Home > Breach of Expert Duties, Case Law Studies, Credibility of Expert Witness, Expert Evidence, Expert Witness, Limitations to The Immunity Rule > Local authority – Statutory duty – Breach of statutory duty – Careless performance of statutory duty – Exercise of statutory discretion – Justiciability of decisions involving policy matters – Application of principles of negligence – Whether fair, just and reasonable to impose duty of care. Negligence – Duty to take care – Existence of duty – Children – Local authority – Education authority – Duty owed in relation to welfare of children or children with special education needs – Whether local authority owing direct duty of care – Whether local authority vicariously liable for negligence of professional advice given by or on behalf of authority. Child – Welfare – Local authority – Local authorities’ statutory duties in relation to welfare of children – Local authorities failing to take plaintiff children into care – Children suffering ill-treatment and impairment of health – Whether children and parents affected by breach of statutory duty having right of action – Children and Young Persons Act 1969 – Child Care Act 1980 – Children Act 1989. Education – Local education authority – Statutory duty to provide special education – Breach – Right of action for damages – Local education authority failing to assess and provide for special educational needs – Plaintiff suffering consequent damage – Whether plaintiff entitled to bring private law claim for damages – Whether plaintiff limited to administrative channels for redress – Education Act 1944, s 8 – Education Act 1981, s 7. Action – Immunity from civil action – Witness – Expert witness – Extent of immunity from civil action – Psychiatrist interviewing child suspected of having been sexually abused at request of local authority -Whether psychiatrist entitled to immunity from action for negligence: X and others (minors) v Bedfordshire County Council;M (a minor) and another v Newham London Borough Council and others;E (a minor) v Dorset County Council;and other appeals; HOUSE OF LORDS, (United Kingdom)

Local authority – Statutory duty – Breach of statutory duty – Careless performance of statutory duty – Exercise of statutory discretion – Justiciability of decisions involving policy matters – Application of principles of negligence – Whether fair, just and reasonable to impose duty of care. Negligence – Duty to take care – Existence of duty – Children – Local authority – Education authority – Duty owed in relation to welfare of children or children with special education needs – Whether local authority owing direct duty of care – Whether local authority vicariously liable for negligence of professional advice given by or on behalf of authority. Child – Welfare – Local authority – Local authorities’ statutory duties in relation to welfare of children – Local authorities failing to take plaintiff children into care – Children suffering ill-treatment and impairment of health – Whether children and parents affected by breach of statutory duty having right of action – Children and Young Persons Act 1969 – Child Care Act 1980 – Children Act 1989. Education – Local education authority – Statutory duty to provide special education – Breach – Right of action for damages – Local education authority failing to assess and provide for special educational needs – Plaintiff suffering consequent damage – Whether plaintiff entitled to bring private law claim for damages – Whether plaintiff limited to administrative channels for redress – Education Act 1944, s 8 – Education Act 1981, s 7. Action – Immunity from civil action – Witness – Expert witness – Extent of immunity from civil action – Psychiatrist interviewing child suspected of having been sexually abused at request of local authority -Whether psychiatrist entitled to immunity from action for negligence: X and others (minors) v Bedfordshire County Council;M (a minor) and another v Newham London Borough Council and others;E (a minor) v Dorset County Council;and other appeals; HOUSE OF LORDS, (United Kingdom)

[1995] 2 AC 633, [1995] 3 All ER 353, [1995] 2 FLR 276, [1995] 3 WLR 152, 26 BMLR 15, [1995] Fam Law 537, [1995] 3 FCR 337, 94 LGR 313

X and others (minors) v Bedfordshire County Council;M (a minor) and another v Newham London Borough Council and others;E (a minor) v Dorset County Council;and other appeals;
HOUSE OF LORDS
[1995] 2 AC 633, [1995] 3 All ER 353, [1995] 2 FLR 276, [1995] 3 WLR 152, 26 BMLR 15, [1995] Fam Law 537, [1995] 3 FCR 337, 94 LGR 313
HEARING-DATES: 10, 11, 12, 13, 17, 18, 19, 20, 24, 25, 26, 27 October 1994, 29 June 1995
29 June 1995

CATCHWORDS:
Local authority – Statutory duty – Breach of statutory duty – Careless performance of statutory duty – Exercise of statutory discretion – Justiciability of decisions involving policy matters – Application of principles of negligence – Whether fair, just and reasonable to impose duty of care.

Negligence – Duty to take care – Existence of duty – Children – Local authority – Education authority – Duty owed in relation to welfare of children or children with special education needs – Whether local authority owing direct duty of care – Whether local authority vicariously liable for negligence of professional advice given by or on behalf of authority.

Child – Welfare – Local authority – Local authorities’ statutory duties in relation to welfare of children – Local authorities failing to take plaintiff children into care – Children suffering ill-treatment and impairment of health – Whether children and parents affected by breach of statutory duty having right of action – Children and Young Persons Act 1969 – Child Care Act 1980 – Children Act 1989.

Education – Local education authority – Statutory duty to provide special education – Breach – Right of action for damages – Local education authority failing to assess and provide for special educational needs – Plaintiff suffering consequent damage – Whether plaintiff entitled to bring private law claim for damages – Whether plaintiff limited to administrative channels for redress – Education Act 1944, s 8 – Education Act 1981, s 7.

Action – Immunity from civil action – Witness – Expert witness – Extent of immunity from civil action – Psychiatrist interviewing child suspected of having been sexually abused at request of local authority -Whether psychiatrist entitled to immunity from action for negligence.

HEADNOTE:
In two separate sets of appeals the issue was whether the careless performance by a local authority of its statutory duties relating to the education and welfare of children could found an action for negligence by children adversely affected by the local authority’s actions.

The first group of appeals (the abuse cases) concerned the action or inaction of local authorities in relation to children who were suspected of being abused. In one case a psychiatrist and a social worker interviewed a child suspected of having been sexually abused and wrongly assumed from the name given by the child that the abuser was the mother’s current boyfriend, who had the same first name. The local authority decided that it was necessary to remove the child from the mother’s care because she would be unable to protect the child against further abuse by the boyfriend and on the application of the local authority, the child was made a ward of court, the local authority was granted care and control and the judge ordered that the child should not return home and limited the mother’s access. The child in fact intended to refer to a cousin with the same first name who had previously lived at the mother’s address but it was not until the mother saw for the first time, in subsequent proceedings, a transcript of the child’s interview with the psychiatrist and the social worker that she realised that the child had not identified her boyfriend as the abuser and that there was no evidence to support that conclusion. The local authority accepted that fact and took steps to rehabilitate the child with the mother and her boyfriend. The child and the mother brought an action against the local authority, the psychiatrist and the health authority which employed her, claiming damages for breach of statutory duty and negligence and alleging that the defendants had failed to investigate the facts with proper care and thoroughness or to discuss them with the mother and were thereby in breach of their duty under the Child Care Act 1980 to safeguard the welfare of children. The child and the mother claimed that, as a result of their enforced separation and the lack of information given to them, they had suffered anxiety neurosis. The statement of claim was struck out by the master as disclosing no reasonable cause of action and on appeal the master’s order was upheld by the judge and the Court of Appeal. In the other case, the local authority took no action for almost five years to place the plaintiff children on the Child Protection Register despite reports from relatives, neighbours, the police, the family’s general practitioner, a head teacher, the National Society for the Prevention of Cruelty to Children, a social worker and a health visitor that the children were at risk (including risk of sexual abuse) while living with their parents, that their living conditions were appalling and unfit and that the children were dirty and hungry. The children subsequently brought an action against the local authority claiming damages for breach of statutory duty and negligence and alleging that the authority had failed to have regard to their welfare as required by the Children and Young Persons Act 1969, the 1980 Act and the Children Act 1989 and should have acted more quickly and more effectively when apprised of their condition and that its failure to do so had caused them to suffer ill-treatment and illness and impairment of their health and proper development. The statement of claim was struck out by the judge as disclosing no reasonable cause of action and on appeal his order was upheld by the Court of Appeal. The plaintiffs in both cases appealed to the House of Lords

The second group of appeals (the education cases) concerned the action or inaction of local authorities in relation to the provision of education for children with special educational needs. In the first case the plaintiff alleged that his local education authority had failed to ascertain that he suffered from a learning disorder which required special educational provision, that it had wrongly advised his parents and that even when pursuant to s 71 of the Education Act 1981 it later acknowledged his special needs, it had wrongly decided that the school he was then attending was appropriate to meet his needs. The plaintiff alleged breach of the education authority’s statutory and common law duties and claimed damages for the expense incurred by his parents in placing him at a special school where his particular educational needs were addressed and his condition diagnosed and treated. In the second case the plaintiff alleged that the headmaster of the local primary school which he attended had failed to refer him either to the local education authority for formal assessment of his learning difficulties, which were consistent with dyslexia, or to an educational psychologist for diagnosis, that the teachers’ advisory centre to which he was later referred had also failed to identify his difficulty and that such failure to assess his condition (which would have improved with appropriate treatment) had severely limited his educational attainment and prospects of employment. The plaintiff claimed damages for negligence against the local education authority. In the third case the plaintiff alleged that although he did not have any serious disability and was of at least average ability the local education authority had either placed him in special schools which were not appropriate to his educational needs or had failed to provide any schooling for him at all with the result that his personal and intellectual development had been impaired and he had been placed at a disadvantage in seeking employment. The plaintiff claimed damages against his local education authority for breach of statutory duty under the Education Act 1944, the 1981 Act and the Education (Special Educational Needs) Regulations 1983. In all three cases the plaintiffs’ statements of claim were struck out as disclosing no reasonable cause of action. On appeal the Court of Appeal held that the claims alleging breach of statutory duty had been rightly struck out but that the claims in negligence were not unarguable or incontestably bad and should be allowed to proceed.

The plaintiffs in the abuse cases and the education authorities in the education cases appealed to the House of Lords. The plaintiff in one of the education cases cross-appealed.

Held – (1) Private law claims against public authorities for damages could be classified into four different categories: (i) actions for breach of statutory duty simpliciter (i e irrespective of carelessness); (ii) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (iii) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (iv) misfeasance in public office, ie the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct was unlawful.

(2) In actions for breach of statutory duty simpliciter a breach of statutory duty was not by itself sufficient to give rise to any private law cause of action. A private law cause of action only arose if it could be shown, as a matter of construction of the statute, 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. Whether the statute provided other remedies for its breach and whether on the true construction of the statute it was shown that the protected class was intended by Parliament to have a private remedy were indicia of whether a private law cause of action lay for breach of a statutory duty; Cutler v Wandsworth Stadium Ltd [1949] 1 All ER 544 and Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1981] 2 All ER 456 applied.

(3) The mere assertion of the careless exercise of a statutory power or duty was not sufficient in itself to give rise to a private law cause of action. The plaintiff also had to show that the circumstances were such as to raise a duty of care at common law. In determining whether such a duty of care was owed by a public authority, the manner in which a statutory discretion was or was not exercised (ie the decision whether or not to exercise the discretion) had to be distinguished from the manner in which the statutory duty was implemented in practice. Since it was for the authority, not for the courts, to exercise a statutory discretion conferred on it by Parliament, nothing the authority did within the ambit of the discretion could be actionable at common law, but if the decision was so unreasonable that it fell outside the ambit of the discretion conferred on the authority that could give rise to common law liability. Furthermore, there was no common law duty of care in relation to the taking of decisions involving policy matters, since the courts could not adjudicate on such policy matters and therefore could not reach the conclusion that the decision was outside the ambit of the statutory discretion. Accordingly, a claim alleging negligence in the exercise of a statutory discretion involving policy considerations would pro tanto fail as being non-justiciable. If, however, the claim was justiciable then the ordinary principles of negligence, i e whether the damage was reasonably foreseeable, whether there was proximity of relationship between the parties and whether it was fair, just and reasonable to impose a duty of care, applied. In particular, the requirement that it had to be just and reasonable to impose a common law duty of care in all the circumstances before liability in negligence would be imposed applied not only where the plaintiff ‘s claim was for pure economic loss but also where the claim was for physical damage; Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430, Anns v Merton London Borough [1977] 2 All ER 492 and Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 considered.

(4) In the abuse cases, the claims based on breach of statutory duty had been rightly struck out. The purpose of the child care legislation was to establish an administrative system designed to promote the social welfare of the community and within that system very difficult decisions had to be taken, often on the basis of inadequate and disputed facts, whether to split the family in order to protect the child. In that context and having regard to the fact that the discharge of the statutory duty depended on the subjective judgment of the local authority, the legislation was inconsistent with any parliamentary intention to create a private cause of action against those responsible for carrying out the difficult functions under the legislation if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

(5) In the education cases, the claims based on breach of statutory duty had also been rightly struck out. A local education authority’s obligation under s 82 of the 1944 Act to provide sufficient schools for pupils within its area could not give rise to a claim for breach of statutory duty based on a failure to provide any or any proper schooling since the Act did not impose any obligation on a local education authority to accept a child for education in one of its schools, and the fact that breaches of duties under the Education Acts might give rise to successful public law claims for a declaration or an injunction did not show that there was a corresponding private law right to damages for breach of statutory duty. In the case of children with special educational needs, although they were members of a limited class for whose protection the statutory provisions were enacted, there was nothing in either the 1944 Act or the 1981 Act which demonstrated a parliamentary intention to give that class a statutory right of action for damages. The duty imposed on a local education authority under s 8(2)(c) of the 1944 Act to ‘have regard’ to the need for securing special treatment for children in need of such treatment left too much to be decided by the authority to indicate that Parliament intended to confer a private right of action and the involvement of parents at every stage of the decision-making process under the 1981 Act and their rights of appeal against the authority’s decisions showed that Parliament did not intend, in addition, to confer a right to sue for damages; dicta of Scrutton LJ in Gateshead Union v Durham CC [1918] 1 Ch 146 and of Lord Denning MR in Meade v Haringey London Borough [1979] 2 All ER 1016 at 1024-1025 disapproved.

(6) In respect of the claims for breach of duty of care in both the abuse and education cases, assuming that a local authority’s duty to take reasonable care in relation to the protection and education of children did not involve unjusticiable policy questions or decisions which were not within the ambit of the local authority’s statutory discretion, it would nevertheless not be just and reasonable to impose a common law duty of care on the authority in all the circumstances. Courts should be extremely reluctant to impose a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. In the abuse cases a common law duty of care would be contrary to the whole statutory system set up for the protection of children at risk, which required the joint involvement of many other agencies and persons connected with the child, as well as the local authority, and would impinge on the delicate nature of the decisions which had to be made in child abuse cases and, in the education cases, administrative failures were best dealt with by the statutory appeals procedure rather than by litigation.

(7) A local authority was not vicariously liable for the actions of social workers and psychiatrists instructed by it to report on children who were suspected of being sexually abused because it would not be just and reasonable to impose a duty of care on the local authority or (per Lord Nolan) it would be contrary to public policy to do so. The social workers and psychiatrists themselves were retained by the local authority to advise the local authority, not the plaintiffs and (Lord Nolan dissenting) by accepting the instructions of the local authority did not assume any general professional duty of care to the plaintiff children. Their duty was to advise the local authority in relation to the well-being of the plaintiffs but not to advise or treat the plaintiffs and, furthermore, it would not be just and reasonable to impose a common law duty of care on them. However (Lord Nolan concurring), in the education cases a local authority was under a duty of care in respect of the service in the form of psychological advice which was offered to the public since, by offering such a service, it was under a duty of care to those using the service to exercise care in its conduct. Likewise, educational psychologists and other members of the staff of an education authority, including teachers, owed a duty to use reasonable professional skill and care in the assessment and determination of a child’s educational needs and the authority was vicariously liable for any breach of such duties by their employees.

(8) It followed that the plaintiffs in the abuse cases had no private law claim in damages. Their appeals would therefore be dismissed. In the education cases the authorities were under no liability at common law for the negligent exercise of the statutory discretions conferred on them by the 1944 and 1981 Acts but could be liable, both directly and vicariously, for negligent advice given by their professional employees. The education authorities’ appeals would therefore be allowed to the extent that the claims based on an alleged duty of care in the exercise of the statutory discretions would be struck out but otherwise the appeals and cross-appeals would be dismissed.

Per curiam. The report of a psychiatrist instructed to carry out the examination of the child for the specific purpose of discovering whether the child has been sexually abused and (if possible) the identity of the abuser has such an immediate link with possible proceedings in pursuance of a statutory duty that such investigations cannot be made the basis of subsequent claims (see p 386 a b d, post); Evans v London Hospital Medical College [1981] 1 All ER 715 approved.

Decision of the Court of Appeal in X and ors (minors) v Bedfordshire CC, M (a minor) v Newham London BC [1994] 4 All ER 602 affirmed.

Decision of the Court of Appeal in E (a minor) v Dorset CC [1994] 4 All ER 640 reversed in part.

NOTES:
For breach of statutory duty, see 45 Halsbury’s Laws (4th edn) para 1282.

For nature of negligence and the duty to take care generally, see 34 Halsbury’s Laws (4th edn) paras 1-5, and for cases on the subject, see 36(1) Digest (2nd reissue) 7-64, 1-325.

For immunity of a witness in respect of his evidence, see 17 Halsbury’s Laws (4th edn) para 261, and for cases on the subject, see 22(2) Digest (2nd reissue) 137, 143, 215, 7252, 7316, 8247-8248.

For the Children and Young Persons Act 1969, see 6 Halsbury’s Statutes (4th edn) (1992 reissue) 136.

For the Children Act 1989 (s 108(7) and Sch 15 of which repealed the Child Care Act 1980), see ibid 387.

For the Education Act 1944, s 8, see 15 Halsbury’s Statutes (4th edn) (1990 reissue) 117.

For the Education Act 1981, s 7, see ibid 296.

For the Education (Special Educational Needs) Regulations 1983, see 6 Halsbury’s Statutory Instruments (1993 reissue) 316.

CASES-REF-TO:

Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, [1981] AC 1001, [1981] 2 WLR 188, HL.
Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728, [1977] 2 WLR 1024, HL.
Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223, CA.
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118, [1957] 1 WLR 582.
Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, [1990] 2 WLR 358, HL.
Cassidy v Ministry of Health (Fahrni, third party) [1951] 1 All ER 574, [1951] 2 KB 343, CA.
Ching v Surrey CC [1910] 1 KB 736, [1908-10] All ER Rep 305.
Cocks v Thanet DC [1982] 3 All ER 1135, [1983] 2 AC 286, [1982] 3 WLR 1121, HL.
Cutler v Wandsworth Stadium Ltd (in liq) [1949] 1 All ER 544, [1949] AC 398, HL.
Equal Opportunities Commission v Secretary of State for Employment [1994] 1 All ER 910, [1995] 1 AC 1, [1994] 2 WLR 409, HL.
Evans v London Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184.
Everett (pauper) v Griffiths [1920] 3 KB 163, CA; affd [1921] 1 AC 631, HL.
Gateshead Union v Durham CC [1918] 1 Ch 146, CA.
Geddis v Bann Reservoir (Proprietors) (1878) 3 App Cas 430, HL.
Gold v Essex CC [1942] 2 All ER 237, [1942] 2 KB 293, CA.
Groves v Wimborne (Lord) [1898] 2 QB 402, [1895-9] All ER Rep 147, CA.
Hague v Deputy Governor of Parkhurst Prison, Weldon v Home Office [1991] 3 All ER 733, [1992] 1 AC 58, [1991] 3 WLR 340, HL.
Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171, [1861-73] All ER Rep 60.
Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506, [1994] 3 WLR 761, HL.
Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53, [1988] 2 WLR 1049, HL.
Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004, [1970] 2 WLR 1140, HL.
Lonrho Ltd v Shell Petroleum Co Ltd [1981] 2 All ER 456, [1982] AC 173, [1981] 3 WLR 33, HL.
Lonrho plc v Tebbit [1992] 4 All ER 280, CA.
McDermid v Nash Dredging and Reclamation Co Ltd [1987] 2 All ER 878, [1987] AC 906, [1987] 3 WLR 212, HL.
Marrinan v Vibart [1962] 1 All ER 869, [1963] 1 QB 234, [1962] 2 WLR 1224; affd [1962] 3 All ER 380, [1963] 1 QB 528, [1962] 3 WLR 912, CA.
Meade v Haringey London Borough [1979] 2 All ER 1016, [1979] 1 WLR 637, CA.
Metropolitan Asylum District v Hill (1881) 6 App Cas 193, [1881-5] All ER Rep 536, HL.
Ministry of Housing and Local Government v Sharp [1970] 1 All ER 1009, [1970] 2 QB 223, [1970] 2 WLR 802, CA.
O’Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, [1982] 3 WLR 1096, HL.
Palmer v Durnford Ford (a firm) [1992] 2 All ER 122, [1992] QB 483, [1992] 2 WLR 407.
R v Secretary of State for Education and Science, ex p E (1991) 14 January, unreported; affd [1992] 1 FLR 377, CA.
Roe v Ministry of Health, Woolley v Ministry of Health [1954] 2 All ER 131, [1954] 2 QB 66, [1954] 2 WLR 915, CA.
Rowling v Takaro Properties Ltd [1988] 1 All ER 163, [1988] AC 473, [1988] 2 WLR 418, PC.
Rylands v Fletcher (1868) LR 3 HL 330, [1861-73] All ER Rep 1.
Smith v Eric S Bush (a firm), Harris v Wyre Forest DC [1989] 2 All ER 514, [1990] 1 AC 831, [1989] 2 WLR 790, HL.
Sutherland Shire Council v Heyman (1985) 157 CLR 424, Aust HC.
Thornton v Kirklees Metropolitan BC [1979] 2 All ER 349, [1979] QB 626, [1979] 3 WLR 1, CA.
Van Oppen v Bedford Charity Trustees [1989] 3 All ER 389, [1990] 1 WLR 235, CA.
Watson v M’Ewan, Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1, HL.
White v Jones [1995] 1 All ER 691, [1995] 2 WLR 187, HL.
Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57, HL.
Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175, [1987] 3 WLR 776, PC.

INTRODUCTION:
Appeals

X and ors (minors) v Bedfordshire CC

The plaintiff minors, five brothers and sisters, suing by their next friend the Official Solicitor, appealed from the decision of the Court of Appeal (Sir Thomas Bingham MR, Staughton and Peter Gibson LJJ) ([1994] 4 All ER 602, [1994] 2 WLR 554) delivered on 23 February 1994 dismissing their appeal from the decision of Turner J ((1993) Times, 24 November) dated 12 November 1993 whereby he ordered that their statement of claim alleging breach of statutory duty and negligence against the defendant, the Bedfordshire County Council, be struck out under RSC Ord 18, r 19 and/or under the inherent jurisdiction of the court. The facts are set out in the opinion of Lord Browne-Wilkinson.

M (a minor) and anor v Newham London BC and ors

The plaintiffs, a girl and her mother, appealed from the decision of the Court of Appeal (Sir Thomas Bingham MR, Staughton and Peter Gibson LJJ) ([1994] 4 All ER 602, [1994] 2 WLR 554) delivered on 23 February 1994 dismissing their appeal from the the order dated 17 March 1993 made by Judge Phelan ([1993] 2 FLR 575) sitting as a judge of the High Court in the Queen’s Bench Division whereby he dismissed their appeal against the order of Master Topley dated 19 November 1992 striking out their statement of claim alleging breach of statutory duty and negligence against the defendants, Newham London Borough Council, Newham Health Authority and Dr Eileen Vizard, a psychiatrist employed by the health authority, under RSC Ord 18, r 19 and under the inherent jurisdiction of the court. The facts are set out in the opinion of Lord Browne-Wilkinson.

E (a minor) v Dorset CC

Dorset County Council, the defendant, appealed from the decision of the Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 853) delivered on 29 April 1994 allowing an appeal by the plaintiff, E, a minor proceeding by his father as next friend, from the order of Otton J dated 7 April 1993 striking out under RSC Ord 18, r 19, or alternatively the inherent jurisdiction of the court, the plaintiff ‘s statement of claim against the defendant seeking damages for breach of statutory duty under the Education Acts and common law negligence for failure to provide appropriate special education. The facts are set out in the opinion of Lord Browne-Wilkinson.

Christmas v Hampshire CC

Hampshire County Council, the defendant, appealed from the decision of the Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 853) delivered on 29 April 1994 allowing an appeal by the plaintiff, Mark John Christmas, from the order of Otton J dated 7 April 1993 dismissing the plaintiff ‘s appeal from the order of Master Murray dated 21 September 1992 striking out under RSC Ord 18, r 19, or alternatively the inherent jurisdiction of the court, the plaintiff ‘s statement of claim against the defendant seeking damages for common law negligence for failure to provide appropriate special education. The facts are set out in the opinion of Lord Browne- Wilkinson.

Keating v Bromley London BC

Bromley London Borough Council, the defendant, appealed from the decision of the Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 85) delivered on 29 April 1994 allowing in part an appeal by the plaintiff, Sefton James Keating (known as Richard), from the order dated 30 July 1993 made by Peter Weitzman QC sitting as a deputy judge of the High Court in the Queen’s Bench Division striking out under RSC Ord 18, r 19, or alternatively the inherent jurisdiction of the court, the plaintiff ‘s statement of claim against the defendant seeking damages for breach of statutory duty under the Education Acts and common law negligence for failure to provide appropriate education. The Court of Appeal upheld the striking out the claim founded on breach of statutory duty but allowed the plaintiff ‘s appeal in relation to his claim founded on common law negligence. The plaintiff cross-appealed from the decision of the Court of Appeal dismissing his appeal in relation to his claim founded on common law negligence. The facts are set out in the opinion of Lord Browne-Wilkinson.

COUNSEL:
Rupert Jackson QC and Elizabeth Gumbel (instructed by Conway Wood & Co, Harpenden) for the X plaintiffs.

Ian Karsten QC and Lord Meston (instructed by Vizards) for Bedfordshire County Council.

James Munby QC and Robert Sherman (instructed by Clinton Davis, Cushing & Kelly) for the M plaintiffs.

Ian Karsten QC and Edward Faulks (instructed by Barlow Lyde & Gilbert) for Newham London Borough Council.

James Holman QC and Richard Tyson (instructed by Field Fisher Waterhouse) for Newham Health Authority and Dr Vizard.

Michael Beloff QC and Cherie Booth (instructed by Veitch Penny, Exeter and Peter Robertson, Winchester) for Dorset and Hampshire County Councils.

John Friel and Deborah Hay (instructed by A E Smith & Son, Stroud) for E.

Beverley Lang and Tom Croxford (instructed by Bindman & Partners) for Mr Christmas.

Michael Beloff QC and Tim Kerr (instructed by Walter Million, Bromley) for Bromley Borough Council.

Roger Ter Haar QC and John Greenbourne (instructed by Teacher Stern Selby) for Mr Keating.

JUDGMENT-READ:
Their Lordships took time for consideration. 29 June 1995. The following opinions were delivered.

PANEL: LORD JAUNCEY OF TULLICHETTLE, LORD LANE, LORD ACKNER, LORD BROWNE-WILKINSON AND LORD NOLAN

JUDGMENTBY-1: LORD JAUNCEY OF TULLICHETTLE

JUDGMENT-1:
LORD JAUNCEY OF TULLICHETTLE. My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne- Wilkinson. I am in entire agreement with his carefully detailed reasoning and with the conclusions which he has reached and I too would make the orders which he proposes.

I would normally consider it wholly superfluous to add anything to what my noble and learned friend has said, but in view of the importance of his conclusion in relation to the careless performance of a statutory duty I propose to add a few words of my own thereanent.

Where a statute confers a private law right of action a breach of statutory duty howsoever caused will found the action. Where a statute authorises that to be done which will necessarily cause injury to someone no action will lie if the act is performed with reasonable care. If, on the other hand, the authorised act is performed carelessly whereby unnecessary damage is caused a common law action will lie. This is because the act would, but for the statute, be actionable at common law and the defence which the statute provides extends only to the careful performance of the act. The statute only authorises invasion of private rights to the extent that the statutory powers are exercised with reasonable and proper regard for the holders of such rights. Thus careless performance of an authorised act, rather than amounting to breach of a new duty, simply ceases to be a defence to a common law right of action. This was, I believe, the situation which Lord Reid was addressing in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 300-301, [1970] AC 1004 at 1030:

‘. . . but there is very good authority for the proposition that, if a person performs a statutory duty carelessly so that he causes damage to a member of the public which would not have happened if he had performed his duty properly, he may be liable. In Geddis v Bann Reservoir (Proprietors) (1878) 3 App Cas 430 at 455-456 Lord Blackburn said: “For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently.” The reason for that is, I think, that Parliament deems it to be in the public interest that things otherwise unjustifiable should be done, and that those who do such things with due care should be immune from liability to persons who may suffer thereby. But Parliament cannot reasonably be supposed to have licensed those who do such things to act negligently in disregard of the interests of others so as to cause them needless damage’ (my emphasis),

and to which Lord Blackburn was referring in the above quotation from Geddis v Proprietors of Bann Reservoir. See also Metropolitan Asylum District v Hill (1881) 6 App Cas 193 at 213, [1881-5] All ER Rep 536 at 545 per Lord Watson and Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353 at 356, [1981] AC 1001 at 1011 per Lord Wilberforce.

Where a statute empowers or ordains the doing of an act which, if done with due care, will cause no harm to a third party but which, if done carelessly will be likely to cause harm and the circumstances also satisfy the other two requirements in Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, namely that the relationship between plaintiff and defendant is sufficiently proximate and that it would be just and reasonable to impose a duty of care, an action will lie at common law. But it will lie simply because careless performance of the act amounts to common law negligence and not because the act is performed under statutory authority. Thus the owners of a National Health Service hospital owe precisely the same duty of care to their patients as do the owners of a private hospital and they owe it because of the common law of negligence and not because they happen to be operating under statutory provisions. Conversely, an act which, if performed in a particular manner by a private individual, would give rise to no cause of action will no more be actionable if it happens to be performed in the same way in exercise of a statutory

power or duty, breach of which does not confer a private law right of action, even if such performance is careless.

JUDGMENTBY-2: LORD LANE

JUDGMENT-2:
LORD LANE. My Lords, I have read in draft the speech of my noble and learned friend Lord Browne-Wilkinson. I agree with his reasoning and conclusions.

JUDGMENTBY-3: LORD ACKNER

JUDGMENT-3:
LORD ACKNER. My Lords, I have read in draft the speech of my noble and learned friend Lord Browne-Wilkinson. I agree with his reasoning and conclusions.

JUDGMENTBY-4: LORD BROWNE-WILKINSON

JUDGMENT-4:
LORD BROWNE-WILKINSON. My Lords, in each of these five appeals the plaintiffs by their statements of claim allege they have been injured by public authorities in the carrying out of functions imposed upon them by statute. The defendants have applied to strike out the claims on the grounds that they disclose no cause of action. In the first group of appeals (the Bedfordshire and Newham cases), the allegations are that the public authorities negligently carried out, or failed to carry out, statutory duties imposed on them for the purpose of protecting children from child abuse. In the second group (the Dorset , Hampshire and Bromley cases), the plaintiffs allege that the local authorities failed to carry out duties imposed upon them as education authorities by the Education Acts 1944 to 1981 in relation to children with special educational needs.

Although each case is different, all of them raise in one form or another the difficult and important question to what extent authorities charged with statutory duties are liable in damages to individuals injured by the authorities’ failure properly to perform such duties. Such liability may be alleged to arise in a number of different ways: it can be based on breach of statutory duty simpliciter, on the failure to carry out the statutory duty without due care or on a breach of a common law duty of care. In considering the decided cases, and consequently the argument submitted on these appeals, it is not always clear which basis of liability is under consideration. I therefore propose, before turning to the individual appeals, to attempt a more general analysis of the problems raised in this field so far as they affect these cases.

GENERAL APPROACH

Introductory — public law and private law

The question is whether, if Parliament has imposed a statutory duty on an authority to carry out a particular function, a plaintiff who has suffered damage in consequence of the authority’s performance or non-performance of that function has a right of action in damages against the authority. It is important to distinguish such actions to recover damages, based on a private law cause of action, from actions in public law to enforce the due performance of statutory duties, now brought by way of judicial review. The breach of a public law right by itself gives rise to no claim for damages. A claim for damages must be based on a private law cause of action. The distinction is important because a number of earlier cases (particularly in the field of education) were concerned with the enforcement by declaration and injunction of what would now be called public law duties. They were relied on in argument as authorities supporting the plaintiffs’ claim for damages in this case: I will consider them in a little more detail later.

Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i e irrespective of carelessness); (B) actions 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; and (D) misfeasance in public office, i e the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful.

Category (D) is not in issue in this case. I will consider each of the other categories but I must make it clear that I am not attempting any general statement of the applicable law: rather, I am seeking to set out a logical approach to the wide ranging arguments advanced in these appeals.

(A) Breach of statutory duty simpliciter

This category comprises those cases where the statement of claim alleges simply (i) the statutory duty, (ii) a breach of that duty, causing (iii) damage to the plaintiff. The cause of action depends neither on proof of any breach of the plaintiffs’ common law rights nor on any allegation of carelessness by the defendant.

The principles applicable in determining whether such statutory cause of action exists are now well established, although the application of those principles in any particular case remains difficult. The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself, give rise to any private law cause of action. However, a private law cause of action will arise if it can be shown, as a matter of construction of the statute, 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 is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means and not by private right of action: see Cutler v Wandsworth Stadium Ltd [1949] 1 All ER 544, [1949] AC 398 and Lonrho Ltd v Shell Petroleum Co Ltd [1981] 2 All ER 456, [1982] AC 173. However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by an action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v Lord Wimborne [1898] 2 QB 402, [1895-9] All ER Rep 147.

Although the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute, it is significant that your Lordships were not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general. Thus legislation regulating the conduct of betting or prisons did not give rise to a statutory right of action vested in those adversely affected by the breach of the statutory provisions, i e bookmakers and prisoners: see Cutler v Wandsworth Stadium Ltd and Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733, [1992] 1 AC 58. The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions.

(B) The careless performance of a statutory duty — no common law duty of care

This category comprises those cases in which the plaintiff alleges (i) the statutory duty and (ii) the ‘negligent’ breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word ‘negligent’ in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (category (A) above) or a common law duty of care (category (C) below).

Much of the difficulty can be traced back to the confusion between the ability to rely on a statutory provision as a defence and the ability to rely on it as founding a cause of action. The source of the confusion is to be found in the dictum of Lord Blackburn in Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430 at 455-456:

‘For I take it, without citing cases, that it is now thoroughly well established that no action will lie for doing that which the legislature has authorized, if it be done without negligence, although it does occasion damage to anyone; but an action does lie for doing that which the legislature has authorized, if it be done negligently. And I think that if by a reasonable exercise of the powers, either given by statute to the promoters, or which they have at common law, the damage could be prevented it is, within this rule, “negligence” not to make such reasonable exercise of their powers.’

This dictum, divorced from its context, suggests that the careless performance of a statutory duty in itself gives rise to a cause of action for damages. But it has to be read in context.

In Geddis v Proprietors of Bann Reservoir the defendants were authorised to construct and maintain a reservoir, the water from which was discharged, via a new artificial watercourse, into an old watercourse which the defendants were authorised by the statute to widen and maintain. Water originating from the reservoir flooded from the old watercourse onto the plaintiff ‘s adjoining land, such flooding being due to the ‘negligent’ failure of the defendants to maintain the old watercourse adequately. The cause of action relied upon by the plaintiff is not clear from the report: it could have been either nuisance (including Rylands v Fletcher (1868) LR 3 HL 330, [1861-73] All ER Rep 1) or negligence. If the cause of action founded upon was in nuisance, the question was whether the statutory power to construct and maintain the works provided a defence to what would otherwise constitute an actionable wrong. It is well established that statutory authority only provides a defence to a claim based on a common law cause of action where the loss suffered by the plaintiff is the inevitable consequence of the proper exercise of the statutory power or duty: see Metropolitan Asylum District v Hill (1881) 6 App Cas 193, [1881-5] All ER Rep 536; Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353, [1981] AC 1001. Therefore the careless exercise of a statutory power or duty cannot provide a defence to a claim based on a free-standing common law cause of action, whether in trespass, nuisance or breach of a common law duty of care. If Lord Blackburn’s dictum in Geddis v Proprietors of Bann Reservoir merely refers to the circumstances in which statutory authority can be used as a defence it raises no problems.

In my judgment Geddis v Proprietors of Bann Reservoir is best treated as a decision that the careless exercise by the defendant of a statutory duty or power provides no defence to a claim by the plaintiff based on a free-standing common law cause of action. It was so treated by Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] 1 All ER 353 at 356, [1981] AC 1001 at 1011:

‘It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away (see Hammersmith and City Railway Co v Brand (1869) LR 4 HL 171 at 215, [1861-73] All ER Rep 60 at 72 per Lord Cairns). To this there is made the qualification, or condition, that the statutory powers are exercised without “negligence”, that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons (see Geddis (1878) 3 App Cas 430 at 455 per Lord Blackburn).’

See also Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458 and the article by Sir Gerard Brennan ‘Liability in Negligence of Public Authorities: The Divergent Views’ (1990) 48 The Advocate 842 at 844-846.

In this context I must consider the decision in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294, [1970] AC 1004 which was relied upon in argument as showing that there was a cause of action for the careless exercise of statutory powers. In that case it was alleged that Borstal boys detained under statutory powers had been taken to an island under the control and supervision of three Borstal officers. The boys escaped and sought to leave the island by stealing a yacht which they so mishandled as to damage the plaintiff ‘s yacht which was at anchor nearby. It was alleged that the three officers were negligent in failing to control the Borstal boys and that the Home Office was vicariously responsible for their actions. This House rejected an application by the Home Office to strike out the claim. In later cases most attention has been concentrated on the speech of Lord Diplock. But in my judgment his views do not reflect the majority approach. Lord Morris of Borth-y-Gest and Lord Pearson both approached the case by first asking whether at common law there was a duty of care owed by the officers to the plaintiffs to take reasonable steps to control the Borstal boys so as to prevent them causing foreseeable damage to the plaintiff ‘s property. They held that there was (see [1970] 2 All ER 294 at 304 and 321, [1970] AC 1004 at 1034-1035, 1054-1055). They further held that the extent of the duty owed to the plaintiff fell to be measured taking into account the fact that the boys were detained under statutory powers and the officers discharging statutory functions. But, applying Geddis v Proprietors of Bann Reservoir, both held that the careless performance by the officers of statutory functions would not provide a defence to the common law claim (see [1970] 2 All ER 294 at 305, 322, [1970] AC 1004 at 1036, 1055-1056). Lord Reid also held that, apart from statutory authority, the officers owed a common law duty of care to the plaintiffs (see [1970] 2 All ER 294 at 298-300, [1970] AC 1004 at 1027-1030). He then relied on the Geddis principle and, although his language is not clear beyond doubt, in my view he relied on that principle as showing not that the statutory provisions imposed a statutory duty of care but that the negligent performance of the statutory duties would provide no defence to a claim for breach of the common law duty of care (see [1970] 2 All ER 294 at 300, [1970] AC 1004 at 1030).

As I read Lord Diplock’s closely reasoned speech his approach was different. First, he held that in the absence of the statutory provisions the prison officers would not have been under a duty of care at common law to prevent the Borstal boys damaging the plaintiff ‘s property (see [1970] 2 All ER 294 at 327, 329, 330-331, [1970] AC 1004 at 1062, 1064, 1066). He treated the Geddis principle as being inapplicable to public Acts of Parliament conferring wide statutory discretions and pointed out that the principle only applies to negative reliance on statutory authority as a defence to a common law right of action which would otherwise have existed (see [1970] 2 All ER 294 at 331, [1970] AC 1004 at 1066-1067). At this stage he expressed the view that, in relation to acts done under statutory powers conferring discretions, no right of action at common law can exist unless the defendant has acted ultra vires those powers (see [1970] 2 All ER 294 at 332, [1970] AC 1004 at 1067). He then held that the Home Office itself, in establishing a liberal regime for the treatment of Borstal offenders, could not have been acting ultra vires. However, if the Borstal officers had exercised their powers in breach of their instructions they would have acted ultra vires the powers delegated to them. He further held that, in the circumstances, if the prison officers had acted ultra vires, they might owe a common law duty of care to the plaintiff.

It is clear that in many respects, particularly in relation to the introduction of the ultra vires doctrine, Lord Diplock’s approach differed from that of the other members of the House. But all the majority members of the committee agreed in treating the Geddis principle as operating only as a means of rebutting a defence to an action for breach of a common law duty. Dorset Yacht is not a case which establishes that a cause of action for damages can be based on the mere ‘negligent’ exercise of statutory powers. It is a case founded on common law duties of care and the circumstances in which a defence of statutory authority can succeed.

In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient.

(C) The common law duty of care

In this category, the claim alleges either that a statutory duty gives rise to a common law duty of care owed to the plaintiff by the defendant to do or refrain from doing a particular act, or (more often) that in the course of carrying out a statutory duty the defendant has brought about such a relationship between himself and the plaintiff as to give rise to a duty of care at common law. A further variant is a claim by the plaintiff that, whether or not the authority is itself under a duty of care to the plaintiff, its servant in the course of performing the statutory function was under a common law duty of care for breach of which the authority is vicariously liable.

Mr Munby QC, in his reply in the Newham case, invited your Lordships to lay down the general principles applicable in determining the circumstances in which the law would impose a common law duty of care arising from the exercise of statutory powers or duties. I have no doubt that, if possible, this would be most desirable. But I have found it quite impossible either to detect such principle in the wide range of authorities and academic writings to which we were referred or to devise any such principle de novo. The truth of the matter is that statutory duties now exist over such a wide range of diverse activities and take so many different forms that no one principle is capable of being formulated applicable to all cases. However, in my view it is possible in considering the problems raised by these particular appeals to identify certain points which are of significance.

(1) Co-existence of statutory duty and common law duty of care

It is clear that a common law duty of care may arise in the performance of statutory functions. But a broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; and (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice.

An example of (a) in the educational field would be a decision whether or not to exercise a statutory discretion to close a school, being a decision which necessarily involves the exercise of a discretion. An example of (b) would be the actual running of a school pursuant to the statutory duties. In such latter case a common law duty to take reasonable care for the physical safety of the pupils will arise. The fact that the school is being run pursuant to a statutory duty is not necessarily incompatible with a common law duty of care arising from the proximate relationship between a school and the pupils it has agreed to accept. The distinction is between (a) taking care in exercising a statutory discretion whether or not to do an act and (b) having decided to do that act, taking care in the manner in which you do it.

(2) Discretion, justiciability and the policy/operational test

(a) Discretion

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.

That this is the law is established by the decision in the Dorset Yacht case and by that part of the decision in Anns v Merton London Borough [1977] 2 All ER 492, [1978] AC 728 which, so far as I am aware, has largely escaped criticism in later decisions. In the Dorset Yacht case [1970] 2 All ER 294 at 301, [1970] AC 1004 at 1031 Lord Reid said:

‘Where Parliament confers a discretion the position is not the same. Then there may, and almost certainly will, be errors of judgment in exercising such a discretion and Parliament cannot have intended that members of the public should be entitled to sue in respect of such errors. But there must come a stage when the discretion is exercised so carelessly or unreasonably that there has been no real exercise of the discretion which Parliament has conferred. The person purporting to exercise his discretion has acted in abuse or excess of his power. Parliament cannot be supposed to have granted immunity to persons who do that.’

(See also [1970] 2 All ER 294 at 306, [1970] AC 1004 at 1037 per Lord Morris.)

Lord Diplock, as I have said, took a rather different line, making it a condition precedent to any common law duty arising that the decision impugned should be shown to be ultra vires in the public law sense. For myself, I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence. In public law a decision can be ultra vires for reasons other than Wednesbury unreasonableness (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, [1948] 1 KB 223) (e g breach of the rules of natural justice) which have no relevance to the question of negligence. Moreover, it leads, in my judgment mistakenly, to the contention that claims for damages for negligence in the exercise of statutory powers should for procedural purposes be classified as public law claims and therefore, under O’Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, should be brought in judicial review proceedings: see Lonrho plc v Tebbit [1992] 4 All ER 280. However, although I consider that the public law doctrine of ultra vires has, as such, no role to play in the subject under discussion, the remarks of Lord Diplock were plainly directed to the fact that the exercise of a statutory discretion cannot be impugned unless it is so unreasonable that it falls altogether outside the ambit of the statutory discretion. He said ([1970] 2 All ER 294 at 332, [1970] AC 1004 at 1068):

‘These considerations lead me to the conclusion that neither the intentional release of a borstal trainee under supervision, nor the unintended escape of a borstal trainee still under detention which was the consequence of the application of a system of relaxed control intentionally adopted by the Home Office as conducive to the reformation of trainees, can have been intended by Parliament to give rise to any cause of action on the part of any private citizen unless the system adopted was so unrelated to any purpose of reformation that no reasonable person could have reached a bona fide conclusion that it was conducive to that purpose. Only then would the decision to adopt it be ultra vires in public law.’

Exactly the same approach was adopted by Lord Wilberforce in Anns v Merton London Borough [1977] 2 All ER 492 at 501, [1978] AC 728 at 755, when, speaking of the duty of a local authority which had in fact inspected a building under construction, he said:

‘But this duty, heavily operational though it may be, is still a duty arising under the statute. There may be a discretionary element in its exercise, discretionary as to the time and manner of inspection, and the techniques to be used. A plaintiff complaining of negligence must prove, the burden being on him, that action taken was not within the limits of a discretion bona fide exercised, before he can begin to rely on a common law duty of care.’

It follows that in seeking to establish that a local authority is liable at common law for negligence in the exercise of a discretion conferred by statute, the first requirement is to show that the decision was outside the ambit of the discretion altogether: if it was not, a local authority cannot itself be in breach of any duty of care owed to the plaintiff.

In deciding whether or not this requirement is satisfied, the court has to assess the relevant factors taken into account by the authority in exercising the discretion. Since what are under consideration are discretionary powers conferred on public bodies for public purposes the relevant factors will often include policy matters, for example social policy, the allocation of finite financial resources between the different calls made upon them or (as in the Dorset Yacht case) the balance between pursuing desirable social aims as against the risk to the public inherent in so doing. It is established that the courts cannot enter upon the assessment of such ‘policy’ matters. The difficulty is to identify in any particular case whether or not the decision in question is a ‘policy’ decision.

(b) Justiciability and the policy/operational dichotomy

In English law the first attempt to lay down the principles applicable in deciding whether or not a decision was one of policy was made by Lord Wilberforce in Anns v Merton London Borough [1977] 2 All ER 492 at 500, [1978] AC 728 at 754:

‘Most, indeed probably all, statutes relating to public authorities or public bodies, contain in them a large area of policy. The courts call this “discretion”, meaning that the decision is one for the authority or body to make, and not for the courts. Many statutes, also, prescribe or at least pre- suppose the practical execution of policy decisions: a convenient description of this is to say that in addition to the area of policy or discretion, there is an operational area. Although this distinction between the policy area and the operational area is convenient, and illuminating, it is probably a distinction of degree; many “operational” powers or duties have in them some element of “discretion”. It can safely be said that the more “operational” a power or duty may be, the easier it is to superimpose on it a common law duty of care.’

As Lord Wilberforce appreciated, this approach did not provide a hard and fast test as to those matters which were open to the court’s decision. In Rowling v Takaro Properties Ltd [1988] 1 All ER 163, [1988] AC 473 the Privy Council reverted to the problem. In that case the trial judge had found difficulty in applying the policy/operational test, but having classified the decision in question as being operational, took the view that as a result there was a common law duty of care. Commenting on the judge’s view, Lord Keith of Kinkel said ([1988] 1 All ER 163 at 172, [1988] AC 473 at 501):

‘Their Lordships feel considerable sympathy with Quilliam J’s difficulty in solving the problem by reference to this distinction. They are well aware of the references in the literature to this distinction (which appears to have originated in the United States of America) and of the critical analysis to which it has been subjected. They incline to the opinion, expressed in the literature, that this distinction does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks (see especially the discussion in Craig Administrative Law (1983) pp 534-538). If this is right, classification of the relevant decision as a policy or planning decision in this sense may exclude liability; but a conclusion that it does not fall within that category does not, in their Lordships’ opinion, mean that a duty of care will necessarily exist.’ (My emphasis.)

From these authorities I understand the applicable principles to be as follows. Where Parliament has conferred a statutory discretion on a public authority, it is for that authority, not for the courts, to exercise the discretion: nothing which the authority does within the ambit of the discretion can be actionable at common law. If the decision complained of falls outside the statutory discretion, it can (but not necessarily will) give rise to common law liability. However, if the factors relevant to the exercise of the discretion include matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion. Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist.

(3) If justiciable, the ordinary principles of negligence apply

If the plaintiff ‘s complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in the practical manner in which that act has been performed (e g the running of a school) the question whether or not there is a common law duty of care falls to be decided by applying the usual principles, i e those laid down in Caparo Industries plc v Dickman [1990] 1 All ER 568 at 573-574, [1990] 2 AC 605 at 617-618. Was the damage to the plaintiff reasonably foreseeable? Was the relationship between the plaintiff and the defendant sufficiently proximate? Is it just and reasonable to impose a duty of care? See Rowling v Takaro Properties Ltd and Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53.

However, the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done. The position is directly analogous to that in which a tortious duty of care owed by A to C can arise out of the performance by A of a contract between A and B. In Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506, [1994] 3 WLR 761 your Lordships held that A (the managing agent) who had contracted with B (the members’ agent) to render certain services for C (the names) came under a duty of care to C in the performance of those services. It is clear that any tortious duty of care owed to C in those circumstances could not be inconsistent with the duty owed in contract by A to B. Similarly, in my judgment, a common law duty of care cannot be imposed on a statutory duty if the observance of such common law duty of care 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 before the House, the local authorities are alleged to be under a direct duty of care to the plaintiff not only in relation to the exercise of a statutory discretion but also in relation to the operational way in which they performed that duty.

This allegation of a direct duty of care owed by the authority to the plaintiff is to be contrasted with those claims which are based on the vicarious liability of the local authority for the negligence of its servants, i e for the breach of a duty of care owed by the servant to the plaintiff, the authority itself not being under any relevant duty of care to the plaintiff. Thus, in the Newham case the plaintiffs’ claim is wholly based on allegations that two professionals, a social worker and a psychiatrist, individually owed professional duties of care to the plaintiff for the breach of which the authorities as their employers are vicariously liable. It is not alleged that the authorities were themselves under a duty of care to the plaintiff.

This distinction between direct and vicarious liability can be important since the authority may not be under a direct duty of care at all or the extent of the duty of care owed directly by the authority to the plaintiff may well differ from that owed by a professional to a patient. However, it is important not to lose sight of the fact that, even in the absence of a claim based on vicarious liability, an authority under a direct duty of care to the plaintiff will be liable for the negligent acts or omissions of its servant which constitute a breach of that direct duty. The authority can only act through its servants.

The position can be illustrated by reference to the hospital cases. It is established that those conducting a hospital are under a direct duty of care to those admitted as patients to the hospital (I express no view as to the extent of that duty). They are liable for the negligent acts of a member of the hospital staff which constitute a breach of that duty, whether or not the member of the staff is himself in breach of a separate duty of care owed by him to the plaintiff: see Gold v Essex CC [1942] 2 All ER 237 at 241, [1942] 2 KB 293 at 301 per Lord Green, Cassidy v Ministry of Health [1951] 1 All ER 574 at 584, [1951] 2 KB 343 at 359 per Denning LJ and Roe v Ministry of Health [1954] 2 All ER 131, [1954] 2 QB 66; see also Wilsons and Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57 and McDermid v Nash Dredging and Reclamation Co Ltd [1987] 2 All ER 878, [1987] AC 906. Therefore in the cases under appeal, even where there is no allegation of a separate duty of care owed by a servant of the authority to the plaintiff, the negligent acts of that servant are capable of constituting a breach of the duty of care (if any) owed directly by the authority to the plaintiff.

Summary

In accordance with the principles I have discussed, I propose to approach each of these cases as follows. I will consider first (if such claim is advanced) whether the statutory provisions by themselves give rise to a private law claim in damages (category (A)). I will turn then to consider whether in each case there is a common law duty of care owed to the plaintiff. I will consider the following matters in turn, to the extent that they are relied upon.

(1) Direct duty of care owed by the local authority

(a) Is the negligence relied upon negligence in the exercise of a statutory discretion involving policy considerations: if so the claim will pro tanto fail as being non-justiciable; (b) were the acts alleged to give rise to the cause of action within the ambit of the discretion conferred on the local authority; if not, (c) is it appropriate to impose on the local authority a common law duty of care.

(2) Vicarious liability of the local authority

(a) Is 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; if so, (b) is it appropriate to impose on the servant the duty of care alleged.

STRIKING OUT

In all these cases the defendants are seeking to strike out the claims at an early stage, before discovery has taken place and before the facts are known. It is therefore necessary to proceed on the basis that the facts alleged in the various statements of claim are true. It must be stressed that these allegations are not admitted by the defendants.

Actions can only be struck out under RSC Ord 18, r 19 where it is clear and obvious that in law the claim cannot succeed. Where the law is not settled but is in a state of development (as in the present cases) it is normally inappropriate to decide novel questions on hypothetical facts. But I agree with Sir Thomas Bingham MR ([1994] 4 All ER 640 at 649, [1994] 3 WLR 853 at 865) that there is nothing inappropriate in deciding on these applications whether the statutes in question confer private law rights of action for damages: the answer to that question depends upon the construction of the statutes alone.

Much more difficult is the question whether it is appropriate to decide the question whether there is a common law duty of care in these cases. There may be cases (and in my view the child abuse cases fall into this category) where it is evident that, whatever the facts, no common law duty of care can exist. But in other cases the relevant facts are not known at this stage. For example, in considering the question whether or not a discretionary decision is justiciable, the answer will often depend on the exact nature of the decision taken and the factors relevant to it. Evidence as to those matters can only come from the defendants and is not presently before the court. I again agree with Sir Thomas Bingham MR that if, on the facts alleged in the statement of claim, it is not possible to give a certain answer whether in law the claim is maintainable, then it is not appropriate to strike out the claim at a preliminary stage but the matter must go to trial when the relevant facts will be discovered.

THE ABUSE CASES

The facts — the Bedfordshire case

I gratefully adopt Sir Thomas Bingham MR’s summary of the allegations made in the statement of claim, the truth of which has to be assumed for the purposes of the present appeal. The plaintiffs are five children of the same parents who sue by the Official Solicitor as their next friend. The eldest child was born in October 1982 and the youngest in May 1990. The only defendant is the county council which is sued as the local authority responsible for social services in the area where the children lived. The facts pleaded fall into various periods. The first runs from November 1987 to December 1989. During this period reports about these children were made to the county council by relatives, neighbours, the police, the family’s general practitioner, the head teacher of the school which the two older children attended, the National Society for the Prevention of Cruelty to Children (the NSPCC), a social worker and a health visitor. The reports were to the effect that the children were at risk, including the risk of sexual abuse; the children were locked out of the house for long periods of time with the oldest child (aged five) supervising the next two (aged three and two); the third child was observed to have an abrasion which could have been caused by cigarette burns with the oldest child being found to be pale, depressed, pathetic and possibly hungry; the children’s bedroom had been found to be squalid and to have faeces smeared on the walls; their home was in a disgusting state, with the second and third children’s beds sodden with urine; the two older children attended school looking dishevelled and smelly; there was concern for the children’s emotional well-being. In December 1989 the county council rejected a health visitor’s recommendation that the first four children be placed on the child protection register. No case conference was held.

The second period runs from March 1990 to January 1991. During this period reports of a similar kind were made to the county council. A case conference was held in January 1991. It was decided not to place any of the children on the child protection register and not to apply for any court orders.

The third period began in July 1991 when the children’s father asked the county council to take the children into care for adoption, a suggestion he made again in May 1992. The county council took no action. For nine days in August 1991 the three older children were placed on their mother’s application with foster parents who found them dirty, underfed and with poor personal hygiene. In September 1991 the county council was told the condition of the second and third children’s bedroom had deteriorated further; that the children were said to have been locked outside the family home and to have screamed constantly; that the children were left in their bedrooms for long periods and smeared faeces on the windows; and that the second, third and fourth of the children had been seen stealing food. No action was taken save that respite care was recommended to assist the mother. In November 1991 the mother asked the county council to accommodate the three older children: the county council offered her short term respite care. On their mother’s application, the three older children spent much of the early months of 1992 with foster parents with whom they gained in weight. In March 1992 the county council considered the results of this foster placement and respite care and monitoring were recommended. In April 1992 the mother asked the county council to remove the second and third children from her care and place them for adoption. In June 1992 the mother told the county council that if the children were not removed from her care she would batter them. As a result the county council placed the children with foster parents. On 22 June 1992 the children were placed on the child protection register but the county council took no steps to seek care orders. The county council did accept that the children should not return to live with their parents. In October 1992 the county council decided to seek care orders and took steps to that end. As a result interim care orders were made in December 1992 and final orders in April 1993. It is fair to add that the children’s plight was not being ignored. The statement of claim refers to no less than 13 meetings held to discuss their position.

In June 1993 the five children launched these proceedings. The county council applied to strike out the proceedings and, on 12 November 1993, Turner J struck them out.

The facts — the Newham case

The first plaintiff in this action is a girl born in January 1983. The second plaintiff is her mother, who was 17 when the child was born. There was origin- ally a third plaintiff in the action who lived with the mother and is the father of another of her children, although not of the child. I will call him XY. There are three defendants. The first, the borough council, is the local authority with responsibility for child care services in the area. The second is the local health authority. The third is a consultant child psychiatrist employed by the health authority.

Between 1984 and 1986 the mother and the child had dealings with the local authority’s social services department and the health authority. Concern was expressed that the child had been sexually abused. In June 1987 a social worker employed by the local authority visited the mother’s home and obtained details of her situation including the fact that XY was the mother’s current boyfriend. The social worker reported his findings to a case conference which decided to place the child on the child protection register. In 1987 the child’s doctor expressed concern that she might be the subject of sexual abuse. An appointment was made for the child to be examined by a psychiatrist to ascertain whether the child had been sexually abused and, if she had, the identity of the abuser. This interview took place on 13 November 1987.

The child was interviewed by the psychiatrist in the presence of the social worker. The mother was not present but was in an adjoining room. The interview was recorded on videotape. It is pleaded that the social worker and/or the psychiatrist concluded that the child had been sexually abused and that XY (the mother’s boyfriend) was the abuser. This identification was based on the child indicating that the first name of the abuser was ‘X’, which was the first name of XY. The fact was that the child was referring not to XY as the abuser but to a cousin with the same first name who had previously lived at the mother’s address. It is alleged that, had the psychiatrist and the social worker taken the full history of the mother’s domestic circumstances, they would have discovered that XY was not the abuser and that the abuser was no longer living at the mother’s home. At the end of the interview the mother was told by the psychiatrist and social worker that the child had been sexually abused and that XY was the abuser. The mother asked the child privately if XY had abused her. The child said he had not. The mother told the social worker of this denial but the social worker and the psychiatrist wrongly took this as an attempt to persuade the child to retract the allegation which they understood her to have made.

The doctor and the social worker concluded that the mother would be unable to protect the child against further abuse by XY. The mother was not asked if she was willing to require XY to leave her home. On the same day, 13 November 1987, the local authority applied for a place of safety order and an order for 28 days was made by the Newham justices.

The mother excluded XY and all other men from her home and on the 24 November applied to Anthony Lincoln J for the child to be made a ward of court and for her to be given care and control. In accordance with the local authority recommendation, the judge ordered that the child be made a ward of court, the local authority be granted care and control, that the child should not return home and the mother’s access be limited, such order to remain in force until further order. The child was placed with foster parents. In December, another judge continued the existing arrangement.

Up to this time the mother had not seen the video recording or read the transcript of the interview on 13 November 1987. At a later stage she did obtain a sight of the transcript from which it was apparent that the child had not identified XY as the abuser and that there was not sufficient evidence to support that conclusion. The local authority was informed and shortly thereafter confirmed that it no longer suspected XY of having sexually abused the child. On 21 November 1988 Anthony Lincoln J made an order under which the child was to be reunited with her mother and with XY. The child was returned to her mother. The child and the mother had been separated for almost a year.

The child and the mother make many allegations of negligence against the defendants, the central allegation being that the social worker and the psychiatrist failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the mother. The child and the mother claim that as a result of their enforced separation each of them has suffered a positive psychiatric disorder diagnosed as anxiety neurosis.

The proceedings were started in November 1990. After amendment, on 19 November 1992 Master Topley struck out the amended statement of claim. Judge Phelan, sitting as a judge of the High Court in the Queen’s Bench Division, dismissed the appeal of the child and the mother on 17 March 1993.

The decision in the Court of Appeal

The appeals against the judges’ decisions in both child abuse cases were heard together by the Court of Appeal (Sir Thomas Bingham MR, Staughton and Peter Gibson LJJ) ([1994] 4 All ER 602, [1994] 2 WLR 554). Shortly stated, the Court of Appeal were unanimous in striking out claims based on breach of statutory duty simpliciter (category (A) above) but were divided on the issue whether the local authorities and (in the Newham case) the psychiatrist and the health authority were under any duty of care whether direct or vicarious (category (C) above). Staughton and Peter Gibson LJJ held that there was no common law duty owed either to the child or the mother. Sir Thomas Bingham MR, whilst agreeing that the mother’s claim could not succeed, thought there could be a duty of care to the children.

The statutory provisions

Since 1932 there has been legislation designed by Parliament to provide protection for children in need of care and protection. The first statute directly relied upon in the abuse cases is the Children and Young Persons Act 1969. Section 1 provided that a court could make a care order in care proceedings if satisfied, inter alia, that the child was being neglected or ill treated. Under s 2(1) a duty was imposed on the local authority which received information ‘suggesting that there are grounds for bringing care proceedings’ to cause inquiries to be made. Section 2(2) provided:

‘If it appears to a local authority that there are grounds for bringing care proceedings in respect of a child or young person who resides or is found in their area, it shall be the duty of the authority to exercise their power under the preceding section to bring care proceedings in respect of him . . .’

Sections 1 and 2 of the Child Care Act 1980 provided, so far as relevant:

‘1. — (1) It shall be the duty of every local authority to make available such advice, guidance and assistance as may promote the welfare of children by diminishing the need to receive children into or keep them in care under this Act or to bring children before a juvenile court . . .

2. — (1) Where it appears to a local authority with respect to a child in their area appearing to them to be under the age of seventeen . . . (b) that his parents . . . are, for the time being or permanently, prevented by reason of mental or bodily disease or infirmity or other incapacity or any other circumstances from providing for his proper accommodation, maintenance and upbringing; and (c) in either case, that the intervention of the local authority under this section is necessary in the interests of the welfare of the child, it shall be the duty of the local authority to receive the child into their care under this section.’

Section 76(1)(a) gave the Secretary of State power to direct an inquiry in relation to the child care services. Those were the only directly relevant statutory duties in force during the events complained of in the Newham case.

The Children Act 1989 came into force on 14 October 1991 and is therefore relevant in relation to the later stages of the Bedfordshire case. Part III of the Act includes s 17(1) and (2), which provides as follows:

‘(1) It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part) — (a) to safeguard and promote the welfare of children within their area who are in need; and (b) so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

(2) For the purpose principally of facilitating the discharge of their duty under this section, every local authority shall have the specific duties and powers set out in Part I of Schedule 2.’

Paragraphs 1(1) and 4(1) of Pt I of Sch 2 provide:

‘1. — (1) Every local authority shall take reasonable steps to identify the extent to which there are children in need within their area.

4. — (1) Every local authority shall take reasonable steps, through the provision of services under Part III of this Act, to prevent children within their area suffering ill-treatment or neglect.’

Part III of the Act includes s 20 (1), which provides:

‘Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of . . . (c) the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.’

In Pt V of the Act, s 47(1) and (8) provides:

‘(1) Where a local authority . . . (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such inquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.

(8) Where, as a result of complying with this section, a local authority conclude that they should take action to safeguard or promote the child’s welfare they shall take that action (so far as it is both within their power and reasonably practicable for them to do so).’

Amongst the steps the local authority can take to safeguard the child’s welfare is to apply to the court for a care order under s 31. If a care order is made, the local authority is under a duty to receive the child into its care.

Since 1 April 1991 there has been a statutory complaints procedure applicable to these provisions. Under s 7(B) of the Local Authority Social Services Act 1970 (as inserted by s 50 of the National Health Service and Community Care Act 1990) provision was made for the Secretary of State to require, as from 1 April 1991, the local authority to establish a complaints procedure in accordance with his directions. This power was exercised by the Local Authority Social Services (Complaints Procedure) Order 1990, SI 1990/2244, which came into force on 1 April 1991. Under that procedure, complaints can be brought relating to all the local authorities duties under the Children Act 1989. In addition, s 26 (3) of the 1989 Act contains a provision requiring the local authority to establish a complaints procedure relating to its function under Pt III of the Act. Therefore since 1 April 1991 there have in effect been statutory complaints procedures applicable to all the local authorities functions under the 1989 Act.

In the course of the argument before your Lordships an additional factor emerged which was not drawn to the attention of the Court of Appeal. Section 7 of the Local Authority Social Services Act 1970 provides:

‘(1) Local authorities shall, in the exercise of their social services functions, including the exercise of any discretion conferred by any relevant enactment, act under the general guidance of the Secretary of State . . .’

As from 1 April 1991, the 1970 Act was amended by s 50 of the National Health Service and Community Care Act 1990 to include a new s 7A, which provides:

‘(1) Without prejudice to section 7 of this Act, every local authority shall exercise their social services functions in accordance with such directions as may be given to them under this section by the Secretary of State . . .’

‘Social services functions’ include the child welfare functions of a local authority.

The Secretary of State has given relevant guidance under these provisions in the form of a publication called Working Together under the Children Act 1989 (1991). The latest edition is directed to the 1989 Act procedures. An earlier (1988) edition is similar though less precise. As its title suggests, the guidance (which has statutory force) emphasises the importance in this field of inter-disciplinary and inter-agency links and the need for a close working relationship between ‘social service departments, the police service, medical practitioners, community health workers, the education service and others who share a common aim to protect the child at risk’. The central supervising body in each area is the Area Child Protection Committee (the ACPC) on which all the interested agencies are represented. The ACPC is responsible for establishing and monitoring procedures. The child protection conference is an essential stage in each individual case. It brings together the professionals involved in that case and the family. It decides whether a child should be put on the child protection register and makes recommendations for action.

The claim for breach of statutory duty: category (A)

The Court of Appeal were unanimous in striking out these claims in both actions. I agree. My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. Decisions often have to be taken on the basis of inadequate and disputed facts. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

It is true that the legislation was introduced primarily for the protection of a limited class, namely children at risk, and that until April 1991 the legislation itself contained only limited machinery for enforcing the statutory duties imposed. But in my view those are the only pointers in favour of imputing to Parliament an intention to create a private law cause of action. When one turns to the actual words used in the primary legislation to create the statutory duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.

Thus, the duty imposed by s 2(2) of the 1969 Act to bring care proceedings is made conditional upon the subjective judgment of the local authority that there are grounds for so doing. Similarly, the duty to receive a child into care under s 2(1) of the 1980 Act only arises ‘where it appears to a local authority’ that the parents are prevented from providing properly for the child and that its intervention is necessary in the interest of the child. So far as the 1989 Act is concerned, the duty relied on in s 17 is described as ‘a general duty’ which has two parts: (a) to safeguard the children and (b) ‘so far as is consistent’ with (a) to promote the upbringing of the children by their families. Thus not only is the duty not a specific one but the section itself points out the basic tension which lies at the root of so much child protection work: the decision whether to split the family in order to protect the child. I find it impossible to construe such a statutory provision as demonstrating an intention that even where there is no carelessness by the authority it should be liable in damages if a court subsequently decided with hindsight that the removal, or failure to remove, the child from the family either was or was not ‘consistent with’ the duty to safeguard the child.

All the duties imported by Sch 2 to the 1989 Act are to ‘take reasonable steps’ to do certain things. The duty to make inquiries under s 47 is limited to ‘such inquiries as they consider necessary’. Thus all the statutory provisions relied upon in the Bedfordshire case are, as one would expect, made dependent upon the subjective judgment of the local authority. To treat such duties as being more than public law duties is impossible.

The decision in Thornton v Kirklees Metropolitan BC [1979] 2 All ER 349, [1979] QB 626 was relied upon as showing that a statute can create a private law cause of action for damages for breach of a statutory duty even if the duty is dependent upon the defendant having first formed a subjective belief. That decision is in some respects a puzzling one and may need to be reconsidered at some future date: see Cocks v Thanet DC [1982] 3 All ER 1135, [1983] 2 AC 286. It is sufficient to say that it has no application to the present case since in that case it was conceded by the defendants that the condition precedent to the creation of the statutory duty (i e the formation of the belief) had been satisfied and that a legal duty was owed to the plaintiff as an individual (see [1979] 2 All ER 349 at 357, 354, [1979] QB 626 at 643, 638).

In the Newham case, the claim by the plaintiffs for damages for breach of statutory duty (category (A)) was founded solely on ss 1 and 18 of the 1980 Act: the 1989 Act was not in force at the relevant time. The claim was only faintly pursued by Mr Munby and, for the reasons given by Peter Gibson LJ in the Court of Appeal ([1994] 4 All ER 602 at 632, [1994] 2 WLR 554 at 590), in my judgment it is ill-founded.

For these reasons (which are in substance the same as those of the Court of Appeal), the claims in both abuse cases to the extent that they are based on a claim for damages for breach of statutory duty simpliciter were rightly struck out.

Direct common law duty of care owed by the local authorities

In the Newham case it is not alleged that the borough council was under any direct duty of care to the plaintiffs: the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants.

In the Bedfordshire case Mr Jackson QC formulated the common law duty of care owed by the county council as being ‘a duty to children in respect of whom they receive reports of neglect or ill-treatment to take reasonable care to protect such children’. The first question is whether the determination by the court of the question whether there has been a breach of that duty will involve unjusticiable policy questions. The alleged breaches of that duty relate for the most part to the failure to take reasonable practical steps, e g to remove the children, to allocate a suitable social worker or to make proper investigations. The assessment by the court of such allegations would not require the court to consider policy matters which are not justiciable. They do not necessarily involve any question of the allocation of resources or the determination of general policy. There are other allegations the investigation of which by a court might require the weighing of policy factors, e g allegations that the county council failed to provide a level of service appropriate to the plaintiffs’ needs. If the case were to go to trial, the trial judge might have to rule out these issues as not being justiciable. But since some of the allegations are justiciable, it would not be right to strike out the whole claim on this ground. Next, do the allegations of breach of duty in the operational field all relate to decisions the power to make which Parliament has conferred on the local authority, i e are they all decisions within the ambit of the local authority’s statutory discretion?

I strongly suspect that, if the case were to go to trial, it would eventually fail on this ground since, in essence, the complaint is that the local authority failed to take steps to remove the children from the care of their mother, i e negligently failed properly to exercise a discretion which Parliament has conferred on the local authority. But again, it would not be right to strike out the claim on this ground because it is possible that the plaintiffs might be able to demonstrate at trial that the decisions of the local authority were so unreasonable that no reasonable local authority could have reached them and therefore, for the reasons given by Lord Reid in Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294 at 300, [1970] AC 1004 at 1031, fall outside the ambit of the discretion conferred by Parliament.

I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo Industries plc v Dickman [1990] 1 All ER 568, [1990] 2 AC 605, the local authority in the Bedfordshire case owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority and the plaintiffs is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances. It was submitted that this third requirement is only applicable in cases where the plaintiff ‘s claim is for pure economic loss and that it does not apply where, as in the child abuse cases, the claim is for physical damage. I reject this submission: although Caparo and many other of the more recent cases were decisions where only pure economic loss was claimed, the same basic principles apply to claims for physical damage and were applied in, for example, Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238, [1989] AC 53.

Is it, then, just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties to protect children? In my judgment it is not. Sir Thomas Bingham MR took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter-considerations are required to override that policy (see [1994] 4 All ER 602 at 619, [1994] 2 WLR 554 at 572). However, in my judgment there are such considerations in this case.

First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in the HMSO booklet Working Together the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the child protection conference, a multi-disciplinary body which decides whether to place the child on the child protection register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of Working Together runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent.

Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment: see e g s 17 of the 1989 Act. In one of the child abuse cases, the local authority is blamed for removing the child precipitately: in the other, for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cm 412) (the Cleveland Report) said (p 244):

‘It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’

Next, if a liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay: the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children.

The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored.

If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in s 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated, though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities’ ombudsman would have power to investigate cases such as these.

Finally, your Lordships’ decision in Caparo v Dickman lays down that, in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretions and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealings who are seeking to protect investors from dishonesty. In neither of those cases has it been thought appropriate to superimpose on the statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer: see Hill v Chief Constable of West Yorkshire and Yuen Kun-yeu v A-G of Hong Kong [1987] 2 All ER 705, [1988] AC 175. In the latter case, the Privy Council whilst not deciding the point said that there was much force in the argument that if the regulators had been held liable in that case the principles leading to such liability —

‘would surely be equally applicable to a wide range of regulatory agencies, not only in the financial field, but also, for example, to the factory inspectorate and social workers, to name only a few.’ (See [1987] 2 All ER 705 at 715-716, [1988] AC 175 at 198.)

In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrongdoings of others.

Vicarious liability

In the Newham case the pleadings and Mr Munby’s submissions make it quite clear how the case is put. The social worker and the psychiatrist, as professionals, each owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper inquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers (the borough council in the case of the social worker, the health authority in the case of the psychiatrist) are vicariously liable.

In the Bedfordshire case the position is less clear. As I read the pleadings they allege only a direct duty of care owed by the county council to the plaintiffs and breaches of that duty of care by the council: the particulars of such breach by the council are described as failures by ‘the defendants, their servants or agents’. There is no pleading of a separate duty of care owed by one or more of the servants or agents of the council, for which the council is vicariously liable. On a strict reading, this is only a pleading of breach by the county council of its duty of care, such breach being committed by the servants or agents. Since, in my judgment, the county council itself owed no duty of care, that claim must fail. However, this point was not taken by the county council, presumably because they adopted the sensible view that it could be cured by amendment. In the argument before the House it was therefore common ground that the plaintiffs’ case could be founded on vicarious liability of the county council for breach by a member of its staff of a professional duty of care owed by such a professional to the plaintiffs.

The claim based on vicarious liability is attractive and simple. The normal duty of a doctor to exercise reasonable skill and care is well established as a common law duty of care. In my judgment, the same duty applies to any other person possessed of special skills, such as a social worker. It is said, rightly, that in general such professional duty of care is owed irrespective of contract and can arise even where the professional assumes to act for the plaintiff pursuant to a contract with a third party: see Henderson v Merrett Syndicates Ltd [1994] 3 All ER 506, [1994] 3 WLR 761 and White v Jones [1995] 1 All ER 691, [1995] 2 WLR 187. Therefore, it is said, it is nothing to the point that the social workers and psychiatrist only came into contact with the plaintiffs pursuant to contracts or arrangements made between the professionals and the local authority for the purpose of the discharge by the local authority of its statutory duties. Once brought into contact with the plaintiffs, the professionals owed a duty properly to exercise their professional skills in dealing with their ‘patients’, the plaintiffs. This duty involved the exercise of professional skills in investigating the circumstances of the plaintiffs and (in the Newham case) conducting the interview with the child. Moreover, since the professionals could foresee that negligent advice would damage the plaintiffs, they are liable to the plaintiffs for tendering such advice to the local authority.

Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child. Moreover, the tendering of any advice will in many cases involve interviewing and, in the case of doctors, examining the child. But the fact that the carrying out of the retainer involves contact with and a relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority. The Court of Appeal drew a correct analogy with the doctor instructed by an insurance company to examine an applicant for life insurance. The doctor does not, by examining the applicant, come under any general duty of medical care to the applicant. He is under a duty not to damage the applicant in the course of the examination: but beyond that his duties are owed to the insurance company and not to the applicant.

The position is not the same as in the case of the purchaser of property who is owed a duty of care by a surveyor instructed by the building society which is going to advance the money: see Smith v Eric S Bush [1989] 2 All ER 514, [1990] 1 AC 831. In such a case the surveyor is only liable to the purchaser in negligence because he is aware that the purchaser will regulate his (the purchaser’s) conduct by completing the purchase in reliance on the survey report. In the child abuse cases, even if the advice tendered by the professionals to the local authority comes to the knowledge of the child or his parents, they will not regulate their conduct in reliance on the report. The effect of the report will be reflected in the way in which the local authority acts.

Nor is the position the same as in Henderson v Merrett Syndicates Ltd, where, pursuant to a contract with the members’ agents, the managing agents under- took the management of the insurance business of the indirect Names. The managing agents were held to be under a tortious duty of care to the indirect Names, notwithstanding that the managing agents were operating under the terms of a contract with a third party. But the duty of care to the Names in that case arose from, and fell within the ambit of, the terms of the retainer contained in the contract between the managing agents and the members’ agents. The Names were not seeking to impose on the managing agents any obligation beyond that which the retainer itself required to be performed. So also in White v Jones.

In my judgment in the present cases, 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 plaintiff children. The professionals were employed or retained to advise the local authority in relation to the well-being of the plaintiffs but not to advise or treat the plaintiffs.

Sir Thomas Bingham MR in reaching the opposite conclusion relied on the decision in Everett (pauper) v Griffiths [1920] 3 KB 163; affd [1921] 1 AC 631. In that case a compulsory order for detention of a lunatic had been made under s 16 of the Lunacy Act 1891, a condition precedent to the making of the order being a certificate of incapacity signed by a doctor. The plaintiff, who had been the subject matter of an order under s 16, brought an action against the magistrate who made the order and the doctor who signed the certificate, alleging that the latter had given the certificate negligently. In the Court of Appeal, Atkin LJ expressed the view that the doctor in so certifying owed a duty of care to the plaintiff; Scrutton LJ expressed the contrary view. In the House of Lords, the case against the doctor was dismissed on the grounds that there was no evidence of any negligence. Therefore the question whether the doctor owed a duty of care was not decided. Viscount Haldane (at 657-658) and Viscount Cave (at 680) expressed the tentative view that there was a duty of care, but neither decided the point. I do not consider that this case provides any substantial support for the plaintiffs’ case.

Even if, contrary to my view, the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist.

For these reasons, in my judgment the professionals involved were under no separate duty of care to the plaintiffs for breach of which the local authorities could be vicariously liable.

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. This argument was upheld by the judge, but rejected by Sir Thomas Bingham MR and Staughton LJ in the Court of Appeal, Peter Gibson LJ expressing no view.

The facts relevant to this argument are as follows. The examination in which the psychiatrist diagnosed that the child had been sexually abused and reached the conclusion that XY was the abuser took place on 13 November 1987. On the same day, application was made to the magistrates’ court for a place of safety order. It is not established what evidence was placed before the magistrates but, since they made an immediate place of safety order, the only possible inference is that they were told of the conclusions reached by the psychiatrist. The wardship proceedings came before Anthony Lincoln J on 24 November: the evidence before him was a draft affirmation made by the social worker. This affirmation was not produced in evidence in these proceedings. But again the only possible inference is that the affirmation referred to the psychiatrist’s conclusions. On 3 December the psychiatrist made a formal report in writing. This report was produced to the judge on 8 December 1987 and the order made on that occasion recites that the report was read.

It is clear from this history that the Court of Appeal were under a misapprehension. They were under the impression that the psychiatrist’s opinion was not given in evidence at any stage and held that the law did not provide immunity to ‘those who have never become involved in the administration of justice’: see [1994] 4 All ER 602 at 617, [1994] 2 WLR 554 at 570. Apart from this factual misapprehension, in my judgment the Court of Appeal decision placed too narrow a limit on the principle of witness immunity.

The immunity of witnesses from any action founded on their evidence was originally designed to ensure in the public interest that witnesses would not, through fear of later civil proceedings, be inhibited from giving frank evidence in court. This immunity was widened by this House in Watson v M’Ewan,Watson v Jones [1905] AC 480, [1904-7] All ER Rep 1 to cover information and reports given by a potential witness to the legal advisers of a party for the purpose of preparing a proof.

In Evans v London Hospital Medical College [1981] 1 All ER 715, [1981] 1 WLR 184 Drake J held that the immunity extended to communications by the defendant to the Director of Public Prosecutions of the results of a post mortem investigation which they had been instructed to make for the purpose of possible criminal proceedings. Drake J distinguished the immunity enjoyed by witnesses from that enjoyed by barristers in court and said ([1981] 1 All ER 715 at 720, [1981] 1 WLR 184 at 191):

‘The immunity given to a witness or potential witness is because — “the administration of justice would be greatly impeded if witnesses were to be in fear that persons against whom they gave evidence might subsequently involve them in costly litigation”: see per Salmon J in Marrinan v Vibart [1962] 1 All ER 869 at 871, [1963] 1 QB 234 at 237. If this object is to be achieved I think it essential that the immunity given to a witness should also extend to cover statements he makes prior to the issue of a writ or commencement of a prosecution, provided that the statement is made for the purpose of a possible action or prosecution and at a time when a possible action or prosecution is being considered. In a large number of criminal cases the police have collected statements from witnesses before anyone is charged with an offence; indeed sometimes before it is known whether or not any criminal offence has been committed. If immunity did not extend to such statements it would mean that the immunity attaching to the giving of evidence in court or the formal statements made in preparation for the court hearing could easily be outflanked and rendered of little use. For the same reason I think that the immunity must extend also to the acts of the witness in collecting or considering material on which he may later be called to give evidence.’

My Lords, I find the reasoning of Drake J compelling at least in relation to the investigation and preparation of evidence in criminal proceedings. In my judgment exactly similar considerations apply where, in performance of a public duty, the local authority is investigating whether or not there is evidence on which to bring proceedings for the protection of the child from abuse, such abuse frequently being a criminal offence. I express no view as to the position in relation to ordinary civil proceedings but nothing I have said casts any doubt on the decision of Mr Simon Tuckey QC in Palmer v Durnford Ford (a firm) [1992] 2 All ER 122, [1992] QB 483.

In the present case, the psychiatrist was instructed to carry out the examination of the child for the specific purpose of discovering whether the child had been sexually abused and (if possible) the identity of the abuser. The psychiatrist must have known that, if such abuse were discovered, proceedings by the local authority for the protection of the child would ensue and that her findings would be the evidence on which those proceedings would be based. It follows in my judgment that such investigations having such an immediate link with possible proceedings in pursuance of a statutory duty cannot be made the basis of subsequent claims.

Although anyone would have great sympathy for the plaintiffs in both these cases (if the allegations which they make are true), for these reasons I agree with the Court of Appeal that they have no private law claim in damages. I would dismiss both appeals.

THE EDUCATION CASES

The legislation

Each of these three cases is brought against the local education authority alleging failures in their performance of their statutory duties under the Education Acts, in particular in relation to children with special educational needs. The relevant statutory provisions are to be found in the Education Acts 1944 and 1981 and regulations made thereunder.

The Education Act 1944

The Education Act 1944 was a development of the system of public education which had been established by statutes going back to 1870. The purpose of the 1944 Act is set out in s 7:

‘. . . it shall be the duty of the local education authority for every area, so far as their powers extend, to contribute towards the spiritual, moral, mental, and physical development of the community by securing that efficient education . . . shall be available to meet the needs of the population of their area.’

No claim is based on s 7. However, a claim is founded on s 8, which provides:

‘(1) It shall be the duty of every local education authority to secure that there shall be available for their area sufficient schools — (a) for providing primary education . . . (b) for providing secondary education . . . and the schools available for an area shall not be deemed to be sufficient unless they are sufficient in number, character, and equipment to afford for all pupils opportunities for education offering such variety of instruction and training as may be desirable in view of their different ages, abilities, and aptitudes, and of the different periods for which they may be expected to remain at school, including practical instruction and training appropriate to their respective needs.

(2) In fulfilling their duties under this section, a local education authority shall, in particular, have regard . . . (c) to the need for securing that provision is made for pupils who suffer from any disability of mind or body by providing, either in special schools or otherwise, special educational treatment, that is to say, education by special methods appropriate for persons suffering from that disability . . .’

Section 33(2) provides:

‘The arrangements made by a local education authority for the special educational treatment of pupils of any such category shall, so far as is practicable, provide for the education of pupils in whose case the disability is serious in special schools appropriate for that category, but where that is impracticable, or where the disability is not serious, the arrangements may provide for the giving of such education in any school maintained or assisted by the local education authority.’

Section 34(1) imposed on the local education authority a duty ‘to ascertain what children in their area require special educational treatment’ and to require the parents of the child to submit the child for examination by a medical officer of the authority for advice. Section 34(4) provides:

‘If, after considering the advice given with respect to any child by a medical officer in consequence of any such medical examination as aforesaid and any reports or information which the local education authority are able to obtain from teachers or other persons with respect to the ability and aptitude of the child, the authority decide that the child requires special educational treatment, they shall give to the parent notice of their decision and shall provide such treatment for the child.’

Section 36 imposed on the parent of every child of school age the duty ‘to cause him to receive efficient full-time education suitable to his age, ability, and aptitude, either by regular attendance at school or otherwise’.

Under s 68 the minister, if satisfied that the local education authority have acted or are proposing to act unreasonably with respect to the exercise of any power conferred or the performance of any duty imposed by or under that Act, can give such directions as to the exercise of the power or the performance of the duty as appears to him to be expedient. Under s 99 of the Act if the minister is satisfied that the local education authority have failed to discharge any duty imposed upon them by the Act can make an order declaring the authority to be in default and give directions for the purpose of enforcing the execution thereof.

The Education Act 1981

The 1981 Act was designed, inter alia, to achieve two major improvements. First, it was intended to ensure that special provision was made available for all children in need of it and detailed provisions were set out for the identification, assessment and education of such children. Second, the 1944 Act envisaged that pupils with special educational needs would be primarily educated in special schools: the 1981 Act was designed to ensure that, in appropriate cases, they were educated in ordinary schools but provided with specialised educational support.

Section 2(1) of the 1981 Act amended s 8(2)(c) of the 1944 Act so as to read:

‘(c) to the need for securing that special educational provision is made for pupils who have special educational needs . . .’

Section 2(2) and (3) provides:

‘(2) Where a local education authority arrange special educational provision for a child for whom they maintain a statement under section 7 of this Act it shall be the duty of the authority, if the conditions mentioned in subsection (3) below are satisfied, to secure that he is educated in an ordinary school.

(3) The conditions are that account has been taken, in accordance with section 7, of the views of the child’s parent and that educating the child in an ordinary school is compatible with — (a) his receiving the special educational provision that he requires; (b) the provision of efficient education for the children with whom he will be educated; and (c) the efficient use of resources.’

The provisions for identifying, assessing and ‘statementing’ children with special educational needs are dealt with in ss 4, 5 and 7. Section 4(1) deals with identification of the children with special needs. It provides:

‘It shall be the duty of every local education authority to exercise their powers under this Act with a view to securing that, of the children for whom they are responsible, those with special educational needs which call for the local education authority to determine the special educational provision that should be made for them are identified by the authority.’

The authority is responsible for a child who is in their area and is either registered at a school maintained by them or has been brought to their attention as potentially having special educational needs: s 4(2). Section 5 deals with the assessment of children so identified. It provides:

‘(1) Where, in the case of a child for whom a local education authority are responsible, the authority are of the opinion — (a) that he has special educational needs which call for the authority to determine the special educational provision that should be made for him; or (b) that he probably has such special educational needs; they shall make an assessment of his educational needs under this section . . .’

Before making an assessment, notice has to be given to the child’s parent of, inter alia, the parent’s right to make representations and submit evidence: s 5(3). Under s 5(4) the authority, after considering any such representations, ‘shall, if they consider it appropriate . . . assess the educational needs of the child concerned’. The authority has to give notice of any decision to make an assessment and of their reason for so deciding to the parent: s 5(5). If the authority decides not to determine special educational provision for the child, the parent has a right of appeal to the Secretary of State, on which appeal the Secretary of State may direct the authority to reconsider its decision: s 5(6) and (8).

If, having made the assessment, the authority decide that they should make the special educational provision for the child, they make a statement of the child’s special educational needs. This is provided for by s 7(1):

‘Where an assessment has been made in respect of a child under section 5, the local education authority who are responsible for the child shall, if they are of the opinion that they should determine the special educational provision that should be made for him, make a statement of his special educational needs and maintain that statement in accordance with the following provisions of this Act.’

The statement has to be in a form specified in Pt II of Sch 1 to the Act. It contains details of the special educational needs and specifies the special educational provision to be provided.

Before making the statement the authority has to serve a copy of the proposed statement on the parent together with a written explanation of the parent’s rights: s 7(4). If the parent disagrees with any part of the proposed statement he may make further representations to the authority and require the authority to arrange a meeting between him and an officer of the authority to discuss the statement: s 7(4). If after such meeting, the parent continues to disagree with any part of the assessment he can require meetings with the person or persons who gave relevant advice on the assessment to the local authority: s 7(5) and (6). If such representations have been made to the authority the authority has a choice whether to make the statement as originally proposed, or in a modified form or to determine not to make a statement at all: they have to notify the parent of their decision: s 7(8).

Under s 8, if the authority maintains a statement under s 7, there is a right of appeal against the special educational provision specified in the statement: the appeal committee can confirm the special educational provision specified in the statement or remit it to the local education authority for reconsideration, in which event the authority is bound to reconsider the recommendation and to inform the parent of their decision: s 8(4) and (5). There is a further right of appeal to the Secretary of State who can either confirm the provision specified in the statement, amend the special educational provision in the statement or direct the local education authority to cease to maintain the statement: s 8(7).

Section 9 confers on the parent of a child for whom no statement is maintained under s 7 the right to ask the authority to make an assessment and the authority is bound to comply with that request ‘unless it is in their opinion unreasonable’: s 9(1).

Under the Education (Special Educational Needs) Regulations 1983, SI 1983/29, reg 4 imposes a duty on an education authority, in making an assessment under the Act, to seek educational advice, medical advice, psychological advice and any other advice which the authority considers desirable. Under reg 5 the educational advice is to be sought from a qualified teacher who is, if the child has attended a school within the preceding 18 months, the head teacher of that school. Under reg 6 the medical advice has to be obtained from a qualified medical practitioner selected by a district health authority. Under reg 7 the psychological advice is to be sought from an educational psychologist employed by the education authority or from a person appointed, ad hoc, by the authority as an educational psychologist. The form of the statement to be made under s 7 is prescribed by the regulations: the statement must set out in the appendices the educational, medical and psychological advice which has been obtained by the authority.

The Dorset case

The facts

The plaintiff in this case attended Milton Abbas First School, a state primary school maintained by the appellant, the defendant authority. It is common ground that the plaintiff had specific learning difficulties causing him difficulties with literacy and numeracy, often called dyslexia.

On 6 July 1987, following a request for an assessment by his parents, the defendant authority issued and implemented a draft statement of special educational needs in respect of the plaintiff, naming his current school as the appropriate school for him. That statement became final on 22 December 1987. His parents were dissatisfied with the provisions proposed and decided that he should be placed at Edington School, a private, fee-paying, boarding school for children with dyslexia. The plaintiff went there in September 1987. His parents paid the fees.

The plaintiff ‘s parents appealed under s 8 of the 1981 Act. An appeal committee remitted the statement for reconsideration by the defendant authority, but expressly accepted that the plaintiff could be appropriately placed in an ordinary county school maintained by the defendant authority. On 2 September 1988 a revised statement was produced which named St Mary’s Church of England Middle School as the appropriate school. The parents appealed this revised statement to the Secretary of State who, on 29 January 1990, rejected that appeal.

On an application for judicial review of the decision by the Secretary of State, the revised statement was quashed by the High Court (Nolan J) (R v Secretary of State for Education and Science, ex p E (1991) 14 January, unreported) and the matter referred back to the Secretary of State for reconsideration. An appeal to the Court of Appeal (Balcombe, Woolf and Staughton LJJ) ([1992] 1 FLR 377) from that decision was dismissed on 8 May 1991.

On 22 July 1991 a further statement was made which named another maintained school chosen by the parents, Hardye’s School, Dorchester, as the appropriate school. The plaintiff is now at that school.

The plaintiff, by his statement of claim, claimed damages for breach of statutory duty and negligence. The claim in negligence was formulated in a number of alternative ways, viz (a) that the authority negligently failed to make a proper statement or make proper provision for his special educational needs as required by ss 2 and 7 of the 1981 Act; (b) that the authority provided a ‘psychology service’ which negligently advised the plaintiff ‘s parents, who relied on such advice; (c) that the psychologists and other officers employed by the authority owed a personal duty of care to use professional skill and care in their assessments and advice, for breach of which the authority is vicariously liable.

The claim was struck out by Otton J. The Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 853) heard all three education cases together. They held that the claim based on breach of statutory duty (category (A)) had been rightly struck out but held that the claim based in negligence was not manifestly bad and should not have been struck out. The plaintiff does not appeal to your Lordships against the dismissal of his claim based on breach of statutory duty. The defendant authority appeals against the Court of Appeal decision not to strike out the claim in negligence.

Common law duty of care — direct

As appears from the summary of the allegations given above, the plaintiff is alleging that the defendant authority is itself under two direct duties of care. The first ((a) above) is to perform carefully the statutory duties imposed on them by the 1981 Act. The second ((b) above) arises from the provision by the authority of a psychology service and the negligent advice given by that service.

As to the claim based on the negligent failure to comply with the statutory requirements of the 1981 Act, it is in essence a claim that the authority was negligent in the exercise of the statutory discretions conferred on the defendant authority by the 1981 Act. The claim cannot be struck out as being not justiciable. Although it is very improbable, it may be that the exercise of the statutory discretions involved in operating the special needs machinery of the 1981 Act involved policy decisions. The decision as to what should be included in the statement and what provision should be made is, by statute, a decision conferred on the defendant authority. Therefore, even if such decisions were made carelessly, the claim will fail unless the plaintiff can show that the decisions were so careless that no reasonable education authority could have reached them. Again, although it seems most improbable that this requirement can be satisfied, it is impossible to be certain until all the facts are known. Therefore the claim cannot be struck out at this stage on the grounds that it is not justiciable or the acts complained of fell within the statutory discretion.

The question, then, is whether it is right to superimpose on the statutory machinery for the investigation and treatment of the plaintiff ‘s special educational needs a duty of care to exercise the statutory discretions carefully? I find this a difficult question on which my views have changed from time to time. In favour of imposing a duty of care is the fact that it was plainly foreseeable that if the powers were exercised carelessly a child with special educational needs might be harmed in the sense that he would not obtain the advantage that the statutory provisions were designed to provide for him. Further, for the reasons that I have given, a common law duty of care in the exercise of statutory discretions can only arise in relation to an authority which has decided an issue so carelessly that no reasonable authority could have reached that decision. Why, it may be asked, should such a grossly delinquent authority escape liability? However, I have reached the conclusion that, powerful though those considerations may be, they are outweighed by other factors.

First, in relation to the special statutory duties imposed by ss 2, 4, 5 and 7 of the 1981 Act, the exercise of the discretions involves the close participation of the parents who are themselves under a duty to cause the child to receive ‘efficient full-time education suitable to his . . . ability, and aptitude’: s 36 of the 1944 Act. The parents are themselves involved in the process of decision-making and can appeal against decisions which they think to be erroneous. Although, in the Dorset case the parents availed themselves of all the advantages of the statutory machinery, in the generality of cases to allow either the parents (on behalf of the child) or the child, when he attains his majority, to bring a claim alleging negligence by the authority in the making of the decision would be to duplicate remedies. Although, in the present case this factor is not directly in point, if a duty of care is to be held to exist it must apply as much in relation to actions brought by a parent or child who has not used the statutory machinery as in the case of parents or a child who have.

Next, the number of cases which could successfully be brought for breach of such a duty of care would be very small since, as I have said, it would have to be shown that the decision impugned was taken so carelessly that no authority could have reached it. Yet, if a common law duty of care is held to exist, there is a very real risk that many hopeless (and possibly vexatious) cases will be brought, thereby exposing the authority to great expenditure of time and money in their defence. If there were no other remedy open, this is a price which might have to be paid in the interests of justice. But, in almost every case which could give rise to a claim for the negligent exercise of the statutory discretions, it is probable that, as in the present case, there will be an alternative remedy by way of a claim against the authority on the grounds of its vicarious liability for the negligent advice on the basis of which it exercises its discretion: as to which see below.

We were not referred to any category of case by analogy with which, in accordance with the Caparo principles, it would be right to impose a direct duty of care on the authority in the exercise of its statutory discretions. It was suggested that Ministry of Housing and Local Government v Sharp [1970] 1 All ER 1009, [1970] 2 QB 223 was such a case, but I cannot agree. In that case a most precise statutory duty was imposed to search the local land charges register and issue a certificate as to the entries on it. That statutory duty was imposed on the clerk to the authority as persona designata. A negligent search was conducted, not by the clerk himself, but by an employee of the authority. As a result a certificate was issued which failed to disclose an existing entry on the register. The claim was brought against the clerk personally for damages for breach of statutory duty (i e a category (A) claim) and against the authority as being vicariously liable for the breach of a common law duty of care owed by the employee who actually made the search. The claim against the clerk failed: the claim against the authority based on vicarious liability succeeded. That case is in no way analogous to the present. First, the statutory duty in question was mandatory and in no way discretionary. Second, the statutory duty was not imposed on the authority but on the clerk. Therefore the person under the statutory duty (the clerk) was not held liable either directly or vicariously for common law negligence. A third party (the authority) which was under no statutory duty was the only party held vicariously liable for the negligence of its employee.

In my judgment, as in the child abuse cases, the courts 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. The aim of the 1981 Act was to provide, for the benefit of society as a whole, an administrative machinery to help one disadvantaged section of society. The statute provides its own detailed machinery for securing that the statutory purpose is performed. If, despite the complex machinery for consultation and appeals contained in the Act, the scheme fails to provide the benefit intended that is a matter more appropriately remedied by way of the ombudsman looking into the administrative failure than by way of litigation.

For these reasons I reach the conclusion that an education authority owes no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the 1981 Act.

I turn then to the other duty of care which, it is alleged, the defendant authority owes directly to the plaintiff. There the position is wholly different. The claim is based on the fact that the authority is offering a service (psychological advice) to the public. True it is that, in the absence of a statutory power or duty, the authority could not offer such a service. But once the decision is taken to offer such a service, a statutory body is in general in the same position as any private individual or organisation holding itself out as offering such a service. By opening its doors to others to take advantage of the service offered, it comes under a duty of care to those using the service to exercise care in its conduct. The position is directly analogous with a hospital conducted, formerly by a local authority now by a health authority, in exercise of statutory powers. In such a case the authority running the hospital is under a duty to those whom it admits to exercise reasonable care in the way it runs it: see Gold v Essex CC [1942] 2 All ER 237, [1942] 2 KB 293.

For these reasons, I can see no ground on which it can be said at this stage that the defendant authority, in providing a psychology service, could not have come under a duty of care to the plaintiff who, through his parents, took advantage of that service. It may well be that when the facts are fully investigated at trial it may emerge that, for example, the alleged psychology service was merely part and parcel of the system established by the defendant authority for the discharge of its statutory duties under the 1981 Act. If so, it may be that the existence and scope of the direct duty owed by the defendant authority will have to be excluded or limited so as not to impede the due performance by the authority of its statutory duties. But at this stage it is impossible to say that the claim under this head must fail.

Common law duty of care — vicarious

The claim is that the educational psychologists and other members of the staff of the defendant authority owed a duty to use reasonable professional skill and care in the assessment and determination of the plaintiff ‘s educational needs. It is further alleged that the plaintiff ‘s parents relied on the advice of such professionals. The defendant authority is vicariously liable for any breach of such duties by their employees.

Again, I can see no ground for striking out this claim at least in relation to the educational psychologists. Psychologists hold themselves out as having special skills and they are, in my 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] 2 All ER 118, [1957] 1 WLR 582 will apply to them, i e they are only bound to exercise the ordinary skill of a competent psychologist and if they can show that they acted in accordance with the accepted views of some reputable psychologist at the relevant time they will have discharged the duty of care, even if other psychologists would have adopted a different view. In the context of advice on the treatment of dyslexia, a subject on which views have changed over the years, this may be an important factor. But that said, I can see no ground on which, at this stage, the existence of a professional duty of care can be ruled out. The position of other members of the defendant’s staff is not as clear, but I would not at this stage strike out the claims relating to them.

The position of the psychologists in the education cases is quite different from that of the doctor and social worker in the child abuse cases. There is no potential conflict of duty between the professional’s duties to the plaintiff and his duty to the educational authority. Nor is there any obvious conflict between the professional being under a duty of care to the plaintiff and the discharge by the authority of its statutory duties. If, at trial, it emerges that there are such conflicts, then the trial judge may have to limit or exclude any duty of care owed by the professional to the plaintiff. But at this stage no obvious conflict has been demonstrated.

Finally, the defendant authority submitted that the damage claimed, being the cost of providing alternative fee-paying education for the plaintiff, is not recoverable. In my view it is not appropriate to decide this point at the striking out stage: the matter will be better resolved at trial when the true facts are known.

My conclusion therefore in the Dorset case is that the defendant authority is under no liability at common law for the negligent exercise of the statutory discretions conferred on them by the Education Acts 1944 to 1981, but could be liable, both directly and vicariously, for negligence in the operation of the psychology service and negligent advice given by its officers.

The Hampshire case

The facts

Between 1978 and 1984 the plaintiff attended Binsted Church of England School, a primary school maintained by the defendant authority. At Binsted School the plaintiff manifested severe behavioural problems and learning difficulties, especially learning to read. His symptoms were consistent with the learning difficulty known as dyslexia. His parents expressed their concern to the headmaster and members of the teaching staff on numerous occasions and asked for advice and further investigation into the plaintiff ‘s condition. The head- master told the plaintiff ‘s parents that the plaintiff did not have any special learning difficulty.

Eventually, in about June 1984, the headmaster referred the plaintiff to the Mid-Hampshire Teachers’ Centre (an advisory service run by the defendant authority) for an assessment of the plaintiff ‘s learning difficulties. The headmaster reported to the plaintiff ‘s parents that ‘the advisory teacher felt that [the plaintiff] had no serious handicaps, but that it was mainly a question of a good deal of regular practice’. The plaintiff ‘s parents acted on this advice. The plaintiff completed his primary education in 1985 and his parents sent him to a private school which was not maintained by the defendant authority. His difficulties persisted and in 1988 the plaintiff ‘s parents asked the defendant authority to carry out an assessment of his special educational needs under s 5 of the 1981 Act. As a result a final statement of educational needs was drawn up on 30 August 1989 which concluded that the plaintiff was ‘significantly under- achieving in literacy and especially in terms of his spelling skills and accuracy’ which ‘may be regarded as a severe specific learning difficulty’. As a result special educational provision was recommended and provided by the defendant authority from January 1989.

By the statement of claim, the plaintiff claims that the defendant authority is vicariously liable for the negligence of the headmaster of Binsted School and the county advisory service. It is alleged that the headmaster was negligent in failing to refer the plaintiff either for formal assessment of his special educational needs or to an educational psychologist experienced in the field. The plaintiff alleges against the advisory service that it was negligent between June and July 1984 and 1985 in failing to ascertain that the plaintiff had a specific learning difficulty, failing to assess the nature of his learning difficulty, failing to diagnose dyslexia and failing to refer the plaintiff or advise his parents to refer him to an educational psychologist.

The statement of claim claims that as a result the plaintiff suffered injury because, if he had been correctly diagnosed and appropriate remedial treatment instituted, his behavioural problems would have been ameliorated. As a result the plaintiff had been disadvantaged in realising his potential and his vocational opportunities and prospects significantly restricted.

The plaintiff ‘s claim was struck out by Master Murray whose decision was upheld by Otton J on 7 April 1993. On 29 April 1994 the Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 853) allowed the plaintiff ‘s appeal and granted leave to appeal to your Lordships’ House.

In this case, unlike the other educational cases, the plaintiff ‘s claim is based solely on an allegation that the defendant authority is vicariously liable for the breaches of a duty of care owed by its employees, the headmaster and the members of the advisory service. The duty of care in no sense arises from the statutory machinery laid down by the 1981 Act; the negligence complained of has nothing to do with the 1981 Act; no complaint is made as to the statement made in January 1989 nor is there any allegation of any other failure to operate the statutory regime. The claim is a pure common law claim based on a duty of care owed by a headmaster and educational adviser to a pupil.

Mr Beloff QC for the defendant authority submitted that because Parliament has established the statutory regime for the protection of children with special educational needs, it was inconsistent with that scheme to find a parallel common law duty of care owed to children with special educational needs. I reject this submission. Although, as I have said, it is impossible to impose a common law duty of care which is inconsistent with, or fetters, a statutory duty, I can see no legal or commonsense principle which requires one to deny a common law duty of care which would otherwise exist just because there is a statutory scheme which addresses the same problem. There is no inconsistency or incompatibility between the statutory scheme for children with special educational needs and any duty owed by headmasters and teaching advisers to give careful advice as to the educational needs of their pupils. If the child were being educated at a private fee-paying school or consulted a private teaching adviser, the existence of the statutory scheme (which applies both to the private and public sectors) would be irrelevant. Why should it be relevant simply because the school and teaching advice is provided by a local education authority?

The question therefore is whether the headmaster of any school, whether private or public, or a teaching adviser is under a duty to his pupils to exercise skill and care in advising on their educational needs? It is accepted that a school and the teachers at the school are under a duty to safeguard the physical well-being of the pupil: Van Oppen v Bedford Charity Trustees [1989] 3 All ER 389, [1990] 1 WLR 235. But there is no case where a school or teacher has been held liable for negligent advice relating to the educational needs of a pupil. The defendant authority maintains that there is no duty of care in relation to such advice.

In my judgment a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs. The education of the pupil is the very purpose for which the child goes to the school. The head teacher, being responsible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the attention of the headmaster that a pupil is under-performing, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such underperformance. To hold that, in such circumstances, the head teacher could properly ignore the matter and make no attempt to deal with it would fly in the face, not only of society’s expectations of what a school will provide, but also of the fine traditions of the teaching profession itself. If such a head teacher gives advice to the parents, then in my judgment, he must exercise the skills and care of a reasonable teacher in giving such advice.

Similarly, in the case of the advisory teacher brought in to advise on the educational needs of a specific pupil, if he knows that his advice will be communicated to the pupil’s parents he must foresee that they will rely on such advice. Therefore in giving that advice he owes a duty to the child to exercise the skill and care of a reasonable advisory teacher.

Once it is established that a head teacher or advisory teacher is under some duty of care to the pupil in relation to his educational well-being, it is impossible to strike out the claim in this case. But I must again emphasise that the failure to strike out the claim does not indicate any view as to the likelihood of success in the action. The head teacher and the advisory teacher were only bound to exercise the skill and care of a reasonable head teacher and advisory teacher. The Bolam test will apply and the judge at the trial will have to decide whether or not the advice tendered by the head teacher and advisory teacher was in accord with the views that might have been entertained at the time by reasonable members of the teaching profession. The headmaster and advisory teachers were not under any duty to exercise a higher degree of skill such as that of an educational psychologist. Nor would they have been in breach of any duty of care if they held, and communicated, a reasonable view of dyslexia shared at that date by a responsible body of educational thinking.

The defendant authority also sought to strike out the claim on the grounds that the damage claimed to flow from the negligent advice is not recoverable in law. Miss Lang indicated before your Lordships that she wished, in any event, to amend the claim so as to allege that the failure properly to treat the plaintiff ‘s dyslexia caused psychological damage sufficiently serious to constitute an identifiable mental illness. The plaintiff is plainly entitled to make such an amendment and it is inappropriate to consider the recoverability of the damage claimed at this stage.

For these reasons I would dismiss the appeal in the Hampshire case.

The Bromley case

The facts

The plaintiff was born on 24 May 1971 and has at all times resided in the area for which the Bromley London Borough Council is the local education authority. The facts as pleaded in the statement of claim (which have to be taken as being correct although denied by the defendant, the Bromley London Borough Council) are as follows.

In September 1976 to June 1977 the plaintiff attended St Paul’s Wood Infant School. From June 1977 to May 1979 the plaintiff was not registered at any school. From 14 May 1979 to 25 July 1982 the plaintiff attended Westbrooke Special School. From September 1982 until September 1985 the plaintiff attended Grovelands School, a special school. From September 1985 to November 1986 the plaintiff was not registered at any school. From November 1986 to 26 June 1987 the plaintiff attended Kemnal Manor School, an ordinary school.

By the statement of claim the plaintiff claims damages against the local authority for breach of statutory duty and/or negligence in (a) failing to secure the availability of efficient primary and/or secondary education; (b) placing the plaintiff in special schools when he did not have any serious disability and could and should have been educated in an ordinary school; (c) failing to make arrangements for provision to meet the plaintiff ‘s educational needs, in particular by failing to make or maintain a statement of his special educational needs; (d) during the period from July 1977 to May 1979 and from September 1985 to November 1986 failing to provide a place for the plaintiff at any school; (e) failing to pay proper regard to or heed the plaintiff ‘s mother’s requests during the time that he did not have a school place at all, that he be provided with one and her requests between 1982 and 1986 that he be provided with a place at an ordinary school; (f) in the circumstances failing to provide the plaintiff with any reasonable education.

On 16 July 1993 Mr Peter Weitzman QC, sitting as a deputy judge of the High Court in the Queen’s Bench Division, struck out the action under RSC Ord 18, r 19 as disclosing no reasonable cause of action. The plaintiff appealed to the Court of Appeal (Sir Thomas Bingham MR, Evans and Rose LJJ) ([1994] 4 All ER 640, [1994] 3 WLR 853), who allowed the plaintiff ‘s appeal in relation to his claim founded on common law negligence but dismissed the appeal in relation to the claim founded on breach of statutory duty. The Court of Appeal gave leave to the authority to appeal to your Lordships’ House and to the plaintiff leave to cross-appeal against the dismissal of his claim based on breach of statutory duty.

Breach of statutory duty simpliciter (category (A))

There are two aspects to the plaintiff ‘s case: (1) the failure by the authority to provide him with any schooling at all between June 1977 and May 1979 and from September 1985 to November 1986; (2) the provision by the authority of inappropriate education (i e at special schools rather than at an ordinary school) resulting from failures to carry out proper assessment procedures.

The claim in relation to the failure to provide any schooling is based on an alleged breach of s 8 of the 1944 Act. Mr Ter Haar QC for the plaintiff formulated the statutory duty as follows. If a local education authority has established a school or schools pursuant to its obligation to provide sufficient schools within its district, without payment of fees, a failure to accept a child for education in one of those schools is a breach of statutory duty actionable at the suit of an individual. I am quite unable to extract any such obligation from the words of s 8 itself. Indeed, I think Mr Ter Haar accepted that this was the position. However, he advanced an argument along the following lines. First, the legislation which preceded the 1944 Act had much in common with the system set up by the 1944 Act. In particular local education authorities had and have an obligation to ensure the provision of sufficient elementary schools for which purpose they can provide the schools themselves or alternatively rely upon schools provided by others. Schools provided by the local education authority pursuant to the statutory provisions are to be maintained by the local education authorities and adequate free schooling is to be provided. Second, it was submitted, it has been decided by a long line of authorities that breach of those statutory duties under the old Acts gave rise to a private right of action for damages. Third, the 1944 Act must not be taken to have removed by implication an existing right of action.

Whatever the merits of the first and third of those submissions (as to which I express no view) in my judgment the second submission fails. There is certainly a long line of authority deciding that breaches of certain duties under the Education Acts can give rise to a successful claim, by parents and others, for a declaration that the education authorities are in breach of duty and for an injunction to restrain such breach. But, as explained in Equal Opportunities Commission v Secretary of State for Employment [1994] 1 All ER 910 at 925-928, [1995] 1 AC 1 at 34-37, before the modern development of judicial review and the introduction of the new Ord 53 procedure, issues of public law were frequently raised by way of an action in the High Court for a declaration and injunction. The plaintiff had locus standi to bring such proceedings even though no legal right of his had been interfered with. The fact that such claims have been successfully brought to enforce public law rights provides no indication that there is a corresponding private law right to damages for breach of statutory duty.

In his judgment Sir Thomas Bingham MR ([1994] 4 All ER 640 at 651-656, [1994] 3 WLR 853 at 867-872) analyses all the cases relied on by Mr Ter Haar and demonstrates that, with the possible exception of two dicta, one by Scrutton LJ in Gateshead Union v Durham CC [1918] 1 Ch 146 at 167 and the other by Lord Denning MR in Meade v Haringey London Borough [1979] 2 All ER 1016 at 1024-1025, [1979] 1 WLR 637 at 647, all the cases relied upon were concerned with the enforcement of public law rights by way of declaration and injunction and do not establish any private law claim for damages for breach of statutory duties imposed by the Education Acts. I cannot improve on Sir Thomas Bingham MR’s analysis and gratefully adopt it.

As to the two dicta suggesting the existence of a private law claim for damages, Mr Ter Haar (to my mind rightly) no longer relies on the remarks of Lord Denning MR which, as Sir Thomas Bingham MR demonstrates, have no basis in authority. As to the dictum of Scrutton LJ that a statutory right of action for damages would lie, the authority he relied upon (Ching v Surrey CC [1910] 1 KB 736, [1908-10] All ER Rep 305) was concerned with a claim for damages for common law negligence not for breach of statutory duty. There was no prior authority for the statement by Scrutton LJ and in my judgment it was wrong. Therefore, as Sir Thomas Bingham MR has demonstrated, there is no long line of authority supporting the existence of a statutory right of action for damages for breach of s 8 of the 1944 Act and in my judgment no such right exists. Nothing I have said should be taken as casting any doubt on the authorities so far as they are concerned with issues of public law.

The second aspect of the plaintiff ‘s claim (damages for failure to provide appropriate schooling) depends upon alleged breaches of the duties imposed by ss 8(2)(c), 33 and 34 of the 1944 Act and of ss 4, 5 and 7 of the 1981 Act.

Although, for present purposes, I am prepared to assume that the plaintiff, as a child having special educational needs, was a member of a class for whose protection the statutory provisions were enacted, I can find nothing in either set of statutory provisions which demonstrates a parliamentary intention to give that class a statutory right of action for damages. As to the 1944 Act, the basic duty relating to children in need of special treatment is imposed by s 8(2)(c) which requires the authority to ‘have regard’ to the need for securing such treatment. Plainly such a duty cannot produce a private right of action for damages. Section 33(2) deals only with the type of school at which such children are to receive such treatment; to the extent that it imposes a duty at all it imposes a duty to provide such treatment in special, not ordinary, schools contrary to the case being made by the plaintiff. The obligation to provide special treatment to the child under s 34(4) only arises if the authority decides that the child requires such treatment. In my judgment there can be no statutory claim for damages for breach of duty which leaves so much to be decided by the authority. Moreover, ss 68 and 99 of the Act contain machinery whereby the minister can enforce any duties imposed by the Act on the education authority. All this indicates that Parliament did not intend to confer a private right of action.

As to the machinery in the 1981 Act relating to children with special needs, it is far more detailed and absolute in its terms than under the 1944 Act. However, as I have described above in dealing with the Dorset case the machinery itself involves the parents at every stage of the decision making process and gives them rights of appeal against the authority’s decisions. I have never previously come across a statutory procedure which provided for such close involvement of those who would be affected by a decision in the making of that decision or which

conferred more generous rights of appeal. To suggest that Parliament intended, in addition, to confer a right to sue for damages is impossible.

Therefore I agree with the Court of Appeal that the claims based on breach of statutory duty were rightly struck out by the judge.

Common law duty of care — direct

The statement of claim alleges, in para 2(1), that the defendant authority was under statutory duties arising from ss 8, 33 and 34 of the 1944 Act and ss 4, 5, 7 and 2 of the 1981 Act. Paragraph 2(2) alleges that the defendant authority owed the plaintiff a duty to take reasonable care ‘in and about the exercise of their functions under the said statutory provisions’. The allegation is that damage to the plaintiff was ’caused by breach of statutory duty and/or negligence on the part of the Defendants, their servants or agents’. The particulars which are given of the alleged negligence in effect allege nothing more than that the defendants failed to take proper care in relation to the assessment of the plaintiff ‘s disability in making the decision to educate him in special schools. At no stage does the pleading identify what was done, by whom or the respects in which it was negligent so to act.

From this pleading it appears that the only duty of care and the only breaches of such duty alleged relate to the manner in which the defendant authority exercised the statutory discretions conferred on it by the Education Acts 1944 to 1981. I have already expressed the view, in dealing with the Dorset case, that there is no common law duty of care in relation to the exercise of such statutory discretions. Therefore in my judgment the only claim alleging a direct liability at common law should be struck out.

Common law duty of care — vicarious

The statement of claim contains no proper pleading of vicarious liability. The only duty of care alleged is the duty of the authority itself. There is no pleading that any servant or agent of the defendant authority was under any individual duty of care. Indeed, the only reference to servants or agents is that the defendant authority, their servants or agents were negligent in breaching the duty of care owed by the defendant authority.

In my judgment this failure to allege and identify the separate duty of care said to be owed by the servant or agent of the defendant is not a mere pleading technicality. Unless and until the basis on which the servants are alleged to be under a separate individual duty of care is identified it is impossible to assess whether, in law, such duty of care can exist. In my judgment on the most generous reading the most that can be extracted from this pleading as it stands is that one or more servants of the defendant authority owed a duty to perform the statutory duties carefully, a claim no more maintainable against the defendant’s servants than against the defendants themselves.

The Court of Appeal were well aware of these defects in the pleading: Sir Thomas Bingham MR ([1994] 4 All ER 640 at 656-657, [1994] 3 WLR 853 at 872-873) inferred that the plaintiff alleged negligence against officials of the local authority and also possibly teachers and educational psychologists. Evans LJ ([1994] 4 All ER 640 at 666-667, [1994] 3 WLR 853 at 882-883) also correctly pointed out the need to identify employees who owed a common law duty of care independently of the statute. However, the Court of Appeal assumed that such separate duty owed by a servant could be relied upon and the sole ground for their decision not to strike out the claim was the possibility of the plaintiff being able to establish that the defendants were under a vicarious liability for torts committed by their servants.

I have had considerable doubt whether, even on a striking out application, it is right to allow a plaintiff such latitude as was afforded to him by the Court of Appeal. However, I have ultimately come to the same conclusion as the Court of Appeal that it would not be right to disregard a possible claim founded on vicarious liability. The plaintiff has attempted to get discovery so as to particularise his claim properly but his application was successfully opposed by the defendant authority. In argument, the defendant authority did not submit that the plaintiff should be shut out on this pleading point. On the contrary, the defendant’s case expressly accepts for the purpose of these appeals that the plaintiff ‘alleges negligence against unidentified professionals or other officials’ of the defendants. In these circumstances, I think it is right to assume that, at trial, the plaintiff will be able to allege and prove that one or more professionals employed by the defendant authority came into a relationship with the plaintiff which gave rise to a normal professional duty of care. On that assumption, for the reasons given in relation to the Hampshire case, I agree with the Court of Appeal that the claim should not be struck out since, in law, such duty of care is capable of existing.

The defendant authority also urged that the claim should be struck out on the grounds that the damage claimed — impairment of the plaintiff ‘s personal and intellectual development — is not a form of damage recognised by law. Again, this point is not suitable for decision on a striking out application and would be better determined at trial in the light of the evidence as to the plaintiff ‘s actual mental condition and the effect of receiving an inappropriate education.

Conclusion

I must again emphasise that, since the appeals concerned striking out applications, I have had to assume throughout that the allegations made in the statement of claim in the five appeals are correct. In justice to the local authorities, it must be made clear that their version of the facts has not been heard, nor has the truth of the plaintiffs’ allegations been investigated. The defendant authorities deny the allegations made.

I would for the reasons I have given dismiss the appeals in both the abuse cases. As to the education cases I would vary the orders of the Court of Appeal in the Dorset and Bromley cases by striking out the claims based on an alleged duty of care in the exercise of the statutory discretions, but otherwise dismiss all three appeals in the education cases and the cross-appeal in the Bromley case.

JUDGMENTBY-5: LORD NOLAN

JUDGMENT-5:
LORD NOLAN: My Lords, I too have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. I respectfully agree with his conclusions and with the whole of his reasoning save that I would, for my part, hold Newham free from vicarious liability for the alleged negligence of the psychiatrist and the social worker towards the child in that case solely on the grounds of public policy (and, in the case of the psychiatrist, the doctrine of witness immunity). Public policy apart, I am unable to accept that the psychi- atrist and the social worker were exempt from a general professional duty of care towards the child. I cannot agree that the relationship was analogous to that which arises in the contractual and commercial context of an examination by an insurance company doctor of an applicant for life insurance. I agree with Sir Thomas Bingham MR on this aspect of the matter.

This does not, however, detract from my entire agreement with the remainder of the views expressed by my noble and learned friend and with the orders which he proposes.

DISPOSITION:
Appeals in the Bedfordshire and Newham cases dismissed; appeals in the Dorset and Bromley cases allowed in part; appeal in the Hampshire case and cross-appeal in the Bromley case dismissed.

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