The history of the plaintiff, the relevant statutory provisions, the nature of the plaintiff's
claim and the proceedings to strike out that claim have been fully set out in the speech of my
noble and learned friend Lord Slynn of Hadley which I gratefully adopt and need not repeat.
The particulars of common law negligence pleaded by the plaintiff are copious. The
principal complaints are helpfully summarised by the Master of the Rolls,  Q.B. 367,
372H, as follows:
"Among the complaints which are made are failing to arrange for the plaintiff's
adoption, inappropriate placements with foster parents and community homes and the lack of
proper monitoring and supervision of the plaintiff while he was at the different placements.
There is also criticism of the failure to obtain appropriate psychiatric treatment for the plaintiff
and an allegation of failing properly to manage the reintroduction of the plaintiff to his mother
in 1986 after he had not seen her for 11 years. Reference should also be made to the
criticism of how his relationship with his half-sister was managed."
At this early stage in the proceedings when regard can be had only to the particulars of
claim and to the medical reports filed on the plaintiff's behalf, the weightiest complaint
advanced by the plaintiff appears to be that the defendant failed to place him for adoption,
which resulted throughout the years of his childhood and youth in him having no settled
home but in moving about between a number of foster parents, interspersed with periods in
residential institutions. He claims that it was this disturbed and unsettled life, with no firm
background of family love and affection, which caused the psychiatric damage which he
claims he suffered.
It appears that when he was aged 1 year and 10 months Mrs. Kearnes, who was an
unqualified welfare assistant, became the plaintiff's social worker. Then, at a later stage,
when he was aged 7 years and 10 months Mrs. Kearnes and her husband became his foster
parents and he remained with them until he was aged 14. A further head of complaint is that
the defendant failed to supervise and manage adequately the care of the plaintiff. This head
of complaint is described as follows in the report of the psychologist, Mr. Brendan Clowry
whose report has been filed on behalf of the plaintiff:
"There was also, in my view a lamentable lack of thought about the nature of the
Kearnes involvement with these children.
"The slide from unqualified case worker, into the role of social aunt and uncle,
and then into foster parents, appears not to have been subject to any significant analysis or
"Part of the importance of adequate professional supervision is to ensure that
professional boundaries are maintained, and that workers, particularly those with limited
experience and qualifications do not lose their professional perspective, and become
"Senior management in the field of Social Work has a duty to its clients to
maintain such procedures to maintain an adequate level of professional practice and thus
preserve adequate levels of service delivery.
"For the above and other reasons, I am of the opinion that by failing to think
clearly about this case from early on in this young man's life, the Local Authority significantly
prejudiced his life changes.
"It is not possible, post hoc, to say with certainty that Mr. Barrett would not have
had psychological difficulties had his welfare needs been pursued satisfactorily and with
greater care, but on the balance of probabilities, it is my view that negligent management of
his care has been a significant causal determinant of his current psychological
The Court of Appeal upheld the decision of the County Court Judge, Judge Brandt, to
strike out the plaintiff's claim as disclosing no reasonable cause of action on two main
grounds. The first ground was that the plaintiff was not entitled to claim that the defendant
was guilty of negligence in exercising powers and discretion given to it by statute. The
Master of the Rolls stated at p. 375D:
"The complaints which go to the heart of the plaintiff's claim are all ones which
involve the type of decisions which an authority has to take in order to perform its statutory
role in relation to children in its care. The decision whether or not to place the child for
adoption; the decision as to whether to place a child with particular foster parents; the
decision whether to remove a child from a foster parent; the decisions as to the child's
relationship with his mother and sister; all involve the exercise of discretion in the
performance of the differing statutory responsibilities of the local authority."
And Evans L.J. stated at p. 379G:
". . . the defendant cannot be held liable for breach of any putative common law
duty when he has acted within the scope of his statutory responsibilities."
The second ground was that, even if the plaintiff's claim was not barred on the ground
that it alleged negligence in the exercise of statutory discretions, it would not be just and
reasonable to impose liability for negligence on the local authority and its social workers in
discharging their responsibilities to a child like the plaintiff. A number of reasons were given
by the Court of Appeal as to why it would not be just and reasonable to impose such liability
to which I will return at a later stage in this judgment.
The negligent exercise of a statutory discretion
In Lonrho Plc. v. Tebbit  4 All E.R. 973, 980J Browne-Wilkinson V.-C.
"It is clear that the fact that the allegedly negligent act was done in the course of
exercising statutory powers is not by itself fatal to a claim in negligence: see Home Office
v. Dorset Yacht Co. Ltd.  2 All E.R. 294,  A.C. 1004. It is equally clear that
in some cases the exercise of statutory powers does not give rise to a private law duty of
care: see David v. Radcliffe  2 All E.R. 536,  1 W.L.R. 821. The
difficulty is to define in what circumstances a private law duty of care will be held to
In some circumstances the exercise of a statutory duty or power may itself create the
relationship between the plaintiff and the defendant which causes the common law duty of
care to come into existence. This was made clear in the judgment of Lord Greene M.R. in
Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council
 K.B. 584 where a local authority was held liable for common law negligence for failing
to light an air-raid shelter erected on the highway in pursuance of statutory powers. Lord
Greene M.R. stated at p. 595:
"Negligence is the breach of a duty to take care. That duty arises by reason of a
relationship in which one person stands to another. Such a relationship may arise in a
variety of circumstances. It will, to take a simple instance, arise when a person exercises his
common law right to use the highway--by doing so he places himself in a relationship to other
users of the highway which imposes upon him a duty to take care. Similarly, if the right which
is being exercised is not a common law right but a statutory right, a duty to use care in its
exercise arises, unless, on the true construction of the statute, it is possible to say that the
duty is excluded."
And at p. 615:
"I think that the suggested distinction between a statutory power and a common
law power does not exist where all that the statute does is to authorize in general terms the
construction of an obstacle on the highway which will be a danger to the public unless
precautions are taken. To repeat what I ventured to say earlier in this judgment, the
undertakers in each case, by exercising a power, in the one case statutory, and in the other
at common law, place themselves in a relationship to the public which from its very nature
imports a duty to take care."
And in Dorset Yacht Co. Ltd. v. Home Office  A.C. 1004, 1056D Lord
"Be it assumed that the defendants' officers were acting in pursuance of
statutory powers (or statutory duties which must include powers) in bringing the Borstal boys
to Brownsea Island to work there under the supervision and control of the defendants'
officers. No complaint could be made of the defendants' officers doing that. But in doing
that they had a duty to the plaintiffs as 'neighbours' to make proper exercise of the powers of
supervision and control for the purpose of preventing damage to the plaintiffs as
In the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 157
C.L.R. 424, 459 Mason J. stated: