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

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In the Bromley case, the House agreed with the Court of Appeal that the direct claim under the Statute should be struck out, but it also struck out the direct claim in negligence which was based solely on the exercise of a statutory discretion. It was, however, accepted that it was arguable that there might be a duty on the part of individual professional members of staff for breach of which the local authority might be vicariously liable.

Thus in "X", your Lordships' House accepted, at p. 749G that in considering the direct liability in common law of the local authorities, "the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to overrule that policy." Yet a number of policy considerations in those cases led to the conclusion that it would not be fair, just and reasonable (the third test in the Caparo case) to impose a duty of care on the local authorities. Lord Browne-Wilkinson in his speech attached importance in particular (i) to the multi-disciplinary Child Protection Conference involved in deciding whether a child should be placed on the Child Protection Register; (ii) to the balance involved in dealing with the "extraordinarily delicate decisions" in having regard to the rights of the child, but also to the advantages of not disrupting the family environment; (iii) to the risk of the authority being over-cautious and defensive if it were subject to judicial decisions in a damages claim; (iv) to the fact that the statutory complaints procedure and the Ombudsman would allow complaints to be investigated; (v) to the fact that no analogous duty had been recognised before.

Whilst not casting doubt on the validity of these factors in the context of the investigations, or the steps which it was said should have been taken, in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case. Thus, although once a child is in care, there may well be co-operation between different social welfare bodies, the responsibility is that of the local authority and its social and other professional staff. The decision to remove the child from its home is already taken and the authority has statutory powers in relation to the child which do not necessarily involve the exercise of the kind of discretion involved in taking a child from its family into care. As to the likelihood of an authority being over-cautious, I am of the same opinion as Evans L.J. in the Court of Appeal in this case at p. 380A to B:

     "I would agree that what is said to be a "policy" consideration, namely that imposing a duty of care might lead to defensive conduct on the part of the person concerned and might require him to spend time or resources on keeping full records or otherwise providing for self-justification, if called upon to do so, should normally be a factor of little, if any, weight. If the conduct in question is of a kind which can be measured against the standards of the reasonable man, placed as the defendant was, then I do not see why the law in the public interest should not require those standards to be observed."

Nor do I think that the remedies accepted to be available in "X" are likely to be as efficacious as the recognition by the court that a duty of care is or may be owed at common law. I agree with Sir Thomas Bingham M.R. in his dissenting judgment in the Court of Appeal in "X", at p. 662G:-

     "I cannot accept, as a general proposition, that the imposition of a duty of care makes no contribution to the maintenance of high standards."

In summary "X" establishes that decisions by local authorities whether or not to take a child into care with all the difficult aspects that involves and all the disruption which may come about are not ones which the courts will review by way of a claim for damages in negligence, though there may be other remedies by way of judicial review or through extra judicial routes such as the Ombudsman.

The question in the present case is different, since the child was taken into care; it is therefore necessary to consider whether any acts or omissions and if so what kind of acts or omissions can ground a claim in negligence. The fact that no completely analogous claim has been accepted by the courts previously points to the need for caution and the need to proceed "incrementally" and "by analogy with decided cases."

As to previous cases it is to be noted by way of example that in "X", Lord Browne-Wilkinson said at p. 766A:-

     "It is accepted that a school and the teachers at a school are under a duty to safeguard the physical well being of the pupil: Van Oppen v. Clerk to the Bedford Charity Trustees [1990] 1 W.L.R. 235."

Although there was no previous case which said so, "In my judgment a school which accepts a pupil assumes responsibility not only for his physical well being but also for his educational needs."

In Reg. v. Deputy Governor of Parkhurst, Ex parte Hague [1992] 1 A.C. 58, 166A, Lord Bridge of Harwich said:

     "Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows . . . the detainee to suffer in any way in his health he will be in breach of that duty."

That parents may owe a duty of care in some circumstances to their child is clear from Carmarthenshire County Council v. Lewis [1955] A.C. 549 at p. 561. In Gold v. Essex County Council [1942] 2 K.B. 293 at p. 309, Goddard L.J. clearly accepted that a local authority which sets up a hospital under the Public Health Act 1936 will be liable to someone injured by negligent nursing. The duty of reasonable care on the part of the public authority exercising those powers is clearly recognised. Sir Thomas Bingham M.R. in his dissenting judgment in "X" at p. 666B to C plainly and in my view rightly, recognised that social workers are to be regarded as members of a skilled profession when it comes to considering the obligation to exercise reasonable care. He said:

     "Those who engage professionally in social work bring to their task skill and expertise, the product partly of training and partly of experience, which ordinary uninstructed members of the public are bound to lack. I have no doubt that they should be regarded as members of a skilled profession." (p. 666B to C).

It is obvious from previous cases and indeed is self-evident that there is a real conflict between on the one hand the need to allow social welfare services exercising statutory powers to do their work in what they as experts consider is the best way in the interests first of the child, but also of the parents and of society, without an unduly inhibiting fear of litigation if something goes wrong, and on the other hand the desirability of providing a remedy in appropriate cases for harm done to a child through the acts or failure to act of such services.

It is no doubt right for the courts to restrain within reasonable bounds claims against public authorities exercising statutory powers in this social welfare context. It is equally important to set reasonable bounds to the immunity such public authorities can assert. In "Sufficiently Serious?" (by Andenas and Fairgrieve in "English Public Law and the Common Law of Europe" ed. Andenas, (1998)) the authors show the difficult problems which have arisen in cases involving claims for negligence in a statutory context and not least in analysing "the method adopted by the judiciary to ensure restraint in negligence actions against public bodies." (p. 286)

The position is in some respects clear; in others it is far from clear. Thus it is clear that where a statutory scheme requires a public authority to take action in a particular area and injury is caused, the authority taking such action in accordance with the Statute will not be liable in damages unless the Statute expressly or impliedly so provides. Nor will the authority be liable in damages at common law if its acts fall squarely within the statutory duty. Where a statute empowers an authority to take action in its discretion, then if it remains within its powers, the authority will not normally be liable under the statute, unless the statute so provides, or at common law. This, however, is subject to the proviso that if it purports to exercise its discretion to use, or it uses, its power in a wholly unreasonable way, it may be regarded as having gone outside its discretion so that it is not properly exercising its power, when liability in damages at common law may arise. It can no longer rely on the statutory power or discretion as a defence because it has gone outside the power.

Thus in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 at p. 1031 Lord Reid said:

     "Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. 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."

Lord Diplock in Dorset Yacht approached the question as to how far an authority could be liable at common law for the exercise of a discretion given by statute by asking whether the act was ultra vires the power conferred in an administrative law sense. This on the face of it may be different from the approach of the other members of the House, but I do not consider that there is any real difference between them as to the substance of the test, since Lord Reid considers that, before the common law duty of care can arise, the authority must have acted so carelessly or unreasonably that there has been no real exercise of the discretion and the authority has "acted in abuse or excess of its power", which is very much the administrative law test. Lord Wilberforce in Anns v. Merton London Borough Council [1978] A.C. 728 at p. 755 accepted this test.

     "But this duty, heavily obligational though it may be, is still a duty arising under the statute. There may be a discretionary element in its exercise-discretionary as to the time and manner of inspection, and the techniques to be used. A plaintiff complaining of negligence must prove, the burden being on him, that action taken was not within the limits of a discretion bona fide exercised before he can begin to rely upon a common law duty of care."

On this basis, if an authority acts wholly within its discretion--i.e. it is doing what Parliament has said it can do, even if it has to choose between several alternatives open to it, then there can be no liability in negligence. It is only if a plaintiff can show that what has been done is outside the discretion and the power, then he can go on to show the authority was negligent. But if that stage is reached, the authority is not exercising a statutory power, but purporting to do so and the statute is no defence.

This, however, does not in my view mean that if an element of discretion is involved in an act being done subject to the exercise of the overriding statutory power, common law negligence is necessarily ruled out. Acts may be done pursuant and subsequent to the exercise of a discretion where a duty of care may exist--as has often been said even knocking a nail into a piece of wood involves the exercise of some choice or discretion and yet there may be a duty of care in the way it is done. Whether there is an element of discretion to do the act is thus not a complete test leading to the result that, if there is, a claim against an authority for what it actually does or fails to do must necessarily be ruled out.

Another distinction which is sometimes drawn between decisions as to "policy" and as to "operational acts" sounds more promising. A pure policy decision where Parliament has entrusted the decision to a public authority is not something which a court would normally be expected to review in a claim in negligence. But again this is not an absolute test. Policy and operational acts are closely linked and the decision to do an operational act may easily involve and flow from a policy decision. Conversely, the policy is affected by the result of the operational act (see Reg. v. Chief Constable of Sussex, Ex parte International Trader's Ferry Ltd. [1998] 3 W.L.R. 1260).

Where a statutory power is given to a local authority and damage is caused by what it does pursuant to that power, the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play. The two tests (discretion and policy/operational) to which I have referred are guides in deciding that question. The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought. It is true that Lord Reid and Lord Diplock in the Dorset Yacht case accepted that before a claim can be brought in negligence, the plaintiffs must show that the authority is behaving so unreasonably that it is not in truth exercising the real discretion given to it. But the passage I have cited was, as I read it, obiter, since Lord Reid made it clear that the case did not concern such a claim, but rather was a claim that Borstal officers had been negligent when they had disobeyed orders given to them. Moreover, I share Lord Browne-Wilkinson's reluctance to introduce the concepts of administrative law into the law of negligence, as Lord Diplock appears to have done. But in any case I do not read what either Lord Reid or Lord Wilberforce in the Anns case (and in particular Lord Reid) said as to the need to show that there has been an abuse of power before a claim can be brought in negligence in the exercise of a statutory discretion as meaning that an action can never be brought in negligence where an act has been done pursuant to the exercise of the discretion. A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved. Thus accepting that a decision to take a child into care pursuant to a statutory power is not justiciable, it does not in my view follow that, having taken a child into care, an authority cannot be liable for what it or its employees do in relation to the child without it being shown that they have acted in excess of power. It may amount to an excess of power, but that is not in my opinion the test to be adopted: the test is whether the conditions in the Caparo case have been satisfied.