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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> CN & Anor v Poole Borough Council [2017] EWCA Civ 2185 (21 December 2017) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2017/2185.html Cite as: [2018] 2 FLR 565, [2017] EWCA Civ 2185, [2018] 2 WLR 1693, (2018) 21 CCL Rep 5, [2018] HLR 17 |
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mrs Justice Slade DBE
QB/2015/0490
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE KING DBE
and
LORD JUSTICE IRWIN
____________________
(1) CN (2) GN (through their Litigation Friend The Official Solicitor) |
Claimants/ Respondents |
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- and - |
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POOLE BOROUGH COUNCIL |
Defendant/ Appellant |
____________________
Claimants/Respondents
Lord Faulks QC and Paul Stagg (instructed by Wansbroughs Solicitors) for the
Defendant/Appellant
Hearing date: 8 June 2017
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Crown Copyright ©
Lord Justice Irwin :
Background and Factual Summary
The Pleaded Claim
"6.3 On the balance of probabilities competent investigation at any stage would have led to the removal of the Claimants from home. A child in need assessment should with competent care have been carried out in respect of each Claimant by September 2006 at the latest. By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. [Emphasis added] With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at lest respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care."
The Argument before Master Eastman
"7. … firstly in general (a) does not owe a duty of care to (b) to protect them from (c). The exception to that – and it is this exception which is pivotal to this case – exception being where (a) has assumed a responsibility to afford such a duty of care; (a) being the defendant in this case and (b) being the claimants and (c) effectively being the relevant family and their associates.
8. The second principle is that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. That is clearly set out in the Hussain case ([1998] EWCA Civ 834).
9. The third basic principle is that, if the local authority is merely exercising a power under a statutory scheme, it does not thereby assume a responsibility at common law to those intended to benefit from the scheme. To which the claimant in this case says yes I agree with that but there will be exceptional cases in certain circumstances where it will have assumed such a responsibility.
10. The fourth general principle to which both parties agree is that, if a local authority knows of particular circumstances affecting an individual it does not mean they assume a responsibility for those characteristics that is the Derby case ([2015] EWHC 909 (QB))."
The Argument before Slade J
"The question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of".
"81. … the reason of policy that led the House of Lords to hold that no duty of care towards a child arises, insofar as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply …
…
83. Insofar as the position of a child is concerned, we have reached the firm conclusion that the decision in X v Bedfordshire cannot survive the Human Rights Act …"
"removing the exclusionary effect of X v Bedfordshire on decisions by local authorities in respect of claims by children so that negligence claims against local authorities in respect of duties owed to children may be pursued by them." (paragraph 27)
Moreover, the facts of this case were such that it was not a claim apt for disposal by striking out (paragraph 28).
"The substance is that the antisocial behaviour of members of the delinquent family should have been stopped. There was [then] no suggestion that the council should have taken the children into care. The alleged duty of care to CN and GN had nothing to do with the Children Act 1989. It is established by the authorities that no common law duty of care is owed by a council in respect of antisocial behaviour or to children in respect of re-housing." (paragraph 29)
"However, Mr Stagg fairly recognised that if I declined to accept his argument that D v East Berkshire had been overruled, I must follow the decision of the Court of Appeal in that case. As the claims in this case are brought by children they do not fall within the exclusion of common law claims relating to duties of councils to children as explained in the Judgment of the Court of Appeal in D v East Berkshire. If that decision has not been overruled, X v Bedfordshire would not present an absolute bar to the current claims." (Slade J, paragraph 30)
"33. Mr Stagg submitted that it would not be fair, just and reasonable to impose a duty of care on the Council in this case for the following reasons:
i) The Council did not have the power to re-accommodate or remove the children CN and GN from the premises without a Court Order or the agreement of the parent;
ii) There was no enforceable statutory duty requiring the Council to provide accommodation for the children with their mother;
iii) The Children Act 1989 Section 17 does not impose a duty which is enforceable by judicial review nor does section 47 give the Council power to re-accommodate or remove the children from the premises.
34. Mr Stagg distilled his contention that the Council did not owe CN and GN a duty of care into six propositions:
i) The substance of the Claimants' claim against the Council was that they had failed to rehouse them. The Children Act 1989 is not relevant to such a claim;
ii) The Council owe no duty at common law to prevent anti-social behaviour;
iii) It would be odd if the Children Act 1989 gave rise to liability in these circumstances when there was no duty to exercise powers conferred by other legislation;
iv) The Council's duty to accommodate the children is not enforceable by judicial review. In those circumstances it would be odd if there could be a common law claim in damages;
v) Partner agencies, such as the police, had been involved in the cases of CN and GN. Why should the Council be liable and the other agencies not?
vi) Where there is a legislative scheme which does not provide a private law remedy none should be conferred by other means. Parliament has provided a statutory complaints procedure. Application may be made to the Ombudsman, there are political avenues for redress, as were taken by the mother in this case, and a statutory right of review may be available."
"…that the Human Rights Act and Strasbourg jurisprudence led to the removal of an absolute bar to claims falling within the "core proposition" in X v Bedfordshire which remained after Barrett."
"the duty of the police for the preservation of the peace did not involve the kind of close or special relationship necessary for the imposition of a private law duty of care" (paragraph 42)
"… preclude the child claimants from pursuing such a claim in the circumstances of this case. The claim will be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: forseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. Whether a common law duty of care was owed by the council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim." (Slade J, paragraph 44)
The Submissions before Us
"The concept of a duty in private law which arises only when it has been acknowledged to exist is anomalous. It means that a housing authority which accepts that it has a duty to house the applicant but does so inadequately will be liable in damages but an authority which perversely refuses to accept that it has any such duty will not. This seems to me to be wrong."
The contested duty of care in this case must arise from the law or not at all.
Analysis
"In my judgment the correct view is that in order to found a
cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient." [p.734H/735A]
Lord Browne-Wilkinson dealt with this category of case (Category B) under the rubric "careless performance of a statutory duty – no common law duty of care".
"Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases. There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist." [p.741A/B]
"Finally, your Lordships' decision in Caparo [1990] 2 AC 605 lays down that, in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretions and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child's welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. [Emphasis added] In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill [1987] A.C. 53 and Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175. In the latter case, the Privy Council whilst not deciding the point said, at p.198F, that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability "would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few." In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others."
"49. These decisions significantly restrict the effect of the Bedfordshire cases [1995] 2 AC 633. So far as the education authority cases are concerned, doubt was cast in Phelps v Hillingdom London Borough Council [2001] 2 AC 619 on the proposition that an education authority owes no duty of care to children when exercising powers and discretions under the 1981 Act. So far as child abuse cases are concerned, much of the reasoning advanced by Lord Browne-Wilkinson to justify holding that there was no duty of care was called into question. Lord Slynn in Barrett v Enfield Borough Council [2001] 2 AC 550 stated that the Bedfordshire cases established that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. We consider that the effect of Barrett's case and the other decisions that we have considered above is to restrict the effect of the Bedfordshire cases to that core proposition."
"81. Thus litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. Substantial damages will be available on proof of individual shortcomings, which will be relevant alike to a claim based on breach of section 6 of the Human Rights Act and a claim based on breach of a common law duty of care.
82. Can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty? It is true that a claim under the Human Rights Act will only lie against public authorities and not against the individuals employed by them. But the reality is that claims in negligence are brought primarily to establish liability on the part of the local authorities and individuals are unlikely to be personally at risk. In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think that this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care.
83. In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. [Emphasis added] Where child abuse is suspected the interests of the child are paramount - see S.1 Children Act 1989. Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force."
"88. The general reluctance of Scots law, as well as English law, to impose affirmative duties to protect others is sometimes criticised on the basis that the distinction between acts and omissions is meaningless: the argument is sometimes illustrated by asking whether a negligent driver's fault arises from his act of driving or from his omission to keep a proper look-out or to apply the brakes. That argument was answered by Lord Hoffmann in Stovin v Wise [1996] AC 923 at page 945:
"Of course it is true that the conditions necessary to bring about an event always consist of a combination of acts and omissions ... But this does not mean that the distinction between acts and omissions is meaningless or illogical. One must have regard to the purpose of the distinction as it is used in the law of negligence, which is to distinguish between regulating the way in which an activity may be conducted and imposing a duty to act upon a person who is not carrying on any relevant activity. To hold the defendant liable for an act, rather than an omission, it is therefore necessary to be able to say, according to common sense principles of causation, that the damage was caused by something which the defendant did."
[89] A different criticism is that the law's reluctance to impose affirmative duties to protect others has the consequence, illustrated by Lord Keith's example of the person who watches a stranger walk over a cliff, of sanctioning wilful indifference to the safety of others. The law's caution in imposing affirmative duties to protect others reflects however moral and political values embedded in the law and society. One consideration is that it is usually considered worse to do harm than to fail to help: see, for example, the discussion in Honoré, Responsibility and Fault (1999), Chapter 3, "Are Omissions less Culpable?" In addition, the law's general reluctance to impose affirmative duties reflects an aspect of individual liberty: the right (in general) to do as one chooses, provided one does not harm other people. Mill observed in the first chapter of On Liberty:
"To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception".
As Gleeson CJ said in the High Court of Australia in Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 C.L.R. 254 at para.28,
"If people were under a legal duty to prevent foreseeable harm to others, the burden imposed would be intolerable."
These moral and political considerations, together with economic considerations, were drawn together by Lord Hoffmann, in a speech with which Lord Goff and Lord Jauncey of Tullichettle agreed, in Stovin v Wise at pages 943-944:
"There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties (like Mrs Wise) or natural causes. One can put the matter in political, moral or economic terms. In political terms it is less of an invasion of an individual's freedom for the law to require him to consider the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the 'why pick on me?' argument. A duty to prevent harm to others or to render assistance to a person in danger or distress may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. If it benefits from being able to impose some of its costs on other people (what economists call 'externalities,') the market is distorted because the activity appears cheaper than it really is. So liability to pay compensation for loss caused by negligent conduct acts as a deterrent against increasing the cost of the activity to the community and reduces externalities. But there is no similar justification for requiring a person who is not doing anything to spend money on behalf of someone else."
Accordingly the "neighbour" principle, as stated by Lord Atkin in Donoghue v Stevenson (at page 44), is concerned with an act which affects another person, rather than an omission to prevent harm to such a person:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour."
Referring to Lord Atkin's speech, Brennan J observed in Sutherland Shire Council v Heyman (1985) 157 CLR 424 at page 478:
"The judgment of Lord Esher MR in Le Lievre v Gould [1893] 1 QB 491 which Lord Atkin cites makes it clear that the general principle expresses a duty to take reasonable care to avoid doing what might cause injury to another, not a duty to act to prevent injury being done to another by that other, by a third party, or by circumstances for which nobody is responsible.""
"The mechanism of foreseeability is ultimately an unsatisfactory touchstone of a duty of care in this area."
"[97] The list of examples given by Lord Goff in Smith v Littlewoods was not intended to be exhaustive, and I do not doubt that the list is capable of extension. At the risk of making rather a sweeping generalisation, however, it can I think be seen that all the examples of primary (as opposed to vicarious) liability involve situations where it is readily understandable that the law should regard the defender as being under a responsibility to take care to protect the pursuer from the risk of deliberate injury by a third party. The responsibility does not arise merely from the foreseeability of such injury. Leaving aside responsibilities arising from the occupation of land, the situations listed by Lord Goff in which primary liability has been imposed upon a party for the consequences of a third party's deliberate wrongdoing involved the undertaking by the defender of an activity which created a foreseeable risk of injury by a third party whom the defender had a responsibility to control (as in Dorset Yacht), or the negligent creation by the defender of a source of danger with which third parties might foreseeably interfere, and which the defender therefore had a responsibility to protect from such interference (as in Haynes v Harwood), or reliance by the pursuer on an express or implied undertaking by the defender to protect the pursuer from the risk of injury by a third party (as in Stansbie v Troman). The imposition of liability in those situations is consistent with the general treatment of acts and omissions as explained by Lord Hoffmann in Stovin v Wise at page 944. A duty of care is "owed by a person who undertakes a positive activity which carries the risk of causing damage to others"; and, in addition,
"There may be a duty to act if one has undertaken to do so or induced a person to rely upon one doing so. Or the ownership or occupation of land may give rise to a duty to take positive steps for the benefit of those who come upon the land and sometimes for the benefit of neighbours".
Similarly in Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 his Lordship said, at para.17:
"Reasonable foreseeability of physical injury is the standard criterion for determining the duty of care owed by people who undertake an activity which carries a risk of injury to others. But it is insufficient to justify the imposition of liability upon someone who simply does nothing: who neither creates the risk nor undertakes to do anything to avert it."
Dorset Yacht and Haynes v Harwood are examples of cases where the defender acted in such a way as to create a risk of injury to others: in other words, they are not, on analysis, "omission" cases at all, but cases where the defender undertook a positive activity which carried the risk of causing damage to others. As Lord Hoffmann observed, in relation to Dorset Yacht, in Stovin v Wise at page 948:
"All members of the House plainly did not regard the case as one in which the alleged breach of duty was merely an omission to use a statutory power. The negligence was caused by something which the Borstal officers did, namely to use their statutory powers of custody to bring the trainees onto the island, where they constituted a foreseeable risk to boat owners, and then take no care to prevent them escaping in the night.""
"20. Lord Reed examined this issue with great care, and concluded that Lord Goff's analysis of the problem that arises in cases where harm is caused by a third party's wrongdoing is to be preferred: 2008 SC 351, para 94. The scope of the duty in cases where the risk has been created by the defender, such as Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273, may be capable of being determined by assessing the degree of likelihood of injury. But I agree with Lord Reed that Lord Goff's approach is the one that should be applied to the problem raised by this case. We are dealing here with an allegation that it was the defenders' duty to prevent the risk of harm being caused to the deceased by the criminal act of a third party which they did not create and had not undertaken to avert. The point at issue is whether the defenders were under a duty in that situation to warn the deceased that there was a risk that Drummond would resort to violence. I agree that cases of this kind which arise from another's deliberate wrongdoing cannot be founded simply upon the degree of foreseeability. If the defender is to be held responsible in such circumstances it must be because, as Lord Reed suggests in para 97, the situation is one where it is readily understandable that the law should regard the defender as under a responsibility to take care to protect the pursuer from that risk."
"22. … that the concepts of proximity and fairness amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. He said that the law had moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the various duties of care which the law imposes. These are cases where, as Lord Reed suggested in para 97, the imposition of a duty of care is readily understandable."
"25. …It is really no more than an expression of the idea that lies at the heart of every judgment about legal policy. If liability is to attach, it should be in situations where this is readily understandable because, looking at both sides of the argument, it is fair and reasonable that there should be liability. Smith v Chief Constable of Sussex Police, which is reported together with Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, provides a recent example of its application in a case of personal injury. It was adopted without criticism by Lord Mackay of Clashfern when he spoke for the House in British Telecommunications plc v James Thomson & Sons (Engineers) Ltd 1999 SC (HL) 9, 12. It was applied by Lord Brodie in West v Castlehill LLP [2008] CSOH 182, para 23 in a situation where he would not have regarded an analysis based simply on foreseeability to be adequate."
"28. These problems suggest that to impose a duty to warn, together with the risk that action would be taken against them by anybody who suffered loss, injury or damage if they had received no warning, would deter social landlords from intervening to reduce the incidence of anti-social behaviour. The progress of events in this case shows that the defenders were doing their best to persuade Drummond to stop abusing his neighbours. These attempts might have worked, as no doubt they have done in other cases. Far better that attempts should be made to cure these problems than leave them unsolved or to be dealt with, inevitably after the event, by the police. As in the case of the police, it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from an alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities: see Lord Brown of Eaton-under-Heywood's observations in Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, para 133."
"…where the person who is said to be under that duty has by his words or conduct assumed responsibility for the safety of the person who is at risk." (paragraph 29)
That observation, and Lord Hope's conclusion that there had been no assumption of responsibility in that case, must be considered with the factual context in mind. It was agreed that the council knew of Drummond's anti-social behaviour, of his earlier threats, and that the council had been actively engaged in attempting to modify his behaviour and in considering removing him. Despite that, there was no assumption of responsibility and no common law duty of care.
"… a local authority is not normally liable for errors of judgment in the exercise of the discretionary powers under a statute" (paragraph 7).
It does not appear that the Court of Appeal decision in D v East Berkshire was substantively addressed in argument.
"77. … The advent of secure public sector tenancies has meant that social landlords have had to be given powers to deal with anti-social behaviour by their tenants. It is in everyone's interests that those powers should be properly and responsibly used. But equally there are difficult choices to be made, given that social landlords cannot pick and choose their tenants with quite the freedom that private landlords can. So no-one now argues that there is a duty to use their powers in a particular way. If they do take action, it may be good practice to keep other tenants or even neighbours informed of the steps being taken, but landlords will also be concerned about the privacy interests of all concerned. They certainly should not be deterred from the responsible use of their powers by the threat of liability for the harm caused by the criminal acts of those anti-social tenants. Their anti-social tenants are presumed to be grown-ups with minds of their own who can make their own choices about how to behave. The liability is theirs and the fact that they may have no means to pay is not by itself a good enough reason to transfer the liability to someone else."
"84. …But realistically, if the police owed no duty of care in the circumstances arising there, it would be highly surprising if the pursuers owed a duty of care in the circumstances of the present case. Not least, it would be odd indeed if the pursuers were liable in law for not warning the deceased whereas, had the police been told of all the facts and nevertheless failed to protect the deceased, they (the body principally charged with the protection of the public) would have been under no such liability."
"…The core principle [in the case of Hill] should be recalibrated to meet the evolving needs of the common law in light of developing case law and the domestic approach to rights under the Convention for the Protection of Human Rights and Fundamental Freedoms: see D v East Berkshire Community NHS Trust [2004] QB 558."
"It is simply unnecessary to develop the common law to provide a parallel cause of action to those provided for under the Human Rights Act 1998." (p. 1740C)
"44 An "immunity" is generally understood to be an exemption based on a defendant's status from a liability imposed by the law on others, as in the case of sovereign immunity. Lord Keith's use of the phrase was, with hindsight, not only unnecessary but unfortunate. It gave rise to misunderstanding, not least at Strasbourg. In Osman v United Kingdom (1998) 29 EHRR 245 the Strasbourg court held that the exclusion of liability in negligence in a case concerning acts or omissions of the police in the investigation and prevention of crime amounted to a restriction on access to the court in violation of article 6. This perception caused consternation to English lawyers. In Z v United Kingdom (2001) 34 EHRR 97 the Grand Chamber accepted that its reasoning on this issue in the Osman case 29 EHRR 245 was based on a misunderstanding of the law of negligence; and it acknowledged that it is not incompatible with article 6 for a court to determine on a summary application that a duty of care under the substantive law of negligence does not arise on an assumed state of facts."
"113. … it is a feature of our system of government that many areas of life are subject to forms of state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society (or sometimes from natural disasters). Licensing of firearms, regulation of financial services, inspections of restaurants, factories and children's nurseries, and enforcement of building regulations are random examples. To compile a comprehensive list would be virtually impossible, because the systems designed to protect the public from harm of one kind or another are so extensive.
114. It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.
115. The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. Examples at the highest level include Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 and Davis v Radcliffe [1990] 1 WLR 821 (no duty of care owed by financial regulators towards investors), Murphy v Brentwood District Council [1991] 1 AC 398 (no duty of care owed to the owner of a house with defective foundations by the local authority which passed the plans), Stovin v Wise [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 (no duty of care owed by a highway authority to take action to prevent accidents from known hazards).
116. The question is therefore not whether the police should have a special immunity, but whether an exception should be made to the ordinary application of common law principles which would cover the facts of the present case."
"125. The circumstances of the present case are different. The suggested development of the law of negligence is not necessary to comply with articles 2 and 3. On orthodox common law principles I cannot see a legal basis for fashioning a duty of care limited in scope to that of articles 2 and 3, or for gold plating the claimant's Convention rights by providing compensation on a different basis from the claim under the Human Rights Act 1998. Nor do I see a principled legal basis for introducing a wider duty in negligence than would arise either under orthodox common law principles or under the Convention.
126. The same argument, that the common law should be developed in harmony with the obligations of public bodies including the police under the Human Rights Act 1998 and articles 2 and 3 of the Convention, was advanced in the Smith case [2009] AC 225 as a ground for holding that the police owed a duty of care to the deceased after he reported receiving threats. Reliance was similarly placed on the approach of the Court of Appeal in D v East Berkshire Community NHS Trust [2004] QB 558 (as noted by Lord Phillips MR, who had delivered the judgment of the Court of Appeal in that case). Counsel for Mr Smith relied particularly on the analysis of the effect of the Human Rights Act 1998 in D v East Berkshire Community NHS Trust, at paras 55–87: see the reported argument [2009] AC 225, 240. The argument by analogy with that case which presently commends itself to Baroness Hale DPSC is therefore not a new argument, but one which failed to persuade the majority in the Smith case.
127. The argument was rejected by the House of Lords for reasons given by Lord Hope (paras 81–82), Lord Phillips (paras 98–99) and most fully by Lord Brown: paras 136–139. Lord Brown did not consider that the possibility of a Human Rights Act claim was a good reason for creating a parallel common law claim, still less for creating a wider duty of care. He observed that Convention claims had different objectives from civil actions, as Lord Bingham pointed out in R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. Whereas civil actions are designed essentially to compensate claimants for losses, Convention claims are 1767intended to uphold minimum human rights standards and to vindicate those rights. The difference in purpose has led to different time limits and different approaches to damages and causation. Lord Brown recognised that the violation of a fundamental right is a very serious thing, but he saw no sound reason for matching the Convention claim with a common law claim. To do so would in his view neither add to the vindication of the right, nor be likely to deter the police from the action or inaction which risked violating it in the first place.
128. It is unnecessary for the purposes of this appeal to decide questions about the scope of article 3 and I would not wish to influence the Court of Appeal's consideration of the judgment in DSD v Comr of Police of the Metropolis [2014] EWHC 436 (QB). It does not alter the essence of the argument which was considered and rejected by the House of Lords in the Smith case [2009] AC 225. I am not persuaded that it would be right for the court to depart from that decision, which itself was consistent with a line of previous authorities."
"130. More generally, I would reject the narrower liability principle advocated by the claimants for the same reasons as the broader liability principle advocated by the interveners. If it is thought that there should be public compensation for victims of certain types of crime, above that which is provided under the criminal injuries compensation scheme, in cases of pure omission by the police to perform their duty for the prevention of violence, it should be for Parliament to determine whether there should be such a scheme and, if so, what should be its scope as to the types of crime, types of loss and any financial limits. By introducing the Human Rights Act 1998 a cause of action has been created in the limited circumstances where the police have acted in breach of articles 2 and 3 (or article 8). There are good reasons why the positive obligations of the state under those articles are limited. The creation of such a statutory cause of action does not itself provide a sufficient reason for the common law to duplicate or extend it."
Conclusions
"The law's caution in imposing affirmative duties to protect others reflects … moral and political values embedded in law and society."
I accept also that society places a high emphasis on protecting vulnerable people, particularly vulnerable children. However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude "sectoral" manner.
Lady Justice King:
"6.3 …By September 2006 no competent local authority would have failed to carry out a detailed assessment and on the balance of probabilities such detailed assessment if carried out competently would and should have led to the conclusion that each of the Claimants required removal from home if the family as a whole could not be moved. With the information obtained by competent assessment in September 2006 on application to the Court the Defendant would have obtained at least respite care and if necessary by interim care orders in respect of each Claimant. Any competent local authority should and would have arranged for their removal from home into at least temporary care."
"(2) A court may only make a care order or supervision order if it is satisfied-
(a) that the child concerned is suffering, or likely to suffer, significant harm; and
(b) that harm, or likelihood of harm, is attributable to-
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him."
Lord Justice Davis: