Judgment -House of Lords - Barret (A.P.) v. London Borough of Enfield  continued

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

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

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

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

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

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

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

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

LORD SLYNN OF HADLEY

My Lords,

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

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

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

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

The Facts Alleged

The facts relied on in summary are these.

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

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

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

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

     "on the balance of probabilities have left the care of the Local Authority as a young man of eighteen years with no family or attachments whatsoever, who had developed a psychiatric illness causing him to self-harm and who had been involved in criminal activities."

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

The Proceedings

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

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

     "Whether a statutory duty gives rise to a private cause of action is a question of construction . . . If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care."

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

     "Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed. It is clear both in principle and from the decided cases that the local authority cannot be liable in damages for doing that which Parliament has authorised. Therefore if the decisions complained of fall within the ambit of such statutory discretion they cannot be actionable in common law. However if the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority, there is no a priori reason for excluding all common law liability."

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

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

 
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