BARRETT V LONDON BOROUGH OF ENFIELD [1999] UKHL 25
FACTS:-
The Claimant was taken into care (because of an assault by his mother) at the age of 10 months by the Defendant and he remained in care until he was aged 17. He alleged that a duty of care was owed to him by the Defendant, which had failed to safeguard his welfare. The Defendant made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother. As a result he alleged that he left care without family or attachments and suffering from a psychiatric illness.
The Claimant’s original claim alleged a duty under various statutes to “attain and secure for the plaintiff adequate and appropriate arrangements which were in his short and long term best interests.” A later amendment alleged breaches of Section 12 of the Children Act 1948 and Section 18 of the Child Care Act 1980. In addition there was an allegation that a common law duty was owed.
The Defendant council applied to strike out the claim but the application was refused by the District Judge. On appeal, the decision was reversed by the circuit judge and upheld by the Court of Appeal, following X v Bedfordshire [1995] 2 AC 633 and Stovin v Wise [1996] AC 923.
HELD:-
Lord Browne-Wilkinson said that although the Claimant had originally made out a claim for breach of statutory duty, he now accepted that no cause of action arose out of any such breach of duties under the Children Acts. However he did still allege that there was a common law duty and a breach of that duty.
Lord Browne-Wilkinson said that he found it impossible to say that all careless acts or omissions of a local authority in relation to a child in its care were not actionable. If certain careless conduct (operational) of a local authority was actionable and certain conduct (policy) was not, it became necessary to divide the decisions of the local authority between operational and policy decisions. However it was far from clear what the expressions “policy” and “operational” meant. Therefore unless it could be said that operational carelessness could not have caused the damage alleged, it would be impossible to strike out any part of the claim.
Causation was a matter of fact. If there was doubt about what was an operational decision, there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision.
Striking out
In relation to striking out a case, Lord Browne-Wilkinson referred to his speech in X v Bedfordshire, in which he had said that unless it was possible to give a certain answer to question of whether the Claimant’s claim would succeed, the case would be inappropriate for striking out. Furthermore it was of great importance that in an uncertain and developing area of the law, there should be an examination of the actual facts, not an assumption of hypothetical facts. That point had been demonstrated in the case of Phelps v Hillingdon London Borough Council [1999] 1 WLR 500.
European Convention on Human Rights, Article 6
In the case of Osman v United Kingdom (The Times, 5 November 1998) the European Court of Human Rights upheld a claim made under Article 6 of the Convention. The Osmans had sought to bring proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. Lord Browne-Wilkinson said that he found the decision of the Strasbourg Court extremely difficult to understand. They appeared to have treated the Osmans as having a right under English law to go to court for a declaration that, apart from the public policy preventing suits against the police, they would have had a claim in negligence against the police, and further, that it was not fair, just and reasonably in the circumstances of that case to apply the “exclusionary rule.” i.e. the rule excluding negligence actions against the police.
The Strasbourg court held that there was in the Osman case a breach of such rights of access to the English court, in the application of a blanket exclusionary rule. The applicability of such a rule should be decided afresh in each individual case. Therefore there was a breach of Article 6 because the English court had struck out the Osmans’ claim without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged.
Lord Browne-Wilkinson considered the policy reasons for making certain classes of person immune from suit. However in view of the Osman decision it was now difficult to foretell what would be the result in the present case if the striking out order were upheld. Therefore in his judgment the action should proceed
Lord Slynn went over the facts of the case and the way in which the action had progressed through the courts, and the dicta of the Court of Appeal.
Was it arguable that there was a duty of care?
He considered the decision in Caparo Industries Plc v Dickman [1990] 2 AC 605 and the decision in X v Bedfordshire. In that case, Lord Browne-Wilkinson had described a series of category of claim.
As it was no longer contended that the Claimant in this case, could rely on a breach of statutory duty, the questions relevant for the present appeal was (a) whether Lord Browne-Wilkinson’s Category C was established, i.e. that a common law duty of care arose either (i) from the existence of a statutory duty, or (ii) because in the performance of the statutory duty, the Defendant assumed an obligation to exercise reasonable care towards the Claimant or (b) whether the Defendant was liable for a breach of a duty of care owed by an employee for whose acts and omissions the Defendant was vicariously liable.
In X v Bedfordshire a distinction had been drawn between the way in which a statutory discretion was exercised and the situation where a duty of care was said to arise from the way in which the statutory duty had been exercised in practice. If the decision complained of was no unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, then there might be common law liability.
Lord Slynn then examined the facts in X v Bedfordshire as opposed to the facts in this case and the judgement of Lord Browne-Wilkinson in that case. There were first the failure to take into care cases and secondly the failure to educate properly children with special needs cases.
In relation to the failure to take into care cases, Lord Browne-Wilkinson in X v Bedfordshire had said that very clear language would be needed to establish a right to damages under a statute if an erroneous decision had been taken, and that was not to be found in the Children and Young Persons Act 1969, nor the Childrens Act 1989.
As to the common law claim, it was accepted that some of the allegations did not require the investigation of policy matters outside the remit of the court. However Lord Browne-Wilkinson strongly suspected that if the case were to go trial, it would fail on this ground (i.e. these were decisions taken within the ambit of the authority’s statutory discretion). On the other hand, it would not be right to strike out the claim on this ground because the Claimants 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.
However applying the third test in the Caparo case, it was not just and reasonable to impose on the local authority a common law duty of care in relation to the performance of its statutory duties to protect children.
There was no duty of care owed personally to the child by individual psychiatrists or social workers engaged to advise the local authority so as to make the local authority vicariously liable, if those individuals were negligent.
So the claims of the Claimants in the failure to take into care cases in X v Bedfordshire failed both at common law and under the statutes.
In the education cases, which were part of the linked cases under X v Bedfordshire and were brought against Dorset, Hampshire and Bromley local authorities, the allegations were that the authorities had failed to investigate the need for or to provide proper schooling.
In the Dorset case, the House of Lords accepted that it was arguable that the local authority had taken decisions such as no reasonable local authority would have taken. On the other hand, it also held that it would not be right to superimpose on the statutory machinery a duty of care to exercise the statutory discretion carefully. However the educational psychologist and other staff exercising skill owed a duty to use reasonable skill and care in assessing and determining the child’s educational needs and the authority would be vicariously liable if they were in breach, although the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would apply.
In the Hampshire case, it was held that the Defendant authority could be vicariously liable for a breach of the duty of care owed by a headmaster or other advisory staff to a pupil.
In the Bromley case, the direct claim under statute was struck out but the direct claim in negligence was also struck out as it was based solely on the exercise of a statutory discretion.
Lord Slynn said that the policy reasons militating against imposing a duty of care in X v Bedfordshire did not have the same force separately or cumulatively in this case. The decision to remove the child was already taken and the authority had statutory powers in relation to the child which did not necessarily involve the exercise of the kind of discretion involved in taking a child from its family from into care.
Lord Slynn could not accept that the imposition of a duty of care made no contribution to the maintenance of high standards. There were other cases where a duty of care had been found, Van Oppen v Clerk to the Bedfordshire Charity Trustees [1990] 1 WLR 235 (duty owed by school to pupils), Regina v Deputy Governor of Parkhurst, Ex parte Hague [1992] 1 AC 58 (duty of custodian to those in custody), Gold v Essex County Council [1942] 2 KB 293 (local authority setting up a hospital liable to someone injured by negligent nursing). It was not clear whether parents owed such a duty (Camarthenshire County Council v Lewis [1955] AC 549).
Lord Slynn then considered the issue of statutory acts. Where a statutory scheme required a public authority to take action in a particular area and injury was caused, the authority taking such action in accordance with the statute would not be liable in damages unless the statute expressly or impliedly provided. Nor would the authority be liable in damages at common law if its acts fell squarely within the statutory duty. Where a statute empowered an authority to take action in its discretion, then if it remained within its powers, the authority would not normally be liable under the statute, unless the statute so provided or at common law. However if the authority exercised its discretion to use, or it did use its power in wholly unreasonable way, it might be regarded as having gone outside its discretion so that it is not properly exercising its power, and liability in damages at common law might arise.
However that did not mean that if an element of discretion was involved in an action being done subject to the exercise of the statutory power, common law negligence was necessarily ruled out. Whether there was an element of discretion to do the act was not a complete test. There was also the distinction between “policy” and “operational acts” but these were closely linked. The two tests (discretion and policy/operational) were guides in deciding that question. The greater the element of policy involved and the wider the area of discretion accorded, the more likely that the matter was not justiciable.
Therefore whilst it might be accepted that a decision to take a child into care pursuant to a statutory power was not justiciable, it did not in Lord Slynn’s view follow that having taken a child into care, an authority could not be liable for what it or its employees did in relation to the child. The Claimant did not have to show that the authority acted in excess of its power.
Lord Slynn said that social workers would be entitled to rely on the principle stated in Bolam v Friern Hospital Management Committee (see above).
Therefore on the basis that X v Bedfordshire did not conclude the present case, it was arguable that at least in respect of some of the matters alleged both individually and cumulatively a duty of care was owed and was broken.
Causation
The Court of Appeal in the present case had said that the Claimant in this case would be unable to attribute any part of his condition to the complaints that had been made. Lord Slynn did not agree. This was not the clearest case, but the issue was to be decided on what was proved. In Phelps v Hillingdon London Borough Council [1997] 1 WLR 500 the importance of investigating the precise nature of the service provided was made clear. Causation was largely a question of fact, and the medical evidence showed that the negligent management of the Claimant’s care was a significant causal determinant of his current psychological difficulties.
Therefore the claim should not be struck out; although that did not mean that the Claimant would win his case. The appeal should be allowed.
Lord Nolan and Lord Steyn agreed with the speeches of Lord Browne-Wilkinson, Lord Slynn and Lord Hutton.
Lord Hutton considered the facts of the case and the judgment of the Court of Appeal below. In some circumstances the exercise of a statutory duty or power might itself create the relationship between the Claimant and the Defendant, which caused the common law duty of care to come into existence. In the case of Fisher v Ruislip-Northwood Urban District Council and Middlesex County Council [1945] KB 584 a local authority was held liable in negligence for failing to light an air-raid shelter erected on the highway in pursuance of statutory powers. Similarly in Dorset Yacht Co. Limited v Home Office [1970] AC 1004 the Home Office was held liable whilst acting in pursuance of their statutory powers to bring Borstal boys to Brownsea Island. The boys escaped from the charge of those looking after them and damaged a yacht.
The consideration of this subject should begin with the judgments of the House of Lords in the Dorset Yacht case. The ratio of the decision in that case was not about statutory discretion. Lord Reid said in Dorset Yacht that where Parliament confers discretion on a statutory body, the position is not the same. There might be errors of judgment in exercising such discretion, but Parliament could not have intended that members of the public should be entitled to sue in respect of such errors, unless the discretion is exercised so carelessly or unreasonably that there had been no real exercise of the discretion at all.
The statutory discretion which came under examination in Dorset Yacht was the discretion given to the Home Office by statute to run a Borstal regime, which permitted inmates to develop their individuality with a proper sense of personal responsibility. That was clearly a discretionary decision for the Home Office and a situation where it would not be right for the court to substitute its views. The same point was made in Rowling v Takaro Properties Limited [1988] AC 473 where the judgment of the Privy Council emphasised that the non-justiciability of an allegation of negligence in the exercise of a statutory discretion was based on the need to exclude those cases which were unsuitable for judicial resolution.
However the fact that the decision under attack was capable of being described as having been of a policy character did not in itself render the case unsuitable for judicial decision. It was necessary to weigh and analyse all the relevant considerations. The point was also made by Lord Browne Wilkinson in Lonrho Plc v Tebbit [1991] All ER 973.
The distinction between policy and operations was elusive and in Stovin v Wise Lord Hoffman had said that it was an inadequate tool with which to discover whether it was appropriate to impose a duty of care or not.
Lord Hutton considered the judgment of Lord Browne-Wilkinson in X v Bedfordshire. Lord Browne-Wilkinson had accepted that the alleged breaches of duty had for the most part related to the failure to take reasonable practical steps. The claims in common law negligence in that cases, were not struck out on the ground that they were non-justiciable. Rather it was held that the respective Claimants might be able to establish that the decisions of the local authority were so unreasonable that they fell outside the ambit of the discretion conferred by Parliament, and the claims were in fact struck out on the separate ground that it was not just and reasonable to impose a duty of care.
Therefore the speech of Lord Browne-Wilkinson did not preclude a ruling in the present case that although the decisions of the Defendant were within the ambit of its statutory discretion, nevertheless those decisions did not involve the balancing of the type of policy considerations which rendered the decisions non-justiciable.
Lord Hutton considered that where a Claimant claimed damages for personal injuries which he alleged to have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decision did not involve issues of policy, it was preferable for the courts to decide the validity of the Claimant’s claim by applying directly the common law concept of negligence, rather than apply as a preliminary test the public law concept of unreasonableness to determine if the decision fell outside the ambit of the statutory discretion.
Therefore the case should not be struck out at this stage on the ground that it gave rise to issues which were non-justiciable.
The just and reasonable test
Lord Hutton said that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong. However that should not preclude a child from suing a local authority, because a local authority had to make decisions i.e. placing the child with foster parents which a parent would not normally have to make. Moreover a local authority employed trained staff to do the job.
The circumstances in this case were very different from those in X v Bedfordshire and the counter considerations set out by Lord Browne-Wilkinson against imposing a duty of care, did not the same weight. The first consideration had been that setting up a duty of care would cut across the social services inter disciplinary system (i.e. police, health workers, teachers etc.) but in this case other disciplines were not really involved. Secondly this was not a decision to take a child into care; the child was already in care. Thirdly Lord Hutton would not give great weight to the consideration that such a duty of care would cause local authorities to become more defensive. Fourth the relationship between a social worker and a child’s parents was frequently one of conflict and a breeding ground for pointless litigation. In this case, that consideration did not have so much weight. Fifth, there was a statutory procedure for complaints (the Ombudsman) and the investigation of past grievances. Lord Hutton said that whilst the courts had refused to impose liability on bodies such as the police and statutory financial regulators, the Claimant in this case was not a member of a wide class of society which the Defendant was obliged to protect.
Therefore the Claimant’s claim should not have been struck out.
Causation
Lord Hutton said that causation was largely an issue of fact to be determined on the evidence. It would not be right to strike out the claim on the ground that the Claimant had no real prospect of establishing causation.
The standard of care
Lord Hutton said that the standard of care in negligence should be related to the nature of the duty to be performed and to the circumstances in which the Defendant had to carry it out. Accordingly when the decisions taken by a local authority in respect of a child were alleged to be negligent, the trial judge, bearing in mind the room for differences in opinion as to the best course to adopt in a difficult field and also that the discretion was to be exercised by the authority and its social workers and not by the court, had to be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which could be regarded as negligent.
Lord Hutton would allow the appeal.
FACTS:-
The Claimant was taken into care (because of an assault by his mother) at the age of 10 months by the Defendant and he remained in care until he was aged 17. He alleged that a duty of care was owed to him by the Defendant, which had failed to safeguard his welfare. The Defendant made two placements with foster parents, moved him six times to different residential homes between 1976 and 1988, failed to make arrangements for his adoption, failed to provide him with proper social workers, failed to provide appropriate psychiatric advice and failed to make proper arrangements to re-unite him with his mother. As a result he alleged that he left care without family or attachments and suffering from a psychiatric illness.
The Claimant’s original claim alleged a duty under various statutes to “attain and secure for the plaintiff adequate and appropriate arrangements which were in his short and long term best interests.” A later amendment alleged breaches of Section 12 of the Children Act 1948 and Section 18 of the Child Care Act 1980. In addition there was an allegation that a common law duty was owed.
The Defendant council applied to strike out the claim but the application was refused by the District Judge. On appeal, the decision was reversed by the circuit judge and upheld by the Court of Appeal, following X v Bedfordshire [1995] 2 AC 633 and Stovin v Wise [1996] AC 923.
HELD:-
Lord Browne-Wilkinson said that although the Claimant had originally made out a claim for breach of statutory duty, he now accepted that no cause of action arose out of any such breach of duties under the Children Acts. However he did still allege that there was a common law duty and a breach of that duty.
Lord Browne-Wilkinson said that he found it impossible to say that all careless acts or omissions of a local authority in relation to a child in its care were not actionable. If certain careless conduct (operational) of a local authority was actionable and certain conduct (policy) was not, it became necessary to divide the decisions of the local authority between operational and policy decisions. However it was far from clear what the expressions “policy” and “operational” meant. Therefore unless it could be said that operational carelessness could not have caused the damage alleged, it would be impossible to strike out any part of the claim.
Causation was a matter of fact. If there was doubt about what was an operational decision, there must equally be doubt as to the extent or nature of the damage capable of being caused by negligence in making such an operational decision.
Striking out
In relation to striking out a case, Lord Browne-Wilkinson referred to his speech in X v Bedfordshire, in which he had said that unless it was possible to give a certain answer to question of whether the Claimant’s claim would succeed, the case would be inappropriate for striking out. Furthermore it was of great importance that in an uncertain and developing area of the law, there should be an examination of the actual facts, not an assumption of hypothetical facts. That point had been demonstrated in the case of Phelps v Hillingdon London Borough Council [1999] 1 WLR 500.
European Convention on Human Rights, Article 6
In the case of Osman v United Kingdom (The Times, 5 November 1998) the European Court of Human Rights upheld a claim made under Article 6 of the Convention. The Osmans had sought to bring proceedings in the United Kingdom against the police alleging negligence in the prevention and pursuit of crime. Lord Browne-Wilkinson said that he found the decision of the Strasbourg Court extremely difficult to understand. They appeared to have treated the Osmans as having a right under English law to go to court for a declaration that, apart from the public policy preventing suits against the police, they would have had a claim in negligence against the police, and further, that it was not fair, just and reasonably in the circumstances of that case to apply the “exclusionary rule.” i.e. the rule excluding negligence actions against the police.
The Strasbourg court held that there was in the Osman case a breach of such rights of access to the English court, in the application of a blanket exclusionary rule. The applicability of such a rule should be decided afresh in each individual case. Therefore there was a breach of Article 6 because the English court had struck out the Osmans’ claim without hearing any evidence by reference to which the proportionality of the rule in that particular case could be judged.
Lord Browne-Wilkinson considered the policy reasons for making certain classes of person immune from suit. However in view of the Osman decision it was now difficult to foretell what would be the result in the present case if the striking out order were upheld. Therefore in his judgment the action should proceed
Lord Slynn went over the facts of the case and the way in which the action had progressed through the courts, and the dicta of the Court of Appeal.
Was it arguable that there was a duty of care?
He considered the decision in Caparo Industries Plc v Dickman [1990] 2 AC 605 and the decision in X v Bedfordshire. In that case, Lord Browne-Wilkinson had described a series of category of claim.
As it was no longer contended that the Claimant in this case, could rely on a breach of statutory duty, the questions relevant for the present appeal was (a) whether Lord Browne-Wilkinson’s Category C was established, i.e. that a common law duty of care arose either (i) from the existence of a statutory duty, or (ii) because in the performance of the statutory duty, the Defendant assumed an obligation to exercise reasonable care towards the Claimant or (b) whether the Defendant was liable for a breach of a duty of care owed by an employee for whose acts and omissions the Defendant was vicariously liable.
In X v Bedfordshire a distinction had been drawn between the way in which a statutory discretion was exercised and the situation where a duty of care was said to arise from the way in which the statutory duty had been exercised in practice. If the decision complained of was no unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, then there might be common law liability.
Lord Slynn then examined the facts in X v Bedfordshire as opposed to the facts in this case and the judgement of Lord Browne-Wilkinson in that case. There were first the failure to take into care cases and secondly the failure to educate properly children with special needs cases.
In relation to the failure to take into care cases, Lord Browne-Wilkinson in X v Bedfordshire had said that very clear language would be needed to establish a right to damages under a statute if an erroneous decision had been taken, and that was not to be found in the Children and Young Persons Act 1969, nor the Childrens Act 1989.
As to the common law claim, it was accepted that some of the allegations did not require the investigation of policy matters outside the remit of the court. However Lord Browne-Wilkinson strongly suspected that if the case were to go trial, it would fail on this ground (i.e. these were decisions taken within the ambit of the authority’s statutory discretion). On the other hand, it would not be right to strike out the claim on this ground because the Claimants 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.
However applying the third test in the Caparo case, it was not just and reasonable to impose on the local authority a common law duty of care in relation to the performance of its statutory duties to protect children.
There was no duty of care owed personally to the child by individual psychiatrists or social workers engaged to advise the local authority so as to make the local authority vicariously liable, if those individuals were negligent.
So the claims of the Claimants in the failure to take into care cases in X v Bedfordshire failed both at common law and under the statutes.
In the education cases, which were part of the linked cases under X v Bedfordshire and were brought against Dorset, Hampshire and Bromley local authorities, the allegations were that the authorities had failed to investigate the need for or to provide proper schooling.
In the Dorset case, the House of Lords accepted that it was arguable that the local authority had taken decisions such as no reasonable local authority would have taken. On the other hand, it also held that it would not be right to superimpose on the statutory machinery a duty of care to exercise the statutory discretion carefully. However the educational psychologist and other staff exercising skill owed a duty to use reasonable skill and care in assessing and determining the child’s educational needs and the authority would be vicariously liable if they were in breach, although the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would apply.
In the Hampshire case, it was held that the Defendant authority could be vicariously liable for a breach of the duty of care owed by a headmaster or other advisory staff to a pupil.
In the Bromley case, the direct claim under statute was struck out but the direct claim in negligence was also struck out as it was based solely on the exercise of a statutory discretion.
Lord Slynn said that the policy reasons militating against imposing a duty of care in X v Bedfordshire did not have the same force separately or cumulatively in this case. The decision to remove the child was already taken and the authority had statutory powers in relation to the child which did not necessarily involve the exercise of the kind of discretion involved in taking a child from its family from into care.
Lord Slynn could not accept that the imposition of a duty of care made no contribution to the maintenance of high standards. There were other cases where a duty of care had been found, Van Oppen v Clerk to the Bedfordshire Charity Trustees [1990] 1 WLR 235 (duty owed by school to pupils), Regina v Deputy Governor of Parkhurst, Ex parte Hague [1992] 1 AC 58 (duty of custodian to those in custody), Gold v Essex County Council [1942] 2 KB 293 (local authority setting up a hospital liable to someone injured by negligent nursing). It was not clear whether parents owed such a duty (Camarthenshire County Council v Lewis [1955] AC 549).
Lord Slynn then considered the issue of statutory acts. Where a statutory scheme required a public authority to take action in a particular area and injury was caused, the authority taking such action in accordance with the statute would not be liable in damages unless the statute expressly or impliedly provided. Nor would the authority be liable in damages at common law if its acts fell squarely within the statutory duty. Where a statute empowered an authority to take action in its discretion, then if it remained within its powers, the authority would not normally be liable under the statute, unless the statute so provided or at common law. However if the authority exercised its discretion to use, or it did use its power in wholly unreasonable way, it might be regarded as having gone outside its discretion so that it is not properly exercising its power, and liability in damages at common law might arise.
However that did not mean that if an element of discretion was involved in an action being done subject to the exercise of the statutory power, common law negligence was necessarily ruled out. Whether there was an element of discretion to do the act was not a complete test. There was also the distinction between “policy” and “operational acts” but these were closely linked. The two tests (discretion and policy/operational) were guides in deciding that question. The greater the element of policy involved and the wider the area of discretion accorded, the more likely that the matter was not justiciable.
Therefore whilst it might be accepted that a decision to take a child into care pursuant to a statutory power was not justiciable, it did not in Lord Slynn’s view follow that having taken a child into care, an authority could not be liable for what it or its employees did in relation to the child. The Claimant did not have to show that the authority acted in excess of its power.
Lord Slynn said that social workers would be entitled to rely on the principle stated in Bolam v Friern Hospital Management Committee (see above).
Therefore on the basis that X v Bedfordshire did not conclude the present case, it was arguable that at least in respect of some of the matters alleged both individually and cumulatively a duty of care was owed and was broken.
Causation
The Court of Appeal in the present case had said that the Claimant in this case would be unable to attribute any part of his condition to the complaints that had been made. Lord Slynn did not agree. This was not the clearest case, but the issue was to be decided on what was proved. In Phelps v Hillingdon London Borough Council [1997] 1 WLR 500 the importance of investigating the precise nature of the service provided was made clear. Causation was largely a question of fact, and the medical evidence showed that the negligent management of the Claimant’s care was a significant causal determinant of his current psychological difficulties.
Therefore the claim should not be struck out; although that did not mean that the Claimant would win his case. The appeal should be allowed.
Lord Nolan and Lord Steyn agreed with the speeches of Lord Browne-Wilkinson, Lord Slynn and Lord Hutton.
Lord Hutton considered the facts of the case and the judgment of the Court of Appeal below. In some circumstances the exercise of a statutory duty or power might itself create the relationship between the Claimant and the Defendant, which caused the common law duty of care to come into existence. In the case of Fisher v Ruislip-Northwood Urban District Council and Middlesex County Council [1945] KB 584 a local authority was held liable in negligence for failing to light an air-raid shelter erected on the highway in pursuance of statutory powers. Similarly in Dorset Yacht Co. Limited v Home Office [1970] AC 1004 the Home Office was held liable whilst acting in pursuance of their statutory powers to bring Borstal boys to Brownsea Island. The boys escaped from the charge of those looking after them and damaged a yacht.
The consideration of this subject should begin with the judgments of the House of Lords in the Dorset Yacht case. The ratio of the decision in that case was not about statutory discretion. Lord Reid said in Dorset Yacht that where Parliament confers discretion on a statutory body, the position is not the same. There might be errors of judgment in exercising such discretion, but Parliament could not have intended that members of the public should be entitled to sue in respect of such errors, unless the discretion is exercised so carelessly or unreasonably that there had been no real exercise of the discretion at all.
The statutory discretion which came under examination in Dorset Yacht was the discretion given to the Home Office by statute to run a Borstal regime, which permitted inmates to develop their individuality with a proper sense of personal responsibility. That was clearly a discretionary decision for the Home Office and a situation where it would not be right for the court to substitute its views. The same point was made in Rowling v Takaro Properties Limited [1988] AC 473 where the judgment of the Privy Council emphasised that the non-justiciability of an allegation of negligence in the exercise of a statutory discretion was based on the need to exclude those cases which were unsuitable for judicial resolution.
However the fact that the decision under attack was capable of being described as having been of a policy character did not in itself render the case unsuitable for judicial decision. It was necessary to weigh and analyse all the relevant considerations. The point was also made by Lord Browne Wilkinson in Lonrho Plc v Tebbit [1991] All ER 973.
The distinction between policy and operations was elusive and in Stovin v Wise Lord Hoffman had said that it was an inadequate tool with which to discover whether it was appropriate to impose a duty of care or not.
Lord Hutton considered the judgment of Lord Browne-Wilkinson in X v Bedfordshire. Lord Browne-Wilkinson had accepted that the alleged breaches of duty had for the most part related to the failure to take reasonable practical steps. The claims in common law negligence in that cases, were not struck out on the ground that they were non-justiciable. Rather it was held that the respective Claimants might be able to establish that the decisions of the local authority were so unreasonable that they fell outside the ambit of the discretion conferred by Parliament, and the claims were in fact struck out on the separate ground that it was not just and reasonable to impose a duty of care.
Therefore the speech of Lord Browne-Wilkinson did not preclude a ruling in the present case that although the decisions of the Defendant were within the ambit of its statutory discretion, nevertheless those decisions did not involve the balancing of the type of policy considerations which rendered the decisions non-justiciable.
Lord Hutton considered that where a Claimant claimed damages for personal injuries which he alleged to have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decision did not involve issues of policy, it was preferable for the courts to decide the validity of the Claimant’s claim by applying directly the common law concept of negligence, rather than apply as a preliminary test the public law concept of unreasonableness to determine if the decision fell outside the ambit of the statutory discretion.
Therefore the case should not be struck out at this stage on the ground that it gave rise to issues which were non-justiciable.
The just and reasonable test
Lord Hutton said that it would be wholly inappropriate that a child should be permitted to sue his parents for decisions made by them in respect of his upbringing which could be shown to be wrong. However that should not preclude a child from suing a local authority, because a local authority had to make decisions i.e. placing the child with foster parents which a parent would not normally have to make. Moreover a local authority employed trained staff to do the job.
The circumstances in this case were very different from those in X v Bedfordshire and the counter considerations set out by Lord Browne-Wilkinson against imposing a duty of care, did not the same weight. The first consideration had been that setting up a duty of care would cut across the social services inter disciplinary system (i.e. police, health workers, teachers etc.) but in this case other disciplines were not really involved. Secondly this was not a decision to take a child into care; the child was already in care. Thirdly Lord Hutton would not give great weight to the consideration that such a duty of care would cause local authorities to become more defensive. Fourth the relationship between a social worker and a child’s parents was frequently one of conflict and a breeding ground for pointless litigation. In this case, that consideration did not have so much weight. Fifth, there was a statutory procedure for complaints (the Ombudsman) and the investigation of past grievances. Lord Hutton said that whilst the courts had refused to impose liability on bodies such as the police and statutory financial regulators, the Claimant in this case was not a member of a wide class of society which the Defendant was obliged to protect.
Therefore the Claimant’s claim should not have been struck out.
Causation
Lord Hutton said that causation was largely an issue of fact to be determined on the evidence. It would not be right to strike out the claim on the ground that the Claimant had no real prospect of establishing causation.
The standard of care
Lord Hutton said that the standard of care in negligence should be related to the nature of the duty to be performed and to the circumstances in which the Defendant had to carry it out. Accordingly when the decisions taken by a local authority in respect of a child were alleged to be negligent, the trial judge, bearing in mind the room for differences in opinion as to the best course to adopt in a difficult field and also that the discretion was to be exercised by the authority and its social workers and not by the court, had to be satisfied that the conduct complained of went beyond mere errors of judgment in the exercise of a discretion and constituted conduct which could be regarded as negligent.
Lord Hutton would allow the appeal.