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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Barrett v. London Borough of Enfield [1999] UKHL 25 (17 June 1999)
URL: http://www.bailii.org/uk/cases/UKHL/1999/25.html
Cite as: [1999] WLR 79, [1999] 2 FCR 434, (1999) 11 Admin LR 839, (1999) 49 BMLR 1, [1999] BLGR 473, (1999) 2 CCL Rep 203, [1999] Ed CR 833, [1999] 3 All ER 193, [1999] UKHL 25, [2001] 2 AC 550, [1999] Fam Law 622, [1999] 2 FLR 426, [1999] 3 WLR 79, [1999] PIQR P272, (1999) 1 LGLR 829

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Barrett v. London Borough of Enfield [1999] UKHL 25; [1993] 3 All ER 193; [1999] WLR 79 (17th June, 1999)

HOUSE OF LORDS

  Lord Browne-Wilkinson   Lord Slynn of Hadley Lord Nolan
Lord Steyn Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE

BARRETT (A.P.)
(APPELLANT)

v.

LONDON BOROUGH OF ENFIELD
(RESPONDENTS)

ON 17 JUNE 19999

LORD BROWNE-WILKINSON

My Lords,

When the plaintiff was 10 months old, he was the subject of a care order in favour of the defendant, London Borough of Enfield. He remained in the care of the defendant council until he was aged 17. In these proceedings the plaintiff alleges that the defendant council was in breach of a common law duty of care owed to him in consequence of which he suffered deep-seated psychiatric problems caused by the defendant's negligence.

The full circumstances of this case (as alleged by the plaintiff in the statement of claim) are set out in the speech of my noble and learned friend, Lord Slynn of Hadley. I gratefully adopt that statement but for my purposes it is sufficient to give a short summary of the plaintiff's case. The statement of claim alleges that under the Children Acts the defendant came under a series of statutory duties to exercise quasi-parental care in and about the upbringing of the plaintiff. Originally it was alleged that breach of such statutory duties in themselves gave rise to a cause of action for damages. But the plaintiff now accepts that he has no such cause of action. What he does allege is that the relationship between him and the defendant council arising by reason of the care order was such as to create a common law duty of care owed by the defendant to him. He alleges that, in breach of such duty of care, the defendant acting by its social workers and others negligently failed to safeguard the plaintiff's welfare. It is alleged that the plaintiff negligently made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother.

The plaintiff then alleges that such negligent treatment caused him to leave the care of the local authority when he attained the age of 18 without family or attachments and suffering from a psychiatric illness leading to his having an alcohol problem and a propensity to harm himself. I do not understand the plaintiff to allege that any one of the alleged acts of negligence by itself caused the injuries alleged. What he says is that the combination of all or some of the alleged acts of negligence produced that result.

The defendant council applied to strike out the claim on the ground that it disclosed no cause of action. The district judge refused to strike out the action but his decision was reversed by Judge Brandt who struck out the claim. The Court of Appeal (Lord Woolf M.R., Evans and Schiemann L.JJ.) upheld that decision. The Master of the Rolls based himself, by analogy, on the principles laid down in X v. Bedfordshire County Council [1995] 2 AC 633 and Stovin v. Wise [1996] AC 923. He held that the plaintiff's case substantially rested on showing that the defendant council had negligently exercised statutory discretions. Where such an allegation is made, the first necessity is to show that the exercise of the statutory discretion was "so unreasonable that it falls outside the ambit of the discretion": The X Case at p. 736B. The Master of the Rolls considered that there was very little chance that such unreasonableness could be demonstrated in the present case. Even so, he went on to consider whether, applying the three-stage test in Caparo Industries Plc. v. Dickman [1990] 2 AC 605, the defendant council could be liable in negligence. The first two of those requirements (foreseeability and proximity) are plainly satisfied on the facts alleged. The third requirement is that the imposition of liability in such cases must be just and reasonable. The Master of the Rolls held that it would not be just and reasonable to impose a duty of care on a local authority for the careless exercise of the statutory discretions applicable to children in care. Whilst recognising the position was not the same as that considered in the child abuse cases considered in The X Case (which involved a statutory discretion to remove a child from the custody of its parent) the Master of the Rolls thought that the analogy with that case was close and that to hold a local authority or its agents liable in cases such as the present would be to encourage a "safety-first" approach by social workers which would be detrimental to children in care as a whole, i.e. it would be bad public policy.

The Master of the Rolls also considered that the damage alleged (psychiatric illness) could not have been caused by the only kinds of negligence which could conceivably be actionable, i.e. operational acts done carelessly by the servants of the defendants in the course of carrying out policy decisions taken in relation to the plaintiff by the defendant council. He was of the view that the only damage suffered by the plaintiff must have flowed from the policy decisions which were not actionable and not from any operational acts which might be actionable. Evans and Schiemann L.JJ. reached the same conclusion, though both placed more emphasis on the inability of the plaintiff to show a causative link between any negligence capable of being proved against the defendants and the psychiatric damage alleged to have been suffered as a result of such negligence.

I find it impossible to say that all careless acts or omissions of a local authority in a relation to a child in its care are not actionable: indeed I do not read the Court of Appeal so to have held. If certain careless conduct (operational) of a local authority is actionable and certain conduct (policy) is not, it becomes necessary to divide the decisions of the local authority between those which are "policy" and those which are "operational." It is far from clear what the expressions "operational" and "policy" connote. Therefore unless it can be said (as did the Court of Appeal) that operational carelessness could not have caused the damage alleged in the present case it would be impossible to strike out any part of the claim. But causation is quintessentially a matter of fact and one would have thought that where there is a substantial doubt as to what is an operational decision there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision.

Moreover, there have been two developments since the conclusion of the argument in the present case, both of which have been drawn to our attention by the parties. For reasons which I will seek to demonstrate, they both emphasise the extreme care which must be taken in striking out claims in this confused and developing area of the law, and clearly reinforce the conclusion that the case cannot be struck out.

Striking out

In my speech in The X Case (at pp. 740-741) with which the other members of the House agreed, I pointed out that unless it was possible to give a certain answer to the question whether the plaintiff's claim would succeed, the case was inappropriate for striking out. I further said that in an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.

This latter point is graphically illustrated by the decision of the Court of Appeal in Phelps v. Hillingdon London Borough Council [1999] 1 WLR 500. In that case, the plaintiff was claiming damages for the negligent failure of an educational psychologist employed by a local authority to identify that the plaintiff was dyslexic. The case went to trial and all relevant findings of fact made. The judge had held for the plaintiff, relying to a substantial extent on dicta of mine in The X Case (at p. 673) to the effect that where a local authority provides a psychology service such authority could be liable in damages for failure of the service to diagnose dyslexia. As the Court of Appeal rightly held in the Phelps case those remarks were based on the mistaken assumption that such psychology service would be a service open to the public in the same way as a hospital is open for the purpose of treating the child as the patient of the service. In fact the evidence at the trial had demonstrated that the arrangements in that case were of a different nature: the psychology service was established to advise the local authority as to the performance of its functions as educational authority: the child was no more the patient of the psychology service in that case than was the psychiatrist in the abuse cases who is advising the local authority as to its duties not the child: see the X case at p. 752G.

This erroneous dictum of mine made in the course of seeking to determine a striking out application on hypothetical facts has apparently given rise to "a proliferation of claims" against psychology services provided by local authorities in dealing with those suffering from reading disability. It vividly illustrates how important it is to decide these cases on actual facts and not on mistaken hypotheticals.

European Convention on Human Rights, Article 6

In Osman v. United Kingdom (The Times, 5 November 1998) the European Court of Human Rights upheld a claim by the Osmans that their rights under Article 6 of the Convention had been infringed. They had sought to bring proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. Those proceedings were struck out by the Court of Appeal applying the decision of this House in Hill v. Chief Constable of West Yorkshire [1989] AC 53: see Osman v. Ferguson [1993] 4 All ER 344.

I confess that I find the decision of the Strasbourg Court extremely difficult to understand. Article 6(1) of the Convention provides that "In the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing." At first sight this would seem to require that the applicant has, under the local law, a right (right A) enforceable in the local court. Under Article 6 he is given as a separate right (right B) a right of access to the local courts to assert right A being a separate, free standing right. Thus one would assume that right A would consist of, for example, a contractual right or a tortious right not to be negligently injured. If a person is prevented from enforcing those rights that is not an infringement of right A but an infringement of right B, i.e. the right of access to the court. However, that is apparently not how the European Court of Human Rights construes Article 6. In paragraphs 139 and 140 of their judgment the court said:


 

This passage seems to treat the Osmans as having a right under English law to go to court for a declaration that, apart from the public policy preventing suits against the police, they would have had a claim in negligence against the police and further, that it was not fair, just and reasonable in the circumstances of that case to apply the "exclusionary rule," i.e. the rule excluding negligence actions against the police.

Having so defined the ambit of Article 6, the Strasbourg court held that there was in the Osman case a breach of such right of access to the English court, such breach lying in the application of a blanket exclusionary rule which excludes all claims against the police for negligent failure to investigate or protect from crime. In the view of the Strasbourg court, apparently, the applicability of such exclusionary rule has to be decided afresh in each individual case. If this is not done then it is impossible to determine whether the public interest in an efficient police force is or is not proportionate to the seriousness of the harm suffered by the plaintiff in the individual case: see paragraph 150. On these grounds, the Strasbourg court held that the English court had breached Article 6 by striking out the claim made by the Osmans against the police without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged. The court said that the police had been granted a "blanket immunity" which was disproportionate and therefore an unjustifiable restriction on the Osmans' right of access to the court. The Osmans were entitled to have their case against the police determined in deserving cases: see paragraphs 151 and 152.

The problems in applying this reasoning to the English law of negligence are many and various. For example, the correct answer to the following points is not immediately apparent:

1.  Although the word "immunity" is sometimes incorrectly used, a holding that it is not fair, just and reasonable to hold liable a particular class of defendants whether generally or in relation to a particular type of activity is not to give immunity from a liability to which the rest of the world is subject. It is a prerequisite to there being any liability in negligence at all that as a matter of policy it is fair, just and reasonable in those circumstances to impose liability in negligence.

2.  In a wide range of cases public policy has led to the decision that the imposition of liability would not be fair and reasonable in the circumstances, e.g. some activities of financial regulators, building inspectors, ship surveyors, social workers dealing with sex abuse cases. In all these cases and many others the view has been taken that the proper performance of the defendant's primary functions for the benefit of society as a whole will be inhibited if they are required to look over their shoulder to avoid liability in negligence. In English law the decision as to whether it is fair, just and reasonable to impose a liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered.

3.  In English law, questions of public policy and the question whether it is fair and reasonable to impose liability in negligence are decided as questions of law. Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company (see the Caparo Industries case), that decision will apply to all future cases of the same kind. The decision does not depend on weighing the balance between the extent of the damage to the plaintiff and the damage to the public in each particular case.

In view of the decision in the Osman case it is now difficult to foretell what would be the result in the present case if we were to uphold the striking out order. It seems to me that it is at least probable that the matter would then be taken to Strasbourg. That court, applying its decision in the Osman case if it considers it to be correct, would say that we had deprived the plaintiff of his right to have the balance struck between the hardship suffered by him and the damage to be done to the public interest in the present case if an order were to be made against the defendant council. In the present very unsatisfactory state of affairs, and bearing in mind that under the Human Rights Act 1998 Article 6 will shortly become part of English law, in such cases as these it is difficult to say that it is a clear and obvious case calling for striking out. (See also Markesinis & Deakin on Torts 4th ed. p. 145 et seq.)

For these reasons in my judgment this action should proceed to trial and when all the facts are known the difficult issues of law which arise may be confronted in the light of the real, as opposed to hypothetical, facts. In the meantime one can only hope that the law applicable under Article 6 is further interpreted.

LORD SLYNN OF HADLEY

My Lords,

In this case the Court of Appeal has struck out the whole of the appellant's (plaintiff's) claim against the respondent (defendant). The appeal raises important and difficult questions first as to whether on the facts pleaded it is arguable that a Local Authority and social workers employed by it owed a duty of care to a child in its care and that that duty was broken and secondly whether the statement of claim should be struck out on the basis that the plaintiff would inevitably fail to establish that any of the breaches alleged caused the damage claimed.

The appellant was born on 10 October 1972. The following year he was admitted to hospital suffering from injuries inflicted by his mother. As a result on 18 July 1973 the respondent obtained a place of safety order under Section 28(1) of the Children and Young Persons Act 1969 and, subsequently, on 29 August 1973 a care order pursuant to Section 1 of the Act of 1969.

The appellant issued proceedings in the Colchester County Court on 6 October 1993 alleging negligence and breach of statutory duty. No defence was served but on 25 September 1995, the respondent applied to strike out the claim pursuant to Ord. 13, r. 5(1)(a) of the County Court Rules 1981 on the ground that it disclosed no reasonable cause of action. That application was refused on 4 March 1996 by District Judge Skerratt but on appeal was allowed by Judge Brandt on 30 April 1996. Despite re-amendment of the Particulars of Claim the Court of Appeal dismissed the plaintiff's appeal from that order on 6 May 1997.

The appellant's original claim of 6 October 1993 alleged a duty, under various statutes relating to children, to "attain and secure for the plaintiff adequate and appropriate arrangements which were in his short and long-term best interests" and that the respondent had acted in breach of those statutes. The re-amended Particulars of Claim of 10 March 1997 alleged breaches of Section 12 of the Children Act 1948 and of Section 18 of the Child Care Act 1980 but in addition it was alleged that the respondent owed a duty of care at common law "in the practical implementation of its obligations" under the Acts of 1948, 1969 and 1980 to which I have referred. The common law duty of care was said to include a duty to act in loco parentis and to provide the appellant with the standard of care which could be expected of a reasonable parent, including a duty to provide a home and education, to take reasonable steps to protect him from physical, emotional, psychiatric or psychological injury and to promote his development. Moreover, it was the respondent's duty at all times to provide competent social workers whose responsibility it was to monitor the various aspects of the appellant's welfare. Duties were said to be owed to the appellant also by social workers employed by the respondent in carrying out the latter's obligations.

The Facts Alleged

The facts relied on in summary are these.

After introductory meetings with them, the appellant was placed with foster parents (Mr. and Mrs. Jones) on 29 November 1973 and he was visited for the first time by a social worker (Dennis Calvert) on 22 January 1974. A second social worker (Mrs. Kearnes) took over on 8 August 1974. In January 1975 the appellant's three month old sister was placed with the same foster parents who in the following year moved with the children to other accommodation. There were problems concerning both the appellant's health and his relationship with the foster parents and after a period in hospital, the appellant went to Eastbrook Nursery on the 13 July 1976. In February 1977, a third social worker took over and in August of that year the appellant moved to Prospect House, a home provided by the respondent. In August 1980 he and his sister moved to live with Mrs. Kearnes and her husband, who were then accepted as foster parents. This was his fifth placement. His social worker was changed in November 1980 but between September 1982 and June 1983 he had no social worker. In 1986 he was moved first to Rownhams Centre for families, then to Stamford House as I understand it for a stricter regime, then to St. Nicholas House for disturbed children with learning difficulties. All these were provided by the respondent. He had a new social worker in February 1987. From then on reports were received of his having harmed himself from time-to-time. His next and final placement on leaving St. Nicholas House was to a therapeutic children's home (his ninth placement) and that lasted from September 1988 to June 1990.

The appellant met his mother briefly in October 1986 and again in June 1987 but after a one weekend visit, in June 1987 his mother said that he could no longer visit her.

The negligence alleged consisted of the way in which the plaintiff was placed with the various foster parents and in the homes to which I have referred. They were unsuitable and it was wrong not to consider whether he could be placed with his half-sister on a long-term basis and wrong to fail to consider what would be the effect of separating them. The respondent and its employees failed to have regard to his health and hygiene. They failed to find a proper home for him or to direct and plan his care so that, due to their negligence, he continued to remain in foster care or children's homes without being adopted. They failed properly to arrange and conduct his meetings with his mother after eleven years of separation and they failed to obtain appropriate psychiatric treatment for him.

If these breaches of duty had not occurred, consideration would have been given to whether he really could be rehabilitated with his mother, whether any other relative could care for him, whether he could have been adopted or suitably placed with prospective adopters and he would not have suffered the damage and injury which he did suffer. If the duties which lay upon the respondents had not been breached, he would not:

His injuries included in addition to self-harm and behavioural problems, the failure of his marriage, an inability to find work and an alcohol problem.

The Proceedings

Judge Brandt rejected the claim for breach of statutory duty as one which "fails from the outset." As to the common law claim, he directed himself to consider three matters--foreseeability, proximity and whether it was fair and reasonable to impose a duty on the Local Authority. Foreseeability he said was not in issue; proximity "can be made out without any kind of difficulty." However, on the basis that the Local Authority and social workers employed by it had "a very sensitive and delicate task to perform" if a duty of care was imposed on them they might take a "cautious and defensive" approach which would not be to the advantage of children in care and too much time would be taken up dealing with the defence of the cases of this kind, he held that it was wrong to impose such a common law duty as that for which the plaintiff contended. In addition, and "quite apart from questions of causation" he had doubt as to whether the injuries pleaded constituted psychological injury although this did not form the real basis of his decision.

In the Court of Appeal [1998] Q.B. 367 the claim of statutory duty was not pursued. As to the common law claim Lord Woolf M.R., at p. 374, adopted the description of Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 of this action as being an action "based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it." He referred to the speech of Lord Hoffmann in Stovin v. Wise [1996] AC 923, 952-953 with whom two of their Lordships agreed that:

In the present case Lord Woolf M.R. considered that the complaints made related to the manner in which the Local Authority and the social workers performed their duties under the relevant legislation--and these involved largely the taking of decisions of a discretionary nature--such as whether to arrange adoption, which foster parents to approve. Lord Woolf M.R., at p. 375, referred to the speech of Lord Browne-Wilkinson in X (Minors) v. Bedfordshire County Council at p. 736A-C:

On that basis the plaintiff had to show that "the defendant's decisions were outside the ambit of discretion granted to the Local Authority by the legislation." (Lord Woolf M.R., at p. 376)

Like Judge Brandt, Lord Woolf M.R. agreed that reasonable foreseeability and proximity were established by the appellant in this case. The question was whether following Caparo Industries Plc. v. Dickman [1990] 2 AC 605 it was just and reasonable to "extend the common law duty of care by analogy to a Local Authority when it is performing its duties to protect and promote the welfare of children in its care." The decision in "X" where their Lordships' had refused to recognise a duty of care, he accepted was different since a question there arose as to whether a duty of care was owed to a child not in care. Lord Woolf M.R., however agreed with the reasoning of the Court of Appeal in H. v. Norfolk County Council [1997] 1 F.L.R. 384 on an application for leave to appeal from a decision striking out a claim that a child had been physically and sexually abused by his foster father. There it was said that the authority had been negligent in not properly monitoring the placement of the child in care. Simon Brown L.J. said, at p. 390:
 

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:

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."

He continued, at p. 378:

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 AC 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 AC 633 at p. 751C, Lord Browne-Wilkinson said:

He added:

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:

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:

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:-

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 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:

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:-

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:-

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 AC 58, 166A, Lord Bridge of Harwich said:

That parents may owe a duty of care in some circumstances to their child is clear from Carmarthenshire County Council v. Lewis [1955] AC 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:

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] AC 1004 at p. 1031 Lord Reid said:

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] AC 728 at p. 755 accepted this test.

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 WLR 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.
 

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

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] QB 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.

Causation

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:

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:

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:

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

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.

LORD NOLAN

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.

LORD STEYN

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.


  LORD HUTTON

My Lords,

The history of the plaintiff, the relevant statutory provisions, the nature of the plaintiff's claim and the proceedings to strike out that claim have been fully set out in the speech of my noble and learned friend Lord Slynn of Hadley which I gratefully adopt and need not repeat.

The particulars of common law negligence pleaded by the plaintiff are copious. The principal complaints are helpfully summarised by the Master of the Rolls, [1998] Q.B. 367, 372H, as follows:

At this early stage in the proceedings when regard can be had only to the particulars of claim and to the medical reports filed on the plaintiff's behalf, the weightiest complaint advanced by the plaintiff appears to be that the defendant failed to place him for adoption, which resulted throughout the years of his childhood and youth in him having no settled home but in moving about between a number of foster parents, interspersed with periods in residential institutions. He claims that it was this disturbed and unsettled life, with no firm background of family love and affection, which caused the psychiatric damage which he claims he suffered.

It appears that when he was aged 1 year and 10 months Mrs. Kearnes, who was an unqualified welfare assistant, became the plaintiff's social worker. Then, at a later stage, when he was aged 7 years and 10 months Mrs. Kearnes and her husband became his foster parents and he remained with them until he was aged 14. A further head of complaint is that the defendant failed to supervise and manage adequately the care of the plaintiff. This head of complaint is described as follows in the report of the psychologist, Mr. Brendan Clowry whose report has been filed on behalf of the plaintiff:

The Court of Appeal upheld the decision of the County Court Judge, Judge Brandt, to strike out the plaintiff's claim as disclosing no reasonable cause of action on two main grounds. The first ground was that the plaintiff was not entitled to claim that the defendant was guilty of negligence in exercising powers and discretion given to it by statute. The Master of the Rolls stated at p. 375D:

And Evans L.J. stated at p. 379G:

The second ground was that, even if the plaintiff's claim was not barred on the ground that it alleged negligence in the exercise of statutory discretions, it would not be just and reasonable to impose liability for negligence on the local authority and its social workers in discharging their responsibilities to a child like the plaintiff. A number of reasons were given by the Court of Appeal as to why it would not be just and reasonable to impose such liability to which I will return at a later stage in this judgment. The negligent exercise of a statutory discretion

In Lonrho Plc. v. Tebbit [1991] 4 All E.R. 973, 980J Browne-Wilkinson V.-C. stated:

In some circumstances the exercise of a statutory duty or power may itself create the relationship between the plaintiff and the defendant which causes the common law duty of care to come into existence. This was made clear in the judgment of Lord Greene M.R. in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council [1945] K.B. 584 where a local authority was held liable for common law negligence for failing to light an air-raid shelter erected on the highway in pursuance of statutory powers. Lord Greene M.R. stated at p. 595:

And at p. 615:

And in Dorset Yacht Co. Ltd. v. Home Office [1970] AC 1004, 1056D Lord Pearson said:

In the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424, 459 Mason J. stated:
 

See also Brennan J. at p. 479.

Therefore the fact that the defendant's relationship with the plaintiff arose from the exercise of a statutory power does not prevent the plaintiff from claiming that the defendant owed him a common law duty of care, unless the defendant is entitled to contend that the claim is barred because it alleges negligence in the exercise of a discretion given by statute.

The consideration of this subject must begin with the judgments of this House in the Dorset Yacht case. The ratio of the decision was that officers of the Home Office acting pursuant to statutory powers were under a duty to take reasonable care to prevent Borstal boys under their control from causing damage to the property of a third person in the vicinity, but the issue whether a claim could be brought for negligence in the exercise of a statutory discretion did not arise for determination. In his judgment at p. 1026B Lord Reid described the facts as follows:

Lord Reid expressly stated that the issue of negligence in the carrying out of a statutory discretion did not arise in that case, and he said at p. 1031B:

Lord Diplock made the same point at p. 1069G:

Therefore, the observations by Lord Reid and Lord Diplock as to the non-justiciability of acts or omissions in the exercise of a statutory discretion, whilst of great weight, do not constitute the ratio of the decision. The observation made by Lord Reid was at p. 1031A:

Lord Reid then stated, as already set out, that the case did not, in fact, raise this issue. Lord Diplock said at p. 1067F:

I further consider that it is necessary to have regard to the context in which these statements by Lord Reid and Lord Diplock were made and to the nature of the statutory discretion which they were considering. The statutory discretion which came under examination in the Dorset Yacht case was the discretion given to the Home Office by statute to run a Borstal regime which permitted inmates to develop their individuality on right lines with a proper sense of personal responsibility whilst conforming to the rules necessary for well-ordered community life. This was clearly a discretion which was to be exercised by the Home Secretary and his officials and where it would not be right for the courts to substitute their views. Lord Reid said at p. 1031D:

Lord Diplock said at p. 1067D:

As I read the judgments of Lord Reid and Lord Diplock, their observations that there can be no action for negligence in respect of actions carried out within the ambit of a statutory discretion were made against the background of the facts of that case and in the context of the statutory discretion under consideration, and their opinion that the courts could not intervene was based, in part, on the consideration that the courts were ill-suited in a sphere such a Borstal training to substitute their views for the views of the Home Secretary and his officials.

I consider that subsequent decisions have shown that the underlying principle to be derived from the passages in the judgments of Lord Reid and Lord Diplock in the Dorset Yacht case relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of Ministers or officials. In Anns v. Merton London Borough [1978] 728, 754C Lord Wilberforce stated:

In Rowling v. Takaro Properties Ltd. [1988] AC 473 the judgment of the Privy Council delivered by Lord Keith of Kinkel emphasised that the non-justiciability of an allegation of negligence in the exercise of a statutory discretion is based on the need to exclude those cases which are unsuitable for judicial resolution, that the fact that the decision under attack is capable of being described as having been of a policy character does not in itself render the case unsuitable for judicial decision, but that it is necessary to weigh and analyse all the relevant considerations in considering whether it is appropriate that a court should adjudicate on the negligence alleged. Lord Keith, referring to the distinction between policy decisions and operational decisions, said at p. 501B that their Lordships:
 

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:

And at p. 981G:

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

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

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:

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

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 AC 633.2 Schiemann L.J. stated at p. 381E:

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:

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

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

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

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:

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] AC 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:

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:


 

At this early stage in the present case it is not clear in my opinion that if the action proceeds to trial the judge will be required to weigh policy factors which the court is not equipped to decide. It is not known at this stage what factors the defendant and its officials and social workers did take into account in making decisions relating to the plaintiff and in planning his future. It may be that no matters of policy involving the balancing of competing public interests or the allocation of limited financial resources were involved in the decision and it may be that at a trial the judge, in the words of Mason J. in the Sutherland Shire Council case, at p. 469, would be called upon:

Therefore I would not strike out the action at this stage on the ground that it gives rise to issues which are non-justiciable. If it does appear at the trial that the case gives rise to an issue which relates to a matter of policy such as the balancing of competing public interests, then the judge can at that stage rule out the issue as being non-justiciable.

The just and reasonable test

The Court of Appeal also held that the plaintiff's action should be struck out on the separate and distinct ground that it would not be just and reasonable to impose a duty of care on the defendant. The Master of the Rolls observed that in the present case the defendant was regarded as being in the position of a parent to the plaintiff. He said at p. 377C:

My Lords, I agree that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong, and I also agree with the observation of Browne-Wilkinson V.-C. in Surtees v. Kingston-Upon-Thames Borough Council [1991] 2 F.L.R. 559, 583F:

But I do not agree, with great respect, that because the law should not permit a child to sue his parents, the law should not permit a child to sue a local authority which is under a duty by statute to take him into care and to make arrangements for his future. I consider that the comparison between a parent and a local authority is not an apt one in the present case because the local authority has to make decisions of a nature which a parent with whom a child is living in a normal family relationship does not have to make, viz. whether the child should be placed for adoption or placed with foster parents, or whether a child should remain with foster parents or be placed in a residential home. I think that it is erroneous to hold that because a child should not be permitted to sue his parents he should not be permitted to sue a local authority in respect of decisions which a parent never has to take. Moveover a local authority employs trained staff to make decisions and to advise it in respect of the future of a child in its care, and if it can be shown that decisions taken in respect of the child constitute, in the circumstances, a failure to take reasonable care, I do not think that the local authority should be held to be free from liability on the ground that it is in the position of a parent to the child. In A. v. Liverpool City Council [1982] A.C. 363, 372G Lord Wilberforce stated:

Lord Wilberforce made this statement in rejecting the argument that the High Court could overrule the decision of the local authority as to the nature of the access which the mother should have, but that context does not, in my opinion, alter the weight of the observation that there is no parallel between the responsibilities of a natural parent and the responsibilities of a local authority who assumes the care of a child under a statutory provisions.

In the Bedfordshire case Lord Browne-Wilkinson said at p. 749G that "the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied," but he held that in that case there were very potent counter- considerations to override that consideration. In the present case the circumstances are different in a number of important respects. Unlike the Bedfordshire case this is not a case where the child was in the care of his natural parent or parents when the negligence by the local authority is alleged to have occurred. And this is not a case, unlike the Bedfordshire case, where the local authority is alleged to have been negligent in respect of investigating or acting upon an allegation or suspicion of sexual abuse. Whilst I recognise that the arguments are closely balanced I have come to the view that the arguments on behalf of the local authority are not sufficiently powerful to outweigh the argument that if the plaintiff has suffered personal injury by reason of its negligence he should be compensated by the courts.

In the Bedfordshire case the counter-considerations which this House considered should prevail are those enumerated by Lord Browne-Wilkinson at pp. 749-751. In my opinion, by reason of the differences in the circumstances to which I have referred, these considerations become less powerful and are of insufficient weight to prevail. The first consideration was that a common law duty of care would cut across the whole inter- disciplinary system set up by statute for the protection of children at risk, which involved the participation of the police, educational bodies, doctors and others. But in the present case it appears that other disciplines were not involved, or were not closely involved. The second consideration was that the task of a local authority and its servants in deciding whether to remove a child from his parents because of the fear of sexual abuse was an extraordinarily delicate one. But in the present case, where the plaintiff was already removed from his natural mother, the duties of the defendant were not so delicate, although questions did arise as to whether the plaintiff should remain with particular foster parents. The third consideration was that if liability and damages were to be imposed it might well be that local authorities would adopt a more cautious and defensive approach to their duties. In the circumstances of this case I would not give this consideration great weight and I am in agreement with the opinion of Evans L.J. in this case at p. 380B that:

The next consideration was that the relationship between a social worker and a child's parents is frequently one of conflict, particularly in a case of child abuse, and a fertile ground in which to breed hopeless and costly litigation. But again, in the circumstances of the present case, this consideration is of less weight.

A further consideration was that there was a statutory procedure for complaint and for the investigation of grievances, and that the local authority Ombudsman would have power to investigate the cases. Again this consideration applies here, but if the plaintiff suffered psychiatric injury by reason of carelessness amounting to negligence at common law, I consider that the jurisdiction of the court should not be excluded because of the existence of other avenues of complaint. The final consideration in the Bedfordshire case was that there was no analogous category of cases to justify the imposition of liability on the local authority, and that the nearest analogy was cases where the courts had declined to impose common law liability on bodies, such as the police or statutory regulators of financial dealings, seeking to protect members of society from injury by criminals or from financial loss by the dishonesty of others. But in the present case the plaintiff was not a member of a wide class of society which the defendant was obliged to seek to protect, but was an individual person who had been placed in the care of the defendant by statute, and I consider that it would not constitute a novel category of negligence to hold that the defendant owed him a common law duty of care.

In support of his decision that the plaintiff's cause of action should be struck out the Master of the Rolls, at p. 376, cited the judgment of Simon Brown L.J. (with which Waite L.J. agreed) in H. v. Norfolk County Council [1997] 1 F.L.R. 384. In that case the plaintiff, who had been taken into care at the age of 4 and placed with foster parents until he was 14, alleged that he had been physically and sexually abused by his foster father and that the council had been negligent in failing to supervise his placement, to investigate reports of abuse and to remove him from foster care. The High Court struck out the action on the ground that the public policy considerations referred to by Lord Browne-Wilkinson in the Bedfordshire case were also applicable in that case, and that accordingly the council owed no duty of care. The circumstances of that case, involving allegations of sexual abuse by the foster father, were very different from the circumstances in the present case and, unlike the present defendant, the council was able to rely strongly on the point that the system for the protection of children at risk was an interdisciplinary one and that there would be difficulty in disentangling the respective roles of the various agencies concerned if there was to be liability. Therefore as, in my opinion, the case is clearly distinguishable I consider it unnecessary to express an opinion upon the correctness of the decision.

As I have reached the conclusion that under the common law principles applicable to a claim alleging negligence in the exercise of a statutory discretion the plaintiff's action should not have been struck out I consider it unnecessary to discuss the implications of the judgment of the European Court of Human Rights in Osman v. United Kingdom (28 October 1998) in relation to the present appeal

Causation

Having ruled that the plaintiff was not entitled to sue the defendant for negligence in the exercise of its statutory discretion the Court of Appeal went on to consider whether there was no realistic prospect of the plaintiff succeeding in establishing that negligence by individual social workers or other persons for whom the defendant would be vicariously responsible had caused injury to him, and concluded that there was no such prospect, Evans L.J. stating at p. 380H:

However the issue of causation arises in a different way if, as I would hold, the plaintiff is entitled to allege negligence against the defendant in the exercise of its statutory discretion. If the plaintiff can succeed in establishing negligence on the part of the defendant (and I refer to the standard of care at the conclusion of this judgment) he may well face a very difficult task in seeking to establish that that negligence was a cause of the psychiatric injury in respect of which he claims. But causation is largely an issue of fact to be determined on the evidence, and having regard to the last sentence in the passage of the report of the plaintiff's psychologist which I have set out in an earlier part of this judgment, I consider that it would not be right to strike out the claim on the ground that the plaintiff had no real prospect of establishing causation.

The standard of care

Although I would allow this appeal for the reasons which I have given and would permit the action to proceed to trial, I wish to emphasise that the considerations relied on by the defendant on the issue of justiciability will be of relevance and importance when the trial judge comes to consider the question whether the plaintiff has established a breach of the duty to take reasonable care. The standard of care in negligence must be related to the nature of the duty to be performed and to the circumstances in which the defendant has to carry it out. Therefore the standard of care to be required of the defendant in this case in order to establish negligence at common law will have to be determined against the background that it is given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children. Accordingly when the decisions taken by a local authority in respect of a child in its care are alleged to constitute negligence at common law, the trial judge, bearing in mind the room for differences of opinion as to the best course to adopt in a difficult field and that the discretion is to be exercised by the authority and its social workers and not by the court, must be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which can be regarded as negligent.

I would allow the appeal.


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