England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MASTER LESLIE
HQ02X01627

		Royal Courts of Justice Strand, London, WC2A 2LL

Lord Justice May:

Introduction

1. In the early hours of 3^rd January 1998, Jennifer Bluett, then aged 16½, was gravely and tragically injured. On a number of subsequent occasions she nearly died. She is permanently incapacitated. She has no recollection of the accident. She brings these proceedings by a litigation friend.
2. Jennifer suffered her truly dreadful injuries because she jumped out of the window of the third floor room in which she was living at a hostel for young people in Ipswich called The Foyer. She fell some 40 feet to the ground. She had been living at The Foyer only since 22^nd December 1997, apart from a short period over Christmas which she spent with her father. The Foyer is owned or run by one or more of the second, third and fourth defendants. It is not presently necessary to distinguish between them.
3. There was another resident at the hostel called Paul Doe. He had a girlfriend, Joanna Blowers, the ninth defendant. Joanna Blowers reckoned to have found out that Jennifer had had sexual intercourse with Paul Doe. Arising out of this, and it may be for other reasons as well, there was a prolonged invasion of The Foyer on the night of the accident. The invaders included Joanna Blowers and Richard Marjoram and Sarah Davey, the seventh and eighth defendants. Jennifer's tragic leap from her window occurred when these three defendants had broken down the door of her room. She jumped because she was in fear for her life from their attack.
4. Richard Marjoram, Sarah Davey and Joanna Blowers were later convicted at the Crown Court, two of them of inflicting grievous bodily harm and one of affray. His Honour Judge Holt said in sentencing them:

"The final incident in which she was so tragically injured was the culmination of four visits to her room which escalated in violence each time. I think for the benefit of Jenny Bluett, who was so disabled that she could not give evidence, I should say that on the evidence which I heard I had no doubt that she herself did not want violence and was always on the defensive and I have no doubt that she was telling the truth about her relationship with her ex-boyfriend."

5. The Foyer appears to have been fairly recently refurbished. There appears to be evidence that it had problems related to drink and drugs. It also had problems with vandalism, so much so that it engaged one or both of the fifth and sixth defendants to provide security services. Their employee, James Bolsover, was on guard in uniform that night.
6. Jennifer has brought these proceedings against each of the nine defendants claiming that each of them is liable to her in damages for her accident and its consequences.
7. The basis of her claim against the seventh, eighth and ninth defendants is obvious. Her claim against the other six defendants is variously based on allegations of breaches of statutory duty or negligence. This appeal only concerns her claim against the first defendants, Suffolk County Council.

The proceedings

8. Each of the first to sixth defendants applied to strike out Jennifer's claim against them under rule 3.4 of the CPR or to have it summarily dismissed under rule 24.2. Master Leslie heard the applications. Those of the first defendants and the second, third and fourth defendants succeeded. The fifth and sixth defendants' applications failed.
9. Jennifer and the fifth and sixth defendants each appealed against Master Leslie's orders. When Cresswell J gave permission for Jennifer's appeal, he wondered whether Master Leslie might not have wrongly conducted a mini-trial. Poole J heard the appeal. He dismissed Jennifer's appeal against the first defendants. He allowed her appeal against the second, third and fourth defendants. He dismissed the fifth and sixth defendants' appeals. So at that stage, all Jennifer's claims remained intact except that against the first defendants, the County Council.
10. All parties who had lost before Poole J – that is Jennifer against the first defendants, and the second to sixth defendants against Jennifer – applied to this court for permission to bring a second appeal. Rix LJ refused the applications of the second to sixth defendants on paper. He inventively granted Jennifer's application conditionally. The condition was that the applications of the second to sixth defendants were not renewed or were refused on a renewed oral hearing, so that there would in any event be a trial involving those defendants. The condition is now fulfilled. So Jennifer has unconditional permission to bring this second appeal.

Facts

11. Jennifer was born on 25^th May 1981. Problems arose between her and her parents, particularly her mother, from about October 1993. The local authority was involved and a Voluntary Accommodation Agreement was made on 27^th July 1994. This allowed Suffolk County Council to provide Jennifer with accommodation while her parents retained parental responsibility. At a meeting on 29^th July 1994, a long term objective of returning Jennifer to her family was identified, but it was suggested that she should have a foster care placement to provide a break for the family and so that she might learn boundaries in another family environment. There followed periods of short term fostering and a number of attempts to return Jennifer to her family. In July 1995, a long term fostering arrangement was made with Mr and Mrs Walsh. Although Jennifer's school record remained turbulent, the foster relationship seems to have been successful until about September 1997. It came to an end on 22^nd September 1997, by which time the relationship between Jennifer and her foster family had broken down as Jennifer asserted her wish for greater freedom following her 16^th birthday. Arrangements were made for Jennifer to be housed temporarily with the mother of a school friend. Jennifer was staying on at a sixth form college for a one year business studies course which she hoped to extend.
12. The Suffolk County Council social worker who had been particularly concerned with Jennifer was Peter Lorford-Page. Suffolk County Council's financial support and responsibility for Jennifer's foster care had ceased. On 13^th October 1997, the County Council's Leaving Care Service got in touch with her. At a meeting in November 1997, it was recorded that Mr Page's role as Jennifer's social worker would be reduced. Jennifer then spent a short time at a hostel, from which she was removed because other residents were misbehaving. She returned home to her father for a short period, following which she moved to The Foyer in Ipswich on 22^nd December 1997.
13. There are two statements by Mr Page before the court, and also a letter written by him dated 22^nd February 2002 correcting material in what is referred to as an "additional draft statement" which, he said, did not reflect a truly accurate picture. His statement dated 5^th February 2000 includes the following:

"At that time [after staying with the school friends and mother], the NCH Leaving Care Service, which acts as agent for the Social Services Department, offered a shared house, rented for the purpose, by that organisation. … there was one other girl, not previously known to Jenny. The fact that the other girl had frequent contact with drink and drugs was not known to Jenny, or to Social Services, at that time. Shortly after moving in Jenny was given a "spiked" drink at a party in the house. This affected her greatly and she became very distressed. Immediately after I became aware of the position, I removed her and requested for her to return home. This she did, staying until moving to The Foyer hostel in Ipswich, on or about 22^nd December 1997. This last four-month period of the year was an unhappy stage of her life.

By this time also, Jenny found that Newmarket Upper School could not provide her with the "A" levels she wanted. She had it in mind to concentrate on business studies. She requested assistance to find another college in the County together with accommodation nearby. I had already assisted another girl, who was also attending college, to gain a place at the newly opened "Foyer" in Ipswich and this girl spoke highly of it. Residents had their own well set up rooms in "flats". Each separate flat consisted of three or four bedrooms with shared bathroom, w.c., kitchen and dining area. I do not know the total number of rooms, but the building is a converted warehouse and is large. There was a licence agreement for residents under the age of 18. In Jenny's case, as there was not a care order, nor was she any longer accommodated by the Authority, I arranged in mid-December 1997, for Jenny and her father to check out the accommodation in advance, which they did. They were both happy with the facilities, which included social activities and support with careers and gaining employment. I provided a reference for Jenny and assured the manager that she had adequate basic cooking skills.

…

On or about 22^nd December 1997, I took Jenny and her belongings to The Foyer Hostel at Ipswich, having already taken her for an acceptance interview beforehand. She intended to stay for a couple of days and then to go home until the 28^th or 29^th December, when she planned to return to The Foyer. I spoke to her briefly on the telephone after Christmas, she told me that she was checking out course and college dates. She was settling in very well and looking forward to a New Year party."

Mr Page's other statement and his letter put a somewhat different slant on some of this, but it is no part of the court's present function to make fine factual judgments. Jennifer's case against the County Council is to be examined as it is pleaded and taking any relevant evidence at its highest in her favour. This statement shows that Mr Page, Jennifer's long standing social worker, was closely concerned with Jennifer going to live at The Foyer.

Lower court decision

14. Master Leslie had no hesitation in saying that Jennifer had no real prospect of establishing that the County Council failed to take steps to prevent the harm she suffered. He considered that Mr Page, in exercising and fulfilling such duties as there were under section 24 of the Children Act 1989, was not acting in way that was either unreasonable or negligent. She was helped to go to The Foyer in various ways by Mr Page. But Master Leslie could not imagine that, once she had seen the place and was enchanted with the room that was on offer, there was any chance of her being persuaded to live anywhere else. He considered that there was no real prospect of Jennifer's claim against the County Council succeeding.
15. Before Poole J, Mr John Cherry QC, who appeared for Jennifer, as he did before this court, did not pursue on her behalf a claim for breach of statutory duty. Mr James Dingemans QC, for the County Council, submitted that, although there might conceivably have been circumstances in which the County Council were liable to Jennifer in negligence, she was unable in this case to establish that the County Council owed her a duty of care or that they had breached such a duty thereby causing her loss. There was no evidence of want of reasonable care or skill on the part of Mr Page or the County Council. Jennifer was unable to point to any document suggesting that the County Council knew or ought to have known that The Foyer was unsafe or that anything was wrong in the way it was operated.
16. Poole J concluded that, particularly with regard to breach and causation, Jennifer's claim against the County Council was not even remotely sustainable. He said at paragraphs 44 and 45 of his judgment:

"It seems to me that, on the accepted facts, it is far from clear (I put it no higher) that the first defendants owed any common law duty of care to the claimant at the time she moved into The Foyer, let alone after that, notwithstanding that there was to be some continuing degree of contact between them, as Mr Cherry pointed out. The fact is that at all material times her mother and father had parental responsibility and that the first defendants did not, though they had undertaken to advise and befriend. But if within the ambit of that undertaking a duty of care is made out, there is, I find, a singular lack of any evidence of breach, no document to suggest that the first defendants (through Mr Page or otherwise) knew or ought to have known that The Foyer was unsafe, if unsafe it was, no evidence and no assertion that the first defendants knew or ought to have known that there were any problems with its operation whether material to the present case or at all.

Finally, but not least, Mr Cherry was unable to satisfy me that there is any real prospect of his successfully proving against the first defendants causation of any loss, which arose, tragically, and on any reasonable view to the first defendants wholly unforeseeably, from the claimant's difficulties with other residents and visitors, difficulties that were of very recent origin, on the day and night in question."

After referring to the well known passage in the judgment of Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 92 as to the impact and application of rule 24.2 of the CPR, Poole J concluded that Jennifer had no real prospect of establishing liability against the County Council and that there was no other compelling reason for a trial.

Permission to appeal

17. In his reasons for giving conditional permission to appeal, Rix LJ noted that Poole J appears to have been prepared to assume that the County Council owed a common law duty of care, although he was sceptical about it. It seemed to Rix LJ that, if duty is assumed, matters of breach and causation are ultimately fact sensitive. He was concerned that the judge, like Master Leslie, had conducted a min-trial. In any event, if on the facts the situation at The Foyer was materially deficient, then the argument remained that the County Council ought to have known of them. Rix LJ was concerned whether the application for permission to appeal against the County Council, taken alone, reached the threshold need for a second appeal. But he considered that, if there was in any event to be a trial involving the second to sixth defendants, that was a compelling reason for hearing an appeal on Jennifer's application against the County Council, which he would regard as having a real prospect of success.

The Children Act 1989

18. It is the general duty of every local authority to safeguard and promote the welfare of children within their area who are in need and, so far as is consistent with that duty, to promote the upbringing of such children by their families – section 17(1) of The Children Act 1989. With some qualifications which are irrelevant for present purposes, a child is a person under the age of 18 –section 105(1). Section 17(10) defines who is to be taken to be a child in need. Jennifer may or may not have been a child in need in the months and years before September 1997. She may or may not have continued to be such during the autumn of 1997.
19. By section 20(3) of the 1989 Act, every local authority is obliged to provide accommodation for any child in need within their area who has reached the age of 16 and whose welfare the local authority consider is likely to be seriously prejudiced if they do not provide her with accommodation. But a local authority may not provide accommodation under section 20(3), if any person who has parental responsibility for the child and is willing and able to provide or arrange for accommodation objects. I refer to these statutory powers and duties as background only and without minute analysis, since it is accepted in this case that, whatever may have been the County Council's statutory responsibility for Jennifer before she was 16, they had no obligation to provide accommodation for her under section 20 by and after September 1997.
20. Jennifer was nevertheless in the later months of 1997 "a person qualifying for advice and assistance" under section 24(2) of the 1989 Act. Under section 24(4) and (5), the County Council were obliged to advise and befriend her. I say this without plodding through the extended provisions of those sub-sections, because it is not in dispute. This is obviously a very general obligation.
21. Jennifer's particulars of claim say that the County Council "had a duty of care under section 24 of The Children Act 1989". Paragraph 7 of the particulars alleges both negligence and breach of statutory duty. The bare particulars given are:

"(a) they failed in their duty to the Claimant under section 24 Children Act 1989 in that they failed to advise and befriend her. The Claimant relies on the aforesaid facts and circumstances.

(b) they failed to warn or advise the Claimant of the dangers of residing at the premises.

(c) they failed to warn her not to reside at the premises.

(d) they failed to take measures to insure the Claimant's safety whilst residing at the premises.

(e) they failed to ensure that the premises were suitable and safe for the purpose for which she was permitted to be there."

Common law negligence

22. In my judgment, Mr Cherry was correct not to pursue Jennifer's claim for breach of statutory duty. The general law in this area has a long pedigree, which includes the very well known decisions of the House of Lords in X(Minors) v Bedfordshire County Council [1995] 2 AC 633; Stovin v Wise [1996] AC 923; Barrett v Enfield London Borough Council [2001] 2 AC 550; and Phelps v Hillingdon [2001] 2 AC 619. All these cases, except Stovin v Wise, concerned duties said to be owed by a local authority to children, where the relationship between the children and the local authority arose in the context of statutory powers or duties of the local authority. Stovin v Wise concern the statutory powers and duties of the highway authority.
23. A recent House of Lords decision in this area of the law is Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2002] 1 WLR 1957. This again considered statutory powers and duties of a highway authority. This court has very recently considered Gorringe in Sandhar v Department of Transport, Environment and the Regions [2004] EWCA Civ 1140 (5^th November 2004), another highway case. In my judgment in that appeal, I considered Gorringe in detail – see paragraphs 23-35.
24. In paragraphs 36-38 of Sandhar I summarised the law in the light of Gorringe. Where a public authority acting under statutory duty or power is alleged to be liable for personal or physical injury, it is first necessary to determine whether the statute, properly construed, provides a relevant private law right of action. It is agreed in the present case that The Children Act 1989 does not do so. It is for this reason that Mr Cherry was correct to withdraw the case of breach of statutory duty.
25. I then said in Sandhar at paragraphs 37 and 38:

"Although statutory duties or powers which do not give rise to a private law right of action may constitute part of the relevant factual background, the existence of those duties or powers cannot reinforce parasitically the existence of a common law duty of care in the public authority. In short, unless a statute on its proper construction provides a private law right of action or conversely unless the statute excludes it, the existence of a common law duty of care depends on unvarnished common law principles.

Personal or physical injury directly inflicted is the first building block of the law of negligence. Unless such injury is excused, it will almost always be a component of a breach of a duty of care owed by the person inflicting the injury to the person or the owner of the material object injured. For personal or physical injury which the defendant does not inflict directly or for economic loss, it is usual to look to Caparo v Dickman [1990] 2 AC 605 and Henderson v Merrett Syndicates [1995] 2 AC 145 for the unvarnished common law principles. For the reasons which I explained with reference to these cases in Merrett v Babb [2001] EWCA Civ 214, [2001] QB 1174 at 1192-3 (paragraph 41), reliance is an intrinsically necessary ingredient of a duty of care which appears in every formulation of a test. For the rest, it is very often a helpful guide in particular cases to ask whether the defendant is to be taken to have assumed responsibility to the claimant to guard against the loss for which damages are claimed."

Reference to the passage in Merrett v Babb will show that the final sentence of this passage in Sandhar represents what I referred to as the Henderson strand of consideration. It is not the only formulation. There is also the Caparo strand. But the account of common law principles in Sandhar, abbreviated as it is, is sufficient for present purposes.

Jennifer's claim

26. As Mr Cherry acknowledged, the claimant's present particulars of claim do not come even close to pleading the facts necessary to set up a claim for breach of a common law duty of care against the County Council. Without substantial amendment, I consider the technical position to be that the statement of case discloses no reasonable grounds for bringing the claim against the County Council. Mr Cherry accepted this, but adopted the court's suggestion that he, with Mr Martignetti, should formulate the terms of a proposed amendment over the short adjournment. They did so, necessarily in haste. They presented the resulting draft to the court and in substance applied for permission to amend broadly in accordance with the terms of their draft. I say "broadly" because the draft was very hurriedly prepared and was plainly amenable to improvement. Mr Dingemans opposed the application for permission to amend, but said on obviously sensible instructions that, if this court decided to allow Jennifer's appeal (which he opposed), this court should deal with the application for permission to amend to save costs.
27. It is not for the court to set about improving counsels' necessarily hurried draft. But the court can and, I think, should look at the facts before it to see whether they reveal a viable and pleadable claim for breach of a common law duty of care against the County Council. In outline, such a claim would have to say that Jennifer relied on the County Council in the person of Mr Page for help and advice in obtaining suitable accommodation; and that Mr Page is to be taken to have assumed responsibility to her in helping and advising her to guard against the loss for which damages are claimed. It would then be said that the County Council were in breach of that duty and that the breach caused her loss. It would be necessary to give adequate particulars of those allegations.
28. For present purposes, there is little difficulty in seeing that Jennifer relied on Mr Page in the matter of accommodation. The facts speak for themselves. He had been her social worker for some time and the Social Services Department of the County Council had been involved with Jennifer's welfare for more than a long time. He continued to give her help and advice. He was instrumental in withdrawing her from the hostel to which she went in the Autumn of 1997 because he judged it to be unsuitable. He was then centrally involved in the choice of The Foyer for her accommodation. He had apparently previously placed another girl, Tammy, at The Foyer under a full care order and had visited her there.
29. There is equally little difficulty for present purposes in seeing that Mr Page assumed a responsibility to Jennifer in the matter of her accommodation at The Foyer. Generally speaking, he had a responsibility to take care to see that The Foyer was a suitable place for Jennifer. It is the extent and ambit of that responsibility which is the nub of this appeal. Her case against the County Council requires that the responsibility which he is to be taken to have assumed was to guard against the loss for which damages are claimed, that is, in crude terms, to guard against the consequences of Jennifer jumping out of her third floor window to escape her attackers. A responsibility extending that far has to predicate that Mr Lorford-Page knew or ought to have known that The Foyer was an establishment at which a young woman such as Jennifer was at significant risk of serious physical attack. It would, no doubt, be open to a judge at trial to reconsider, reformulate or modify that formulation in the light of the facts as he or she finds them and, perhaps, on more extensive submissions as to the law than were appropriate on the strike out application. But in my judgment, the formulation sufficiently addresses a central issue in this appeal.
30. Poole J discussed this question in the language of causation and breach. It will no doubt be argued that, even if Mr Page was in breach of duty, no court could conclude that any such breach caused the consequences of Jennifer jumping out of a third floor window. It will be said, perhaps, that such an unlikely occurrence was not reasonably foreseeable. I am not persuaded that this submission justifies striking out the claim. If Mr Page knew or ought to have known that The Foyer was an establishment at which a young woman such as Jennifer was at significant risk of serious physical attack, it would be an odd state of the law if the County Council would have been liable if Jennifer were stabbed in an attack, but not liable if she jumped out of the window to avoid that kind of serious injury. I use stabbing merely as an example.
31. In my judgment, therefore, the first central question is whether Jennifer has any real prospect of establishing at trial that Mr Page knew or ought to have known that The Foyer was an establishment at which a young woman such as Jennifer was at significant risk of serious physical attack. Poole J concluded that there was-

"… a singular lack of any evidence of breach, no document to suggest that the first defendants (through Mr Page or otherwise) knew or ought to have known that The Foyer was unsafe, if unsafe it was, no evidence and no assertion that the first defendants knew or ought to have known that there were any problems with its operations, whether material to the present case or at all."

That was, perhaps, an understandable conclusion on the pleading as it was before Poole J. But it is here, if at all, that he (and, I think, Master Leslie before him) was conducting a mini-trial in advance of the evidence and, importantly, in advance of disclosure.

32. This court has before it a number of documents relating to Jennifer from various Social Services Groups within the County Council and there are some documents about The Foyer. Mr Dingemans drew attention to some of these documents and invited us to form the evaluative judgment that there was no real prospect of Jennifer establishing the requisite knowledge in the County Council. He submitted that this appeal was the third opportunity for Jennifer and those advising her to assemble evidence sufficient to raise a viable basis for alleging that The Foyer was relevantly unsuitable and that the County Council and Mr Page should have known this. There is, he submitted no such evidence. Jennifer has had access to all relevant documents in the hands of the County Council and there is no prospect that stronger evidence will emerge. Further, Jennifer was a wilful young woman, who would have gone to The Foyer whatever Mr Page or her father urged upon her.
33. Mr Dingemans pointed to my judgment in S v Gloucestershire County Council [2001] 2 WLR 909, as an example of circumstances in which the court will make an evaluative judgment of this kind. But as I said in S v Gloucestershire at 936F:

"There is no longer an embargo on the court considering evidence, but the application relates centrally to the statement of case. For a summary judgment application to succeed in a case such as these where a strike out application would not succeed, the court will first need to be satisfied that all substantial facts relevant to the allegations of negligence, which are reasonably capable of being before the court, are before the court; that these facts are undisputed or that there is no real prospect of successfully disputing them; and that there is no real prospect of oral evidence affecting the court's assessment of the facts. There may be cases where there are gaps in the evidence but where the court concludes, for instance from the passage of time, that there is no real prospect of the gaps being filled."

I do not consider that in the present appeal all substantial facts relevant to the allegations of negligence, which are reasonably capable of being before the court, are before the court. There has not been formal disclosure, in particular by the second, third and fourth defendants, the owners or managers of The Foyer, nor by the fifth and sixth defendants, who were engaged in relation to its security. It was no doubt in part with this in mind that Rix LJ gave conditional permission to appeal as he did. Meanwhile, there are the bones of a possible case that The Foyer was known to be a hostel which was materially insecure and at risk of dangerously violent incursion by intruders. There are suggestions that there were problems with drink and drugs. The very fact that The Foyer had to employ security guards may go some way to support the facts which Jennifer's case needs. Disclosure may strengthen that case. Whether the eventual facts will go far enough remains to be seen.

34. In S v Gloucestershire, I considered the authorities then available on this general topic and said at page 932H:

"But decisions of, for example, social workers are capable of being held to have been negligent by analogy with decisions of other professional people. Here again, it may well be necessary to conduct a detailed factual inquiry."

I have concluded – with hesitation, I acknowledge, but nevertheless - that such is Jennifer's case against the County Council. I have hesitated because I tend to share the instinctive reaction of Master Leslie and Poole J that Jennifer's claim against the County Council has its obvious problems, that it has perhaps the feel of a claim which may well fail. But I have concluded that the court should not at this stage say that it is bound to fail. On the contrary, I think that Jennifer has a pleadable case against the County Council which has some real prospect of success.

Application for permission to amend

35. As to the application for permission to amend, I have some sympathy with Mr Dingemans' complaint that it is galling to be met with this at such a late stage. Nevertheless I would grant permission in principle. This would enable Jennifer to plead particulars of duty and its breach and of the consequent loss within the framework indicated in this judgment. I do not consider that counsel should be tied to the terms of the hurried draft presented to this court. But the permission does not extend beyond the framework indicated in this judgment. The amendment will be made outside the limitation period, but a cause of action in negligence is already pleaded, so questions under rule 17.4(2) of the CPR do not arise. In so far as the amendment is made very late, there are some extenuating circumstances relating to funding and, not least, the fact that Jennifer's solicitor regrettably died.
36. Subject to any submissions counsel may wish to make, I would order that the claimants should tender the proposed amendment by 14^th January 2005 to the other parties and the court. If its detail is not objected to by the County Council within 14 days, the amendment may be made without further order. If it is objected to, the objection should be determined by Master Leslie or another Queen's Bench Master.
37. For these reasons, I would allow this appeal.

Lord Justice Scott Baker:

38. I agree. I too have hesitated before concluding that Jennifer's claim should be allowed to proceed. There are serious hurdles to be overcome if the claim is to succeed but I do not feel that at this stage I could fairly conclude it is bound to fail. I further agree with the order proposed by my Lord with regard to the amendment.