Children's claims against councils considered

LAW REPORT v 30 June 1995

P v Bedfordshire County Council; Re M (a minor); Re E (a minor); C v Hampshire County Council; K v Bromley London Borough Council; House of Lords (Lord Jauncey of Tullichettle; Lord Lane; Lord Ackner; Lord Browne-Wilkinson and Lord Nolan) 29 June 1995

Exceptionally clear statutory language was required to show a parliamentary intention that those responsible for carrying out statutory functions established to promote the social welfare of the community should be liable in private law for damages.

The House of Lords unanimously upheld striking out orders in the first two appeals ([1994] 1 WLR 554) and orders in the other appeals ([1994] 3 WLR 853) that the cases go to trial.

In the first two appeals the plaintiffs alleged that 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 other appeals, the plaintiffs, children with special education needs, alleged failures by the local education authorities in their performance of their statutory duties under the Education Acts 1944 to 1981.

In the first two appeals: Rupert Jackson QC and Elizabeth Gumbel (Conway Wood & Co); James Munby QC and Robert Sherman (Clinton Davis Cushing & Kelly) for the plaintiffs; Ian Karsten QC and Lord Meston (Vizards); Ian Karsten QC and Edward Faulks (Barlow Lyde Gilbert); James Holman QC and Richard Tyson (Field Fisher Waterhouse) for the councils and health authority. In the other appeals: Michael Beloff QC and Cherie Booth QC (Veitch Penny; Hampshire County Solicitor); Michael Beloff QC (Bromley Borough Solicitor) for the education authorities; John Friel and Deborah Hay (AE Smith & Son) Beverley Lang and Tom Croxford (Bindmans); Roger Ter Haar QC and John Greenbourne (Teacher Stern Selby) for the plaintiffs.

Lord Browne-Wilkinson said that each case was approached by considering first whether the statutory provisions gave rise to a private law claim in damages and then considering whether there was a common law duty of care owed to the plaintiff.

The following matters would be considered in respect of a direct duty of care. 1) Was the negligence in the exercise of a statutory discretion involving policy considerations: if so the claim would pro tanto fail as being non-justiciable. 2) Were the acts alleged to give rise to the cause of action within the ambit of the discretion conferred on the authority; if not 3) Was it appropriate to impose on the authority a common law duty of care.

In respect of the vicarious liability of the authority: 1) Was the duty alleged to be owed by the servant of the authority consistent with the proper performance of his duties to the authority; if so 2) Was it appropriate to impose on the servant the duty of care alleged.

In the abuse cases all the legislation designed to protect children in need of care and protection was concerned to establish an administrative system designed to promote the social welfare of the community. It would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out those functions should be liable in damages.

Although a direct common law duty of care would not require the court to consider policy matters which were not justiciable, it was not just and reasonable to superimpose a common law duty of care on the authorities in relation to the performance of its statutory duties to protect children. As to vicarious liability, the professionals involved, such as psychiatrists, were retained to advise the authority but not to advise or treat the plaintiffs and were under no separate duty of care to the plaintiffs. The appeals were dismissed.

Turning to the education cases, the courts should hesitate before imposing a common law duty of care in the exercise of discretionary powers conferred by Parliament for social welfare purposes. However, the position of psychologists in education cases was different from that of doctors in child abuse cases. An education authority was under no liability at common law for the negligent exercise of the statutory discretions under the Education Acts but could be liable, directly and vicariously, for negligence in the operation of its psychology service and negligent advice given by its officers.

A school assumed responsibility not only for a pupil's physical well- being but also for his educational needs. A head teacher or advisory teacher owed a duty of care to the pupil to exercise skill and care in giving advice to parents.