Judgment -House of Lords - Barret (A.P.) v. London Borough of Enfield  continued

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     "In my judgment, however, the policy considerations in the present case, although obviously not in every respect identical to those arising in the Bedfordshire case are strictly comparable and, taken cumulatively, have sufficient potency to override the competing consideration that 'wrongs should be remedied.'"

Lord Woolf M.R. added, at p. 377, that in relation to the decisions of the local authority of which complaint is made in the present case:

     "it would be contrary to the public interest and therefore not just or reasonable to impose a duty of care. The very fact that the defendant was stated to have been in the position of a parent to the plaintiff at the material time brings home the public policy aspects of the situation. Decisions of this nature often require a difficult and delicate balancing of conflicting interests."

Although a parent could be liable to a child for negligently driving a car he should not, nor should a local authority, be liable in making decisions "with regard to their children's future."

     "The relationship of the parent and the local authority to the child in their care is different from that which exists between a school's staff and its pupils where the staff are providing educational services for the pupils."

He continued, at p. 378:

     "However I am not suggesting a blanket immunity but an immunity in relation to the making of those decisions as to the future of a child which are normally made by a parent.

     . . . .

     Social workers and other members of the staff could however be negligent in an operational manner. They could, for example, be careless in looking after property belonging to the child or in reporting what they had observed for the purposes of an interdisciplinary assessment of what action should be taken in relation to a child. They could also be negligent in failing to carry out instructions properly. If, in implementing their decisions or the decisions of the authority, a social worker was careless, I accept there would be a case for the defendant being vicariously liable if the necessary causation of injury or other damage could be established. However in this case, although complaints as to this type of conduct are made, there could be no prospect of the plaintiff succeeding on those complaints alone. He would be quite unable to attribute any part of his condition to that sort of incident. This potential liability does not therefore assist the plaintiff here."

Evans L.J. agreed with the Master of the Rolls stressing inter-alia, at p. 379C that the injury complained of was "the cumulative effect of what is alleged to have been their negligent conduct of his upbringing," such conduct involving to a large degree the exercise of discretion "taking unquantifiable as well as quantifiable factors into account." (p. 380C) There was no prospect of the evidence establishing that the acts of negligence jointly or separately could have caused or made any substantial contribution to the injuries claimed.

Schiemann L.J. agreed, at p. 381F: "I see no prospect of the plaintiff establishing that his present complaints are attributable to errors made outwith the statutory discretion."

The Court dismissed the application for leave to appeal.

Is it Arguable That There is a Duty of Care?

In Caparo Industries Plc. v. Dickman [1990] 2 A.C. 605 it was stressed that in deciding whether to develop a novel category of negligence, the court should proceed incrementally and by analogy with decided categories. In "X" [1995] 2 A.C. 633 at p. 751C, Lord Browne-Wilkinson said:

     "We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme . . . To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer."

He added:

     "the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."

The respondent relies on "X" not only for these statements of principle, but also for the actual decision in the cases dealt with in the judgment. It is therefore an important question as to whether the decision in "X" concludes the present appeal. In the various cases claims were made (a) that a local authority and a psychiatrist employed by it were in breach of duty under the Child Care Act 1980 and were negligent in failing to investigate the case of a child suspected of having been sexually abused; (b) that a local authority, a social worker and a health visitor employed by it had failed to take action in respect of children living in appalling conditions and had failed to prevent ill-treatment and ill-health negligently and in breach of the Acts of 1969, 1980 and 1989; (c) that negligently and in breach of the Education Acts of 1944 and 1981, a local authority and the headmaster of a local authority school had failed to discover that children had special educational needs or to provide for those needs. The Statement of Claim was struck out by the judge in (a) and (b) and the judge's decision upheld by the Court of Appeal. In the case of (c), the Court of Appeal upheld the judge's order, striking out the claims for breach of statutory duty, but held that the claims in negligence should not be struck out, since they were not "unarguable or incontestably bad."

On appeal, Lord Browne-Wilkinson, with whom the other members of the House agreed, analysed the different categories of cases, where damages may be claimed for injury allegedly caused by acts or omissions arising from the existence of, or in the performance of, a statutory power or duty. As it is no longer contended that the plaintiff here can rely on a breach of statutory duty, the questions relevant for the present appeal are (a) whether Lord Browne-Wilkinson's Category C (p. 731) is established, i.e. that a common law duty of care arises either (i) from the existence of the statutory duty, or (ii) because in the performance of the statutory duty, the defendant assumes an obligation to exercise reasonable care towards the plaintiff, or (b) whether the defendant is liable for a breach of a duty of care owed by an employee for whose acts or omissions the defendant is vicariously liable.

Lord Browne-Wilkinson referred to the distinction between the cases where it was sought to say that a duty of care was owed in the way in which a statutory discretion was exercised and those where the duty of care was said to arise from the way in which the statutory duty had been exercised in practice. As to the former, he said, at p. 736:

     "Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. 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."

My Lords, in deciding whether the present case is concluded by what is said in "X", it is important to have regard to the facts in "X" as to the distinction drawn between what could and what could not be struck out before trial. There were two groups of cases consisting, firstly, of the abuse cases where children were alleged to have been abused either physically or sexually and where the local authority had failed to put children on the Child Protection Register or to take them in to care despite disturbing reports having been produced and, secondly, the education cases where the local authority had failed to investigate or to take steps to deal with children who have special educational needs.

As to the abuse cases, Lord Browne-Wilkinson held that where very difficult and sensitive decisions had to be taken in a statutory framework, very clear language would be needed to establish a right to damages under the Statute if an erroneous decision was taken: such a right was not to be found in the Children and Young Persons Act 1969 or the Childrens Act 1989. As to the common law claim, it was accepted that some of the allegations made did not require the investigation of policy matters outside the remit of the court. On the other hand, having referred to the question as to whether the allegations of breach of duty were all in respect of "decisions within the ambit of the local authority's statutory discretion" he continued in "X" v. Bedfordshire, at p. 749:

     "I strongly suspect that, if the case were to go to trial, it would eventually fail on this ground since, in essence, the complaint is that the local authority failed to take steps to remove the children from the care of their mother, i.e. negligently failed properly to exercise a discretion which Parliament has conferred on the local authority. But again, it would not be right to strike out the claim on this ground because it is possible that the plaintiffs might be able to demonstrate at trial that the decisions of the local authority were so unreasonable that no reasonable local authority could have reached them and therefore, for the reasons given by Lord Reid in the Dorset Yacht case [1970] A.C. 1004, 1031, fall outside the ambit of the discretion conferred by Parliament."

However, applying the third test in the decision in the Caparo case, it was not just and reasonable to impose on the local authority a common law duty of care in relation to the performance of its statutory duties to protect children, partly because such decisions require the participation of several bodies acting jointly, partly because such decisions involved a very delicate task, partly because if such liability existed authorities would be likely to be more cautious and defensive, which could be to the disadvantage of the child, and partly because other procedures were available to investigate grievances. Having stressed the need for caution, he concluded that there was no duty of care owed personally to the child by individual psychiatrists or social workers engaged to advise the local authority so as to make the local authority vicariously liable if those individuals were negligent. Accordingly the claims of the plaintiffs in the child abuse cases failed both at common law and under the statutes.

In the education cases (Dorset, Hampshire, Bromley) where it was alleged that the authorities had failed to investigate the need for or to provide proper schooling, the Court of Appeal had held that the claims for damages based on the Education Acts had rightly been struck out, but that the claims based on common law negligence should not have been struck out, since they were not manifestly bad.

Before the House it was contended in the Dorset case (a) that the authority had failed to perform carefully the duty imposed on it by the Education Act 1981; (b) that the authority was secondarily liable for the negligent advice given by the psychology service provided by the local authority. As to (a), the House accepted that it was arguable that the result depended on whether the decisions made carelessly were such that no reasonable authority could have breached them, which depended on an investigation of the facts. It held, however, that it would not be right to superimpose on the statutory machinery a duty of care to exercise the statutory discretions carefully, even limiting liability to cases where no reasonable authority could have reached the same conclusion, since the parents were involved in the process of decision making and could appeal, the number of cases which might be brought would be very great, but the success rate would be very small. In addition another remedy was available in the vicarious liability of the authority for the professional advice on which the authority's decisions were taken. On the other hand, once it actually provided a psychology service, the defendant authority might be under a statutory duty of care and:-

     "once the decision is taken to offer such a service, a statutory body is in general in the same position as any private individual or organisation holding itself out as offering such a service. By opening its doors to others to take advantage of the service offered, it comes under a duty of care to those using the service to exercise care in its conduct. The position is directly analogous with a hospital conducted, formerly by a local authority now by a health authority, in exercise of statutory powers. In such a case the authority running the hospital is under a duty to those whom it admits to exercise reasonable care in the way in which it runs it." (p. 763)

The educational psychologist and other staff exercising skill owed a duty to use reasonable skill and care in assessing and determining the child's educational needs and the authority would be vicariously liable if they were in breach, though the test in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582 would apply to them. These were matters which needed to be investigated.

In the Hampshire case, it was held that the defendant authority could be vicariously liable for a breach of the duty of care owed by a headmaster or other advisory staff to a pupil:

     "In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is under-performing, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance."