weight”. He also rejected the argument that the administrative remedies to
which Lord Browne-Wilkinson had referred in X (Minors) v Bedfordshire were
likely to be as effective as the recognition of a duty of care.
Phelps v Hillingdon London Borough Council
49.
In Phelps v Hillingdon London Borough Council [2001] 2 AC 619 an
enlarged committee of the House of Lords considered a number of claims alleging
negligence in the assessment of children with special educational needs, with
the result that they did not receive the educational facilities which would
otherwise have been provided. As in the Bedfordshire case, the claims were
based on failures to confer a benefit. They were advanced both on the basis of
the local authorities’ vicarious liability for breaches of a duty of care owed
by teachers and educational psychologists in their employment, and also on the
basis that the authorities were themselves in breach of a duty of care owed to
the children.
50.
In the one case which had gone to trial (the Phelps case), it was
established, contrary to the understanding on which the education cases had
been decided in X (Minors) v Bedfordshire, that the local authority did
not offer a psychology service open to the public, in the same way as a
hospital is open for the purpose of treating patients. Instead, the psychology
service was established to advise the local authority. Nevertheless Lord Slynn,
with whose speech Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord
Hutton and Lord Millett agreed, concluded at p 654 that “where an educational
psychologist is specifically called in to advise in relation to the assessment
and future provision for a specific child, and it is clear that the parents
acting for the child and the teachers will follow that advice, prima facie a
duty of care arises”. Lord Clyde, with whose speech Lord Jauncey, Lord Lloyd,
Lord Hutton and Lord Millett also agreed, emphasised at p 675 that the
psychologist in the Phelps case was advising the child through
her parents, as well as the local authority, since it was clear that they were
going to rely on the advice in question. As in X (Minors) v Bedfordshire, the
question whether the child (through his or her parents) was the intended
recipient of professional advice, or could be expected to rely on advice
provided to the local authority, was the key to whether there was an assumption
of responsibility giving rise to a duty of care. Lord Millett commented at p
677 that this reasoning was based on the Hedley Byrne principle (Hedley
Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465).
51.
In addressing counter-arguments based on public policy, the committee
called into question much of the policy-based reasoning advanced by Lord
Browne-Wilkinson in X (Minors) v Bedfordshire. The idea that the
multi-disciplinary nature of decision-making was a good reason for denying the
existence of a duty of care was rejected by Lord Slynn, Lord Nicholls and Lord
Clyde at pp 655-656, 665-666 and 674 respectively. The risk of vexatious and
costly litigation, and the availability of statutory complaints procedures,
were also rejected by Lord Nicholls and Lord Clyde as reasons for refusing to
recognise a duty of care, at pp 667 and 672 respectively.
D v East Berkshire Community NHS Trust
52.
The case of D v East Berkshire Community NHS Trust, decided by
the Court of Appeal in 2003, involved three appeals which were heard
together. In the first appeal (“East Berkshire”), a mother claimed
damages in respect of psychiatric injury alleged to have been suffered as a
result of being falsely accused by doctors of suffering from Munchausen
syndrome by proxy. In the second appeal (“Dewsbury”), a father and his
daughter claimed for psychiatric injury and financial loss resulting from
unfounded allegations by doctors and social workers of sexual abuse, which led
to the father and daughter being prevented from seeing one another for about a
fortnight. The daughter’s claim was thus analogous to that of the child in the Newham
case considered in X (Minors) v Bedfordshire. In the third appeal (“Oldham”),
parents claimed in respect of psychological distress suffered as a result of
unfounded allegations by doctors of having inflicted injuries on their
daughter, which led to the child being separated from her parents for almost a
year. The Dewsbury appeal was thus the only case which concerned social
workers and the local authority which employed them. The claims in the three
appeals were brought against the local authority in the Dewsbury case,
and the health authorities in the other two cases, on the basis of vicarious
liability. In each case, the court of first instance had determined as a
preliminary issue that no duty of care was owed. It was common ground in the
appeals that the critical issue was whether the third element of the tripartite
test understood to have been adopted in Caparo, that the imposition of a
duty of care was fair, just and reasonable, was satisfied.
53.
In that regard, the Court of Appeal noted that several of the policy
factors which Lord Browne-Wilkinson relied on, in X (Minors) v Bedfordshire,
had been questioned in Barrett v Enfield and Phelps v Hillingdon.
Furthermore, the Human Rights Act 1998 had come into force since X (Minors)
v Bedfordshire was decided. The effect of section 8 was to impose a
potential liability on local authorities to compensate children where there was
a failure to protect them from ill-treatment and neglect which infringed their
rights under article 3 of the European Convention on Human Rights, and to
compensate children and their parents where the children were taken into care,
or prevented from having contact with a parent, in circumstances which violated
their rights under article 8. Litigation of a kind which in X (Minors) v
Bedfordshire the House of Lords had considered it important to avoid as a
matter of public policy had therefore become, under statute, a potential
consequence of the conduct of those involved in taking decisions in child abuse
cases. In those circumstances, the court stated at para 81, “the reasons of
policy that led the House of Lords to hold that no duty of care towards a child
arises, in so far as those reasons have not already been discredited by the
subsequent decisions of the House of Lords, will largely cease to apply”. It
concluded at para 84:
“It follows that it will no longer
be legitimate to rule that, as a matter of law, no common law duty of care is
owed to a child in relation to the investigation of suspected child abuse and
the initiation and pursuit of care proceedings. It is possible that there will
be factual situations where it is not fair, just or reasonable to impose a duty
of care, but each case will fall to be determined on its individual facts.”
54.
Although a duty of care might be owed to the child, the court considered
that the position of the parents was different. In view of the potential
conflict between the best interests of the child and the interests of the parents,
there were in the court’s view cogent reasons of public policy for concluding
that, where child care decisions were being taken, no common law duty of care
should be owed to the parents. Another way of expressing the point would have
been to say that the imposition of a common law duty of care towards the
parents would be inconsistent with the statutory framework, since it would
interfere with the performance by the authority of its statutory powers and
duties in the manner intended by Parliament.
55.
Applying those conclusions to the facts of the individual appeals, the
court concluded that no duty of care was owed to the mother in the East
Berkshire case, the father in the Dewsbury case, or the parents in
the Oldham case. On the other hand, X (Minors) v Bedfordshire
could no longer be regarded as precluding the claim by the child in the Dewsbury
case against the local authority for negligence in the manner in which its
employees contributed to the child protection investigation. The court did not
need to consider whether there had been an assumption of responsibility towards
the child, since the doctors and social workers were alleged to have harmed
her, rather than to have failed to protect her from harm.
56.
The Court of Appeal’s reasoning effectively knocked away the public
policy objection to liability. It did not, however, undermine some other
aspects of the reasoning in X (Minors) v Bedfordshire. It remained the
position that, where a decision under challenge was taken in the exercise of a
statutory discretion, it was necessary to establish that the decision fell
outside the ambit of the discretion and was not, therefore, authorised by
Parliament. It also remained necessary, in circumstances where a duty of care
depended on an assumption of responsibility, to establish that there had been
such an assumption of responsibility, and that the duty contended for fell
within its scope.
57.
The parents in D v East Berkshire appealed to the House of Lords.
Their appeals were dismissed: [2005] UKHL 23; [2005] 2 AC 373. No issue was
taken with the Court of Appeal’s decision concerning the child in the Dewsbury
appeal, and it was conceded that the doctors in the other appeals owed a
duty of care to the children. Like the Court of Appeal, the House of Lords
considered that the duty of care admittedly owed to the child in any case of
suspected abuse would be compromised by the imposition of a concurrent duty of
care towards the parents, since the interests of the parents might conflict
with those of the child. In those circumstances, no duty of care could be owed
to the parents.
58.
Lord Nicholls, in a speech with which Lord Steyn, Lord Rodger of
Earlsferry and Lord Brown of Eaton-under-Heywood agreed, observed at para 82
that the law had moved on since the decision in X (Minors) v Bedfordshire:
“There the House held it was not
just and equitable to impose a common law duty on local authorities in respect
of their performance of their statutory duties to protect children. Later cases
mentioned by my noble and learned friend, Lord Bingham of Cornhill, have shown
that this proposition is stated too broadly. Local authorities may owe common
law duties to children in the exercise of their child protection duties.”
The latter sentence made it clear that the House of Lords
accepted that a duty of care could be owed to the child.
Later authorities
59.
The case of Kay v Lambeth London Borough Council [2006] UKHL 10;
[2006] 2 AC 465 was not concerned with social services, but it raised a
question as to whether there were circumstances in which lower courts might not
be bound by decisions of the House of Lords, in the light of contrary decisions
of the European Court of Human Rights. In a speech with which the other members
of the committee expressed agreement on that aspect of the case, Lord Bingham
concluded that lower courts should normally follow precedents which are binding
on them under the domestic principles of stare decisis. He admitted one partial
exception to that rule. Explaining that there were a number of considerations
which made X v Bedfordshire a very exceptional case, he stated at
para 45 that on these extreme facts “the Court of Appeal was entitled to hold,
as it did in para 83 of its judgment in D [v East Berkshire], that
the decision of the House in X v Bedfordshire, in relation to children,
could not survive the 1998 Act”.
60.
The case of Mitchell v Glasgow City Council, decided by the House
of Lords in 2009, [2009] UKHL 11, concerned the question whether a local authority owed a duty
of care to warn one of its tenants that he might be in danger when it responded
to previous violent behaviour towards him by his neighbour by inviting the
neighbour to a meeting and telling him that continued anti-social behaviour
could result in his eviction. Following the traditional approach re-established
in Stovin v Wise and Gorringe, the local authority was held not to
be under a duty of care to protect its tenant from harm inflicted by a third
party. It was accepted that there were particular situations where a duty of
care could arise, such as where the defendant had created the source of the
danger, or where the third party was under the defendant’s supervision or
control, or where the defendant had assumed a responsibility to the claimant
which lay within the scope of the duty alleged, but no such circumstances existed
in the case at hand. No reference was made to the decision of the Court of
Appeal in D v East Berkshire.
61.
The case of Michael v Chief Constable of South Wales Police, decided
by this court in 2015, concerned the question whether the police owed a duty of
care to a person who made an emergency call reporting threats of violence by a
third party. Following essentially the same approach as in Stovin v Wise,
Gorringe and Mitchell, this court decided by a majority that no duty
of care was owed. It was recognised that liability for harm caused by a third
party could arise in certain situations, such as where the wrongdoer was under
the defendant’s control, or where the defendant had assumed a responsibility
towards the claimant to protect her, but the situation in the case at hand was
not considered to be of that kind.
62.
In Michael, the decision of the Court of Appeal in D v East
Berkshire was relied on in support of an argument that the common law
should be developed in harmony with the obligations of public authorities under
the Human Rights Act. That argument was however rejected by Lord Toulson, who
observed that the same argument had also been rejected by the House of Lords in
Smith v Chief Constable of Sussex Police. The majority of the court
agreed. As explained earlier, the reasoning of the Court of Appeal in the East
Berkshire case was not that, because the European Court of Human Rights had
found violations of the Convention, it followed that British courts should
follow suit under the law of tort. Rather, the reasoning was that, since claims
could be brought under the Convention, it followed that claims could also be
brought under the Human Rights Act: a possibility which pulled the rug from
under some of the policy-based reasoning in X (Minors) v Bedfordshire.
63.
Most recently, the decision of this court in 2018 in the case of Robinson
v Chief Constable of West Yorkshire Police drew together several strands in
the previous case law. The case concerned the question whether police officers
owed a duty to take reasonable care for the safety of an elderly pedestrian
when they attempted to arrest a suspect who was standing beside her and was
likely to attempt to escape. The court held that, since it was reasonably
foreseeable that the claimant would suffer personal injury as a result of the
officers’ conduct unless reasonable care was taken, a duty of care arose in
accordance with the principle in Donoghue v Stevenson [1932] AC 562.
Such a duty might be excluded by statute or the common law if it was
incompatible with the performance of the officers’ functions, but no such
incompatibility existed on the facts of the case. The court distinguished
between a duty to take reasonable care not to cause injury and a duty to take
reasonable care to protect against injury caused by a third party. A duty of
care of the latter kind would not normally arise at common law in the absence
of special circumstances, such as where the police had created the source of
danger or had assumed a responsibility to protect the claimant against it. The
decision in Hill v Chief Constable of West Yorkshire was explained as an
example of the absence of a duty of care to protect against harm caused by a
third party, in the absence of special circumstances. It did not lay down a
general rule that, for reasons of public policy, the police could never owe a
duty of care to members of the public.
64.
Robinson did not lay down any new principle of law, but three
matters in particular were clarified. First, the decision explained, as Michael
had previously done, that Caparo did not impose a universal tripartite
test for the existence of a duty of care, but recommended an incremental
approach to novel situations, based on the use of established categories of
liability as guides, by analogy, to the existence and scope of a duty of care
in cases which fall outside them. The question whether the imposition of a duty
of care would be fair, just and reasonable forms part of the assessment of
whether such an incremental step ought to be taken. It follows that, in the
ordinary run of cases, courts should apply established principles of law,
rather than basing their decisions on their assessment of the requirements of
public policy. Secondly, the decision re-affirmed the significance of the
distinction between harming the claimant and failing to protect the claimant
from harm (including harm caused by third parties), which was also emphasised
in Mitchell and Michael. Thirdly, the decision confirmed,
following Michael and numerous older authorities, that public
authorities are generally subject to the same general principles of the law of
negligence as private individuals and bodies, except to the extent that
legislation requires a departure from those principles. That is the basic
premise of the consequent framework for determining the existence or
non-existence of a duty of care on the part of a public authority.
65.
It follows (1) that public authorities may owe a duty of care in
circumstances where the principles applicable to private individuals would
impose such a duty, unless such a duty would be inconsistent with, and is
therefore excluded by, the legislation from which their powers or duties are
derived; (2) that public authorities do not owe a duty of care at common law
merely because they have statutory powers or duties, even if, by exercising
their statutory functions, they could prevent a person from suffering harm; and
(3) that public authorities can come under a common law duty to protect from
harm in circumstances where the principles applicable to private individuals or
bodies would impose such a duty, as for example where the authority has created
the source of danger or has assumed a responsibility to protect the claimant
from harm, unless the imposition of such a duty would be inconsistent with the
relevant legislation.
Assumption of responsibility
66.
It is apparent from the cases so far discussed that the nature of an
assumption of responsibility is of importance in the present context. That
topic should be considered before turning to the circumstances of the present
case.
67.
Although the concept of an assumption of responsibility first came to
prominence in Hedley Byrne in the context of liability for negligent
misstatements causing pure economic loss, the principle which underlay that
decision was older and of wider significance (see, for example, Wilkinson v
Coverdale (1793) 1 Esp 75). Some indication of its width is provided by the
speech of Lord Morris of Borth-y-Gest in Hedley Byrne, with which Lord
Hodson agreed, at pp 502-503:
“My Lords, I consider that it
follows and that it should now be regarded as settled that if someone possessed
of a special skill undertakes, quite irrespective of contract, to apply that
skill for the assistance of another person who relies upon such skill, a duty
of care will arise. The fact that the service is to be given by means of or by
the instrumentality of words can make no difference. Furthermore, if in a
sphere in which a person is so placed that others could reasonably rely upon
his judgment or his skill or upon his ability to make careful inquiry, a person
takes it upon himself to give information or advice to, or allows his information
or advice to be passed on to, another person who, as he knows or should know,
will place reliance upon it, then a duty of care will arise.”
It is also apparent from well-known passages in the
speech of Lord Devlin, at pp 528-529 and 530:
“I think, therefore, that there is
ample authority to justify your Lordships in saying now that the categories of
special relationships which may give rise to a duty to take care in word as
well as in deed are not limited to contractual relationships or to relationships
of fiduciary duty, but include also relationships which in the words of Lord
Shaw in Norton v Lord Ashburton [1914] AC 932, 972 are ‘equivalent to
contract,’ that is, where there is an assumption of responsibility in
circumstances in which, but for the absence of consideration, there would be a
contract. ... I shall therefore content myself with the proposition that
wherever there is a relationship equivalent to contract, there is a duty of
care. … Where, as in the present case, what is relied on is a particular
relationship created ad hoc, it will be necessary to examine the particular
facts to see whether there is an express or implied undertaking of
responsibility.”
68.
Since Hedley Byrne, the principle has been applied in a variety
of situations in which the defendant provided information or advice to the
claimant with an undertaking that reasonable care would be taken as to its
reliability (either express or implied, usually from the reasonable foreseeability
of the claimant’s reliance upon the exercise of such care), as for example in Smith
v Eric S Bush, or undertook the performance of some other task or service
for the claimant with an undertaking (express or implied) that reasonable care
would be taken, as in Henderson v Merrett Syndicates Ltd and Spring v
Guardian Assurance plc [1995] 2 AC 296. In the latter case, Lord Goff
observed at p 318:
“All the members of the Appellate
Committee in [Hedley Byrne] spoke in terms of the principle resting upon
an assumption or undertaking of responsibility by the defendant towards the
plaintiff, coupled with reliance by the plaintiff on the exercise by the
defendant of due care and skill. Lord Devlin, in particular, stressed that the
principle rested upon an assumption of responsibility when he said, at p 531,
that ‘the essence of the matter in the present case and in others of the same
type is the acceptance of responsibility’. … Furthermore, although Hedley
Byrne itself was concerned with the provision of information and advice, it
is clear that the principle in the case is not so limited and extends to
include the performance of other services, as for example the professional
services rendered by a solicitor to his client: see, in particular, Lord
Devlin, at pp 529-530. Accordingly where the plaintiff entrusts the defendant
with the conduct of his affairs, in general or in particular, the defendant may
be held to have assumed responsibility to the plaintiff, and the plaintiff to
have relied on the defendant to exercise due skill and care, in respect of such
conduct.”
69.
That approach is reflected in the cases previously discussed. In X
(Minors) v Bedfordshire, the social workers were held not to have assumed
any responsibility towards the claimants in the child abuse cases on the basis
that they were not providing their professional services to the claimants, and it
was not reasonably foreseeable that the claimants would rely on the reports
which they provided to their employers. In the education cases, on the other
hand, the local authority assumed responsibility for the advisory service which
it was understood to provide to the public, since the public could reasonably be
expected to place reliance on the advice; a school assumed responsibility for
meeting the educational needs of the pupils to whom it provided an education;
the headmaster came under a duty of care by virtue of his responsibility for
the school; and an advisory teacher assumed responsibility for advice which he
knew would be communicated to a child’s parents and on which they would
foreseeably rely. In Barrett v Enfield, the local authority assumed
responsibility for the welfare of a child when it took him into its
care. In Phelps v Hillingdon, the educational psychologist assumed
responsibility for the professional advice which he provided about a child in
circumstances where it was reasonably foreseeable that the child’s parents
would rely on that advice.
70.
It is convenient at this point to consider a submission advanced on
behalf of the council in the present case, said to be supported by some recent
decisions of the Court of Appeal, that a public authority cannot assume
responsibility merely by operating a statutory scheme. The submission was based
primarily on the judgment of Dyson LJ in Rowley v Secretary of State for
Work and Pensions [2007] EWCA Civ 598; [2007] 1 WLR 2861, paras 51-55,
where it was held that the Secretary of State, in carrying out his statutory
duty to make an assessment of child support maintenance, did not assume a
responsibility towards the parent with care of the children in question. Dyson
LJ focused on the requirement that responsibility must be “voluntarily accepted
or undertaken”, as Lord Devlin put it in Hedley Byrne at p 529: a
requirement which, he held, was not met merely by the Secretary of State’s
performance of his statutory duty under the legislation.
71.
That decision was followed in X v Hounslow London Borough Council [2009] EWCA Civ 286; [2009] 2 FLR 262, a case with similarities to the present case,
where it was held that a local authority’s social services and housing
departments had not assumed a responsibility to protect vulnerable council
tenants and their children from harm inflicted by third parties. Sir Anthony
Clarke MR, giving the judgment of the Court of Appeal, observed at para 60 that
the case was not one of assumption of responsibility unless the assumption of
responsibility could properly be held to be voluntary. That was because “a
public authority will not be held to have assumed a common law duty merely by
doing what the statute requires or what it has power to do under a statute, at
any rate unless the duty arises out of the relationship created as a result,
such as in Lord Hoffmann’s example [in Gorringe, para 38] of the doctor
patient relationship.” Since the claimants’ case amounted to no more than that
the council had failed to move them into temporary accommodation in breach of
its statutory duty or in the exercise of its statutory powers, it failed
because none of the statutory provisions relied on gave rise to a private law
cause of action.
72.
The correctness of these decisions is not in question, but the dicta
should not be understood as meaning that an assumption of responsibility can
never arise out of the performance of statutory functions. Dyson LJ
based his reasoning in Rowley on the decision of the House of Lords in Customs
and Excise Comrs v Barclays Bank plc [2006] UKHL 28; [2007] 1 AC 181, where
the question was whether the bank had assumed responsibility to the
Commissioners to prevent payments out of an account, by virtue of having been
served with freezing orders. Dyson LJ cited Lord Bingham’s statement at para 14
that there was no assumption of responsibility by the bank: they had no choice.
Lord Hoffmann considered the question more fully. He observed at para 38 that a
duty of care is ordinarily generated by something which the defendant has
decided to do: giving a reference, supplying a report, managing a syndicate,
making ginger beer:
“It does not much matter why he
decided to do it; it may be that he thought it would be profitable or it may be
that he was providing a service pursuant to some statutory duty, as in Phelps
v Hillingdon London Borough Council [2001] 2 AC 619 and Ministry of
Housing and Local Government v Sharp [1970] 2 QB 223.”
He added at para 39:
“The question of whether the order
can have generated a duty of care is comparable with the question of whether a
statutory duty can generate a common law duty of care. The answer is that it
cannot: see Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057. The statute either creates a statutory duty or it does not. (That is
not to say, as I have already mentioned, that conduct undertaken pursuant to a
statutory duty cannot generate a duty of care in the same way as the same
conduct undertaken voluntarily.) But you cannot derive a common law duty of
care directly from a statutory duty. Likewise, as it seems to me, you cannot
derive one from an order of court.”
73.
There are indeed several leading authorities in which an assumption of
responsibility arose out of conduct undertaken in the performance of an
obligation, or the operation of a statutory scheme. An example mentioned by
Lord Hoffmann is Phelps v Hillingdon, where the teachers’ and
educational psychologists’ assumption of responsibility arose as a consequence
of their conduct in the performance of the contractual duties which they owed
to their employers. Another example is Barrett v Enfield, where the
assumption of responsibility arose out of the local authority’s performance of
its functions under child care legislation. The point is also illustrated by
the assumption of responsibility arising from the provision of medical or
educational services, or the custody of prisoners, under statutory schemes.
Clearly the operation of a statutory scheme does not automatically generate an
assumption of responsibility, but it may have that effect if the defendant’s
conduct pursuant to the scheme meets the criteria set out in such cases as Hedley
Byrne and Spring v Guardian Assurance plc.
The present case
74.
In the light of the cases which I have discussed, the decision in X
(Minors) v Bedfordshire can no longer be regarded as good law in so far as
it ruled out on grounds of public policy the possibility that a duty of care
might be owed by local authorities or their staff towards children with whom
they came into contact in the performance of their functions under the 1989 Act,
or in so far as liability for inflicting harm on a child was considered, in the
Newham case, to depend upon an assumption of responsibility. Whether a
local authority or its employees owe a duty of care to a child in particular
circumstances depends on the application in that setting of the general
principles most recently clarified in the case of Robinson. Following
that approach, it is helpful to consider in the first place whether the case is
one in which the defendant is alleged to have harmed the claimant, or one in
which the defendant is alleged to have failed to provide a benefit to the
claimant, for example by protecting him from harm. The present case falls into
the latter category.
75.
Understandably, the reasoning of Irwin LJ in the Court of Appeal in the
present case did not follow the approach set out in Robinson, which was
decided after the Court of Appeal had given its decision. The first
consideration on which Irwin LJ placed particular emphasis, namely the concern
expressed in X (Minors) v Bedfordshire and Hill v Chief Constable of
West Yorkshire that liability in negligence would complicate
decision-making in a difficult and sensitive field, and potentially divert the
social worker or police officer into defensive decision-making, has not been treated
as sufficient reason for denying liability in subsequent cases such as Barrett
v Enfield, Phelps v Hillingdon and D v East Berkshire. His view that
the decision of the Court of Appeal in D v East Berkshire had
been implicitly overruled by Michael was mistaken: the decision in D
v East Berkshire has not been overruled by any subsequent decision. In Michael,
as explained earlier, this court rejected an argument which was said to be
supported by D v East Berkshire, but it did not disapprove of the true
ratio of that decision. More fundamentally, in cases such as Gorringe,
Michael and Robinson both the House of Lords and this court adopted
a different approach (or rather, reverted to an earlier approach) to the
question whether a public authority is under a duty of care. That approach is
based on the premise that public authorities are prima facie subject to the
same general principles of the common law of negligence as private individuals
and organisations, and may therefore be liable for negligently causing
individuals to suffer actionable harm but not, in the absence of some
particular reason justifying such liability, for negligently failing to protect
individuals from harm caused by others. Rather than justifying decisions that
public authorities owe no duty of care by relying on public policy, it has been
held that even if a duty of care would ordinarily arise on the application of
common law principles, it may nevertheless be excluded or restricted by statute
where it would be inconsistent with the scheme of the legislation under which
the public authority is operating. In that way, the courts can continue to take
into account, for example, the difficult choices which may be involved in the
exercise of discretionary powers.
76.
The second consideration on which Irwin LJ based his decision, namely
the principle that in general there is no liability for the wrongdoing of a
third party even where that wrongdoing is reasonably foreseeable, is plainly
important but, as he recognised, not conclusive in itself. In Robinson,
this court cited at para 34 a helpful summary by Tofaris and Steel, “Negligence
Liability for Omissions and the Police” (2016) 75 CLJ 128, of the situations in
which a justification commonly exists for holding that the common law imposes
such a liability:
“In the tort of negligence, a
person A is not under a duty to take care to prevent harm occurring to person B
through a source of danger not created by A unless (i) A has assumed a
responsibility to protect B from that danger, (ii) A has done something which
prevents another from protecting B from that danger, (iii) A has a special
level of control over that source of danger, or (iv) A’s status creates an
obligation to protect B from that danger.”
77.
The present case is not brought on the basis that the council was in the
second, third or fourth of these situations. It was suggested in argument that
a duty of care might have arisen on the basis that the council had created the
source of danger by placing Amy and her family in housing adjacent to the
neighbouring family. The difficulty of sustaining such an argument is however
apparent from Mitchell, paras 41, 61-63, 76-77 and 81-82. As Lord Brown
pointed out in the last of these passages, there is a consistent line of
authority holding that landlords (including local authorities) do not owe a
duty of care to those affected by their tenants’ anti-social behaviour. It is
also necessary to remember that there is no claim against the council based on
its exercise of its functions under housing legislation.
78.
The claim against the council is based instead on an assumption of
responsibility or “special relationship”. The particulars of claim state:
“In purporting to investigate the
risk that the claimants’ neighbours posed to the claimants and subsequently in
attempting to monitor the claimants’ plight as set out in the sequence of
events above, the defendant had accepted a responsibility for the claimants’
particular difficulties and/or there was a special nexus or special
relationship between the claimants and the defendant. The defendant purported
to protect the claimants by such investigation and in as far as such
investigation is shown to have been carried out negligently and/or negligently
acted on the defendant is liable for breach of duty.”
The “sequence of events” referred to is a chronology of
events. In relation to investigation and monitoring by the council’s social
services department, it refers to the assignment of social workers to the
claimants, to the various assessments of their needs, and to meetings at which
the appropriate response to Graham’s behaviour was discussed.
79.
Irwin LJ rejected the contention that there was an assumption of
responsibility by the council on the ground that there was an insufficient basis
to satisfy the approach of the Court of Appeal in X v Hounslow London
Borough Council and Darby v Richmond-upon-Thames London Borough Council
[2017] EWCA Civ 252. I have also come to the conclusion that the particulars of
claim do not provide a basis on which an assumption of responsibility might be
established, for the following reasons.
80.
As Lord Browne-Wilkinson explained in relation to the educational cases
in X (Minors) v Bedfordshire (particularly the Dorset case), a
public body which offers a service to the public often assumes a responsibility
to those using the service. The assumption of responsibility is an undertaking
that reasonable care will be taken, either express or more commonly implied,
usually from the reasonable foreseeability of reliance on the exercise of such
care. Thus, whether operated privately or under statutory powers, a hospital
undertakes to exercise reasonable care in the medical treatment of its
patients. The same is true, mutatis mutandis, of an education authority
accepting pupils into its schools.
81.
In the present case, on the other hand, the council’s
investigating and monitoring the claimants’ position did not involve the
provision of a service to them on which they or their mother could be expected
to rely. It may have been reasonably foreseeable that their mother would be
anxious that the council should act so as to protect the family from their
neighbours, in particular by re-housing them, but anxiety does not amount to
reliance. Nor could it be said that the claimants and their mother had
entrusted their safety to the council, or that the council had accepted that
responsibility. Nor had the council taken the claimants into its care, and
thereby assumed responsibility for their welfare. The position is not, therefore,
the same as in Barrett v Enfield. In short, the nature of the statutory
functions relied on in the particulars of claim did not in itself entail that
the council assumed or undertook a responsibility towards the claimants to
perform those functions with reasonable care.
82.
It is of course possible, even where no such assumption can be inferred
from the nature of the function itself, that it can nevertheless be inferred
from the manner in which the public authority has behaved towards the claimant
in a particular case. Since such an inference depends on the facts of the
individual case, there may well be cases in which the existence or absence of
an assumption of responsibility cannot be determined on a strike out
application. Nevertheless, the particulars of claim must provide some basis for
the leading of evidence at trial from which an assumption of responsibility
could be inferred. In the present case, however, the particulars of claim do
not provide a basis for leading evidence about any particular behaviour by the
council towards the claimants or their mother, besides the performance of its
statutory functions, from which an assumption of responsibility might be
inferred. Reference is made to an email written in June 2009 in which the
council’s anti-social behaviour co-ordinator wrote to Amy that “we do as much
as it is in our power to fulfil our duty of care towards you and your family,
and yet we can’t seem to get it right as far as you are concerned”, but the
email does not appear to have been concerned with the council’s functions under
the 1989 Act, and in any event a duty of care cannot be brought into being
solely by a statement that it exists: O’Rourke v Camden London Borough
Council [1998] AC 188, 196.
83.
I would therefore conclude, like the Court of Appeal but for different
reasons, that the particulars of claim do not set out an arguable claim that
the council owed the claimants a duty of care. Although X (Minors) v
Bedfordshire cannot now be understood as laying down a rule that local
authorities do not under any circumstances owe a duty of care to children in
relation to the performance of their social services functions, as the Court of
Appeal rightly held in D v East Berkshire, the particulars of claim in
this case do not lay a foundation for establishing circumstances in which such
a duty might exist.
84.
The council is also sought to be held liable on the basis of vicarious
liability for the negligence of its employees. That is an aspect of the case to
which the Court of Appeal did not give separate consideration.
85.
The particulars of claim state:
“Each of the social workers and/or
social work managers and other staff employed by the defendant who was
allocated as the social worker or manager for the claimants or tasked with investigating
the plight of the claimants owed to the claimants a duty of care.”
It appears from the particulars of claim that social
workers carried out assessments of the claimants’ needs on the council’s
instructions, and provided the council (and others who may have been involved
in decision-making) with information and professional advice about the children
for the purpose of enabling the council to perform its statutory functions.
86.
There is no doubt that, in carrying out those functions, the social workers
were under a contractual duty to the council to exercise proper professional
skill and care. The question is whether, in addition, they also owed a similar
duty to the claimants under the law of tort. That depends on whether the social
workers assumed a responsibility towards the claimants to perform their
functions with reasonable care. In considering that question, it may be helpful
to compare the position of the social workers with the positions of the
educational psychologists and the advisory teacher in X (Minors) v
Bedfordshire, and the educational psychologists in Phelps v Hillingdon.
87.
In the former case, Lord Browne-Wilkinson accepted in relation to the Dorset
proceedings that the local authority could be vicariously liable for
negligence on the part of its educational psychologists because they were
providing professional advice to parents on which the parents had foreseeably
relied. In the Hampshire proceedings, he accepted that an advisory
teacher, brought in to advise on a pupil’s educational needs, owed a duty to
the child to exercise reasonable skill and care provided he knew that his
advice would be communicated to the pupil’s parents, and could therefore
reasonably foresee that they would rely on such advice. In Phelps v
Hillingdon, the duty of care of the educational psychologist towards the
child was again based on the fact that it was reasonably foreseeable that the
child’s parents would rely on the advice provided. Those were all cases where
the duty of care arose on the basis of the Hedley Byrne principle. In
the present case, on the other hand, there is no suggestion that the social
workers provided advice on which the claimants’ mother would foreseeably rely.
88.
As has been explained, however, the concept of an assumption of
responsibility is not confined to the provision of information or advice. It
can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc,
the claimant entrusts the defendant with the conduct of his affairs, in general
or in particular. Such situations can arise where the defendant undertakes the
performance of some task or the provision of some service for the claimant with
an undertaking that reasonable care will be taken. Such an undertaking may be
express, but is more commonly implied, usually by reason of the foreseeability
of reliance by the claimant on the exercise of such care. In the present case,
however, there is nothing in the particulars of claim to suggest that a
situation of that kind came into being.
89.
The existence of an assumption of responsibility can be highly dependent
on the facts of a particular case, and where there appears to be a real
possibility that such a case might be made out, a court will not decide
otherwise on a strike out application. In the circumstances which I have described,
however, the particulars of claim do not in my opinion set out any basis on
which an assumption of responsibility might be established at trial.
90.
Any uncertainty as to whether the case is one which can properly be
struck out without a trial of the facts is eliminated by the further difficulties
that arise in relation to the breach of duty alleged. The case advanced in the
particulars of claim is that “any competent local authority should and would
have arranged for [the claimants’] removal from home into at least temporary
care”. As King LJ explained, however, in order to satisfy the threshold
condition for obtaining care orders under section 31(2) of the 1989 Act, it
would be necessary to establish that the claimants were suffering, or were
likely to suffer, significant harm which was attributable to a lack, or likely
lack, of reasonable parental care. The threshold condition applicable to
interim care orders requires the court to be satisfied that there are
reasonable grounds for believing that the circumstances with respect to the
child are as mentioned in section 31(2). Nothing in the particulars of claim
suggests that those conditions could possibly have been met. The harm suffered
by the claimants was attributable to the conduct of the neighbouring family,
rather than a lack of reasonable parental care. There were simply no grounds
for removing the children from their mother.
Conclusion
91.
The particulars of claim in these proceedings do not disclose any
recognisable basis for a cause of action. The complaint is that the council or
its employees failed to fulfil a common law duty to protect the claimants from
harm inflicted by their neighbours by exercising certain statutory powers. The
relevant provisions do not themselves create a cause of action. Reliance is
placed on an assumption of responsibility arising from the relationship between
the claimants and the council or its employees, but there is nothing to suggest
that those relationships possessed the necessary characteristics for an
assumption of responsibility to arise. Furthermore, it is clear that the
alleged breach of duty, namely a failure to remove the claimants from the care
of their mother, has no possible basis. Although the court does not have before
it all the evidence which might emerge at a trial, there is no reason to
believe that the claimants could overcome these fundamental problems as to the
legal basis of their claim. That being so, it is to the advantage of all
concerned that the claim should not proceed to what would be a costly but
inevitably fruitless trial.
92.
For these reasons, which differ from those of the Court of Appeal, I
would dismiss the appeal.
