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

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     ". . . 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.

     "It is at this stage that it is necessary, before concluding that a duty of care should be imposed, to consider all the relevant circumstances. One of the considerations underlying certain recent decisions of the House of Lords (Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson & Co. Ltd. [1985] A.C. 210) and of the Privy Council (Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175) is the fear that a too literal application of the well-known observation of Lord Wilberforce in Anns v. Merton London Borough Council [1978] A.C. 728, 751-752, may be productive of a failure to have regard to, and to analyse and weigh, all the relevant considerations in considering whether it is appropriate that a duty of care should be imposed. Their Lordships consider that question to be of an intensely pragmatic character, well suited for gradual development but requiring most careful analysis. It is one upon which all common law jurisdictions can learn much from each other; because, apart from exceptional cases, no sensible distinction can be drawn in this respect between the various countries and the social conditions existing in them. It is incumbent upon the courts in different jurisdictions to be sensitive to each other's reactions; but what they are all searching for in others, and each of them striving to achieve, is a careful analysis and weighing of the relevant competing considerations. It is in this spirit that a case such as the present has, in their Lordships' opinion, to be approached. They recognise that the decision of the minister is capable of being described as having been of a policy rather than an operational character; but, if the function of the policy/operational dichotomy is as they have already described it, the allegation of negligence in the present case is not, they consider, of itself of such a character as to render the case unsuitable for judicial decision" (emphasis added).

In Lonrho Plc. v. Tebbit [1991] All E.R. 973 in the judgment of Browne-Wilkinson V.-C. the same emphasis is placed on the point that it is decisions in the exercise of a statutory discretion on matters of policy involving the weighing of competing public interests which are non-justiciable. Browne-Wilkinson V.-C. stated at p. 981A:

     "In my judgment, it is well established that in cases where the exercise of a statutory discretion involves the weighing of competing public interests, particularly financial or economic interests, no private law duty of care arises because the matter is not justiciable by the courts. It is for the body to whom Parliament has committed that discretion to weigh the competing public interest factors: the courts cannot undertake that task."

And at p. 981G:

     "Further, even if they were the true reasons for the decision to postpone the release, in my judgment they are not manifestly policy reasons in the sense in which those words were used in the Anns and Takaro cases. The timing of the release did not involve the allocation of resources or the distribution of risks. Nor has it been demonstrated that the timing of the release involved any other public policy considerations. In my judgment, therefore, the action cannot be struck out on the grounds that the issue is not justiciable by the court."

In Stovin v. Wise [1996] A.C. 923, 938 in his dissenting speech (with which Lord Slynn of Hadley agreed) Lord Nicholls of Birkenhead said:

     "Some decisions since Anns v. Merton London Borough Council [1978] A.C. 728 have gone further and identified a 'no go' area for concurrent common law duties: see the Anns case, at p. 754; Sutherland Shire Council v. Heyman, 157 C.L.R. 424, 469, per Mason J.; Rowling v. Takaro Properties Ltd. [1988] A.C. 473, 501 and X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633, 738. In practice the two approaches will usually reach the same conclusion. My preference is for the more open-ended approach. The exclusionary approach presupposes an identifiable boundary, between policy and other decisions, corresponding to a perceived impossibility for the court to handle policy decisions. But the boundary is elusive, because the distinction is artificial, and an area of blanket immunity seems undesirable and unnecessary. It is undesirable in principle that in respect of certain types of decisions the possibility of a concurrent common law duty should be absolutely barred, whatever the circumstances."

In his speech (with which Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed) Lord Hoffmann said at p. 951C:

     "What has become clear, however, is that the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not."

Therefore, these judgments lead me to the provisional view that the fact that the decision which is challenged was made within the ambit of a statutory discretion and is capable of being described as a policy decision is not in itself a reason why it should be held that no claim for negligence can be brought in respect of it. As I read it this is what is said by the Privy Council in its judgment in Rowling v. Takaro Properties Ltd. at p. 501G. It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion.

I consider that support for this view is to be found in the judgments of the High Court of Australia in Sutherland Shire Council v. Heyman and of the Supreme Court of Canada in Just v. British Columbia (1989) 64 D.L.R. (4th) 689. In the Sutherland Shire Council case Mason J. stated at pp. 468 and 469:

     "The standard of negligence applied by the courts in determining whether a duty of care has been breached cannot be applied to a policy decision, but it can be applied to operational decisions. Accordingly, it is possible that a duty of care may exist in relation to discretionary considerations which stand outside the policy category in the division between policy factors on the one hand and operational factors on the other. . . .

     The distinction between policy and operational factors is not easy to formulate, but the dividing line between them will be observed if we recognize that a public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constraints. Thus budgetary allocations and the constraints which they entail in terms of allocation of resources cannot be made the subject of a duty of care. But it may be otherwise when the courts are called upon to apply a standard of care to action or inaction that is merely the product of administrative direction, expert or professional opinion, technical standards or general standards of reasonableness."

In Just v. British Columbia the judgment of the Supreme Court was delivered by Cory J. (Sopinka J. dissenting). He stated at p. 708:

     "As a general rule, the traditional tort law duty of care will apply to a government agency in the same way that it will apply to an individual. In determining whether a duty of care exists, the first question to be resolved is whether the parties are in a relationship of sufficient proximity to warrant the imposition of such a duty. In the case of a government agency, exemption from this imposition of duty may occur as a result of an explicit statutory exemption. Alternatively, the exemption may arise as a result of the nature of the decision made by the government agency. That is, a government agency will be exempt from the imposition of a duty of care in situations which arise from its pure policy decisions.

     "In determining what constitutes such a policy decision, it should be borne in mind that such decisions are generally made by persons of a high level of authority in the agency, but may also properly be made by persons of a lower level of authority. The characterization of such a decision rests on the nature of the decision and not on the identity of the actors. As a general rule, decisions concerning budgetary allotments for departments or government agencies will be classified as policy decisions."

In holding that the decisions of the defendant in relation to the plaintiff could not be the subject of a claim in negligence all three members of the Court of Appeal in this case based their ruling on the speech of Lord Browne-Wilkinson (with which all the other members of the House agreed) in X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633.2 Schiemann L.J. stated at p. 381E:

     "It is clear from X (Minors) v. Bedfordshire County Council [1995] 2 A.C. 633. that in so far as any of the decisions were made within the ambit of the statutory discretion given to the authority they are not actionable."

My Lords, whilst certain passages in that judgment can be read to support that proposition, I consider that those passages have to be read in the light of other passages which show the type of policy considerations involved in the exercise of a statutory discretion which Lord Browne-Wilkinson had in mind. He said at p. 736A:

     "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."

And at p. 737E after citing passages from the judgments in the Dorset Yacht case and Anns v. Merton London Borough Council he said:

     "It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff."

But these passages in the judgment have to be read with the immediately following sentences at p. 737F:

     "In deciding whether or not this requirement is satisfied, the court has to assess the relevant factors taken into account by the authority in exercising the discretion. Since what are under consideration are discretionary powers conferred on public bodies for public purposes the relevant factors will often include policy matters, for example social policy, the allocation of finite financial resources between the different calls made upon them or (as in Dorset Yacht) the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. It is established that the courts cannot enter upon the assessment of such 'policy' matters. The difficultˇKˇˇKy is to identify in any particular case whether or not the decision in question is a 'policy' decision."

And at p. 748G Lord Browne-Wilkinson said:

     "In the Bedfordshire case, Mr. Jackson formulated the common law duty of care owed by the county council as being 'a duty to children in respect of whom they receive reports of neglect or ill-treatment to take reasonable care to protect such children.' The first question is whether the determination by the court of the question whether there has been a breach of that duty will involve unjusticiable policy questions. The alleged breaches of that duty relate for the most part to the failure to take reasonable practical steps, e.g. to remove the children, to allocate a suitable social worker or to make proper investigations. The assessment by the court of such allegations would not require the court to consider policy matters which are not justiciable. They do not necessarily involve any question of the allocation of resources or the determination of general policy."

It is also relevant to observe that the claims of common law negligence which this House held should be struck out were not struck out on the ground that they were non-justiciable; rather it was held following the approach taken by Lord Reid in the Dorset Yacht case at p. 1031A that the respective plaintiffs might be able to establish that the decisions of the local authority were so unreasonable that they fell outside the ambit of the discretion conferred by Parliament, and the claims were struck out on the separate ground that it was not just and reasonable in all the circumstances to impose a duty of care: see p. 749C-E.

Therefore, I do not think that the speech of Lord Browne-Wilkinson in the Bedfordshire case precludes a ruling in the present case that although the decisions of the defendant were within the ambit of its statutory discretion, nevertheless those decisions did not involve the balancing of the type of policy considerations which renders the decisions non-justiciable.

In A. v. Liverpool City Council [1982] A.C. 363 this House rejected the argument that the High Court in the exercise of its wardship jurisdiction could interfere at the suit of the mother of a child in care to override the decision of the local authority as to the nature of the access which the mother should have. Lord Wilberforce stated at p. 372D and F that the court had no general reviewing power over the local authority's discretionary decision as to access and no power to substitute its own opinion in that matter. Lord Roskill said at p. 377E:

     "I am of the clear opinion that, while the prerogative jurisdiction of the court in wardship cases remains, the exercise of that jurisdiction has been and must continue to be treated as circumscribed by the existence of the far-ranging statutory code which entrusts the care and control of deprived children to local authorities. It follows that the undoubted wardship jurisdiction must not be exercised so as to interfere with the day-to-day administration by local authorities of that statutory control."

But I consider that that decision does not bar the jurisdiction of a court to hear and determine a claim, not that the court should substitute its opinion for that of the local authority in some matter relating to the day-to-day care of a child, but that the authority was guilty of negligence at common law causing personal injury.

I further consider that the decision of this House in Stovin v. Wise [1996] A.C. 923 is not an authority which precludes a finding that there was a duty of care in this case, because Stovin v. Wise was concerned solely with the omission by a highway authority to perform a statutory power, whereas in the present case the allegation of negligence relates to the manner in which the local authority exercised its statutory duty and powers.

In the Bedfordshire case Lord Browne-Wilkinson said at p. 736F:

     "For myself, I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence."

I am in agreement with this view and I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff's claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court's resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in the Takaro case at p. 501, a careful analysis and weighing of the relevant circumstances.

In Lonrho Plc. v. Tebbit at p. 985A Browne-Wilkinson V.-C. stated:

     "Therefore, far from being able to perform the necessary analysis of all the facts and circumstances, I am asked to decide the question of the existence of a private law duty of care in the absence of even detailed factual allegations, let alone knowledge of the facts themselves. I know nothing of the factors which the defendants either did take into account or should have taken into account. For all I know, the reason for the delay in releasing the undertaking was a purely administrative blunder (e.g. the papers being wrongly filed), involving no considerations of policy at all."