Whether Duty of Care

January 2nd, 2018

The Court of Appeal in CN v Poole Borough Council (2017) EWCA Civ 2185 held that there was no tortious duty of care on the part of the local authority in making a housing placement to protect children from harassment and abuse by neighbours.  Irwin LJ concluded:-

“93.    It is common ground that Parliament did not create a right of private law action for breach of the duties, or negligence in the exercise of the powers, under the Children Act relevant to this case. … the matter must be approached in terms of the existence or absence of a common law duty of care, not in terms of immunity from a duty of care which would implicitly otherwise exist. … policy considerations … bear on whether a duty of care exists, not on immunity.

  1. There are broadly two considerations here, … which would militate against legal liability on these facts. The first is the concern, … 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.
  2. In any event, insofar as the Defendant exercised powers and bore duties under the Children Act, it was not responsible for housing the Claimants in proximity to those who behaved in an anti-social fashion. This is not a case where the Defendant brought about the risk or had control over the individuals representing the risk: it does not fall into the Dorset Yacht exception to the general rule.”

“97.    … in my view 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 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 Mr Mitchell and his neighbour Drummond have no potential liability?”

“98.    … I accept … that society places a high emphasis on protecting vulnerable people, particularly 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.

  1. The Claimants’ claim is based squarely on the extension of liability set down in D v East Berkshire. … The claim stands or falls by that formulation of liability. … claims against local authorities, exercising powers and fulfilling duties under the Children Act, are widespread. In effect … as a result of D v East Berkshire, social workers are sued as a consequence of their dealings with children, where others acting in relation to children in response to other similar statutory duties cannot be sued: a professional or sectoral distinction. The question whether D v East Berkshire remains good law is critical.
  2. With very great respect to the constitution of this Court who reached that decision, I cannot see how it is consistent with subsequent higher authority. It seems beyond doubt that, but for the impact of the ECHR and the supposed need for an extension of common law liability to reflect the obligations of the State under the Convention, the decision would have been against an extension of liability. That consideration was the pivot of the decision. Yet that proposition has been explicitly rejected in the later cases cited above. …
  3. For those reasons I would accept the Defendant’s argument that D v East Berkshire falls into the third class of case in Young v Bristol Aeroplane and should no longer be followed.

102     I have considered carefully whether there was arguably an assumption of responsibility here, so as to bring the case within that exception to the general rule. … In my view there is no basis here for an assumption of care. … there is insufficient here arguably to amount to an assumption of care ... .

  1. Therefore I would also accept the submission that this case on its pleaded facts does not fulfil any of the established exceptions in common law to the general rule that a Defendant is not liable for the wrongdoing of a third party.
  2. Moreover, as should already be clear, it seems to me that the Defendant is correct in submitting that this claim is not in truth based on failures arising from duties and powers under the Children Act. The proposition that the remedy here was removal from the family, from the care of the Claimants’ mother, seems fanciful. The claim is in fact a criticism of the housing functions of the local authority … , shoe-horned into a claim arising from duties and powers under the Children Act 1989.”

Lady Justice King said:-

“106.  I agree that for the reasons given by Irwin LJ, the decision in D v East Berkshire cannot stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael and I too would allow the appeal on both Grounds.

  1. I would wish also to endorse the observations of Davis LJ as to the manner, once it became apparent that there was no viable action against the housing authorities, that this claim was recast by reference to a duty of care arising by virtue of the provisions of the Children Act 1989.”

Lord Justice Davis said:-

“114.  I agree that for the comprehensive reasons given by Irwin LJ, the decision of the Court of Appeal in D v East Berkshire (which departed from the previous decision of the House of Lords in X v Bedfordshire) is not obviously consistent with the subsequent decision of the House of Lords in Van Colle and Smith (see in particular at paragraphs 136 – 140 of the speech of Lord Brown); and it is inconsistent with and cannot stand with the subsequent decisions of the Supreme Court in Mitchell and in Michael. That in the present case the claimants are children, where in Mitchell and Michael they were not, can make no difference. D v East Berkshire is to be taken as overruled by those later authorities.

  1. I also agree that in this case the local authority assumed no responsibility in law to the claimants simply by reason of its exercise (or non-exercise) of its statutory functions with regard to dealing with the position arising on the estate.
  2. In any event, I found the formulated claim, by reference to a duty of care asserted to arise from the availability of asserted remedies under the provisions of the Children Act 1989, most disconcerting. The true complaint in reality was about the failure of the housing authorities to re-house the entire family in the light of the activities of the neighbouring family. …That, as is now accepted, gave rise to no viable cause of action against the relevant housing authorities. To seek then to re-cast the claim for damages against the local authority by reference to an alleged duty to seek and obtain a care order under the Children Act 1989 seems to me little more than legalistic legerdemain, designed to overcome the insuperable obstacles to formulating a viable claim in attacking the housing authorities in the exercise, (or, rather, non-exercise) of their housing functions. The courts should not be prepared to entertain such a step.
  3. It was never said that the mother was an unfit mother. She loved and cared for her (vulnerable) children. They loved and needed her. Nothing she did or did not do caused them any harm: it was the harassment of the neighbours which did. True she failed, in spite of all her efforts, to achieve the cessation of that harassment or relocation of her family. But that was not her fault. On the contrary, it was the various agencies which, rightly or wrongly, have been blamed. But why or how could seeking a care order with regard to the children be justified in such circumstances?
  4. In the present case, it seems to me that seeking a care order from the Family Court, which potentially would split the family, would not simply have been utterly heartless: it seems to me that such a step would have been utterly wrong. In the circumstances of this case, there was no justification for potentially separating, without the mother’s consent, mother from children, children from mother by use of care proceedings. To countenance care proceedings in the Family Court in order to overcome (or provide a subsequent remedy for) the problems caused by the neighbours on the estate would be, I would have thought, tantamount to an abuse of the process of that court.
  5. I am in agreement with the judgment of Irwin LJ. Nothing in this case as pleaded requires or justifies it going to a full trial. It is unsustainable. It should be struck out now.”

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