X (MINORS) V BEDFORDSHIRE COUNTY COUNCIL, M (A MINOR) AND ANOTHER V NEWHAM LONDON BOROUGH COUNCIL AND OTHERS, E (A MINOR) V DORSET COUNTY COUNCIL, CHRISTMAS V HAMPSHIRE COUNTY COUNCIL, KEATING V BROMLEY LONDON BOROUGH COUNCIL [1995] 3 All ER 353
FACTS:-
These were five linked appeals to the House of Lords. In X v Bedfordshire, five Claimants who were born between 1982 and 1990 claimed damages for personal injury arising out of breach of statutory duty and negligence by the Defendant council. They alleged that between 1987 and 1992 they had suffered parental abuse and neglect and that the council had known of this but had failed to investigate or protect them from further harm. They relied upon the Children and Young Persons Act 1969, the Child Care Act 1980 and the Children Act 1989. The eldest child was born in October 1982 and the youngest in May 1990. Between November 1987 and November 1991, various reports were made about the children to local social services by relatives, neighbours, the police, the GP, the head teacher of their school, the NSPCC, a social worker and a health visitor. The reports were to the effect that the children were at risk, and this included the risk of sexual abuse. In July 1991, the children’s father asked for them to be taken into adoption, which suggestion was repeated in May 1992. At one point in August 1991 the three older children were placed with foster parents, who found them dirty and underfed. In November 1991, the children’s mother asked social services to accommodate the three older children and they spent much of the early months of 1992 with foster parents where their condition improved. In April 1992 their mother asked social services to remove the second and third children from her care and place them for adoption. In June 1992 she told the county council that if the children were not removed, she would batter them. Finally in June 1992, the children were placed on the child protection register but no steps were taken to obtain care order although the children were taken into foster care. Finally interim care orders were made in December 1992 and final care orders in April 1992. Proceedings were issued in November 1993.
In M (A Minor) and Another v Newham a child and her mother claimed damages for personal injuries against the Defendants, the local authority, the area health authority and a consultant psychiatrist employed by the health authority. They alleged that in 1987 a psychiatrist had interviewed M in the presence of a social worker employed by the local authority to ascertain whether M had been sexually abused. The child had named an abuser “X” which was the first name of “XY” the mother’s boyfriend, but in fact she was referring to a cousin who had lived with the mother previously. The psychiatrist and the social worker mistakenly identified the mother’s co-habitee as the abuser and a care order was obtained, effectively taking M away from her mother for a period of almost one year. The mother and her child brought a claim for personal injury caused by psychiatric damage, relying on a breach of the Child Care Act 1980.
In E (A minor) v Dorset the Claimant was a child born in 1978 who had special learning difficulties. He claimed that between 1985 and 1992 he was in need of special educational provision, that in 1985 the local authority had wrongly advised his parents and had failed to diagnose that he suffered from a special learning disorder. When he was finally given a statement of special needs in 1987, the council wrongly identified the school that he attended and a further statement in 1988 failed to make provision for his problems. He also alleged that the council had failed to refer him to an experienced psychologist. His claim included the fees and travel expenses incurred by his parents when they placed him at a private school, where his problems had been treated.
In Christmas v Hampshire, the Claimant was born in 1973 and attended a local primary school maintained by the local authority. He exhibited learning difficulties consistent with dyslexia and behavioural problems. He claimed that the school’s headmaster had failed to refer him either to the council for an assessment or to an educational psychologist for a formal assessment. This had disadvantaged him in realising his potential and significantly restricted his vocational prospects. Moreover the council had wrongly advised his parents and failed to diagnose him as suffering from a learning disorder.
In Keating v Bromley the Claimant was born in 1971 and claimed damages against the local authority claiming that between 1977 and 1986 the authority had failed to provide placements for him at a reasonably appropriate school and had only provided places at special schools. They had failed to identify him as a child with special needs, to assess him or to make a statement of his special needs. He claimed damages for the consequent impairment of his development and the disadvantage at which he was placed in seeking employment.
All of the claims had been struck out in the courts below on the grounds that they disclosed no cause of action.
HELD:-
The lead judgment was given by Lord Browne-Wilkinson. Lord Jauncey, Lord Lane and Lord Ackner agreed with his judgment, as did Lord Nolan who disagreed on the issue of vicarious liability in the case of the psychiatrist and social worker in the case of Newham.
Lord Browne-Wilkinson said that the question was whether, if Parliament had imposed a statutory duty on an authority to carry out a particular function, a Claimant who had suffered damage in consequence of the authority’s performance or non-performance of that function had a right of action in damages against the authority. It was important to distinguish private law causes of action from actions in public law to enforce the due performance of public duties.
Private law claims for damages could be classified into four different categories:-
(A) Actions for breach of statutory duty simpliciter i.e. regardless of carelessness
(B) Action based solely on the careless performance of a statutory duty in the absence of any other common law right of action
(C) Actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it
(D) Misfeasance in public office, i.e. the failure to exercise, or the exercise of statutory powers either with the intention to injure the Claimant or in the knowledge that the conduct was unlawful.
Misfeasance in public office was not relevant here.
Lord Browne-Wilkinson turned to Category (A). This category did not depend on any common law rights, simply a breach of a statute. The principles applicable to determining whether such statutory cause of action existed were well established. Normally a breach of statutory duty would not give rise to any private law cause of action, unless it could be shown 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 were a number of indicators as to whether a statute would confer such a right. If the statute specified no remedy for breach and there was intention to protect a limited class, that might be sufficient. On the other hand, if a remedy was provided under the statute, then that might indicate no private cause of action, although that was not necessarily decisive. The House of Lords had not been referred to any case where it had been held that statutory provisions establishing a regulatory system for the benefit of the public at large had been held to give rise to a private right of actions for damages for breach of statutory duty.
In relation to Category (B), Lord Browne Wilkinson said that this category encompassed (a) a statutory duty and b) the negligent breach of that duty. It was established that the careless exercise by a Defendant of a statutory duty or power provided no defence to a claim by a Claimant based on a freestanding common law cause of action. However in his view, the careless performance of a statutory duty did not in itself give rise to any cause of action in the absence of either a statutory cause of action (Category A) or a common law duty of care (Category C). In Dorset Yacht Co. Limited v Home Office [1970] AC 1004 some Borstal boys escaped from an island and stole a yacht, causing damage. The House of Lords held that there was a common law duty on the Home Office to control the Borstal boys so as to prevent them from causing damage. The extent of the duty fell to be measured taking into account the fact that the boys were detained under statutory powers. However the careless performance of the statutory functions did not provide the Home Office with a defence to the common law claim.
In relation to Category (C) it was clear that a common law duty of care might arise in the performance of statutory functions.
1. Co-existence of statutory duty and common law duty of care
However a broad distinction had to be drawn between (a) cases in which it was alleged that the authority owed a duty of care in the manner in which it exercised a statutory discretion i.e. the decision to close a school (b) cases in which a duty of care was alleged to have arisen from the manner in which the statutory duty had been implemented in practice i.e. the actual running of a school pursuant to a statutory scheme. (b) would give rise to a common law duty, (a) would not.
2. Discretion: justiciability and the policy/operational test
(a) Discretion
Most statutes that imposed a statutory duty on local authorities conferred on the authority a discretion as to the extent to which, and the methods by which, such statutory duties were to be performed. The local authority could not be liable in damages for doing that which Parliament had authorised. Therefore if the decisions complained of fell within the ambit of such statutory discretion, they could not be actionable in common law. However if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, there was no a priori reason for excluding all common law liability. That was the law as established by the Dorset Yacht case and another case, Anns v Merton London Borough Council [1978] AC 728.
(b) Justiciability and the policy/operational dichotomy
Anns v Merton was the first attempt to lay down the principles applicable in deciding whether or not a decision was one of policy. Rowling v Takaro Properties Ltd [1988] AC 473 was another such case. Where Parliament had conferred a statutory discretion on a public authority, it was for that authority, not the courts to exercise the discretion. Nothing which the authority did within the ambit of the discretion could be actionable at common law. If the decision complained of fell outside the statutory discretion, it could give rise to common law liability. However, if the factors relevant to the exercise of the discretion included matters of policy, the court could not adjudicate on such policy matters. Therefore a common law duty could not exist.
3. If justiciable, the ordinary principles of negligence apply
If the Claimant’s complaint alleged carelessness, not in the taking of a discretion decision to do some act but in the practical manner in which that act had been performed, there was then a question of whether there was a common law duty of care. That meant applying the principles in Caparo Industries plc v Dickman [1990] 2 AC 605. There were three questions:-
· Was the damage to the Claimant reasonably foreseeable?
· Was the relationship between the Claimant and the Defendant sufficiently proximate?
· Is it just and reasonable to impose a duty of care?
In Lord Browne-Wilkinson’s view, a common law duty of care could not be imposed on a statutory duty if the observance of such common law duty 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, the local authorities were alleged to be under a direct duty of care to the Claimant not only relation to the exercise of a statutory discretion but also in relation to the operation way in which they performed that duty. That allegation of a direct duty of care owed by the local authority was to be contrasted with those claims which were based on the vicarious liability of the local authority for the negligence of its servants. In the Newham case, the Claimants’ claim was wholly based on allegations that two professionals, a social worker and a psychiatrist individually owed professional duties of care to the Claimant for the breach of which the authorities as their employers were vicariously liable. It was not alleged that the authorities were themselves under a duty of care to the Claimant. The distinction was important because the authority might not be under a direct duty at all. Therefore in the cases under appeal, where there was no allegation of a separate duty of care owed by a servant of the authority, the negligent acts of that servant were capable of constituting a breach of the duty of care (if any) owed directly by the authority to the Claimant.
Summary
Lord Browne-Willkinson proposed to approach each case by asking the question as to whether the statutory provisions themselves gave rise to a private law claim in damages (Category A). He would consider whether there was a common law duty of care owed to the Claimant. Then he would consider the following matters:-
(1) (a) Was the negligence relied upon negligence in the exercise of a statutory discretion? If it was, the claim would fail (b) were the acts alleged within the ambit of the discretion conferred on the local authority? (c) if the acts alleged were not within that ambit, was it appropriate to impose on the local authority a common law duty of care?
(2) Vicarious liability of the local authority – (a) was 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? (b) was it appropriate to impose on the servant the duty of care alleged?
Striking out
RSC Order 18 Rule 19 said that the actions could be struck out where it was clear and obvious that the claims could not succeed. Where the law was not settled, but was in a state of development, it was normally inappropriate to decide novel questions on hypothetical facts. However the court could decide whether the statutes in question conferred private law rights of action for damages.
Much more difficult was the question of whether it was appropriate to decide the question whether there was a common law duty of care. For example, in considering the question whether or not a discretionary decision was justiciable, the answer would often depend on the exact nature of the decision taken and the factors relevant to it. Evidence on those matters was not presently before the court. If it was not possible to give a certain answer whether in law the claim was maintainable, then it was not appropriate to strike out the claim at a preliminary stage.
The Bedfordshire and Newham cases
Lord Browne-Wilkinson considered the history of child protection legislation and the relevant statutes, the Children and Young Persons Act 1969, the Child Care Act 1980 and the Children Act 1989. Since the 1st April 1991, there had been a statutory complaints procedure under section 7B of the Local Authority Social Services Act 1970 (as inserted by section 50 of the National Health Services and Community Care Act 1990).
The claim for breach of statutory duty – Category A
Lord Browne-Wilkinson said that it would take exceptionally clear statutory language to show a parliamentary intention to the effect that those responsible for carrying out these difficult functions should be liable in damages. The legislation was introduced for a limited class of person i.e. children at risk and until 1991 there was only limited machinery for enforcing those rights, however these were the only pointers towards the conclusion that the legislation created a private law right of action. In Lord Browne-Wilkinson’s view these claims, insofar as they were based on a breach of statutory duty simpliciter, were rightly struck out.
Direct common law duty of care owed by local authorities – Category C
In the Newham case it was not alleged that the local authority was under any direct duty of care to the Claimants. The case was based solely on the vicarious liability of the local authority and the health authority for the negligence of its servants.
In the Bedfordshire cases, the first question was whether the determination by the court of the question as whether there had been a breach of that duty, would involve unjusticiable policy questions. The alleged breach of that duty related for the most part to the failure to take reasonable practical steps, and not policy matters. Some of those matters might be non justiciable (i.e. allocation of resources) but it would not be right to strike out the claim on that ground.
The next question was whether these questions were all decisions within the ambit of the local authority’s decision making. Lord Browne-Wilkinson said that he strongly suspected that the claim might well fail on this ground, but it was possible at trial that the Claimants might be able to demonstrate that the decisions of the local authority were so unreasonable as to fall outside the ambit of the statutory discretion.
The following question came under the Caparo case. The local authority had conceded that they could foresee damage to the Claimants and that their relationship was sufficiently proximate. However they did not concede that it was just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties towards children. The public policy consideration that had first claim here was that wrongs should be remedied and very potent counter considerations were required to override that policy.
Firstly a common law duty would cut across the whole statutory system set up for the protection of children at risk. The system was interdisciplinary and it would be unfair to introduce a common law duty of care enforceable against only one organisation. It would also be impossible to disentangle liability as between the respective parties.
Secondly the task of the local authority and its servants in dealing with children was extraordinarily delicate. There was a difficult line to tread between taking action too soon and not taking it soon enough.
Thirdly, if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach.
Fourth there was a statutory complaints procedure together with the local authorities’ Ombudsman’s scheme.
Finally in laying down novel categories of negligence, the court had not been referred to any category of case in which a duty of care had been held to exist which was in any way analogous with the present cases. The nearest cases involved the police and financial regulators, but no duty of care had been imposed in those situations.
Vicarious liability
The Newham case made it quite clear that the social worker and the psychiatrist, as professionals owed a personal duty to the Claimants, for which breach their employers were vicariously liable. However as Lord Browne-Wilkinson read the X v Bedfordshire case, they alleged no vicarious liability but only a direct duty of care. However it was common ground that the Claimants’ case in X v Bedfordshire could be founded on vicarious liability.
Lord Browne-Wilkinson said that the social workers and the psychiatrists were retained by the local authority to advise the local authority not the Claimants. There was a distinction to be drawn between the circumstances in these cases and those that existed with surveyors of property instructed by a building society. (Smith v Eric Bush [1990] 1 AC 831 and Henderson v Merrett Syndicates Ltd. [1994] 3 WLR 761 and White v Jones [1995] 2 WLR 187)
The social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the Claimants.
Witness immunity
In the Newham case, the health authority argued that the psychiatrist was immune from liability in negligence because she knew that, if at the interview she came to the conclusion that the child had been abused and that the abuser was living in the same household as the child, there were likely to be care proceedings in which her assessment of the interview would be relevant evidence.
Lord Browne-Wilkinson said that the immunity of witnesses from any action founded on their evidence was originally designed to ensure that witnesses would not, through fear of later civil proceedings, be inhibited from giving frank evidence in court. In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether that child had been sexually abused. The psychiatrist must have known that proceedings by the local authority had to ensue and the findings would be used as evidence. Therefore since the investigations had such an immediate link with possible proceedings, they could not be made the basis of subsequent claims.
Therefore the Claimants’ appeals in both X v Bedfordshire and Newham would be dismissed.
The education cases
Lord Browne-Wilkinson considered the provisions of the Education Act 1944. The claims were founded on section 8 of that Act, which stated that local authorities had to have regard for the needs of children with disabilities. Section 33(2) and 34(1) also provided further duties in relation to disabled children. Section 36 imposed a duty on the parent to ensure that his or her child was educated and under Sections 68 and 99, the State was able to take enforcement action.
There was then the Education Act 1981, which was designed to improve the measures taken for disabled children. Lord Browne-Wilkinson considered the regime for special educational provision, in particular the Education (Special Educational Needs) Regulations 1983.
The Dorset case
The Claimant was alleging that the Defendant authority was under two direct duties of care. The first (a) was to perform carefully the statutory duties imposed on them by the 1981 Act. The second (b) arose out of the provision by the authority of a psychology service and the negligent advice given by that service.
In relation to (a) this was in essence a claim that the authority was negligent in the exercise of the statutory discretion involved in operating the special needs machinery.
Even if such decisions were made carelessly, the claim would fail unless the Claimant could show that the decisions were so careless that no reasonable education authority could have reached them. Although it seemed most improbable that this could be shown, it was impossible to be certain until all the facts were known. Therefore the claim could not be struck out at this stage.
The question then arose whether it was right to superimpose on the statutory machinery a duty of care to exercise the statutory discretions carefully. A common law duty of care in the exercise of statutory discretion could only arise in relation to an authority which had decided an issue so carelessly that no reasonable authority would have reached that decision. So why should a grossly delinquent authority escape liability? Lord Browne-Wilkinson had reached the decision that this point was outweighed by other factors.
First of all the exercise of the discretion involved the close participation of parents, who themselves were under a duty to educate their child. Secondly if a common law duty was held to exist, it would encourage many hopeless and vexatious cases. Thirdly the House had not been referred to any category of case by analogy with which it would be right to impose a direct duty of care on the authority in the exercise of its discretions. The court should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. Therefore the education authority owed no duty of care in the exercise of its powers under the Education Act 1981.
Lord Browne-Wilkinson then turned to the other duty of care, which it was alleged, the Defendant authority owed direct to the Claimant. The claim was based on the fact that the authority was offering a service (psychological advice) to the public. Once the decision was taken to offer such a service, a statutory body was in general in the same position as any private individual or organisation holding itself as offering such a service. The position was directly analogous with a hospital conducted by a health authority in exercise of its statutory powers. Therefore the Defendant authority, in providing a psychology service, came under a duty of care to the Claimant, who took advantage of that service. It might be, that when the facts were fully investigated, that the psychology service was part and parcel of the system established by the Defendant authority for the discharge of its statutory duties under the 1981 Act. If that was the case then the existence and scope of that duty would have to be excluded or limited so as not to impede the due performance by the authority of its statutory duties.
Common law duty of care – vicarious
Lord Browne-Wilkinson could see no ground for striking out this claim. Psychologists held themselves out as having special skills and they were, in his judgment, like any other professional bound both to possess such skills and to exercise them carefully. Of course the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would apply to them. They were only bound to exercise the ordinary skill of a competent psychologist and, if they could show that they had acted in accordance with the accepted views of some reputable psychologist at the relevant time, they would have discharged their duty of care, even if other psychologists had adopted a different view. The position of the psychologists in the education cases was quite different from that of the doctor and the social worker in the child abuse cases. There was no potential conflict of interest between the professional’s duties to the Claimant and his duty to the educational authority. Conflict might be demonstrated at trial however, after an examination of the facts.
Therefore in the Dorset case, the Defendant authority was under no liability at common law for the negligent exercise of the statutory discretions conferred on them by the Education Act 1944 to 1981, but it could be liable both directly and vicariously for negligence in the operation of the psychology service and negligence advice given by its officers.
The Hampshire case
It was accepted that a school and its teachers were under a duty to safeguard the physical well being of the pupil. Van Oppen v Clerk to the Bedford Charity Trustees [1990] 1 WLR 235. However there was no case where a school or a teacher had been held liable for negligent advice relating to the educational needs of a pupil. Lord Browne-Wilkinson said that in his judgment, a school that accepted a pupil assumed responsibility not only for his physical well-being but also for his educational needs. In the case of an advisory teacher brought in to advise on the educational needs of a specific pupil, that teacher must foresee that the pupil’s parents would rely on such advice. However the failure to strike out the claim at this stage, did not indicate any view as the likelihood of success. The Bolam test would still apply.
The Bromley case
There were two aspects to the Claimant’s case, a) the failure to provide him with any schooling at all during two periods, 1977 to 1979 and 1985 to 1986 b) the provision by the local authority of inappropriate schooling resulting from failure to carry out proper assessments. In relation to the first alleged breach, this was based on section 8 of the Education Act 1944.
Lord Browne-Wilkinson said that although there was a long line of authority to show that breaches of certain parts of the Education Acts could give rise to a successful claim, those claims were brought to enforce public law rights. That provided no indication that there was a corresponding private law right of action.
In relation to the second breach, this was based on sections 8(2)(c), 33 and 34 of the Education Act 1944 and sections 4, 5 and 7 of the Education Act 1981. The Claimant as a child was a member of a class intended to be protected under these statutes. However Lord Browne-Wilkinson could not find any intention on the part of Parliament to confer a private law action. Therefore the claims for breach of statutory duty should be struck out.
Common law duty of care – direct
From the pleadings it appeared that the only duty of care and the only breaches of such duty alleged related to the manner in which the Defendant authority exercised its discretion. Lord Browne-Wilkinson said that he had already expressed the view, when dealing with the Dorset case that there was no common law duty of care in relation to the exercise of such statutory discretions. Therefore the claim alleging a common law direct duty of care should be struck out.
Common law duty of care – vicarious
Lord Browne-Wilkinson said that the statement of claim contained no proper pleading of vicarious liability. This failure to allege and identify the separate duty of care was not a mere pleading technicality. However it would not be right to disregard a claim based on possible vicarious liability. The Claimant had attempted to obtained disclosure so as to particularise his claim properly, but his application had been successfully opposed by the Defendant local authority. Lord Browne-Wilkinson said that it was right to assume that, at trial, the Claimant would be able to allege and prove that one or more of the professionals employed by the Defendant authority came into a relationship with him, which gave rise to a normal professional duty of care. Therefore the claim should not be struck out, since it was capable of existing at law.
FACTS:-
These were five linked appeals to the House of Lords. In X v Bedfordshire, five Claimants who were born between 1982 and 1990 claimed damages for personal injury arising out of breach of statutory duty and negligence by the Defendant council. They alleged that between 1987 and 1992 they had suffered parental abuse and neglect and that the council had known of this but had failed to investigate or protect them from further harm. They relied upon the Children and Young Persons Act 1969, the Child Care Act 1980 and the Children Act 1989. The eldest child was born in October 1982 and the youngest in May 1990. Between November 1987 and November 1991, various reports were made about the children to local social services by relatives, neighbours, the police, the GP, the head teacher of their school, the NSPCC, a social worker and a health visitor. The reports were to the effect that the children were at risk, and this included the risk of sexual abuse. In July 1991, the children’s father asked for them to be taken into adoption, which suggestion was repeated in May 1992. At one point in August 1991 the three older children were placed with foster parents, who found them dirty and underfed. In November 1991, the children’s mother asked social services to accommodate the three older children and they spent much of the early months of 1992 with foster parents where their condition improved. In April 1992 their mother asked social services to remove the second and third children from her care and place them for adoption. In June 1992 she told the county council that if the children were not removed, she would batter them. Finally in June 1992, the children were placed on the child protection register but no steps were taken to obtain care order although the children were taken into foster care. Finally interim care orders were made in December 1992 and final care orders in April 1992. Proceedings were issued in November 1993.
In M (A Minor) and Another v Newham a child and her mother claimed damages for personal injuries against the Defendants, the local authority, the area health authority and a consultant psychiatrist employed by the health authority. They alleged that in 1987 a psychiatrist had interviewed M in the presence of a social worker employed by the local authority to ascertain whether M had been sexually abused. The child had named an abuser “X” which was the first name of “XY” the mother’s boyfriend, but in fact she was referring to a cousin who had lived with the mother previously. The psychiatrist and the social worker mistakenly identified the mother’s co-habitee as the abuser and a care order was obtained, effectively taking M away from her mother for a period of almost one year. The mother and her child brought a claim for personal injury caused by psychiatric damage, relying on a breach of the Child Care Act 1980.
In E (A minor) v Dorset the Claimant was a child born in 1978 who had special learning difficulties. He claimed that between 1985 and 1992 he was in need of special educational provision, that in 1985 the local authority had wrongly advised his parents and had failed to diagnose that he suffered from a special learning disorder. When he was finally given a statement of special needs in 1987, the council wrongly identified the school that he attended and a further statement in 1988 failed to make provision for his problems. He also alleged that the council had failed to refer him to an experienced psychologist. His claim included the fees and travel expenses incurred by his parents when they placed him at a private school, where his problems had been treated.
In Christmas v Hampshire, the Claimant was born in 1973 and attended a local primary school maintained by the local authority. He exhibited learning difficulties consistent with dyslexia and behavioural problems. He claimed that the school’s headmaster had failed to refer him either to the council for an assessment or to an educational psychologist for a formal assessment. This had disadvantaged him in realising his potential and significantly restricted his vocational prospects. Moreover the council had wrongly advised his parents and failed to diagnose him as suffering from a learning disorder.
In Keating v Bromley the Claimant was born in 1971 and claimed damages against the local authority claiming that between 1977 and 1986 the authority had failed to provide placements for him at a reasonably appropriate school and had only provided places at special schools. They had failed to identify him as a child with special needs, to assess him or to make a statement of his special needs. He claimed damages for the consequent impairment of his development and the disadvantage at which he was placed in seeking employment.
All of the claims had been struck out in the courts below on the grounds that they disclosed no cause of action.
HELD:-
The lead judgment was given by Lord Browne-Wilkinson. Lord Jauncey, Lord Lane and Lord Ackner agreed with his judgment, as did Lord Nolan who disagreed on the issue of vicarious liability in the case of the psychiatrist and social worker in the case of Newham.
Lord Browne-Wilkinson said that the question was whether, if Parliament had imposed a statutory duty on an authority to carry out a particular function, a Claimant who had suffered damage in consequence of the authority’s performance or non-performance of that function had a right of action in damages against the authority. It was important to distinguish private law causes of action from actions in public law to enforce the due performance of public duties.
Private law claims for damages could be classified into four different categories:-
(A) Actions for breach of statutory duty simpliciter i.e. regardless of carelessness
(B) Action based solely on the careless performance of a statutory duty in the absence of any other common law right of action
(C) Actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it
(D) Misfeasance in public office, i.e. the failure to exercise, or the exercise of statutory powers either with the intention to injure the Claimant or in the knowledge that the conduct was unlawful.
Misfeasance in public office was not relevant here.
Lord Browne-Wilkinson turned to Category (A). This category did not depend on any common law rights, simply a breach of a statute. The principles applicable to determining whether such statutory cause of action existed were well established. Normally a breach of statutory duty would not give rise to any private law cause of action, unless it could be shown 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 were a number of indicators as to whether a statute would confer such a right. If the statute specified no remedy for breach and there was intention to protect a limited class, that might be sufficient. On the other hand, if a remedy was provided under the statute, then that might indicate no private cause of action, although that was not necessarily decisive. The House of Lords had not been referred to any case where it had been held that statutory provisions establishing a regulatory system for the benefit of the public at large had been held to give rise to a private right of actions for damages for breach of statutory duty.
In relation to Category (B), Lord Browne Wilkinson said that this category encompassed (a) a statutory duty and b) the negligent breach of that duty. It was established that the careless exercise by a Defendant of a statutory duty or power provided no defence to a claim by a Claimant based on a freestanding common law cause of action. However in his view, the careless performance of a statutory duty did not in itself give rise to any cause of action in the absence of either a statutory cause of action (Category A) or a common law duty of care (Category C). In Dorset Yacht Co. Limited v Home Office [1970] AC 1004 some Borstal boys escaped from an island and stole a yacht, causing damage. The House of Lords held that there was a common law duty on the Home Office to control the Borstal boys so as to prevent them from causing damage. The extent of the duty fell to be measured taking into account the fact that the boys were detained under statutory powers. However the careless performance of the statutory functions did not provide the Home Office with a defence to the common law claim.
In relation to Category (C) it was clear that a common law duty of care might arise in the performance of statutory functions.
1. Co-existence of statutory duty and common law duty of care
However a broad distinction had to be drawn between (a) cases in which it was alleged that the authority owed a duty of care in the manner in which it exercised a statutory discretion i.e. the decision to close a school (b) cases in which a duty of care was alleged to have arisen from the manner in which the statutory duty had been implemented in practice i.e. the actual running of a school pursuant to a statutory scheme. (b) would give rise to a common law duty, (a) would not.
2. Discretion: justiciability and the policy/operational test
(a) Discretion
Most statutes that imposed a statutory duty on local authorities conferred on the authority a discretion as to the extent to which, and the methods by which, such statutory duties were to be performed. The local authority could not be liable in damages for doing that which Parliament had authorised. Therefore if the decisions complained of fell within the ambit of such statutory discretion, they could not be actionable in common law. However if the decision complained of was so unreasonable that it fell outside the ambit of the discretion conferred upon the local authority, there was no a priori reason for excluding all common law liability. That was the law as established by the Dorset Yacht case and another case, Anns v Merton London Borough Council [1978] AC 728.
(b) Justiciability and the policy/operational dichotomy
Anns v Merton was the first attempt to lay down the principles applicable in deciding whether or not a decision was one of policy. Rowling v Takaro Properties Ltd [1988] AC 473 was another such case. Where Parliament had conferred a statutory discretion on a public authority, it was for that authority, not the courts to exercise the discretion. Nothing which the authority did within the ambit of the discretion could be actionable at common law. If the decision complained of fell outside the statutory discretion, it could give rise to common law liability. However, if the factors relevant to the exercise of the discretion included matters of policy, the court could not adjudicate on such policy matters. Therefore a common law duty could not exist.
3. If justiciable, the ordinary principles of negligence apply
If the Claimant’s complaint alleged carelessness, not in the taking of a discretion decision to do some act but in the practical manner in which that act had been performed, there was then a question of whether there was a common law duty of care. That meant applying the principles in Caparo Industries plc v Dickman [1990] 2 AC 605. There were three questions:-
· Was the damage to the Claimant reasonably foreseeable?
· Was the relationship between the Claimant and the Defendant sufficiently proximate?
· Is it just and reasonable to impose a duty of care?
In Lord Browne-Wilkinson’s view, a common law duty of care could not be imposed on a statutory duty if the observance of such common law duty 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, the local authorities were alleged to be under a direct duty of care to the Claimant not only relation to the exercise of a statutory discretion but also in relation to the operation way in which they performed that duty. That allegation of a direct duty of care owed by the local authority was to be contrasted with those claims which were based on the vicarious liability of the local authority for the negligence of its servants. In the Newham case, the Claimants’ claim was wholly based on allegations that two professionals, a social worker and a psychiatrist individually owed professional duties of care to the Claimant for the breach of which the authorities as their employers were vicariously liable. It was not alleged that the authorities were themselves under a duty of care to the Claimant. The distinction was important because the authority might not be under a direct duty at all. Therefore in the cases under appeal, where there was no allegation of a separate duty of care owed by a servant of the authority, the negligent acts of that servant were capable of constituting a breach of the duty of care (if any) owed directly by the authority to the Claimant.
Summary
Lord Browne-Willkinson proposed to approach each case by asking the question as to whether the statutory provisions themselves gave rise to a private law claim in damages (Category A). He would consider whether there was a common law duty of care owed to the Claimant. Then he would consider the following matters:-
(1) (a) Was the negligence relied upon negligence in the exercise of a statutory discretion? If it was, the claim would fail (b) were the acts alleged within the ambit of the discretion conferred on the local authority? (c) if the acts alleged were not within that ambit, was it appropriate to impose on the local authority a common law duty of care?
(2) Vicarious liability of the local authority – (a) was 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? (b) was it appropriate to impose on the servant the duty of care alleged?
Striking out
RSC Order 18 Rule 19 said that the actions could be struck out where it was clear and obvious that the claims could not succeed. Where the law was not settled, but was in a state of development, it was normally inappropriate to decide novel questions on hypothetical facts. However the court could decide whether the statutes in question conferred private law rights of action for damages.
Much more difficult was the question of whether it was appropriate to decide the question whether there was a common law duty of care. For example, in considering the question whether or not a discretionary decision was justiciable, the answer would often depend on the exact nature of the decision taken and the factors relevant to it. Evidence on those matters was not presently before the court. If it was not possible to give a certain answer whether in law the claim was maintainable, then it was not appropriate to strike out the claim at a preliminary stage.
The Bedfordshire and Newham cases
Lord Browne-Wilkinson considered the history of child protection legislation and the relevant statutes, the Children and Young Persons Act 1969, the Child Care Act 1980 and the Children Act 1989. Since the 1st April 1991, there had been a statutory complaints procedure under section 7B of the Local Authority Social Services Act 1970 (as inserted by section 50 of the National Health Services and Community Care Act 1990).
The claim for breach of statutory duty – Category A
Lord Browne-Wilkinson said that it would take exceptionally clear statutory language to show a parliamentary intention to the effect that those responsible for carrying out these difficult functions should be liable in damages. The legislation was introduced for a limited class of person i.e. children at risk and until 1991 there was only limited machinery for enforcing those rights, however these were the only pointers towards the conclusion that the legislation created a private law right of action. In Lord Browne-Wilkinson’s view these claims, insofar as they were based on a breach of statutory duty simpliciter, were rightly struck out.
Direct common law duty of care owed by local authorities – Category C
In the Newham case it was not alleged that the local authority was under any direct duty of care to the Claimants. The case was based solely on the vicarious liability of the local authority and the health authority for the negligence of its servants.
In the Bedfordshire cases, the first question was whether the determination by the court of the question as whether there had been a breach of that duty, would involve unjusticiable policy questions. The alleged breach of that duty related for the most part to the failure to take reasonable practical steps, and not policy matters. Some of those matters might be non justiciable (i.e. allocation of resources) but it would not be right to strike out the claim on that ground.
The next question was whether these questions were all decisions within the ambit of the local authority’s decision making. Lord Browne-Wilkinson said that he strongly suspected that the claim might well fail on this ground, but it was possible at trial that the Claimants might be able to demonstrate that the decisions of the local authority were so unreasonable as to fall outside the ambit of the statutory discretion.
The following question came under the Caparo case. The local authority had conceded that they could foresee damage to the Claimants and that their relationship was sufficiently proximate. However they did not concede that it was just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties towards children. The public policy consideration that had first claim here was that wrongs should be remedied and very potent counter considerations were required to override that policy.
Firstly a common law duty would cut across the whole statutory system set up for the protection of children at risk. The system was interdisciplinary and it would be unfair to introduce a common law duty of care enforceable against only one organisation. It would also be impossible to disentangle liability as between the respective parties.
Secondly the task of the local authority and its servants in dealing with children was extraordinarily delicate. There was a difficult line to tread between taking action too soon and not taking it soon enough.
Thirdly, if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach.
Fourth there was a statutory complaints procedure together with the local authorities’ Ombudsman’s scheme.
Finally in laying down novel categories of negligence, the court had not been referred to any category of case in which a duty of care had been held to exist which was in any way analogous with the present cases. The nearest cases involved the police and financial regulators, but no duty of care had been imposed in those situations.
Vicarious liability
The Newham case made it quite clear that the social worker and the psychiatrist, as professionals owed a personal duty to the Claimants, for which breach their employers were vicariously liable. However as Lord Browne-Wilkinson read the X v Bedfordshire case, they alleged no vicarious liability but only a direct duty of care. However it was common ground that the Claimants’ case in X v Bedfordshire could be founded on vicarious liability.
Lord Browne-Wilkinson said that the social workers and the psychiatrists were retained by the local authority to advise the local authority not the Claimants. There was a distinction to be drawn between the circumstances in these cases and those that existed with surveyors of property instructed by a building society. (Smith v Eric Bush [1990] 1 AC 831 and Henderson v Merrett Syndicates Ltd. [1994] 3 WLR 761 and White v Jones [1995] 2 WLR 187)
The social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the Claimants.
Witness immunity
In the Newham case, the health authority argued that the psychiatrist was immune from liability in negligence because she knew that, if at the interview she came to the conclusion that the child had been abused and that the abuser was living in the same household as the child, there were likely to be care proceedings in which her assessment of the interview would be relevant evidence.
Lord Browne-Wilkinson said that the immunity of witnesses from any action founded on their evidence was originally designed to ensure that witnesses would not, through fear of later civil proceedings, be inhibited from giving frank evidence in court. In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether that child had been sexually abused. The psychiatrist must have known that proceedings by the local authority had to ensue and the findings would be used as evidence. Therefore since the investigations had such an immediate link with possible proceedings, they could not be made the basis of subsequent claims.
Therefore the Claimants’ appeals in both X v Bedfordshire and Newham would be dismissed.
The education cases
Lord Browne-Wilkinson considered the provisions of the Education Act 1944. The claims were founded on section 8 of that Act, which stated that local authorities had to have regard for the needs of children with disabilities. Section 33(2) and 34(1) also provided further duties in relation to disabled children. Section 36 imposed a duty on the parent to ensure that his or her child was educated and under Sections 68 and 99, the State was able to take enforcement action.
There was then the Education Act 1981, which was designed to improve the measures taken for disabled children. Lord Browne-Wilkinson considered the regime for special educational provision, in particular the Education (Special Educational Needs) Regulations 1983.
The Dorset case
The Claimant was alleging that the Defendant authority was under two direct duties of care. The first (a) was to perform carefully the statutory duties imposed on them by the 1981 Act. The second (b) arose out of the provision by the authority of a psychology service and the negligent advice given by that service.
In relation to (a) this was in essence a claim that the authority was negligent in the exercise of the statutory discretion involved in operating the special needs machinery.
Even if such decisions were made carelessly, the claim would fail unless the Claimant could show that the decisions were so careless that no reasonable education authority could have reached them. Although it seemed most improbable that this could be shown, it was impossible to be certain until all the facts were known. Therefore the claim could not be struck out at this stage.
The question then arose whether it was right to superimpose on the statutory machinery a duty of care to exercise the statutory discretions carefully. A common law duty of care in the exercise of statutory discretion could only arise in relation to an authority which had decided an issue so carelessly that no reasonable authority would have reached that decision. So why should a grossly delinquent authority escape liability? Lord Browne-Wilkinson had reached the decision that this point was outweighed by other factors.
First of all the exercise of the discretion involved the close participation of parents, who themselves were under a duty to educate their child. Secondly if a common law duty was held to exist, it would encourage many hopeless and vexatious cases. Thirdly the House had not been referred to any category of case by analogy with which it would be right to impose a direct duty of care on the authority in the exercise of its discretions. The court should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. Therefore the education authority owed no duty of care in the exercise of its powers under the Education Act 1981.
Lord Browne-Wilkinson then turned to the other duty of care, which it was alleged, the Defendant authority owed direct to the Claimant. The claim was based on the fact that the authority was offering a service (psychological advice) to the public. Once the decision was taken to offer such a service, a statutory body was in general in the same position as any private individual or organisation holding itself as offering such a service. The position was directly analogous with a hospital conducted by a health authority in exercise of its statutory powers. Therefore the Defendant authority, in providing a psychology service, came under a duty of care to the Claimant, who took advantage of that service. It might be, that when the facts were fully investigated, that the psychology service was part and parcel of the system established by the Defendant authority for the discharge of its statutory duties under the 1981 Act. If that was the case then the existence and scope of that duty would have to be excluded or limited so as not to impede the due performance by the authority of its statutory duties.
Common law duty of care – vicarious
Lord Browne-Wilkinson could see no ground for striking out this claim. Psychologists held themselves out as having special skills and they were, in his judgment, like any other professional bound both to possess such skills and to exercise them carefully. Of course the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 would apply to them. They were only bound to exercise the ordinary skill of a competent psychologist and, if they could show that they had acted in accordance with the accepted views of some reputable psychologist at the relevant time, they would have discharged their duty of care, even if other psychologists had adopted a different view. The position of the psychologists in the education cases was quite different from that of the doctor and the social worker in the child abuse cases. There was no potential conflict of interest between the professional’s duties to the Claimant and his duty to the educational authority. Conflict might be demonstrated at trial however, after an examination of the facts.
Therefore in the Dorset case, the Defendant authority was under no liability at common law for the negligent exercise of the statutory discretions conferred on them by the Education Act 1944 to 1981, but it could be liable both directly and vicariously for negligence in the operation of the psychology service and negligence advice given by its officers.
The Hampshire case
It was accepted that a school and its teachers were under a duty to safeguard the physical well being of the pupil. Van Oppen v Clerk to the Bedford Charity Trustees [1990] 1 WLR 235. However there was no case where a school or a teacher had been held liable for negligent advice relating to the educational needs of a pupil. Lord Browne-Wilkinson said that in his judgment, a school that accepted a pupil assumed responsibility not only for his physical well-being but also for his educational needs. In the case of an advisory teacher brought in to advise on the educational needs of a specific pupil, that teacher must foresee that the pupil’s parents would rely on such advice. However the failure to strike out the claim at this stage, did not indicate any view as the likelihood of success. The Bolam test would still apply.
The Bromley case
There were two aspects to the Claimant’s case, a) the failure to provide him with any schooling at all during two periods, 1977 to 1979 and 1985 to 1986 b) the provision by the local authority of inappropriate schooling resulting from failure to carry out proper assessments. In relation to the first alleged breach, this was based on section 8 of the Education Act 1944.
Lord Browne-Wilkinson said that although there was a long line of authority to show that breaches of certain parts of the Education Acts could give rise to a successful claim, those claims were brought to enforce public law rights. That provided no indication that there was a corresponding private law right of action.
In relation to the second breach, this was based on sections 8(2)(c), 33 and 34 of the Education Act 1944 and sections 4, 5 and 7 of the Education Act 1981. The Claimant as a child was a member of a class intended to be protected under these statutes. However Lord Browne-Wilkinson could not find any intention on the part of Parliament to confer a private law action. Therefore the claims for breach of statutory duty should be struck out.
Common law duty of care – direct
From the pleadings it appeared that the only duty of care and the only breaches of such duty alleged related to the manner in which the Defendant authority exercised its discretion. Lord Browne-Wilkinson said that he had already expressed the view, when dealing with the Dorset case that there was no common law duty of care in relation to the exercise of such statutory discretions. Therefore the claim alleging a common law direct duty of care should be struck out.
Common law duty of care – vicarious
Lord Browne-Wilkinson said that the statement of claim contained no proper pleading of vicarious liability. This failure to allege and identify the separate duty of care was not a mere pleading technicality. However it would not be right to disregard a claim based on possible vicarious liability. The Claimant had attempted to obtained disclosure so as to particularise his claim properly, but his application had been successfully opposed by the Defendant local authority. Lord Browne-Wilkinson said that it was right to assume that, at trial, the Claimant would be able to allege and prove that one or more of the professionals employed by the Defendant authority came into a relationship with him, which gave rise to a normal professional duty of care. Therefore the claim should not be struck out, since it was capable of existing at law.