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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> X (Minors) v Bedfordshire CC [1995] UKHL 9 (29 June 1995) URL: http://www.bailii.org/uk/cases/UKHL/1995/9.html Cite as: [1995] Fam Law 537, (1995) 7 Admin LR 705, [1995] 3 FCR 337, [1995] 2 AC 633, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] UKHL 9, [1995] 3 WLR 152, 94 LGR313 |
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Parliamentary
Archives,
HL/PO/JU/18/255
P1 and others (minors) (A.P.) (Appellants) v. Bedfordshire
County
council (Respondents)
In re M (a minor) (1994) (A.P.) and another
(A.P.) (Appellant)
In
re E (a minor) (1994) (A.P.) (Respondent)
Christmas (A.P.)
(Respondent) v. Hampshire County Council
(Appellants)
Keating (A.P.) (Original Respondent and Cross-Appellant)
v. Mayor etc. of the London Borough of Bromley
(Original Appellants and Cross-Respondents)
(Conjoined Appeals)
JUDGMENT
Die Jovis 29° Junii 1995
Upon Report from the Appellate Committee to
whom was
referred the Cause PI and others (minors) against
Bedfordshire
County Council, In re M (a minor) (1994) and another,
In re E (a
minor) (1994), Christmas against Hampshire County
Council and
Keating against Mayor etc. of the London Borough of
Bromley, That
the Committee had heard Counsel as well on Monday
the 10th as on
Tuesday the 11th, Wednesday the 12th, Thursday the
13th, Monday
the 17th, Tuesday the 18th, Wednesday the 19th,
Thursday the
20th, Monday the 24th, Tuesday the 25th, Wednesday
the 26th and
Thursday the 27th days of October last upon the
Petitions and
Appeals of P1, P2, P3, P4 and P5 (minors) suing by
their next
friend the Official Solicitor to the Supreme Court of
81 Chancery
Lane, London WC2A 1DD, Kelly Mills (a minor) suing by
her mother
and next friend Trudy Page and also the said Trudy Page
both of
16 Stanley Rise, Chelmer Village, Chelmsford, Essex,
Dorset
County Council of County Hall, Colliton Park, Dorchester,
Dorset
DT1 1XJ, Hampshire County Council of The Castle, Winchester
SO23
8UJ and the London Borough of Bromley of Bromley Civic
Centre,
Stockwell Close, Bromley, Kent BR1 3UH, and upon the
Petition and
Cross-Appeal of Sefton James Keating, of 43 Steyning
Close,
Nottingham, London, SE9 4NG, praying that the matter of
the
Orders set forth in the Schedules thereto, namely Orders of
Her
Majesty's Court of Appeal of the 23rd day of February 1994
and
the 29th day of April 1994, might be reviewed before
Her Majesty
the Queen in Her Court of Parliament and that the said
Orders
might be reversed, varied or altered or that the
Petitioners
might have such other relief in the premises as to Her
Majesty
the Queen in Her Court of Parliament might seem meet; as
upon the
cases of Bedfordshire County Council, the Mayor and
Burgesses of
the London Borough of Newham, the East London and the
City Health
Authority, Eileen Vizard, Martyn Oliver Edwards (a
minor, by his
father and next friend Derek Edwards), Mark John
Christmas and
Sefton James Keating lodged in answer to the said
Appeals and as
upon the case of the London Borough of Bromley
lodged in answer
to the said Cross-Appeal; and due consideration
had this day of
what was offered on either side in this Cause:
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPPEAL FOR JUDGMENT
IN THE CAUSE
P1 AND OTHERS (MINORS)
(APPELLANTS)
v.
BEDFORDSHIRE
COUNTY COUNCIL
(RESPONDENTS)
IN RE M (A MINOR) (1994) AND ANOTHER (A. P.)
(APPELLANT)
IN RE E (A
MINOR) (1994) (A.P.)
(RESPONDENT)
CHRISTMAS
(A.P.)
(RESPONDENT)
v.
HAMPSHIRE
COUNTY COUNCIL
(APPELLANTS)
KEATING
(A.P.)
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)
v.
MAYOR ETC.
OF THE LONDON BOROUGH OF BROMLEY
(ORIGINAL APPELLANTS AND
CROSS-RESPONDENTS)
ON 29 JUNE 1995
Lord
Jauncey of Tullichettle
Lord Lane
Lord Ackner
Lord
Browne-Wilkinson
Lord Nolan
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the
advantage of reading in draft the speech of my noble
and learned
friend. Lord Browne-Wilkinson. I am in entire agreement with
his
carefully detailed reasoning and with the conclusions which he has
reached
and I too would make the orders which he proposes.
I would
normally consider it wholly superfluous to add anything to
what my
noble and learned friend has said but in view of the importance
of
his conclusion in relation to the careless performance of a
statutory duty I
propose to add a few words of my own thereanent.
- 1 -
Where a statute
confers a private law right of action a breach of
statutory duty
howsoever caused will found the action. Where a statute
authorises
that to be done which will necessarily cause injury to someone
no
action will lie if the act is performed with reasonable care.
If. on the other
hand, the authorised act is performed carelessly
whereby unnecessary damage
is caused a common law action will lie.
This is because the act would, but
for the statute, be actionable
at common law and the defence which the statute
provides extends
only to the careful performance of the act. The statute
only
authorises invasion of private rights to the extent that the
statutory powers are
exercised with reasonable and proper regard
for the holders of such rights.
Thus careless performance of an
authorised act rather than amounting to
breach of a new duty
simply ceases to be a defence to a common law right or
action.
This was. I believe, the situation which Lord Reid was addressing
in
Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004. 1030:
"but there
is very good authority for the proposition that if a person
performs
a statutory duty carelessly so that he causes damage to a
member
of the public which would not have happened if he had
performed
his duty properly he may be liable. In Geddis v.
Proprietors
of Bann Reservoir (1878) 3 App. Cas. 430 Lord Blackburn
said,
at pp.455-456:
'For I take it,
without citing cases, that it is now thoroughly
well established
that no action will lie for doing that which the
legislature has
authorised, if it be done without negligence,
although it does
occasion damage to anyone; but an action does
lie for doing that
which the legislature has authorised, if it be
done negligently.'
The reason for
this is, I think, that Parliament deems it to be in the
public
interest that things otherwise unjustifiable should be done,
and
that those who do such things with due care should be immune
from
liability to persons who may suffer thereby. But Parliament
cannot
reasonably be supposed to have licensed those who do such
things to
act negligently in disregard of the interests of others
so as to cause
them needless damage." (The emphasis is
mine)
and to which
Lord Blackburn was referring in the above quotation from
Geddis
v. Proprietors of Bann Reservoir. See also Metropolitan
Asylum
District v. Hill (1881) 6 App.Cas. 193. 213, per
Lord Watson: Allen v. Gulf
Oil Refining Ltd. [1981] A.C. 1001, 1011E. per Lord Wilberforce.
Where a statute
empowers or ordains the doing of an act which, if
done with due
care, will cause no harm to a third party but which, if
done
carelessly will be likely to cause harm, and the
circumstances also satisfy the
other two requirements in Caparo
Industries Plc. v. Dickman [1990] 2 A.C.
605. namely that the
relationship between plaintiff and defendant is sufficiently
- 2 -
proximate and
that it would be just and reasonable to impose a duty of care,
an
action will lie at common law. But it will lie simply because
careless
performance of the act amounts to common law negligence
and not because
the act is performed under statutory authority.
Thus the owners of a National
Health Service Hospital owe
precisely the same duty of care to their patients
as do the owners
of a private hospital and they owe it because of the common
law of
negligence and not because they happen to be operating under
statutory
provisions. Conversely an act which, if performed in a
particular manner by
a private individual, would give rise to no
cause of action will no more be
actionable if it happens to be
performed in the same way in exercise of a
statutory power or
duty, breach of which does not confer a private law right
of
action, even if such performance is careless.
LORD LANE
My Lords,
I have read in
draft the speech of my noble and learned friend
Lord
Browne-Wilkinson. I agree with his reasoning and
conclusions.
LORD ACKNER
My Lords,
I have read in
draft the speech of my noble and learned friend
Lord
Browne-Wilkinson. I agree with his reasoning and
conclusions.
LORD BROWNE-WILKINSON
My Lords,
In each of
these five appeals the plaintiffs by their statements of claim
allege
they have been injured by public authorities in the carrying out
of
functions imposed upon them by statute. The defendants have
applied to
strike out the claims on the grounds that they disclose
no cause of action. In
the first group of appeals (the
Bedfordshire case and Newham case) the
allegations
are that public authorities negligently carried out, or railed to
carry
out, statutory duties imposed on them for the purpose of
protecting children
from child abuse. In the second group (the
Dorset case, the Hampshire case
and the Bromley
case) the plaintiffs allege that the local authorities failed
to
carry out duties imposed upon them as education authorities by
the Education
Acts 1944 to 1981 in relation to children with
special educational needs.
- 3 -
Although each
case is different, all of them raise in one form or
another the
difficult and important question to what extent authorities
charged
with statutory duties are liable in damages to individuals
injured by the
authorities' failure properly to perform such
duties. Such liability may be
alleged to arise in a number of
different ways: it can be based on breach or
statutory duty
simpliciter, on the failure to carry out the statutory duty
without
due care or on a breach of a common law duty of care. In
considering the
decided cases, and consequently the argument
submitted on these appeals, it
is not always clear which basis of
liability is under consideration. I therefore
propose, before
turning to the individual appeals, to attempt a more general
analysis
of the problems raised in this field so far as they affect these
cases.
General
Approach
Introductory - Public Law and Private Law.
The question is
whether, if Parliament has imposed a statutory duty on
an
authority to carry out a particular function, a plaintiff who has
suffered
damage in consequence of the authority's performance or
non-performance or
that function has a right of action in damages
against the authority. It is
important to distinguish such actions
to recover damages, based on a private
law cause of action, from
actions in public law to enforce the due performance
of statutory
duties, now brought by way of judicial review. The breach of a
public
law right by itself gives rise to no claim for damages. A claim
for
damages must be based on a private law cause of action. The
distinction is
important because a number of earlier cases
(particularly in the field of
education) were concerned with the
enforcement by declaration and injunction
of what would now be
called public law duties. They were relied on in
argument as
authorities supporting the plaintiffs' claim for damages in
this
case: I will consider them in a little more detail later.
Private law
claims for damages can be classified into four different
categories.
viz:
(A)
Actions for breach of statutory duty simpliciter (i.e. irrespective
or
carelessness).
(B)
Actions based solely on the careless performance of a statutory duty
in the absence of any other common law right of action.
Actions based on a common law
duty of care arising either from the
imposition of the
statutory duty or from the performance of it.
Misfeasance in public office,
i.e. the failure to exercise, or the
exercise of, statutory
powers either with the intention to injure the
plaintiff or in
the knowledge that the conduct is unlawful.
- 4 -
Category (D) is
not in issue in this case. I will consider each of the
other
categories but I must make it clear that I am not attempting any
general
statement of the applicable law: rather I am seeking to
set out a logical
approach to the wide ranging arguments advanced
in these appeals.
(A) Breach of statutory duty simpliciter.
This category
comprises those cases where the statement of
claim alleges simply
(a) the statutory duty, (b) a breach of that duty,
causing (c)
damage to the plaintiff. The cause of action depends
neither on
proof of any breach of the plaintiffs' common law rights nor
on
any allegation of carelessness by the defendant.
The principles
applicable in determining whether such statutory
cause of action
exists are now well established, although the
application of those
principles in any particular case remains difficult.
The basic
proposition is that in the ordinary case a breach of statutory
duty
does not, by itself, give rise to any private law cause of
action.
However a private law cause of action will arise if it can
be shown, as
a matter of construction of the statute, that the
statutory duty was
imposed for the protection of a limited class
of the public and that
Parliament intended to confer on members of
that class a private right
of action for breach of the duty. There
is no general rule by reference
to which it can be decided whether
a statute does create such a right
of action but there are a
number of indicators. If the statute provides
no other remedv for
its breach and the Parliamentary intention to
protect a
limited class is shown, that indicates that there may be a
private
right of action since otherwise there is no method of securing
the
protection the statute was intended to confer. If the statute
does
provide some other means of enforcing the duty that will
normally
indicate that the statutory right was intended to be
enforceable by those
means and not by private right of action:
Cutler v. Wandsworth
Stadium Ltd. [1949] A.C. 398: Lonrho
Ltd. v. Shell Petroleum Co.
Ltd. (No.2) [1982] A.C. 173.
However, the mere existence of some
other statutory remedy is not
necessarily decisive. It is still possible
to show that on the
true construction of the statute the protected class
was intended
by Parliament to have a private remedy. Thus the
specific duties
imposed on employers in relation to factory premises
are
enforceable by an action for damages, notwithstanding the
imposition
by the statutes of criminal penalties for any breach: see
Groves
v. Lord Wimborne [1898] 2 Q.B. 402.
Although the
question is one of statutory construction and
therefore each case
turns on the provisions in the relevant statute, it is
significant
that your Lordships were not referred to any case where it
had
been held that statutory provisions establishing a regulatory
system
or a scheme of social welfare for the benefit of the public
at large had
been held to give rise to a private right of action
for damages for
- 5 -
breach of
statutory duty. Although regulatory or welfare legislation
affecting
a particular area of activity does in fact provide protection
to
those individuals particularly affected by that activity, the
legislation
is not to be treated as being passed for the benefit
of those individuals
but for the benefit of society in general.
Thus legislation regulating
the conduct of betting or prisons did
not give rise to a statutory right
of action vested in those
adversely affected by the breach of the
statutory provisions, i.e.
bookmakers and prisoners: see Cutler [1949]
A.C. 398; Reg.
v. Deputy Governor of Parkhurst Prison, Ex parte
Hague
[1992] 1 A.C. 58. The cases where a private right of action
for
breach of statutory duty have been held to arise are all cases
in
which the statutory duty has been very limited and specific as
opposed
to general administrative functions imposed on public
bodies and
involving the exercise of administrative discretions.
(B) The
careless performance of a statutory duty - no common law duty or
care.
This category
comprises those cases in which the plaintiff
alleges (a) the
statutory duty and (b) the "negligent" breach of that
duty
but does not allege that the defendant was under a common law
duty
of care to the plaintiff. It is the use of the word "negligent"
in
this context which gives rise to confusion: it is sometimes
used to
connote mere carelessness (there being no common law duty
of care)
and sometimes to import the concept of a common law duty
of care.
In my judgment it is important in considering the
authorities to
distinguish between the two concepts: as will
appear, in my view the
careless performance of a statutory duty
does not in itself give rise to
any cause of action in the absence
of either a statutory right of action
(Category (A) above) or a
common law duty of care (Category (C)
below).
Much of the
difficulty can be traced back to the confusion
between the ability
to rely on a statutory provision as a defence and
the ability to
rely on it as founding a cause of action. The source of
the
confusion is to be found in the dictum of Lord Blackburn in Geddis
v.
Proprietors of Bann Reservoir (1878) 3 App. Cas. 430, 455-456:
"For I
take it, without citing cases, that it is now thoroughly
well
established that no action will lie for doing that which
the
legislature has authorised, if it be done without
negligence,
although it does occasion damage to anyone: but an
action
does lie for doing that which the legislature has
authorised, it
it be done negligently. And I think that if by a
reasonable
exercise of the powers, either given by statute to
the
promoters, or which they have at common law, the damage
could
be prevented it is, within this rule, 'negligence not to
make such
reasonable exercise of their powers."
- 6 -
This dictum,
divorced from its context, suggests that the careless
performance
of a statutory' duty in itself gives rise to a cause of action
for
damages. But it has to be read in context.
In Geddis
the defendants were authorised to construct and
maintain a
reservoir the water from which was discharged, via a new
artificial
watercourse, into an old watercourse which the defendants
were
authorised by the statute to widen and maintain. Water
originating
from the reservoir flooded from the old watercourse onto
the
plaintiff's adjoining land, such flooding being due to
the
"negligent" failure of the defendants to maintain
the old watercourse
adequately. The cause of action relied upon by
the plaintiff is not
clear from the report: it could have been
either nuisance (including
Rylands v. Fletcher (1868) L.R. 3 H.L. 330) or negligence. If the
cause of action founded upon was
in nuisance, the question was
whether the statutory power to
construct and maintain the works
provided a defence to what would
otherwise constitute an actionable
wrong. It is well established
that statutory authority only provides a
defence to a claim based
on a common law cause of action where the
loss suffered by the
plaintiff is the inevitable consequence of the
proper exercise of
the statutory power or duty: Metropolitan Asylum
District v.
Hill (1881) 6 App. Cas. 193: Allen v. Gulf Oil Refining
Ltd.
[1981] A.C. 1001. Therefore the careless exercise of a
statutory
power or duty cannot provide a defence to a claim based
on a
freestanding common law cause of action, whether in
trespass,
nuisance or breach of a common law duty of care. If
Lord
Blackburn's dictum in Geddis, 3 App. Cas. 430.
455-456, merely
refers to the circumstances in which statutory
authority can be used as
a defence it raises no problems.
In my judgment
Geddis is best treated as a decision that the
careless
exercise by the defendant of a statutory duty or power
provides no
defence to a claim by the plaintiff based on a freestanding
common
law cause of action. It was so treated by Lord Wilberforce
in Gulf
Oil who said, at p. 1011:
"It is now
well settled that where Parliament by express
direction or by
necessary implication has authorised the
construction and use of
an undertaking or works, that carries
with it an authority to do
what is authorised with immunity
from any action based on
nuisance. The right of action is
taken away: Hammersmith and
City Railway Co. v. Brand
(1869) L.R. 4 H.L. 171. 215 per
Lord Cairns. To this there
is made the qualification, or
condition, that the statutory
powers are exercised without
'negligence' - that word here
being used in a special sense so as
to require the undertaker, as
a condition of obtaining immunity
from action, to carry out the
- 7 -
work and
conduct the operation with all reasonable regard and
care for the
interests of other persons: Geddis. ..."
See also
Sutherland Shire Council v. Heyman (1985) 157 C.L.R. 424,
458
and the article by Sir Gerard Brennan "Liability in Negligence
of
Public Authorities: The Divergent Views" (1990) 48 The
Advocate
842, 844-846.
In this context
I must consider the decision in Dorset Yacht Co.
Ltd. v.
Home Office [1970] A.C. 1004 which was relied upon in
argument
as showing that there was a cause of action for the careless
exercise
of statutory powers. In that case it was alleged that Borstal
boys
detained under statutory powers had been taken to an island under
the
control and supervision of three Borstal officers. The boys
escaped
and sought to leave the island by stealing a yacht which
they so
mishandled as to damage the plaintiffs yacht which was at
anchor
nearby. It was alleged that the three officers were
negligent in failing
to control the Borstal boys and that the Home
Office was vicariously
responsible for their actions. This House
rejected an application
by the Home Office to strike out the
claim. In later cases most
attention has been concentrated on the
speech of Lord Diplock.
But in my judgment his views do not
reflect the majority approach.
Lord Morris of Borth y Gest and
Lord Pearson both approached the
case by first asking whether at
common law there was a duty of care
owed by the officers to the
plaintiffs to take reasonable steps to control
the Borstal boys so
as to prevent them causing foreseeable damage to
the plaintiffs
property. They held that there was: see pp. 1034-1035:
1054G-1055G.
They further held that the extent of the duty owed to
the
plaintiff fell to be measured taking into account the fact that
the
boys were detained under statutory powers and the officers
discharging
statutory functions. But, applying Geddis 3
App. Cas. 430. 455-456,
both held that the careless performance by
the officers of statutory
functions would not provide a defence to
the common law claim:
pp. 1036A; 1055H-1056E. Lord Reid also held
that, apart from
statutory authority, the officers owed a common
law duty of care to
the plaintiffs: pp. 1027D-1030E. He then
relied on the Geddis
principle and, although his language
is not clear beyond doubt, in my
view he relied on that principle
as showing not that the statutory
provisions imposed a statutory
duty of care but that the negligent
performance of the statutory
duties would provide no defence to a
claim for breach of the
common law duty of care: p. 1030E-1030H.
As I read Lord
Diplock's closely reasoned speech his approach
was different.
First, he held that in the absence of the statutory
provisions the
prison officers would not have been under a duty of
care at
common law to prevent the Borstal boys damaging the
plaintiffs
property: pp. 1062C; 1064C; 1066H. He treated the
- 8 -
Geddis
principle as being inapplicable to public Acts of
Parliament
conferring wide statutory discretions and pointed out
that the principle
only applies to negative reliance on statutory
authority as a defence to
a common law right of action which would
otherwise have existed:
pp. 1066H-1067F. At this stage (p. 1067)
he expressed the view that
in relation to acts done under
statutory powers conferring discretions,
no right of action at
common law can exist unless the defendant has
acted ultra vires
those powers. He then held that the Home Office
itself, in
establishing a liberal regime for the treatment of Borstal
offenders,
could not have been acting ultra vires. However if the
Borstal
officers had exercised their powers in breach of their
instructions
they would have acted ultra vires the powers delegated to
them. He
further held that, in the circumstances, if the prison officers
had
acted ultra vires, they might owe a common law duty of care to
the
plaintiff.
It is clear
that in many respects, particularly in relation to the
introduction
of the ultra vires doctrine, Lord Diplock's approach
differed from
that of the other members of the House. But all the
majority
members of the committee agreed in treating the Geddis
principle
as operating only as a means of rebutting a defence to an
action
for breach of a common law duty. Dorset Yacht is not a
case
which establishes that a cause of action for damages can be
based on
the mere "negligent" exercise of statutory
powers. It is a case founded
on common law duties of care and the
circumstances in which a
defence of statutory authority can
succeed.
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.
(C) The common law duty of care
In this
category, the claim alleges either that a statutory duty
gives
rise to a common law duty of care owed to the plaintiff by
the
defendant to do or refrain from doing a particular act or
(more often)
that in the course of carrying out a statutory duty
the defendant has
brought about such a relationship between
himself and the plaintiff as
to give rise to a duty of care at
common law. A further variant is a
claim by the plaintiff that,
whether or not the authority is itself under
a duty of care to the
plaintiff, its servant in the course of performing
the statutory
function was under a common law duty of care for breach
of which
the authority is vicariously liable.
Mr. Munby, in
his reply in the Newham case, invited your
Lordships to lay
down the general principles applicable in determining
- 9 -
the
circumstances in which the law would impose a common law duty
of
care arising from the exercise of statutory powers or duties. I
have
no doubt that, if possible, this would be most desirable. But
I have
found it quite impossible either to detect such principle
in the wide
range of authorities and academic writings to which we
were referred
or to devise any such principle de novo. The truth
of the matter is
that statutory duties now exist over such a wide
range of diverse
activities and take so many different forms that
no one principle is
capable of being formulated applicable to all
cases. However, in my
view it is possible in considering the
problems raised by these
particular appeals to identify certain
points which are of significance.
1. Co-existence of statutory duty and common law duty of care.
It is clear
that a common law duty of care may arise in the
performance of
statutory functions. But a broad distinction has to be
drawn
between:
cases in which it is alleged that
the authority owes a duty or
care in the manner in which it
exercises a statutory discretion:
cases in which a duty of care is
alleged to arise from the
manner in which the statutory duty has
been implemented in
practice.
An example of
(a) in the educational field would be a decision
whether or not to
exercise a statutory discretion to close a school,
being a
decision which necessarily involves the exercise of a
discretion.
An example of (b) would be the actual running of a school
pursuant
to the statutory duties. In such latter case a common law
duty to
take reasonable care for the physical safety of the pupils
will
arise. The fact that the school is being run pursuant to a
statutory duty
is not necessarily incompatible with a common law
duty of care arising
from the proximate relationship between a
school and the pupils it has
agreed to accept. The distinction is
between (a) taking care in
exercising a statutory discretion
whether or not to do an act and (b)
having decided to do that act,
taking care in the manner in which you
do it.
2. Discretion:
justiciability and the policy/operational test.
(a)
Discretion
Most statutes
which impose a statutory duty on local
authorities confer on the
authority a discretion as to the extent
to which, and the methods
by which, such statutory duty is to
be performed. It is clear both
in principle and from the
decided cases that the local authority
cannot be liable in
- 10 -
damages for
doing that which Parliament has authorised.
Therefore if the
decisions complained of fall within the ambit
of such statutory
discretion they cannot be actionable in
common law. However if the
decision complained of is so
unreasonable that it falls outside
the ambit of the discretion
conferred upon the local authority,
there is no a priori reason
for excluding all common law
liability.
That this is
the law is established by the decision in
Dorset Yacht and
by that part of the decision in Anns v. Merton
London Borough
Council [1978] A.C. 728 which, so far as I
am aware, has
largely escaped criticism in later decisions. In
Dorset Yacht
Lord Reid said, at p. 1031:
"Where
Parliament confers a discretion the position is
not the same. Then
there may, and almost certainly
will, be errors of judgment in
exercising such a
discretion and Parliament cannot have intended
that
members of the public should be entitled to sue in
respect
of such errors. But there must come a stage
when the discretion is
exercised so carelessly or
unreasonably that there has been no
real exercise of the
discretion which Parliament has conferred.
The person
purporting to exercise his discretion has acted in
abuse
or excess of his power. Parliament cannot be supposed
to
have granted immunity to persons who do that."
See also per Lord Morris, at p. 1037F.
Lord Diplock,
as I have said, took a rather different
line, making it a
condition precedent to any common law duty
arising that the
decision impugned should be shown to be ultra
vires in the public
law sense. For myself, I do not believe that
it is either helpful
or necessary to introduce public law concepts
as to the validity
of a decision into the question of liability at
common law for
negligence. In public law a decision can be
ultra vires for
reasons other than Wednesbury unreasonableness
(Associated
Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 K.B. 223) (e.g. breach or the rules of
natural justice) which
have no relevance to the question of
negligence. Moreover it
leads, in my judgment mistakenly, to
the contention that claims
for damages for negligence in the
exercise of statutory powers
should for procedural purposes be
classified as public law claims
and therefore, under O'Reilly v.
Mackman [1983] 2 A.C. 237
should be brought in judicial
review proceedings: see Lonrho
Plc. v. Tebbit (1992] 4 All
E.R. 280. However, although I
consider that the public law
- 11 -
doctrine of
ultra vires has, as such, no role to play in the
subject under
discussion, the remarks of Lord Diplock were
plainly directed to
the fact that the exercise of a statutory
discretion cannot be
impugned unless it is so unreasonable that
it falls altogether
outside the ambit of the statutory discretion.
He said [1970] A.C. 1004. 1068:
"These
considerations lead me to the conclusion that
neither the
intentional release of a Borstal trainee under
supervision, nor
the unintended escape of a Borstal
trainee still under detention
which was the consequence
of the application of a system of
relaxed control
intentionally adopted by the Home Office as
conducive
to the reformation of trainees, can have been
intended
by Parliament to give rise to any cause of action on
the
part of any private citizen unless the system adopted
was
so unrelated to any purpose of reformation that no
reasonable
person could have reached a bona fide
conclusion that it was
conducive to that purpose. Only
then would the decision to adopt
it be ultra vires in
public law."
Exactly the
same approach was adopted by Lord Wilberforce
in Anns v. Merton
London Borough Council [1978] A.C. 728
who, speaking of the
duty of a local authority which had in fact
inspected a building
under construction, said, at p. 755E-F:
"But this
duty, heavily operational though it may be, is
still a duty
arising under the statute. There may be a
discretionary element in
its exercise - discretionary as
to the time and manner of the
inspection, and the
techniques to be used. A plaintiff complaining
of
negligence must prove, the burden being on him, that
action
taken was not within the limits of a discretion
bona fide
exercised, before he can begin to rely upon a
common law duty of
care."
It follows that
in seeking to establish that a local
authority is liable at common
law for negligence in the exercise
of a discretion conferred by
statute, the first requirement is to
show that the decision was
outside the ambit of the discretion
altogether: if it was not, a
local authority cannot itself be in
breach of any duty of care
owed to the plaintiff.
In deciding
whether or not this requirement is satisfied,
the court has to
assess the relevant factors taken into account
by the authority in
exercising the discretion. Since what are
under consideration are
discretionary powers conferred on
- 12 -
public bodies
for public purposes the relevant factors will often
include policy
matters, for example social policy, the allocation
of finite
financial resources between the different calls made
upon them or
(as in Dorset Yacht) the balance between
pursuing desirable
social aims as against the risk to the public
inherent in so
doing. It is established that the courts cannot
enter upon the
assessment of such "policy" matters. The
difficulty is
to identify in any particular case whether or not the
decision in
question is a "policy" decision.
(b) Justiciability and the policy/operational dichotomy.
In English law
the first attempt to lay down the
principles applicable in
deciding whether or not a decision was
one of policy was made by
Lord Wilberforce in Anns v
Merton London Brorough Council
[1978] A.C. 728. 754C:
"Most,
indeed probably all, statutes relating to public
authorities or
public bodies, contain in them a large
area of policy. The courts
call this 'discretion' meaning
that the decision is one for the
authority or body to
make, and not for the courts. Many statutes
also
prescribe or at least presuppose the practical execution
of
policy decisions: a convenient description of this is
to say that
in addition to the area of policy or
discretion, there is an
operational area. Although this
distinction between the policy
area and the operational
area is convenient, and illuminating, it
is probably a
distinction of degree; many 'operational' powers
or
duties have in them some element of 'discretion.' It
can
safely be said that the more 'operational' a power
or duty may be,
the easier it is to superimpose upon it
a common law duty of
care."
As Lord
Wilberforce appreciated, this approach did not
provide a hard and
fast test as to those matters which were
open to the court's
decision. In Rowling v. Takaro Properties
Ltd. [1988] A.C. 473 the Privy Council reverted to the
problem. In that case the
trial judge had found difficulty in
applying the
policy/operational test, but having classified the
decision in
question as being operational, took the view that as
a result
there was a common law duty of care. Commenting
on the judge's
view. Lord Keith of Kinkel said, at p. 501:
"Their
Lordships feel considerable sympathy with
Quilliam J.'s difficulty
in solving the problem by
reference to this distinction. They are
well aware of
the references in the literature to this distinction
(which
- 13 -
appears to have
originated in the United States of
America), and of the critical
analysis to which it has
been subjected. They incline to the
opinion, expressed
in the literature, that this distinction does
not provide a
touchstone of liability, but rather is expressive of
the
need to exclude altogether those cases in which the
decision
under attack is of such a kind that a question
whether it has been
made negligently is unsuitable for
judicial resolution, of which
notable examples are
discretionary decisions on the allocation of
scarce
resources or the distribution of risks: see especially
the
discussion in Craig on Administrative Law (1983).
p.
534-538. If this is right, classification of the
relevant decision
as a policy or planning decision in this
sense may exclude
liability; but a conclusion that it
does not fall within that
category does not, in their
Lordships' opinion, mean that a duty
of care will
necessarily exist." (Emphasis added.)
From these
authorities I understand the applicable
principles to be as
follows. Where Parliament has conferred a
statutory discretion on
a public authority, it is for that
authority, not for the courts,
to exercise the discretion: nothing
which the authority does
within the ambit of the discretion can
be actionable at common
law. If the decision complained of
falls outside the statutory
discretion, it can (but not necessarily
will) give rise to
common law liability. However, if the
factors relevant to the
exercise of the discretion include matters
of policy, the court
cannot adjudicate on such policy matters
and therefore cannot
reach the conclusion that the decision was
outside the ambit of
the statutory discretion. Therefore a
common law duty of care in
relation to the taking of decisions
involving policy matters
cannot exist.
3. If justiciable, the ordinary principles of negligence
apply. If the
plaintiffs complaint alleges carelessness, not in
the taking of a
discretionary decision to do some act, but in the
practical manner
in which that act has been performed (e.g. the
running of a
school) the question whether or not there is a
common law duty of
care falls to be decided by applying the
usual principles, i.e.
those laid down in Caparo Industries Plc.
v. Dickman [1990] 2 A.C. 605. 617-618. Was the damage to
the plaintiff reasonably
foreseeable? Was the relationship
between the plaintiff and the
defendant sufficiently proximate?
Is it just and reasonable to
impose a duty of care? See Rowling
v. Takaro Properties
Ltd. [1988] A.C. 473: Hill v. Chief
Constable of West
Yorkshire [1989] A.C. 53.
- 14 -
However the
question whether there is such a common
law duty and if so its
ambit, must be profoundly influenced by
the statutory framework
within which the acts complained of
were done. The position is
directly analogous to that in which
a tortious duty of care owed
by A to C can arise out of the
performance by A of a contract
between A and B. In
Henderson v. Merrett Syndicates Ltd. [1994]
3 W.L.R. 761
your Lordships held that A (the managing agent) who
had
contracted with B (the members' agent) to render
certain
services for C (the Names) came under a duty of care to C
in
the performance of those services. It is clear that any
tortious
duty of care owed to C in those circumstances could not
be
inconsistent with the duty owed in contract by A to
B.
Similarly, in my judgment a common law duty of care cannot
be
imposed on a statutory duty if the observance of such
common law
duty of care would be inconsistent with, or have
a tendency to
discourage, the due performance by the local
authority of its
statutory duties.
4. Direct liability and vicarious liability.
In certain of
the appeals before the House, the local
authorities are alleged to
be under a direct duty of care
to the plaintiff not only in
relation to the exercise of a
statutory discretion but also in
relation to the
operational way in which they performed that duty.
This allegation
of a direct duty of care owed by the
authority to the plaintiff is
to be contrasted with those claims
which are based on the
vicarious liability of the local authority
for the negligence of
its servants, i.e. for the breach of a duty
of care owed by the
servant to the plaintiff, the authority itself
not being under any
relevant duty of care to the plaintiff.
Thus, in the Newham
case the plaintiffs' claim is wholly based
on allegations that
two professionals, a social worker and a
psychiatrist,
individually owed professional duties of care to the
plaintiff for
the breach of which the authorities as their
employers are
vicariously liable. It is not alleged that the
authorities were
themselves under a duty of care to the
plaintiff.
This
distinction between direct and vicarious liability
can be
important since the authority may not be under a direct
duty of
care at all or the extent of the duty of care owed
directly by the
authority to the plaintiff may well differ from
that owed by a
professional to a patient. However, it is
important not to lose
sight of the fact that, even in the absence
of a claim based on
vicarious liability, an authority under a
- 15 -
direct duty of
care to the plaintiff will be liable for the
negligent acts or
omissions of its servant which constitute a
breach of that direct
duty. The authority can only act through
its servants.
The position
can be illustrated by reference to the
hospital cases. It is
established that those conducting a hospital
are under a direct
duty of care to those admitted as patients to
the hospital (I
express no view as to the extent of that duty).
They are liable
for the negligent acts of a member of the
hospital staff which
constitute a breach of that duty, whether or
not the member of the
staff is himself in breach of a separate
duty of care owed by him
to the plaintiff: Gold v. Essex
County Council [1942]
2 K.B. 293. per Lord Green at p. 301:
Cassidy v.
Minister of Health [1951] 2 K.B. 343. per Denning
L.J.:
Roe v. Minister of Health [1954] 2 Q.B. 66: see
also
Wilsons & Clyde Coal Ltd. v. English [1938] A.C. 57:
McDermid v. Nash Dredging & Reclamation Co. Ltd.
[1987]
A.C. 906. Therefore in the cases under appeal, even
where
there is no allegation of a separate duty of care owed by
a
servant of the authority to the plaintiff, the negligent acts
or
that servant are capable of constituting a breach of the duty
of
care (if any) owed directly by the authority to the plaintiff.
Summary
In accordance
with the principles I have discussed. I propose to
approach each
of these cases as follows. I will consider first (if such claim
is
advanced) whether the statutory provisions by themselves give rise to
a
private law claim in damages (Category (A)). I will turn then to
consider
whether in each case there is a common law duty of care
owed to the plaintiff.
I will consider the following matters in
turn, to the extent that they are relied
upon:
(1) Direct duty of care owed by the local authority.
Is the negligence relied upon
negligence in the exercise of a
statutory discretion involving
policy considerations: if so the
claim will pro tamo fail as
being non-justiciable;
were the acts alleged to give
rise to the cause of action within
the ambit of the discretion
conferred on the local authority; if
not
(c) is it
appropriate to impose on the local authority a common law
duty of
care.
- 16 -
(2) Vicarious liability of the local authority
Is the duty of care alleged to be
owed by the servant of the
local authority consistent with the
proper performance of his
duties to the local authority: if so
is it appropriate to impose on
the servant the duty of care
alleged.
Striking out.
In all these
cases the defendants are seeking to strike out the claims at
an
early stage, before discovery has taken place and before the facts
are
known. It is therefore necessary to proceed on the basis that
the facts alleged
in the various statements of claim are true. It
must be stressed that these
allegations are not admitted by the
defendants.
Actions can
only be struck out under RSC Ord. 18, r. 19 where it is
clear and
obvious that in law the claim cannot succeed. Where the law is
not
settled but is in a state of development (as in the present
cases) it is normally
inappropriate to decide novel questions on
hypothetical facts. But I agree with
Sir Thomas Bingham M.R.
[1994] 3 W.L.R. 853, 865 that there is nothing
inappropriate in
deciding on these applications whether the statutes in
question
confer private law rights of action for damages: the
answer to that question
depends upon the construction of the
statutes alone.
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. But in other cases
the relevant facts are not known at this
stage. For example, in
considering the question whether or not a
discretionary decision
is justiciable, the answer will often depend on the exact
nature
of the decision taken and the factors relevant to it. Evidence as
to
those matters can only come from the defendants and is not
presently before
the court. I again agree with the Master of the
Rolls that if. on the facts
alleged in the statement of claim, it
is not possible to give a certain answer
whether in law the claim
is maintainable then it is not appropriate to strike out
the claim
at a preliminary stage but the matter must go to trial when
the
relevant facts will be discovered.
THE ABUSE
CASES [1994 1 VV.L.R. 554
The facts - the Bedfordshire
case.
I gratefully
adopt the Master of the Rolls' summary of the allegations
made in
the statement of claim, the truth of which has to be assumed for
the
purposes of the present appeal. The plaintiffs are five
children of the same
- 17 -
parents who sue
by the Official Solicitor as their next friend. The eldest child
was
born in October 1982 and the youngest in May 1990. The only
defendant
is the county council which is sued as the local
authority responsible for social
services in the area where the
children lived. The facts pleaded fall into
various periods. The
first runs from November 1987 to December 1989.
During this period
reports about these children were made to the county
council by
relatives, neighbours, the police, the family's general
practitioner.
the head teacher of the school which the two older
children attended, the
NSPCC. a social worker and a health
visitor. The reports were to the effect
that the children were at
risk, including the risk of sexual abuse; the children
were locked
out of the house for long periods of time with the oldest child
(aged
five) supervising the next two (aged three and two); the third child
was
observed to have an abrasion which could have been caused by
cigarette burns
with the oldest child being found to be pale,
depressed, pathetic and possibly
hungry; the children's bedroom
had been found to be squalid and to have
faeces smeared on the
walls; their home was in a disgusting state, with the
second and
third children's beds sodden with urine; the two older
children
attended school looking dishevelled and smelly; there was
concern for the
children's emotional well being. In December 1989
the county council
rejected a health visitor's recommendation that
the first four children be
placed on the child protection
register. No case conference was held.
The second
period runs from March 1990 to January 1991. During
this period
reports of a similar kind were made to the county council. A
case
conference was held in January 1991. It was decided not to
place any of the
children on the child protection register and not
to apply for any court orders.
The third
period began in July 1991 when the children's father asked
the
county council to take the children into care for adoption, a
suggestion he
made again in May 1992. The county council took no
action. For nine days
in August 1991 the three older children were
placed on their mother's
application with foster parents who found
them dirty, underfed and with poor
personal hygiene. In September
1991 the county council was told the
condition of the second and
third children's bedroom had deteriorated further;
that the
children were said to have been locked outside the family home and
to
have screamed constantly; that the children were left in their
bedrooms for
long periods and smeared faeces on the windows; and
that the second, third
and fourth of the children had been seen
stealing food. No action was taken
save that respite care was
recommended to assist the mother. In November
1991 the mother
asked the county council to accommodate the three older
children:
the county council offered her short term respite care. On
their
mother's application, the three older children spent much of
the early months
of 1992 with foster parents with whom they gained
in weight. In March 1992
the county council considered the results
of this foster placement and respite
care and monitoring were
recommended. In April 1992 the mother asked the
county council to
remove the second and third children from her care and
place them
for adoption. In June 1992 the mother told the county council that
if
the children were not removed from her care she would batter them. As
a
- 18 -
result the
county council placed the children with foster parents. On 22
June
1992 the children were placed on the child protection
register hut the county
council took no steps to seek care orders.
The county council did accept that
the children should not return
to live with their parents. In October 1992 the
county council
decided to seek care orders and took steps to that end. As a
result
interim care orders were made in December 1992 and final orders
in
April 1993. It is fair to add that the children's plight was
not being ignored.
The statement of claim refers to no less than
13 meetings held to discuss their
position.
In June 1993
the five children launched these proceedings. The county
council
applied to strike out the proceedings and. on 12 November
1993.
Turner J. struck them out.
The facts - the Newham case.
The first
plaintiff in this action is a girl born in January 1983. The
second
plaintiff is her mother who was 17 when the child was born. There
was
originally a third plaintiff in the action who lived with the mother
and is
the father of another of her children, although not of the
child. I will call him
"XY". There are three defendants.
The first, the borough council, is the
local authority with
responsibility for child care services in the area. The
second is
the local health authority. The third is a consultant child
psychiatrist
employed by the health authority ("the
psychiatrist").
Between 1984
and 1986 the mother and the child had dealings with the
local
authority's social services department and the health authority.
Concern
was expressed that the child had been sexually abused. In
June 1987 a social
worker employed by the local authority ("the
social worker") visited the
mother's home and obtained
details of her situation including the fact that XY
was the
mother's current boyfriend. The social worker reported his
findings
to a case conference which decided to place the child on
the child protection
register. In 1987 the child's doctor
expressed concern that she might be the
subject of sexual abuse.
An appointment was made for the child to be
examined by a
psychiatrist to ascertain whether the child had been sexually
abused
and, if she had, the identity of the abuser. This interview took
place
on 13 November 1987.
The child was
interviewed by the psychiatrist in the presence of the
social
worker. The mother was not present but was in an adjoining room.
The
interview was recorded on videotape. It is pleaded that the social
worker
and/or the psychiatrist concluded that the child had been
sexually abused and
that XY (the mother's boyfriend) was the
abuser. This identification was
based on the child indicating that
the first name of the abuser was "X". which
was the
first name of XY. The fact was that the child was referring not to
XY
as the abuser but to a cousin with the same first name who had
previously-
lived at the mother's address. It is alleged that, had
the psychiatrist and the
social worker taken the full history of
the mother's domestic circumstances.
- 19 -
they would have
discovered that XY was not the abuser and that the abuser
was no
longer living at the mother's home. At the end of the interview
the
mother was told by the psychiatrist and social worker that the
child had been
sexually abused and that XY was the abuser. The
mother asked the child
privately if XY had abused her. The child
said he had not. The mother told
the social worker of this denial
but the social worker and the psychiatrist
wrongly took this as an
attempt to persuade the child to retract the allegation
which they
understood her to have made.
The doctor and
the social worker concluded that the mother would be
unable to
protect the child against further abuse by XY. The mother was
not
asked if she was willing to require XY to leave her home. On
the same day.
13 November 1987, the local authority applied for a
place of safety order ana
an order for 28 days was made by the
Newham Justices.
The mother
excluded XY and all other men from her home and on the
24 November
applied to Anthony Lincoln J. for the child to be made a ward
of
court and for her to be given care and control. In accordance with
the
local authority recommendation, the judge ordered that the
child be made a
ward of court, the local authority be granted care
and control, that the child
should not return home and the
mother's access be limited, such order to
remain in force until
further order. The child was placed with foster parents.
In
December, another judge continued the existing arrangement.
Up to this time
the mother had not seen the video recording or read the
transcript
of the interview on 13 November 1987. At a later stage she did
obtain
a sight of the transcript from which it was apparent that the child
had
not identified XY as the abuser and that there was not
sufficient evidence to
support that conclusion. The local
authority were informed and shortly
thereafter confirmed that it
no longer suspected XY of having sexually abused
the child. On 21
November 1988 Anthony Lincoln J. made an order under
which the
child was to be reunited with her mother and with XY. The child
was
returned to her mother. The child and the mother had been separated
for
almost a year.
The child and
the mother make many allegations of negligence against
the
defendants, the central allegation being that the social worker and
the
psychiatrist failed to investigate the facts with proper care
and thoroughness
and failed to discuss their conclusions with the
mother. The child and the
mother claim that as a result of their
enforced separation each of them has
suffered a positive
psychiatric disorder diagnosed as anxiety neurosis.
The proceedings
were started in November 1990. After amendment,
on 19 November
1992 Master Topley struck out the amended statement of
claim.
Judge Phelan, sitting as a judge of the Queen's Bench
Division,
dismissed the appeal of the child and the mother on 17
March 1993.
- 20 -
The decision in the Court of Appeal
The appeals
against the judges' decisions in both child abuse cases
were heard
together by the Court of Appeal (Sir Thomas Bingham M.R..
Staughton
and Peter Gibson L.JJ.) [1994] 2 W.L.R. 554. Shortly stated,
the
Court of Appeal were unanimous in striking out claims based on
breach of
statutory duty simpliciter (Category (A) above) but were
divided on the issue
whether the local authorities and (in the
Newham case) the psychiatrist and the
health authority were
under any duty of care whether direct or vicarious
(Category (C)
above). Staughton and Peter Gibson L.JJ. held that there was
no
common law duty owed either to the child or the mother. The Master
of
the Rolls, whilst agreeing that the mother's claim could not
succeed, thought
there could be a duty of care to the children.
The statutory provisions
Since 1932
there has been legislation designed by Parliament to
provide
protection for children in need of care and protection.
The first statute
directly relied upon in the abuse cases is the
Children and Young Persons Act
1969. Section 1 provided that a
court could make a care order in care
proceedings if satisfied,
inter alia, that the child was being neglected or ill
treated.
Under section 2(1) a duty was imposed on the local authority
which
received information "suggesting that there are grounds
for bringing care
proceedings" to cause inquiries to be made.
Section 2(2) provided:
"If it
appears to a local authority that there are grounds for bringing
care
proceedings in respect of a child or young person who resides or
is
found in their area, it shall be the duty of the authority to
exercise
their power under the preceding section to bring care
proceedings in
respect of him ..."
The Child Care
Act 1980, sections 1 and 2 provide so far as relevant
as
follows:
"1(1) It
shall be the duty of every local authority to make available
such
advice, guidance and assistance as may promote the welfare
of
children by diminishing the need to receive children into or
keep them
in care under this Act or to bring children before a
juvenile court . . .
2(1) Where it
appears to a local authority with respect to a child in
their area
appearing to them to be under the age of 17 - . . .
(b) that
his parents . . .are, for the time being or permanently,
prevented
by reason of mental or bodily disease or infirmity or
other
incapacity or any other circumstances from providing for
his
proper accommodation, maintenance and upbringing: and
- 21 -
(c) in
either case, that the intervention of the local authority
under
this section is necessary in the interests of the welfare of
the
child.
it shall be the
duty of the local authority to receive the child into their
care
under this section."
Section
76(1)(a) gave the Secretary of State power to direct an
inquiry in
relation to the child care services. Those were the
only directly relevant
statutory duties in force during the events
complained of in the Newham case.
The Children
Act 1989, came into force on 14 October 1991 and is
therefore
relevant in relation to the later stages of the Bedfordshire case.
Part
III of the Act includes section 17(1) and (2) which provide
as follows:
"(1) It
shall be the general duty of every local authority (in addition
to
the other duties imposed on them by this Part) -
to safeguard and promote the
welfare of children within
their area who are in need; and
so far as is consistent with
that duty, to promote the
upbringing of such children by their
families,
by providing a
range and level of services appropriate to those
children's needs.
(2) For the
purposes principally of facilitating the discharge of their
duty
under this section, every local authority shall have the
specific
duties and powers set out in Part I of Schedule 2."
Schedule 2. Part I paragraphs 1(1) and 4(1) provide:
"1(1)
Every local authority shall take reasonable steps to identify
the
extent to which there are children in need within their area."
"4(1)
Every local authority shall take reasonable steps, through
the
provision of services under Part III of this Act, to prevent
children
within their area suffering ill-treatment or neglect."
Part III of the Act includes section 20 (1) which reads:
"20(1)
Every local authority shall provide accommodation for any
child in
need within their area who appears to them to require
accommodation
as a result of - . . .
- 22 -
(c) the
person who has been caring for him being prevented
(whether or not
permanently, and for whatever reason) from
providing him with
suitable accommodation or care."
In Part V of
the Act. section 47(1) and (8) provide:
"(1) Where a local
authority - ...
(b) have
reasonable cause to suspect a child who lives, or is
found, in
their area is suffering, or is likely to suffer significant
harm,
the authority
shall make, or cause to be made, such enquiries as they
consider
necessary to enable them to decide whether they should take
any
action to safeguard or promote the child's welfare. "
"(8)
Where, as a result of complying with this section, a local
authority
conclude that they should take action to safeguard or promote
the
child's welfare they shall take that action (so far as it is both
within
their power and reasonably practicable for them to do so)."
Amongst the
steps the local authority can take to safeguard the child's
welfare
is to apply to the court for a care order under section
31. If a care order is
made, the local authority is under a duty
to receive the child into its care.
Since 1 April
1991 there has been a statutory complaints procedure
applicable to
these provisions. Under section 7(B) of the Local Authority
Social
Services Act, 1970, (as inserted by section 50 of the National
Health
Service and Community Care Act 1990) provision was made for
the Secretary
of State to require, as from 1 April 1991. the local
authority to establish a
complaints procedure in accordance with
his directions. This power was
exercised by the Local Authority
Social Services (Complaints Procedure)
Order 1990 (S.I. 1990 No.
2244) which came into force on 1 April 1991.
Under that procedure,
complaints can be brought relating to all the local
authorities
duties under the Children Act 1989. In addition, section 26 (3)
of
the 1989 Act contains a provision requiring the local authority
to establish a
complaints procedure relating to its function under
Part III of the Act.
Therefore since 1 April 1991 there have in
effect been statutory complaints
procedures applicable to all the
local authorities functions under the 1989 Act.
In the course
of the argument before your Lordships, an additional
factor
emerged which was not drawn to the attention of the Court of
Appeal.
Section 7 of the Local Authority Social Services Act 1970
provides:
"7(1)
Local authorities shall, in the exercise of their social
services
functions, including the exercise of any discretion
conferred by any
relevant enactment act under the general guidance
of the Secretary of
State."
- 23 -
As from 1 April
1991. the 1970 Act was amended by section 50 of the
National
Health Service and Community Care Act 1990 to include a new
section
7 A which provides:
"(1)
Without prejudice to section 7 of this Act. every local
authority
shall exercise their social services functions in
accordance with such
directions as may be given to them under this
section by the Secretary
of State."
"Social
services functions" include the child welfare functions of a
local
authority.
The Secretary
of State has given relevant guidance under these
provisions in the
form of a publication called "Working Together". The
latest
edition (1991) is directed to the 1989 Act procedures. An
earlier edition
(1988) is similar though less precise. As its
title suggests, the guidance
(which has statutory force)
emphasises the importance in this field of inter-
disciplinary and
inter-agency links and the need for a close working
relationship
between "social service departments, the police service,
medical
practitioners, community health workers, the education
service and others who
share a common aim to protect the child at
risk". The central supervising
body in each area is the Area
Child Protection Committee ("ACPC") on which
all the
interested agencies are represented. The ACPC is responsible
for
establishing and monitoring procedures. The Child Protection
Conference is
an essential stage in each individual case. It
brings together the professionals
involved in that case and the
family. It decides whether a child should be put
on the child
protection register and makes recommendations for action.
The claim for breach of statutory duty: Category (A)
The Court of
Appeal were unanimous in striking out these claims in
both
actions. I agree. My starting point is that the Acts in question are
all
concerned to establish an administrative system designed to
promote the social
welfare of the community. The welfare sector
involved is one of peculiar
sensitivity, involving very difficult
decisions how to strike the balance between
protecting the child
from immediate feared harm and disrupting the
relationship between
the child and its parents. Decisions often have to be
taken on the
basis of inadequate and disputed facts. In my judgment in such
a
context it would require exceptionally clear statutory language to
show a
parliamentary intention that those responsible for carrying
out these difficult
functions should be liable in damages if, on
subsequent investigation with the
benefit of hindsight, it was
shown that they had reached an erroneous
conclusion and therefore
failed to discharge their statutory duties.
It is true that
the legislation was introduced primarily for the protection
of a
limited class, namely children at risk, and that until April 1991
the
legislation itself contained only limited machinery for
enforcing the statutory
duties imposed. But in my view those are
the only pointers in favour of
- 24 -
imputing to
Parliament an intention to create a private law cause of action.
When
one turns to the actual words used in the primary legislation to
create
the statutory duties relied upon in my judgment they are
inconsistent with any
intention to create a private law cause of
action.
Thus, the duty
imposed by section 2 (2) of the 1969 Act to bring care
proceedings
is made conditional upon the subjective judgment of the
local
authority that there are grounds for so doing. Similarly,
the duty to receive
a child into care under section 2 (1) of the
1980 Act only arises 'where it
appears to a local authority"
that the parents are prevented from providing
properly for the
child and that its intervention is necessary in the interest
of
the child. So far as the 1989 Act is concerned, the duty relied
on in section
17 is described as "a general duty" which
has two pans: (a) to safeguard the,
children and (b) "so far
as is consistent" with (a) to promote the upbringing
of the
children by their families. Thus not only is the duty not a specific
one
but the section itself points out the basic tension which lies
at the root of so
much child protection work: the decision whether
to split the family in order
to protect the child. I find it
impossible to construe such a statutory provision
as demonstrating
an intention that even where there is no carelessness by
the
authority it should be liable in damages if a court
subsequently decided with
hindsight that the removal, or failure
to remove, the child from the family
either was or was not
"consistent with" the duty to safeguard the child.
All the duties
imported by Schedule 2 to the Act of 1989 are to "take
reasonable
steps" to do certain things. The duty to make enquiries
under
section 47 is limited to "such enquiries as they
consider necessary". Thus all
the statutory provisions relied
upon in the Bedfordshire case are. as one would
expect,
made dependent upon the subjective judgment of the local
authority.
To treat such duties as being more than public law
duties is impossible.
The decision in
Thornton v. Kirklees Metropolitan Borough Council
[1979]
Q.B. 626 was relied upon as showing that a statute can create a
private
law cause of action for damages for breach of a statutory
duty even if the duty
is dependent upon the defendant having first
formed a subjective belief. That
decision is in some respects a
puzzling one and may need to be reconsidered
at some future date:
see Cocks v. Thanet District Council [1983] 2 A.C. 286.
It
is sufficient to say that it has no application to the present case
since in that
case it was conceded by the defendants that the
condition precedent to the
creation of the statutory duty (i.e.
the formation of the belief) had been
satisfied (see at pp. 636B-C
and 643G) and that a legal duty was owed to the
plaintiff as an
individual: p. 638F-G.
In the Newham
case, the claim by the plaintiffs for damages for breach
of
statutory duty (Category (A)) was founded solely on sections 1 and 18
of
the 1980 Act: the 1989 Act was not in force at the relevant
time. The claim
was only faintly pursued by Mr. Munby and. for the
reasons given by Peter
Gibson L.J. in the Court of Appeal [1994] 2
W.L.R. 554. 590, in my
judgment it is ill founded.
- 25 -
For these
reasons, (which are in substance the same as those of the
Court of
Appeal) the claims in both abuse cases to the extent that they
are
based on a claim for damages for breach of statutory duty
simpliciter were
rightly struck out.
Direct common law duty of care owed by the local authorities
In the Newham
case it is not alleged that the borough council was
under any
direct duty of care to the plaintiffs: the case is based solely on
the
vicarious liability of the council and the health authority
for the negligence of
their servants.
In the
Bedfordshire case, Mr. Jackson formulated the common law
duty
of care owed by the county council as being "a duty to children
in
respect of whom they receive reports of neglect or
ill-treatment to take
reasonable care to protect such children".
The first question is whether the
determination by the court of
the question whether there has been a breach of
that duty will
involve unjusticiable policy questions. The alleged breaches of
that
duty relate for the most part to the failure to take reasonable
practical
steps, e.g. to remove the children, to allocate a
suitable social worker or to
make proper investigations. The
assessment by the court of such allegations
would not require the
court to consider policy matters which are not
justiciable. They
do not necessarily involve any question of the allocation
of
resources or the determination of general policy. There are
other allegations
the investigation of which by a court might
require the weighing of policy
factors, e.g. allegations that the
county council failed to provide a level of
service appropriate to
the plaintiffs' needs. If the case were to go to trial, the
trial
judge might have to rule out these issues as not being justiciable.
But
since some of the allegations are justiciable, it would not be
right to strike out
the whole claim on this ground.
Next, do the
allegations of breach of duty in the operational field all
relate
to decisions the power to make which Parliament has conferred on
the
local authority, i.e. are they all decisions within the ambit
of the local
authority's statutory discretion? I strongly suspect
that, if the case were to go
to trial, it would eventually fail on
this ground since, in essence, the complaint
is that the local
authority failed to take steps to remove the children from the
care
of their mother, i.e. negligently failed properly to exercise a
discretion
which Parliament has conferred on the local authority.
But again, it would
not be right to strike out the claim on this
ground because it is possible that
the plaintiffs might be able to
demonstrate at trial that the decisions of the
local authority
were so unreasonable that no reasonable local authority could
have
reached them and therefore, for the reasons given by Lord Reid
in
Dorset Yacht [1970] A.C. 1004, 1031, as at p. 15, fall
outside the ambit of
the discretion conferred by Parliament.
I turn then to
consider whether, in accordance with the ordinary
principles laid
down in Caparo [1990] 2 A.C. 605, the local authority in the
- 26 -
Bedfordshire
case owed a direct duty of care to the plaintiffs. The
local
authority accepts that they could foresee damage to the
plaintiffs if they
carried out their statutory duties negligently
and that the relationship between
the authority and the plaintiffs
is sufficiently proximate. The third
requirement laid down in
Caparo is that it must be just and reasonable to
impose a
common law duty of care in all the circumstances. It was
submitted
that this third requirement is only applicable in cases
where the plaintiffs'
claim is for pure economic loss and that it
does not apply where, as in the
child abuse cases, the claim is
for physical damage. I reject this submission:
although Caparo
and many other of the more recent cases were decisions
where
only pure economic loss was claimed, the same basic principles
apply
to claims for physical damage and were applied in, for
example, Hill v. Chief
Constable of West Yorkshire [1989] A.C. 53.
Is it, then,
just and reasonable to superimpose a common law duty of
care on
the local authority in relation to the performance of its statutory
duties
to protect children? In my judgment it is not. The Master
of the Rolls took
the view, with which I agree, that 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 override that policy
[1994] 2
W.L.R. 554, 572F. However, in my judgment there are
such
considerations in this case.
First, in my
judgment a common law duty of care would cut across the
whole
statutory system set up for the protection of children at risk. As
a
result of the ministerial directions contained in "Working
Together" the
protection of such children is not the
exclusive territory of the local
authority's social services. The
system is inter-disciplinary, involving the
participation of the
police, educational bodies, doctors and others. At all
stages the
system involves joint discussions, joint recommendations and
joint
decisions. The key organisation is the Child Protection
Conference, a multi-
disciplinary body which decides whether to
place the child on the Child
Protection Register. This procedure
by way of joint action takes place, not
merely because it is good
practice, but because it is required by guidance
having statutory
force binding on the local authority. The guidance is
extremely
detailed and extensive: the current edition of "Working
Together"
runs to 126 pages. To introduce into such a
system a common law duty of
care enforceable against only one of
the participant bodies would be
manifestly unfair. To impose such
liability on all the participant bodies would
lead to almost
impossible problems of disentangling as between the respective
bodies
the liability, both primary and by way of contribution, of each
for
reaching a decision found to be negligent.