Poole Borough Council v GN [2019] UKSC 25

The Supreme Court reaffirmed the principles applying to the liability of public authorities for breach of statutory duty and negligence.

Full judgment.

Summary:

The court rejected a damages claim brought on the basis that the Defendant’s responsibilities towards the Claimants under the Children Act 1989 had given rise to a common law duty of care, which had been breached.

The court reiterated that public authorities are in the same position as individuals when it comes to negligence liability unless statute provides otherwise. Failing to protect another from harm by a third party will not normally give rise to a duty unless the party said to owe the duty has either (i) assumed responsibility to protect the other from harm or (ii) created the danger itself. 

Nevertheless, if those criteria are met, local authorities can owe a common law duty towards children with whom they deal pursuant to their Children Act 1989 functions and duties.

Discussion:

In the mid-2000s the Claimants, both of whom were children in need under the Children Act 1989 and had social workers allocated to them, were placed by the Defendant in a council house next to a family who, to the Defendant’s knowledge, were a bad lot. Over the next several years the Claimants were abused physically and mentally by their neighbours, causing them physical and psychological harm. They claimed for damages for the same against the Defendant.

The part of the claim being appealed was that brought in relation to breach of the Defendant’s functions under ss17 and 47 of the 1989 Act. 

It was accepted by the Claimants that the Act did not create a statutory cause of action. The question before the court was therefore whether a common law duty arose because of “the statutory backdrop” (i.e. the Defendant’s responsibilities under the Act).

Lord Reed delivered the unanimous judgment of the court. At paragraphs 25-35 he gave a very helpful summary of the case law in relation to the negligence liability of public authorities, which put Gorringe v Calderdale [2004] UKHL 15 front and centre. Interestingly, he rejected the traditional distinction between acts and omissions in favour of the distinction between “causing harm (making things worse) and failing to confer a benefit (not making things better)” [28].  He felt this test would be easier to apply.

The key ingredients that could change that picture were where the public authority either (i) assumes a responsibility to protect the particular Claimant or (ii) creates the danger itself [28].

Paragraphs 36-58 addressed the relevant authorities relating to children for whom public authorities have responsibility in some way, again providing a useful overview of the case law. The culmination of that strand of authorities is D v East Berkshire Community NHS Trust [2005] UKHL 23, where the introduction of the Human Rights Act 1998 was held to impose potential liability on local authorities who failed to protect children from treatment that breached Article 3. 

Lord Reed then went on to consider the way these two strands of authority had interacted, with various appellate decisions going in either the Gorringe or the East Berkshire directions. Michael v Chief Constable of South Wales Police [2015] UKSC 2 is considered at 61-62, as a case acknowledging the East Berkshire human rights principles but declining to translate them into a common law duty.

Finally, the judgment approved Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4 as affirming that a duty to protect against injury caused by a third party will not normally arise in the absence of special circumstances (those being, as aforesaid, either (i) assumption of responsibility or (ii) creation of a danger). Lord Reed identified three important principles from Robinson:

  • Caparo did not impose a universal tripartite test for the existence of a duty of care, but was rather a suggested approach to new situations. Reference to established categories of liability is always important.
  • The difference between harming the Claimant and failing to protect the Claimant from harm is crucial.
  • Public authorities are generally subject to the same principles of liability as individuals, unless statute requires otherwise (NB: it’s important to remember that statute cuts both ways; it can exclude as well as create a duty of care).

Lord Reed then went on to consider assumption of responsibility [66-73]. The conclusion of this section was that operating a statutory scheme (i.e. fulfilling statutory obligations) does not constitute an assumption of responsibility, although positive actions undertaken in the performance of the statutory obligations can (see Phelps v Hillingdon London Borough Council [2001] 2 AC 619). 

The test used by the court was that of foreseeable reliance – if a body acts in such a way that the subject of its actions would reasonably perceive themselves as being able to rely on the performance of the same, then a duty of care will probably arise [80].

In this case the court found that test was not met.

Interestingly, although this case might have seemed like a situation where the Defendant created the danger, the “consistent line of authority” that states that landlords do not owe a duty to those affected by their tenants’ anti-social behaviour [77] put paid to that argument.

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