CN and Anor v Pool Borough Council  EWCA Civ 2185, 21 December 2017 – read judgment
Just over six weeks before the Supreme Court ruled that the police owed the public a duty of care in Robinson (see our post here) the Court of Appeal had unanimously rejected the existence of such a duty in the context of social services and vulnerable children. Giving the leading judgment, Irwin LJ said that there were two strong reasons for rejecting the claimants’ case.
[F]irst is the concern, articulated in X v Bedfordshire in relation to social services and in Hill v West Yorkshire in relation to the police, that liability in negligence will complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making. The second is the principle that, in general, there is no liability for the wrongdoing of a third party, even where that wrongdoing is foreseeable. Both of these considerations, in my view, bite on the facts in this case.
The claimants have sought permission to appeal to the Supreme Court.
In 2006 Mrs N and her two sons CN and GN, then aged nine and seven, moved to a housing estate in Poole. The accommodation was arranged by the council as the local housing authority. Over the ensuing years, the family suffered from the effects of anti-social behaviour at the hands of members of a neighbouring family. This behaviour was frequently reported to the property owners, officers of the council and local police. Eventually, the Home Office became involved and commissioned an independent case review which reported critically on the reaction of the agencies. The family continued to suffer from the behaviour of their neighbours until they were provided with alternative accommodation in December 2011.
Proceedings were first commenced by the claimants and their mother in 2012 against, among others, the Chief Constable of Police and the property owners. These were struck out in 2013, on the basis that there was no viable cause of action against the housing authorities. After that, a claim was advanced on behalf of the sons alone, to the effect that the council had failed to comply with its duties under the Children Act 1989 to safeguard them and promote their welfare.
The council applied to strike out the second claim as disclosing no cause of action. The strike out was successful as Master Eastman held that there was no basis to hold that a local authority, whether in its guise as local housing authority or the authority with powers to tackle anti-social behaviour in the area, owed a duty of care in respect of those functions. In relation to the alternative claim advanced on behalf of the sons, he stated that
I am not satisfied that there is any foundation in law for the assertion that there is in fact the common law duty in favour of children provided by that Act particularly in the circumstances of this case.
An appeal was then mounted on behalf of the sons alone, in respect only of the dismissal of the claim in respect of the council’s social services functions. Elizabeth-Anne Gumbel QC for the claimants submitted that the effect of X v Bedfordshire CC  2 AC 633 had been restated by subsequent authorities. Those authorities were Z v United Kingdom  34 EHHR 97, S v Gloucestershire County Council  Fam 313, Barrett v Enfield London Borough Council and, “most importantly”, D v East Berkshire Community NHS Trust  QB 558. D established that a duty of care could be owed in respect of the council’s failure to remove the sons from the harm that they were suffering at the property where they lived with their mother.
Slade J accepted these arguments. She observed that the Human Rights Act and Strasbourg jurisprudence had led to the removal of an absolute bar to claims falling within the “core proposition” in X v Bedfordshire which remained after Barrett. She found that X v Bedfordshire could not now preclude the child claimants from pursuing such a claim in the circumstances of this case.
The claim should be considered on its particular facts to ascertain whether all the elements necessary to establish a cause of action in negligence are present: forseeability, proximity or assumption of responsibility and that it is fair, just and reasonable to impose liability. Whether a common law duty of care was owed by the council to CN and GN will depend upon a full examination of the facts. This issue is not apt for determination on an application to strike out the claim.”
She accordingly concluded that the sons’ claims based on the council’s social services functions had been wrongly struck out by Master Eastman, and set aside that part of his order. She also gave permission to CN and GN to file and serve Amended Particulars of Claim.
Arguments before the Court of Appeal
CN and GN contended in the Amended Particulars of Claim that the defendant had failed to assess the ability of their mother to protect them from abuse and violence, nor had they carried out any timely or competent risk assessment. Any competent investigation, they maintained, would have led to the removal of the claimants from home, if the family as a whole could not be moved.
It was argued on behalf of the defendant Council that there had been no assumption of duty such as to bring this case into one of the exceptions to the X v Bedfordshire “no duty” rule. Although at one point a member of the defendant’s social work staff had written a letter which spoke of the defendant’s “duty of care” to the claimants, that was a clearly insufficient basis for assumption of a legal duty of care in a context where a policy of the law ran counter to the existence of such duty. The case law since X v Bedfordshire militated against any such duty. The general principle is that, in the context where
state controlled licensing, regulation, inspection, intervention and assistance aimed at protecting the general public from physical or economic harm caused by the activities of other members of society
the imposition of a duty of care would be contrary to the ordinary principles of law: see Michael v Chief Constable of South Wales  UKSC 2, paragraphs 112-114. Slade J was in error in accepting that she was bound by D v East Berkshire so as to conclude that it was arguable that the Council owed a common law duty of care to the claimants in the exercise of its functions under the Children Act. The defendant argued that this ground rested on the contention that D v East Berkshire had been “impliedly overruled” and was inconsistent with more senior authority in Smith and Michael.
The Court of Appeal unanimously allowed the defendant’s appeal.
Reasoning behind the judgment
Irwin LJ accepted the defendant’s submission that “the heart of the claim is that this family were placed in the relevant house, and not moved, despite the prospect and then the actuality of significant harassment”. He described the proposition that the claimants should have been removed from their mother’s care as a means of dealing with such harassment as “rather startling” and “highly artificial”. He accepted the defendant’s argument that, in reality, the claim had nothing to do with its social services functions but was “in fact a criticism of the housing functions of the local authority”
There was no reason to depart from X v Bedfordshire CC, which remained good law. As Lord Browne Wilkinson famously said in that case, it would be wrong to impose a common law duty of care across the statutory system for the protection of children at risk. His reasons included the multi-disciplinary nature of the system of consultation and decision-making, the delicacy and difficulty of the decision-making, the need to avoid stimulating caution and defensiveness on the part of social workers, the need to minimise ill feeling and litigation arising from such disputes, the presence of complaints procedures to address alleged maladministration and the principle that the law of negligence should proceed incrementally and by analogy with decided categories.
The Supreme Court has recently confirmed this approach in Michael. The myriad of public services set up to protect the public from harm caused by third parties cannot be obliged by private law to confer the benefit of this protection. But, as Lord Toulson pointed out,
It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.
The refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime, except in cases where there has been a representation and reliance, does not involve giving special treatment to the police. It is consistent with the way in which the common law has been applied to other authorities vested with powers or duties as a matter of public law for the protection of the public. [Michael, para 115]
Lord Toulson reiterated in Michael the general rule that the common law does not impose liability for pure omissions, or for failing to prevent harm caused by someone else. There were only two recognised exceptions:
first, where the defendant had control over the third party and it was foreseeable damage might ensue unless care was exercised in that control. That is the Dorset Yacht example (paragraph 99). The second exception is where the defendant has assumed responsibility to safeguard the claimant under the principle laid down in Hedley Byrne & Co Ltd v Heller and Partners Ltd  AC 465
Neither of these exceptions applied to the case before Irwin LJ. The facts of D were in any event quite different from the present case. The Court there was considering the decision whether to leave a child in a family where abuse was in question.
For the purposes of such a decision there exists no true “third” party, in the usual sense. The actual or potential wrongdoing by those who would retain (or gain) custody of a child is central to the decision being taken. It is the mainspring of the relevant decision. That is a significant distinction from the current case.
Irwin LJ concluded that two particular aspects of the case law militated against liability; the danger of encouraging defensive decision-making and the general absence of liability for the wrong-doing of others (paragraph 94). It would be unjust for a potential liability to exist on the part of the local social services authority when the housing department of the same local authority, the landlord and the police could not be held liable. Society of course places a high emphasis on protecting vulnerable children.
However, the essence of the common law answer to this problem is that it is not effective, or just, to do so by singling out one agency of the State for tortious liability as against the others, particularly in a crude “sectoral” manner.
He went on to conclude that D was indeed inconsistent with the subsequent decisions of higher authority and should no longer be followed. King and Davis LLJ both agreed with Irwin LJ that D could not stand with the subsequent decisions at higher levels and had to be taken as overruled.
If the claimants are given permission to appeal and there is a real prospect of resurrection of D, there will be considerable interest if not consternation in the public sector, particularly since the decision in Robinson. As Irwin LJ commented, this case illustrates perfectly why it is unjust to extend liability to one agency (the social services department of the local authority) when other agencies (the housing department, the “arms-length” housing provider and the police) are at least as involved and arguably more centrally involved in the relevant problem. By what logic, he asks, is it just for there to be liability to a claim for damages through alleged omission on the part of social workers here, when those responsible for housing have no potential liability?
A similar question has been raised with regard to the differing liabilities of public authorities in an emergency. As the law now stands, two emergency services contacted from the scene of a road traffic accident will owe very different duties to the injured parties involved. The paramedics will be held liable for being late (Kent v Griffiths (No.3)  Q.B. 36 CA (Civ Div)) but the firefighters will not liable for delay or even not arriving at all (Capital and Counties Plc v Hampshire City Council  QB 1004). And of course, if the accident had been caused by the state of land beside the highway or other motorists, no action lies against the highway authority (Gorringe v Calderdale MBC  1 WLR 1057.