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

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In Rowling v. Takaro Properties Ltd. [1988] A.C. 473 Lord Keith of Kinkel, said at p. 501 in giving the opinion of the Privy Council in relation to the policy/operational test:

     "They incline to the opinion, expressed in the literature, that this distinction does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks: see especially the discussion in Craig on Administrative Law (1983), pp. 534-538. If this is right, classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships' opinion, mean that a duty of care will necessarily exist."

Both in deciding whether particular issues are justiciable and whether if a duty of care is owed, it has been broken, the court must have regard to the statutory context and to the nature of the tasks involved. The mere fact that something has gone wrong or that a mistake has been made, or that someone has been inefficient does not mean that there was a duty to be careful or that such duty has been broken. Much of what has to be done in this area involves the balancing of delicate and difficult factors and courts should not be too ready to find in these situations that there has been negligence by staff who largely are skilled and dedicated.

Yet although in my view the staff are entitled to rely mutatis mutandis on the principle stated in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582, the jurisdiction to consider whether there is a duty of care in respect of their acts and whether it has been broken is there. I do not see how the interests of the child can be sufficiently protected otherwise.

In the Court of Appeal in the present case, Lord Woolf M.R. makes it clear that he does not suggest that a social services authority has a total immunity for whatever happens when it is acting or purporting to act pursuant to statutory powers or duties. He accepts, at p. 378 the principle assumed in Capital Counties Plc. v. Hampshire County Council [1997] Q.B. 1004, 1040 namely, "there is no general immunity for professionals or others carrying out difficult tasks in stressful circumstances." The staff of the local authority exercising its functions should be in no better or worse a position. He accepts that social workers and staff "could however be negligent in an operational manner" and he gives as examples, carelessness in looking after a child's property, in failing to carry out instructions carefully in the way they report or fail to report what they have observed for the purposes of an assessment as to what should be done in relation to the child's future. So equally a parent does not have a blanket immunity for whatever he does to his child; negligence in driving a car by a parent would still be actionable if the child was caused injury.

Lord Browne-Wilkinson in "X", as has been shown, accepted that in respect of some matters--failing to detect or to take action when a child was clearly not doing as well as he could be doing, a psychiatrist failing to detect and report on the child's problem--the failure could be actionable.

This means I accept that each case has to be looked at on its own facts and in the light of the statutory context. But this is so in many areas of the law and it is not in itself a reason for refusing to recognise a liability in negligence.

In the present case, the allegations which I have summarised are largely directed to the way in which the powers of the local authority were exercised. It is arguable (and that is all we are concerned with in this case at this stage) that if some of the allegations are made out, a duty of care was owed and was broken. Others involve the exercise of a discretion which the court may consider to be not justiciable--e.g. whether it was right to arrange adoption at all, though the question of whether adoption was ever considered and if not, why not, may be a matter for investigation in a claim of negligence. I do not think it right in this case to go through each allegation in detail to assess the chances of it being justiciable. The claim is of an on-going failure of duty and must be seen as a whole. I do not think that it is the right approach to look only at each detailed allegation and to ask whether that in itself could have caused the injury. That must be done but it is appropriate also to consider whether the cumulative effect of the allegations, if true, could have caused the injury.

Nor do I accept that because the court should be slow to hold that a child can sue its parents for negligent decisions in its upbringing that the same should apply necessarily to all acts of a local authority. The latter has to take decisions which parents never or rarely have to take (e.g. as to adoption or as to an appropriate foster parent or institution). In any case, in respect of some matters, parents do have an actionable duty of care.

On the basis that "X" does not conclude the present case in my view it is arguable that at least in respect of some matters alleged both individually and cumulatively a duty of care was owed and was broken.


All members of the Court of Appeal considered that many of the allegations here were not justiciable, but Lord Woolf M.R. said, at p. 378 that even if there were situations where a social worker could be negligent in implementing the decisions of the Authority, "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." Evans, L.J. added, at p. 379:

     "the various acts and omissions of individual social workers . . . cannot realistically be said to have been specific causes of the injury of which the plaintiff complains."

He saw no prospect of the evidence establishing that there were individual acts of negligence singly or together which could be said to have caused or even made any substantial (i.e. non-negligible) contribution to the injury alleged. Schiemann, L.J. also saw no prospect of the plaintiff establishing that his complaints were attributable to errors made outside the statutory discretion.

With great respect to the opinion of the members of the Court of Appeal, I have come to the view that this claim should not be struck out at this stage on that ground. It may well be that many of the allegations will be difficult to establish and that they will fail. In my opinion, however, the importance of seeing in each case whether what has been done is an act which is justiciable or whether it is an act done pursuant to the exercise or purported exercise of a statutory discretion which is not justiciable requires in this kind of matter, except in the clearest cases, an investigation of the facts. This is not the clearest case taken as a whole, even though some allegations if they stood alone might justifiably be struck out. I consider also that the question whether it is just and reasonable to impose a liability of negligence is not to be decided in the abstract for all acts or omissions of a statutory authority, but is to be decided on the basis of what is proved. The comment of Andenas and Fairgrieve (supra) that one of the problems about the uncertainty of the law in this area is that many cases are decided on an application to strike out or on a preliminary issue on assumed facts as stated in the Statement of Claim -"Dealing with such hypothetical facts deprives the courts of the opportunity to apply the operational--policy distinction to concrete facts. It is likely to exacerbate the formulation of clear statements of principle."--is to be borne in mind. See, also the discussion of the facts in Phelps v. Hillingdon London Borough Council [1997] 1 W.L.R. 500 where the importance of investigating the precise nature of the service provided was made clear.

In the present case each member of the Court of Appeal appears to have taken the view that the appellant would not be able to show that operational acts, even if negligently performed, either separately or cumulatively the condition of which the appellant complained. But causation is largely a question of fact. In the light of evidence of Dr. Weir, a consultant psychiatrist, and of Mr. Brendan Clowry, a consultant psychologist, the latter saying of the appellant that:

     "on the balance of probabilities, it is my view that negligent management of his care has been a significant causal determinant of his current psychological difficulties."

It would not be right to rule on an application to strike out that the matters complained of as injury could not have been caused either by particular events or by the accumulation of matters which are relied on in the statement of claim. At the trial the doctors may attach greater weight to some factors than to others, but they seem to be attaching weight to the cumulative effect of what happened.

I also agree with the view expressed by Lord Woolf, at p. 378F:

     "I am by no means sure that the defendant would be assisted by [the allegation that the plaintiff's cause of action is not capable of sounding in damages as no claim has been made that the plaintiff has sustained recognisable psychiatric injuries] if it had to be relied on."

As Lord Lloyd of Berwick said in Page v. Smith [1996] 1 A.C. 155 at p. 197:

     "Subject to the above qualifications [i.e. as to the difference between primary and secondary victims], the approach in all cases should be the same, namely, whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric. If the answer is yes, then the duty of care is established, even though physical injury does not, in fact, occur. There is no justification for regarding physical and psychiatric injury as different 'kinds of damage.'"

I do not consider that it would be right to strike out this claim on the basis that causation could not be established. That is a matter for investigation.

Accordingly, I consider that this claim should not be struck out. This does not mean that I think that the appellant must or will win. He faces considerable difficulties, but with great respect to the experience and judgment of the members of the Court of Appeal, I consider that he is entitled to have these matters investigated and not to have them summarily dismissed. I would accordingly allow the appeal.


My Lords,

I have had the advantage of reading in draft the speeches of Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Hutton. For the reasons they have given, I would also allow the appeal.


My Lords,

I have had the advantage of reading in draft the speeches of Lord Browne-Wilkinson, Lord Slynn of Hadley and Lord Hutton. For the reasons they have given, I would also allow the appeal.