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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Connor v Surrey County Council [2010] EWCA Civ 286 (18 March 2010)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/286.html
Cite as: [2010] 3 All ER 905, [2010] IRLR 521, [2011] 1 QB 429, [2010] PTSR 1643, [2010] EWCA Civ 286, [2011] QB 429, [2010] ELR 363, [2010] 3 WLR 1302
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr John Leighton Williams QC (sitting as a Deputy High Court Judge)
HQ08X01078
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE THOMAS
____________________
| ERICA JOYCE CONNOR |
Claimant/ Respondent |
|
| - and - |
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| SURREY COUNTY COUNCIL |
Defendant/ Appellant |
____________________
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Dr Simon Taylor QC and Mr Joel Donovan(instructed by NUT Solicitors) for the Respondent
Hearing dates: 3 and 4 November 2009
____________________
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- This is an appeal, with permission granted by Smith LJ, against the judgment of Mr John Leighton Williams QC sitting as a deputy judge of the High Court given on 19 March 2009. The deputy judge held that the appellant local authority (defendant in the action: I will refer to it as the council) had been in breach of its duty of care owed to the respondent (claimant in the action: I will refer to her as the claimant), as a result of which she suffered personal injury in the shape of psychiatric damage. The claimant had been employed by the council as head teacher at the New Monument Primary School ("the school") for which the council was the local education authority ("LEA"). She had qualified as a teacher in 1974, was appointed deputy head of the school in September 1994, and was promoted to head in 1998. In September 2005 she stopped work on ill-health grounds. She never returned to work thereafter, and retired in December 2006.
- This was, to use a not very satisfactory shorthand, a "stress at work" case. But it was an unusual one because, as counsel's skeleton argument for the council puts it (paragraph 2), "the gravamen lay in the public law arena, the central allegations being that the respondent head teacher should have been protected from acrimonious disputes in the governing body of the school and from [certain] complaints which had been made against her and the school".
- The deputy judge's findings of negligence are set out in paragraphs 269 – 272 of his judgment. I must visit them at greater length, but in brief he held (1) (paragraph 271) that on the facts the council's duty of care to take reasonable steps to protect the claimant's psychiatric health required them, by May 2005, to replace the school's governing body with an Interim Executive Board (IEB) pursuant to ss.14 and 16A of the School Standards and Framework Act 1998 as amended by the Education Act 2002 (I shall refer to these statutes as the 1998 Act and the 2002 Act respectively. The material provisions are now contained in the Education and Inspections Act 2006); and (2) (paragraph 272) that a decision to establish an enquiry to investigate a complaint by Mr Paul Martin of racism and Islamophobia on the claimant's part was made "in disregard of the duty of care [the council] owed to the [claimant] and the staff".
- The council contends that these positions (the failure to establish an IEB by May 2005 and the decision to set up an enquiry into Mr Martin's complaint) lay wholly in the field of their public law functions, and as such are not justiciable as particulars of negligence in a private law action for damages for personal injuries. It is a signal feature of the case that this question of justiciability is not addressed in the deputy judge's judgment, although it was put in issue in the pleaded defence and figured both in the council's skeleton argument at trial and their counsel's closing speech.
- The council also submit that the deputy judge was wrong to find them negligent on the facts.
- The school is what is called a maintained school, which means among other things that it has no legal personality of its own, and the head teacher and school staff are employees of the LEA. There are detailed provisions in primary and secondary legislation concerning the governing body (I shall use the deputy judge's acronym, GB) of such a school. Thus s.19 of the 2002 Act requires that every maintained school should have a GB. S.21 provides that the conduct of a maintained school shall be under the direction of the GB, which by s.29 owes a duty to establish procedures for dealing with all complaints relating to the school.
- By Regulation 12(1) of the School Governance (Constitution) (England) Regulations 2003 (the 2003 Regulations – revoked and replaced by fresh regulations in 2007) as amended, the size of the GB's membership had to be no fewer than 9 or more than 20 governors. Regulation 13 provided for the proportions of the membership to be respectively filled by parent governors (one third or more), staff governors (at least two but not more than one third: by Regulation 5(1)(a) the head teacher is ex officio a staff governor), LEA governors (one fifth) and community governors (one fifth or more). Each of these classes of governor was defined in Part 2 of the 2003 Regulations. Thus by Regulation 4, parent governors were (with certain qualifications) elected by parents of registered pupils at the school.
- By Regulation 21 of the 2003 Regulations, subject to certain exceptions and qualifications, a governor's term of office was fixed at four years, but he or she may (again subject to qualifications) be elected for a further term. A governor may at any time resign his office (Regulation 22(1)). There are also provisions relating to the removal of governors.
- I should also notice the Education (School Government) (Terms of Reference) (England) Regulations 2000 (the 2000 Regulations). The deputy judge provided a helpful summary:
- I should next set out the relevant provisions of the 1998 Act as amended by s.57 of the 2002 Act:
- S.15(4) applies where a report of an inspection of the school, made under Part I of the School Inspections Act 1996, has stated that in the opinion of the reporter the school has serious weaknesses, and (in effect) the report has not been withdrawn. S.15(6) applies where a report states that in the opinion of the Schools Inspectorate special measures are required to be taken in relation to the school and, again, the report has not been withdrawn. S.16 then deals with the power of the LEA to appoint additional governors, and s.17 with the power to suspend the school's right to a delegated budget (arising out of Part II of the 1998 Act: we are not concerned with the detail. S.16A):
- Schedule 1A has effect by virtue of s.19A. Paragraph 2 of Schedule 1A provides:
- A helpful prelude to the central facts of the case was given by the deputy judge at paragraph 3 of his judgment:
- In February 2003 Mr Paul Martin was elected a parent governor. He did not in fact have a child at the school but was within the applicable definition of "parent governor". It was not long before his presence was felt. The deputy judge said this (paragraph 25):
- Mr Martin, Mrs Syed, Mr Shahin and Mr Saleem were Muslims. The deputy judge was to observe (paragraph 4):
- On 3 December 2003 Mr Mark Tackley-Goodman was elected chairman of the GB by secret ballot, defeating Mr Martin by one vote. Mr Martin suggested that the Imam be invited to join the GB as an associate member. On 20 December there was a meeting at which Mr Martin said he had deep concerns about the future of the school and wanted another meeting. Pressed by the chairman as to the nature of these concerns he instanced "the school's failure to make links with the community, the conduct of staff, and the process of selecting the Chairman of the Governors" (judgment, paragraph 28). The deputy judge added:
- A further meeting took place on 2 February 2004, chaired by Mrs Marsden who was employed by the council. It is clear from an e-mail of 20 January 2004 from Mr Tackley-Goodman that Mr Martin was animated by concerns, as he saw them, about the claimant's conduct and Mr Tackley-Goodman's motivation in seeking the position of chairman of the GB. At the meeting Mr Martin referred to an unspecified allegation against a member of staff, and in the result
- Although the evidence before the deputy judge showed something of a consensus that this meeting "had run efficiently and smoothly" (judgment paragraph 34), it is I think clear that tension was rising. At a GB meeting only two days later, on 4 February, there was an exchange between the claimant and Mr Martin about an ethnic minority achievement policy for the school, followed by a request by Mr Saleem for copies of all school policies from the clerk. The claimant explained that the clerk could not be expected to send copies of all the school's policies to the governors. Mr Saleem told her to keep quiet. The day after this meeting the claimant complained by e-mail to Mrs Marsden. She said:
- It was also on 7 February that Mr Martin wrote to the claimant setting out complaints against two teachers at the school who in different ways, so he alleged, had evinced a disrespect for the Koran or the Muslim religion. The claimant replied on 24 February. She said that both teachers "vehemently refute[d]" the allegations, and added that the staff were demoralised and offended by the suggestion that there was any anti-Muslim feeling among them. She had talked to the Imam, who was "astonished and perplexed by your suggestion that there is any ill feeling between the school and the mosque: the mosque and the community regard the school and its members very highly..." Mr Martin replied (judgment paragraph 44) in a petulant tone.
- Also on 24 February the claimant was concerned enough to e-mail to Dr Paul Gray, the council's Director of Education. She said that one of the governors had made allegations of anti-Muslim statements against two teachers, was reiterating that the school was generally anti-Muslim and antagonistic towards the mosque, and that three other governors, close associates of his, had been elected to the GB. She stated "There is clearly a hidden agenda here" and concluded:
- On 11 March 2004 Mr Martin wrote to Mr John Ambrose, the council's local education officer for North West Surrey, with responsibility for the school. He complained about the claimant. He said that "her highly defensive and confrontational disposition is in my view damaging and self defeating". After a meeting with Mr Ambrose Mr Martin agreed to suspend any formal complaint.
- On 9 June 2004 the second GB meeting of the year took place. There was a tense discussion about methods of teaching at the mosque, and in particular the rote learning of the Koran (the deputy judge sets out the relevant minutes of the meeting at paragraph 53), ending in "aggressive questioning" of the claimant by Mr Saleem which led her to leave the meeting for some minutes. Mrs Davies made a formal complaint to Mr Tackley-Goodman (as chairman of the GB) about the way the claimant had been questioned and also an unminuted observation of Mr Saleem about the lack of values of parents who sent their children to the school. As a parent governor Mrs Davies said she found this highly insulting.
- After an e-mail the next day from Mr Martin to Mr Tackley-Goodman, the latter got in touch with Mrs Marsden. He stated that the behaviour of Mr Martin and Mr Saleem was seriously undermining the ability of the GB to operate. He added:
- On 14 June 2004 the claimant stated by e-mail addressed to Dr Gray that the situation at the school was quite intolerable and that she was unable to continue to deal with this without some intervention from the council, that "whatever we do here is being systematically thwarted and I really can't fight this alone". She repeated (she had said it before) that she was at her wits end (judgment paragraph 59). Dr Gray was away. At length the claimant received a reply from him on 30 June. The deputy judge recorded Dr Gray's reply in these terms (paragraph 60):
- There was a meeting between the claimant, Mrs Marsden and Mr Tackley-Goodman on 16 June 2004 to discuss "governance issues", not least the conduct of Mr Martin, Mr Saleem and Mrs Syed. At length, in the deputy judge's words (paragraph 61):
- And in due course it was decided that a review should take place. Its terms of reference were:
- The review involved 58 interviews as well as attendances at lessons, an assembly and a GB meeting. It led to a report issued in November 2004. The deputy judge (paragraph 75) set out much the greater part of the review findings in the very full summary given in the report. I will select these following passages only.
- There was some acknowledgment of the school's strengths. They included a strong and supportive staff team and a commitment on the part of staff to meeting the diverse needs of all. Parents felt there was a good relationship between the community, including the mosque, and the school. There were worthy recommendations such as better liaison between the GB and the school and better links between governors and staff. There were particular recommendations as to the conduct of governors, calling for (inter alia)
- full participation in the governing body
- having an informed understanding about the life of the school
- having agreed protocols for meetings so that all governors are treated and treating each other with mutual respect
- developing a governor code of conduct aimed at restoring working relationships...
- In the same month, November 2004, the clerk to the GB and school secretary resigned. She felt that
- When the report was presented at an extraordinary GB meeting on 17 November 2004 Mr Martin had various complaints. On 24 November 2004 he wrote to Dr Gray stating that the review was deeply flawed. He attached a list of "Issues of Concern at New Monument School" – seven against Mr Tackley-Goodman, five against the claimant, four against Mrs Marsden, and five against the LEA. There followed a good deal of shilly-shallying, but at length the council considered that a mediation should be conducted to be attended by Mr Martin, the claimant and Mr Tackley-Goodman. On 30 December 2004 Mr Ambrose wrote to the claimant enclosing Mr Martin's letter of complaint and suggesting mediation. He stated that Mr Martin was willing to go ahead on that basis, but did not mention Mr Martin's concern about Islamophobia.
- Mr Ambrose also wrote to Mr Tackley-Goodman. The latter's reply by e-mail on 6 January 2005 is an illuminating snapshot of his perception of the council's conduct at that time – a perception which on the evidence might have been shared by any reasonable person with knowledge of the facts:
- The mediation took place on 16 May 2005. Some matters were agreed. Thus Mr Martin agreed to "draw a line under and withdraw all allegations in his letter of to Dr Paul Gray, together with its attachments of 24 November 2004." It is to be noted, as the deputy judge pointed out (paragraph 116), that the parties to the mediation had no power to bind the GB as to any matter within the latter's responsibility.
- Two days later, at a meeting on 18 May 2005 held for the purpose pursuant to an earlier resolution of 19 April 2005, the GB decided by a narrow majority to relieve Mr Martin of his governorship. The claimant said that after the meeting Mr Saleem shouted at her stating "they were going to get her and if she thought she would get away with this she was wrong and they were going to get her". Mr Martin e-mailed Mrs Johnson (of the council) saying the decision had "made a mockery of the whole mediation process". In her reply Mrs Johnson observed
- The "backlash" essentially consisted in two events which occurred in mid-June 2005: a complaint by Mr Martin of institutional racism within the school, and a petition of no confidence in the claimant. I shall come to those directly, but should first mark the persistence of anxiety and discontent on the GB among those who were troubled by the actions, in particular, of Mr Martin and Mr Saleem. Thus in an e-mail of 26 May 2005 Mr Ambrose recorded a conversation he had had with Mr Shah (who had replaced Mr Tackley-Goodman as chairman of the GB following expiry of the latter's term of office) in which the latter expressed his concern as to the influence of Mr Martin, Mrs Syed and Mr Saleem on the GB and the problems they were causing. After a meeting of the GB on 8 June 2005 Mr Tackley-Goodman wrote to Mr Shah alleging that Mr Saleem had threatened him at the meeting, and had also made a scandalous allegation of racism against the claimant. Mr Tackley-Goodman asked that immediate action be taken by the GB to evaluate his previous complaints about Mr Saleem with a view to censuring his behaviour. He sent a copy of the letter to Dr Gray to whom he made a formal complaint on 28 June 2005.
- On 14 June 2005 the council received a complaint from Mr Martin by letter dated 13 June. He stated at the outset his belief that his
- On the evening of the same day, 14 June 2005, Ms Wright, the council's Director of Schools, notified Mr Ambrose, Mrs Johnson, Ms Bergamasco and others of Mr Martin's complaint and that advice from the County Council Complaints Management and the Equalities Coordinator was that they commission an independent investigation or face the risk of a referral to the Commission of Racial Equality.
- It was also on 14 June that rumours of a petition of no confidence in the claimant circulating in the community came to the council's attention. At about the same time, or shortly before, graffiti which the deputy judge described as "offensive to the claimant" appeared on the school walls. On 15 June the claimant had a frank discussion with Mrs Johnson, whose note refers to the claimant's statement that the events of the previous two and a half years had "affected her personality", and records that "she feels that if the LEA had intervened at the earliest sign of GB tensions we would not be where we are now and this would have been 'nipped in the bud' – whereas now it has legitimacy and a stronghold".
- The petition appeared on 17 June 2005. The claimant had not been warned of it. She was told about it when she was attending an LEA training session. It was headed with the words:
- The judge described the petition as "a highly offensive document, itself racist" (paragraph 131). That was an understatement. It is a disgraceful document, full of bile and malice. The claimant gave evidence that she was advised not to go back to the school from the training session where, as I have indicated, she was told about the document. She said the petition was being openly distributed outside the school and in the playground, and several parents had told her it had been delivered to their homes. She also said that later on some parents told her they had been intimidated into signing it and apologised to her. In due course the council interviewed others who provided evidence that some parents had been intimidated or unfairly persuaded into signing.
- The claimant and the staff feared reprisals. The police issued them with personal alarms and advised them not to stay in school after 3 pm. The claimant asked her trade union representative, Mr Caswell, to contact the council in order to press for an investigation into who was behind the petition. The deputy judge noted
- On 20 June 2005 Ms Wright wrote to parents at the school indicating that the council had received the petition (or part of it) and stating:
- On the same day, 20 June, Ms Wright indicated in an e-mail to colleagues in the council that she was commissioning an independent investigation of the formal complaint which Mr Martin had made, "as I think this is the only way to defeat the claims of racism". The next day she wrote to staff at the school acknowledging the difficult time the school had been through, stating that the council legal department would be taking witness statements, that the council would be commissioning an independent investigation of the complaint of racism, that Mrs Cicero-Scott (a personnel consultant) would be offering a surgery to staff before the end of term and that a problem solving workshop would be set up. The deputy judge observed (paragraph 139):
- I may deal with this later period relatively shortly. Mrs Cicero-Scott was at the school on 17, 22 and 28 June. She pointed out to the council that the deputy head had attended occupational counselling on 27 June and added, presciently:
- After her surgeries at the school Mrs Cicero-Scott produced a report, probably at the end of June 2005. The deputy judge described it (paragraph 143) as "an illuminating document" and set out substantial passages. I need only cite part of his own summation, at paragraph 145:
- On 29 June Mr Clark of the National Union of Teachers e-mailed Ms Wright as follows:
- The next day, 5 July, the regional organiser of the GMB union wrote to Ms Wright. He said he had been "unanimously mandated" at a meeting of the GMB at the school to request that the council should as a matter of urgency dissolve the GB, and "proactively investigate who the author(s) are of the disgraceful letter and petition". At a meeting at the school the next day Ms Wright indicated that the council "would put in advanced skills governors to act as a moderating influence on the GB and help it pull together". Ms Wright also decided to enlarge the scope of the investigation she had commissioned (or was commissioning) into Mr Martin's formal complaint so as to "explore the responsiveness of the school to the needs of the community". It was to be conducted by Mohamed Patel, who had long experience in race equality issues, and Anne Piper, who had over 25 years teaching experience in Surrey and Hampshire.
- On 14 July the claimant e-mailed Ms Wright and protested about the investigation. She also said this:
- The claimant's protest was underlined by an e-mail of 15 July from the staff of the school collectively to Dr Gray, Ms Wright, Mrs Bergamasco, Mrs Cicero-Scott and Mr Ambrose, with copies to the governors, expressing a series of complaints. One pointed to "the lack of support provided by the LEA during the last 2 years and particularly following the defamatory letter". A second, echoing the claimant, stated that
- On 12 July the GB agreed to the proposal for its replacement by an IEB. The Secretary of State insisted that an appropriate formal warning should first be issued, but at length the IEB was established in October 2005 and held its first meeting in November. This, however, was as I shall show too late for the claimant.
- The Piper/Patel report was produced on 23 August 2005. On 31 August Ms Wright met its authors and stated that the council accepted all the report's findings and recommendations, but that only two copies should be distributed, one to Mr Martin, the other to the claimant. The report ran to 21 pages. On p. 17 there are three paragraphs under the heading "Our decision". The deputy judge (paragraph 176) cited part of this passage. I shall quote it rather more fully:
- On 8 September 2005 the claimant referred herself to the council's Occupational Health Service. On 27 September she consulted her general practitioner who signed her off work certifying stress and depression. Thereafter she spent some time in hospital where she was referred for psychiatric assessment. She was gravely clinically depressed. On 17 May 2006 her solicitors gave notice that she might issue a claim for damages for psychiatric injury. On 23 January 2007 a letter of claim was sent and on 1 March 2007 these proceedings were issued.
- In addressing the points in the appeal it is convenient first to examine and test the factual basis (or bases) for the deputy judge's conclusions as to negligence, which Mr Faulks QC for the council says he was not entitled to reach. It is common ground that the council owed the claimant a duty of care to take reasonable steps to safeguard her health, including her mental health, in the course of her employment with them. It makes no difference whether the case is put in contract or the tort of negligence. The claimant served a respondent's notice relying on the implied term of trust and confidence in the contract, but (as was accepted before the deputy judge) this adds nothing to the allegation of negligence.
- As the judge stated at the outset (see paragraph 13 above), the claimant ran a happy and successful school where there were no real problems until 2003. But within not many months of Mr Martin's election as a governor the claimant was feeling the pressure of his conduct (and that of his associate governors, notably Mr Saleem) in criticising the school and herself for what they saw as inadequate or unsatisfactory links between school and community. Tension rose through meetings on 20 December 2003, 2 and 4 February 2004, demands for information and documents by Mr Martin and his associates, and aggressive rudeness by Mr Saleem. The claimant was worried and intimidated. She turned to the council: Mrs Marsden and Dr Gray. There is no sign of any real support being offered. At the GB meeting on 9 June 2004 Mr Saleem again behaved badly. By this stage Mr Tackley-Goodman was concerned about the effects on the claimant's health and specifically raised that concern with the council. By 14 June the claimant herself was saying that the situation at the school was quite intolerable and that she was unable to continue to deal with it without some intervention from the council. Dr Gray's response of 30 June was to suggest "some possible follow up training for the staff". One might have supposed that the council would by this time have appreciated that they had something approaching an emergency on their hands: both in terms of the proper functioning of the school for which they had public law responsibilities, and the health and well-being of its headteacher to whom they owed an employer's responsibilities.
- There followed the council's review and consequent report; Mr Martin's flurry of complaints in November 2004; the council's response – mediation; Mr Tackley-Goodman's bitter riposte ("extremely disappointed with the actions of the LEA…"); Mr Martin's removal from the GB and the backlash in its wake – Mr Martin's complaint of institutional racism, and the malicious petition of no confidence in the claimant in which Mr Martin had played "probably a leading part"; Ms Wright's decision to establish an investigation into Mr Martin's complaint; Mrs Cicero-Scott's warnings and anxieties and the serious concerns of the trade unions (the NUT and the GMB) on behalf of the staff – all this quite apart from the increasingly desperate protests of the claimant and the staff themselves; and, at the end, what are to my mind the very surprising conclusions of the Piper/Patel report of 23 August 2005.
- As I stated at the outset, the deputy judge's findings of negligence are at paragraphs 269 – 272 of the judgment. But before one reaches them, a single theme emerges from the complex facts which I have summarised, spread as they are over a considerable span of time. It is that the claims of Mr Martin and his associates are generally given weight by the council, while the anxieties of the demoralised claimant are generally sidelined. In a number of passages the deputy judge forms assessments of the conduct of Mr Martin and others (notably Mr Saleem) on the GB, and of the council's responses. The theme I have described runs through them:
- The deputy judge then proceeded directly to address the question whether an actionable case in negligence was demonstrated:
- Grounds of Appeal 2 and 4 respectively assault the deputy judge's findings (1) that the council should have issued a formal warning, and so initiated the procedure leading to an IEB, no later than the end of February 2005 and (2) that the decision to establish an enquiry into Mr Martin's complaint of racism and Islamophobia amounted to a breach of the council's duty of care owed to the claimant.
- I turn to the first of these (Ground 2). I understand it to be common ground that the statutory footing on which the judge concluded that IEB intervention would have been justified (though he did not state it expressly) is to be found in s.15(2)(a)(ii) of the 1998 Act, viz. that "there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, [the standards of performance of pupils at the school]". I shall deal separately with Mr Faulks' principal legal submission, that the council's decisions condemned by the judge as negligent lay wholly in the field of the council's public law functions and as such are not justiciable as founding a cause of action for damages for personal injuries. At this stage I address his complaint that the evidence did not in any event justify the action commended by the judge.
- On Ground 2 Mr Faulks submits that there was no evidence of adverse effects on pupil performance; that there was no sound basis for initiating IEB procedures in February 2005; that the judge failed to have regard to the likely negative consequences of serving a formal warning notice and proceeding to appoint an IEB; and that the judge's conclusion that the decision to mediate was "mistaken" (judgment paragraph 255) cannot be supported. Mr Faulks and Mr Taylor QC for the claimant both cited various passages from the transcripts of the oral evidence before the judge, as they did in relation to other parts of the case. It is enough to say that Mr Faulks' submissions fall far short of persuading me that on any of these points the deputy judge arrived at a conclusion that was not open to him.
- As for standards of pupil performance, I have cited the deputy judge's findings that the GB was dysfunctional, that Mr Martin's and Mr Saleem's conduct tore the GB apart and (fuelled by inadequate responses by the council) led to two years of anxiety and low morale for the school staff. These findings were entirely open on the evidence and perhaps compelled by it. Against that backdrop the suggestion that there was nothing to show prejudice, or at the very least the likelihood of prejudice, to the standards of pupil performance does not belong in the real world.
- I turn to the February 2005 date. There were marked warning signs of the claimant's vulnerability as early as June 2004. Matters went from bad to worse in November and December 2004. There were Mr Martin's extremely hostile reaction to the review; unsatisfactory GB meetings; burgeoning complaints about Mr Martin; trade union concerns. By early 2005, certainly by February, the overall situation concerning the governance of the school and the well-being of the staff, especially the claimant, was grave to say the least.
- The next issue is (I summarise) whether the deputy judge properly weighed the pros and cons of instituting procedures leading to the establishment of an IEB. At paragraph 248 (in a passage I have not cited) he acknowledged the rarity of the IEB procedure. He described and roundly rejected the council's arguments as to the potential adverse consequences of an IEB (paragraph 266; see also 270, which I have not set out). There was no evidence that the establishment of an IEB would have adverse consequences in terms of cost, resources, or educational implications. The judge was plainly entitled to find that Ms Wright's misplaced desire to appease Mr Martin and his associates (for that was what it was) did not justify the postponement of the IEB initiative.
- Lastly, mediation. Much of Mr Faulks' argument here consists in narrow points on the evidence, such as the fact of the claimant's and Mr Tackley-Goodman's agreement to mediate, that the mediator himself seems to have thought the issues fit for mediation, and the apparent approval of trade union representatives. The mediator did not give evidence. The fact is that the mediation took place seven months or so after the review investigation, by which time the situation had worsened and the claimant was in real need of objective support. In the whole context of the case, the deputy judge was well entitled to conclude as he did.
- I turn to the other area of factual complaint raised by Mr Faulks, Ground 4: that the decision to establish an enquiry into Mr Martin's complaint of racism and Islamophobia amounted to a breach of the council's duty of care owed to the claimant. Again, at this stage I address only the factual points. However I should note first that Mr Faulks' argument on Ground 4 is intertwined with his submission that this head of negligence was not justiciable as a matter of law. That is because of his submission that the only proper question on this part of the case was whether Ms Wright's decision to investigate "fell outside the ambit of the [council's] statutory discretion or in any event was one which no reasonably competent officer in Ms. Wright's position could have reached" (skeleton argument paragraph 73), and he roundly submits that the decision cannot be so categorised. Likewise as regards Ms Wright's decision to extend the enquiry's scope to "explore the responsiveness of the school to the needs of the community".
- But in putting the matter in the way he does on Ground 4, on the face of it Mr Faulks seeks to apply the public law test of the Wednesbury reasonable decision-maker ([1948] 1 KB 233), which is not the rule in tort. And it was not, of course, the approach taken by the deputy judge. He put it straightforwardly in terms of the ordinary common law rule for the tort of negligence: "[t]he [council] owed the claimant a duty not to expose her to unreasonable risk of psychiatric injury" (paragraph 246). There was however some argument at the Bar as to whether the divide between these seemingly very different approaches might after all be crossed, or at least be lessened, on the footing that the law of negligence will not condemn action which lies "within a reasonable range of options" open to the actor. Mr Faulks referred to Chittock [2003] PIQR P6, [2002] EWCA Civ 915, in which a schoolboy suffered a skiing accident on a school trip and sued the school, alleging negligence on the part of the teacher in charge. Auld LJ (with whom Carnwath LJ and Sir Swinton Thomas agreed) stated at paragraph 18:
- The Bolam test applies the common law duty of care in cases where the defendant, when he commits the putative wrong, is acting in a field requiring some special knowledge or expertise. The paradigm is the professional such as the doctor: Bolam was a medical case. In such instances a particular rule is required because what is or is not careless – negligent – cannot be ascertained simply from the general understandings of ordinary experience and common sense. Gross cases aside the layman cannot know, nor can the judge, whether a particular practice in the operating theatre ought to be condemned as negligent. The bare fact that it causes damage gives no answer, for (manifestly) negligence is not a tort of strict liability. In expert cases the court needs expert evidence – expert evidence of the range of acceptable practice.
- But I do not think these recourses inform the present case. I do not for a moment seek to diminish the skills required for the satisfactory discharge of Ms Wright's responsibilities as Director of Schools. However the business of responding to Mr Martin's complaints required no specialised learning, though no doubt it needed mature judgment and some understanding, and not only at the surface, of the complaints' context. The court did not require expert evidence; this was not, in my judgment, a Bolam case. The deputy judge was able to decide for himself, on the factual evidence, whether Ms Wright's decisions were negligently taken.
- That being so it seems to me clear that the judge was entitled to conclude as he did at paragraph 272, that as a matter of fact Ms Wright's decisions violated the council's duty of care to the claimant. He had analysed the evidence thoroughly and set out the material facts with great care. His task required him to consider whether Ms Wright's judgment, given the council's duty of care to the claimant, ought to be faulted. In my view he was on entirely firm ground in concluding that it should.
- I conclude therefore that there are no errors in the deputy judge's assessment of the factual case in negligence such as might undermine the result he arrived at. On the merits, I regard this as a very sorry tale indeed. In so describing the case I am very conscious of the limits to which this court is necessarily subject. We have not heard the witnesses themselves. In fact, neither Mr Martin nor Mr Saleem gave evidence at first instance, and of course neither is a party to the proceedings. Neither was present or represented before us, nor therefore in any position to refute the accusations of bigotry which might be thought implicit in the claimant's case. And there was some evidence of a different side to Mr Martin. Thus Mr Tabriz, a local councillor, told Ms Wright that the community could not understand how Mr Martin had got himself into the position he did with the school, and left her with the impression that Mr Martin was seen as one of the more moderate community leaders (judgment paragraph 153). Ms Vivienne King also had some positive things to say about Mr Martin.
- I have given careful consideration to all those points. But the deputy judge's comment at paragraph 260, "[f]ears over accusations of racism appear to have quelled a proper response", was obviously justified on the evidence. That and other passages reflect the theme I have already stated, no less justified on the evidence, a single theme which runs through the whole depressing history: it is that the claims of Mr Martin and his associates were generally given weight by the council, while the anxieties of the demoralised claimant are generally sidelined. Why did this happen? There is a plain answer. The council was frightened to stand up to the aggressive confidence of Mr Martin, the bullying tactics of Mr Saleem, and the support they had from others. It feared the charge of racism and, no doubt, of prejudice against Islam. The council's capitulation to these sombre pressures was lamentable. The consequence was a serious neglect of their duty to the claimant who was in the firing-line of these assaults, and was also the council's employee. In my judgment the deputy judge's findings of fact as to the council's breach of duty are well justified.
- Before turning to the legal issue of justiciability I should briefly consider two other areas in the realm of fact, foreseeability and causation. The judge's conclusions on these matters were also put in issue by Mr Faulks.
- The deputy judge stated (paragraph 239) that what had to be foreseeable was not simply stress but specific psychiatric injury. The complaint is that he should have grappled with the question whether there were actual signs of impending psychiatric injury demanding action on the employer's part, and not merely some future risk or possibility. This is an area fully dealt with in Sutherland v Hatton [2002] EWCA Civ 76, from which the deputy judge set out extensive citations at paragraph 18. There is in my judgment no room for a contention that he applied the wrong test. On the facts there was a welter of evidence that from at least late 2004 into 2005 the claimant's mental health was imminently at risk. We did not call on Mr Taylor on this point.
- Mr Faulks criticises a finding he says was made by the deputy judge at paragraph 271, namely that "had an IEB been implemented, Mr Martin would have gone quietly" (skeleton argument paragraph 84). He says this was against the weight of other findings made by the judge. I have set out paragraph 271 of the judgment and will not repeat it. Mr Faulks mischaracterises the judge's finding. He held that much of the "backlash" occasioned by Mr Martin's removal from the GB would have been avoided in the event of an IEB being established. He was plainly entitled so to conclude.
- More broadly, the deputy judge had already found that the claimant's depressive illness was an effect of the theme which I have held runs through the whole sorry story. This is what he said at paragraph 207:
- Mr Faulks' essential case is that the actions which the deputy judge held should have been taken, or not taken, by the council in the discharge of their duty of care to the claimant are not justiciable in private law proceedings:
- The first case to which I will refer is X v Bedfordshire CC [1995] 2 AC 633, which concerned decisions by local authorities whether or not to take a child into care. Lord Browne-Wilkinson said that each of the appeals before their Lordships' House
- In X their Lordships had to address a situation much closer to our case: one where, albeit there was no private law cause of action arising simpliciter for breach of the statute, nevertheless action (or inaction) under the statute caused damage to person or property. Lord Browne-Wilkinson held (734H-735A) that
- So much is with respect uncontentious. And Lord Browne-Wilkinson was clear (735F) that a common law duty of care might arise in the performance of statutory functions. He then proceeded to draw two closely linked distinctions. There is first (735F-G) a distinction between
- To my mind, with respect, this is a clearer formulation. Another very obvious example of (b), where there would be nothing in the way of finding an actionable duty of care, would arise where in the course of running the school the relevant authorities had decided to lay on a bus to take some of the children on a school trip; and because of the driver's negligence a third party bystander was run over. Such cases present no difficulty. It could not be suggested that the injured bystander should be deprived of his damages only because the bus and its driver were engaged on the business of an institution being run under statutory powers. But if the act or omission complained of consists in the exercise of a statutory discretion, other considerations apply. Lord Browne-Wilkinson said this in X:
- What, then, is meant by a "decision... fall[ing] within the ambit of [a] statutory discretion", such as will on authority be immune from assault by way of a private law action for damages? It cannot mean anything done in pursuance of a discretionary power, for on the face of it that would include the negligent driving of the school bus-driver which is certainly actionable. It is here, in looking for the reach of a decision falling within the ambit of a statutory discretion, that the second distinction drawn by Lord Browne-Wilkinson assumes significance. This is the distinction, much discussed in the cases, between "policy" and "operations". Lord Browne-Wilkinson stated ((737E-G):
- Lord Browne-Wilkinson proceeded to cite Lord Wilberforce in Anns at 754 and Lord Keith of Kinkel in Rowling v Takaro Properties Ltd [1988] AC 473 at 501 and continued:
- What is the essence of X v Bedfordshire CC's teaching? It is to locate the limit or the edge of an old principle of the common law, namely that public bodies' acts or omissions which are authorised by Parliament generally cannot, though they cause injury, sound in damages recoverable by private law cause of action. This principle is close to, but not I think identical with, the proposition that (leaving aside the law of the European Union) English law knows no right of compensation for administrative tort short of misfeasance in public office. It has constitutional roots in the rule of law and in the sovereignty of Parliament, here in harness (but in modern constitutional debate often seen in opposition). Thus the rule of law requires that the exercise of discretionary power by a public authority must be justified by law, usually statute. If the statute authorises action free of private law claims in the action's wake, legislative supremacy requires that the actor is immunised from private law suit. The immunity is a necessary incident of the statute's authority. It extends, however, only to the distinct act or omission with which the statute is concerned: the choice of policy, or the exercise of discretion, which the statute distinctly allows. This, with respect, is what is meant by Lord Browne-Wilkinson's reference to a "decision... fall[ing] within the ambit of [a] statutory discretion".
- Accordingly "operations" carried out under the policy are not immune. There will often be different operational means of executing a policy once settled. The choice between such means is logically subsequent to, and distinct from, the choice of the policy itself. There may be negligence in the choice of means, or a chosen means may be negligently carried out (as by the bus driver). But the force of the statute's authority only requires the conferment of immunity on the choice of the policy itself: not on the choice of means, nor the execution of means once chosen.
- In addition – and here I think is the true effect of Lord Browne-Wilkinson's treatment of the "unreasonableness" issue – X shows that the immunity which this principle gives will not apply to a decision so unreasonable that it cannot be said to have been taken under the statute. This approach marches with what I have said about the immunity principle's constitutional roots. The authority of statute cannot require protection to be given to an act having no claim upon it. It does not mean, of course, that the unreasonable decision-maker owes automatically and without more a duty of care to an injured party. Whether he does so or not will depend on the court's view of the overall question whether it is fair, just and reasonable in the circumstances to impose liability in negligence – the formulation in the leading case of Caparo Industries plc v Dickman [1990] 2 AC 358, to which I will return.
- Mr Faulks submits that to acknowledge a cause of action in this case would offend the decision in X v Bedfordshire CC, because the negligent failures which the deputy judge identified were, whatever else they were, policy decisions.
- Mr Faulks also submits that the deputy judge's findings of breach of duty cannot stand with Stovin v Wise [1996] AC 923. This decision of their Lordships' House appears to suggest some qualification to the approach taken in X. The claimant alleged negligence on the part of a highway authority for failing to exercise a statutory power to remove a bank which restricted visibility on a road, causing a series of accidents culminating in one involving the claimant. Lord Hoffmann (giving the only reasoned speech for the majority dismissing the claim) said at 951C that it had become clear that "the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not." At 951F-952A he gives two reasons why, in his view, this is so. First, the policy/operations distinction is often elusive in practice. A decision may irreducibly involve both elements. Lord Hoffmann instances (951F) "practically every decision about the provision of [public] benefits [involving the expenditure of money]". Secondly, even if the distinction were clear cut, and it was shown to be irrational not to exercise the discretionary power in question, still the law would not necessarily impose a duty of care for failure to do so.
- Lord Hoffmann proceeded (952F-H) to state, what must be uncontroversial, that whether a statutory duty gives rise to a private law cause of action crucially depends on the policy of the statute. Then this (953D-E):
- Mr Faulks submits that Stovin v Wise is further grist to his mill. Not only were the relevant issues facing the council, in particular as regards the possible establishment of an IEB, matters of policy. In addition the choices the council arrived at cannot be categorised as irrational or unreasonable in the public law sense; and so it cannot be said there was a duty to move towards an IEB by February 2005. The rights and wrongs of doing so are not, Mr Faulks would have us conclude, justiciable within the four corners of a private law claim for damages.
- I should say, with great deference, that I have some difficulty in appreciating the force of Lord Hoffmann's reservations about the policy/operations distinction given in Stovin at 951F-952A. As for his first reason, I recognise of course that a decision may involve both elements. But if a policy element is sufficiently demonstrated, that may be enough to engage the requirement of immunity which is owed to Parliament's authority, even though operational matters play their part, perhaps a large part, in the decision in question. As for the second, if it is shown to be irrational not to exercise the discretionary power in question, that may open the door to the possibility of a private suit; but nothing requires that the possibility should become a certainty.
- In light of these considerations I would not read Stovin as promoting any substantial qualification to the reach, or the limits, established in X of the principle that public bodies' acts or omissions which are authorised by Parliament generally cannot sound in damages recoverable by private law cause of action. However, as I shall show directly, there is more to be said on the subject not least in light of Barrett v Enfield LBC [2001] 2 AC 550, to which I will come next.
- Before doing so I should acknowledge that Lord Hoffmann appears (at 953D-E) to erect a test of public law rationality as a pre-condition for basing a duty of care upon the existence of a statutory power. However it is perhaps debatable how far this shifted the law from where X had left it. As I have indicated (paragraph 83 above) I understand it to be held in X that the principle of immunity for decisions authorised by Parliament will not apply to a decision so unreasonable that it cannot be said to have been taken under the statute. Lord Hoffmann's irrationality test does not perceptibly differ.
- The learning has moved on. Lord Hoffmann's reasoning in Stovin v Wise has been the subject of some scrutiny in later decisions of their Lordships' House. In Barrett v Enfield LBC (in which the claimant alleged a series of negligent failures by the defendant authority to look after him properly when, during his childhood, he was in their care) Lord Hutton was at pains to show that observations of Lord Reid and Lord Diplock in Dorset Yacht "as to the non-justiciability of acts or omissions in the exercise of a statutory discretion" (579B-C) were not part of the ratio of that case. Then he said this at 580G-581A:
- These themes are reflected in what was said by Lord Slynn of Hadley in the same case:
- This reasoning is not grounded in the formulation of a sharp-edged principle. It is pragmatic and flexible: "[t]he greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable". However it also owes something to Lord Browne-Wilkinson's distinctions in X: while "[a] claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred", still "it does not... follow that... an authority cannot be liable for what it or its employees do in relation to the child [taken into care]".
- Thus the approach in Barrett is more nuanced, less rigid, than that in X. This will be of some importance when I come to consider whether the council's pre-existing duty of care owed to the claimant as their employee was violated by what may be called the public law failures laid at their door by the deputy judge.
- This case concerned claims in negligence in respect of acts or omissions by professionals employed by education authorities and acting within the scope of the authorities' statutory duties arising under the Education Acts. The Acts did not create any private law right of action for breach of statutory duty. Having recognised as much, Lord Slynn continued (652H-653E):
- This was another highways case. The claimant drove her car head-on into a bus which was hidden behind a sharp crest in the road until just before she reached the top. Her case was that the local highway authority caused the accident by failing to give her proper warning of such a danger. In particular, they should have painted the word 'SLOW' on the road surface at some point before the crest. The claim failed in the House of Lords.
- Gorringe contains a conspectus of the earlier authorities to which I have referred. Lord Steyn said this:
- Lord Steyn's second comment (paragraph 4) was to repeat his agreement with Lord Browne-Wilkinson's observation in X at 736F that "it is [n]either helpful [n]or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence", and to note Lord Hutton's observation to like effect in Barrett (at 586C-G). Lord Steyn stated (paragraph 5) that "these qualifications of Stovin v Wise have been widely welcomed by academic lawyers".
- Closer to the issues in this appeal are these observations of Lord Hoffmann in Gorringe:
- All this collected learning has been directed, as I put it at paragraph 75, to the circumstances in which decisions taken by public bodies acting (or declining to act) under statutory powers may give rise to liability for the tort of negligence. The issue arises in many different factual guises. We are concerned with a particular class of case, where the prospective defendant owes the claimant a duty of care arising independently of the impact of action or inaction under statute: and the question then is whether that duty is violated by a failure to exercise a statutory discretion (see again paragraph 75). We need to see where this particular class of case fits in the general picture. For that to be done, the general picture itself needs some distillation.
- Leaving aside the case of Acts of Parliament (like the Factories Acts) which by their own terms give rise to private law claims for breach of statutory duty, it has been clear from X onwards that liability in negligence in this field as in any other depends on there being a duty of care at common law. This must be so, since the existence of such a duty is always a constituent element of the tort of negligence. Thus the cases I have reviewed take their place alongside the whole corpus of learning in which the courts have had to decide, in this, that, and the next context, whether a duty of care is established or not. It is therefore helpful to stand back and have in mind the framework principles which ultimately set the scene for any enquiry into the existence of a duty of care. I have already referred (paragraph 84) to the leading case of Caparo Industries plc v Dickman [1990] 2 AC 358. There Lord Bridge of Harwich reviewed classic earlier authority – Donoghue v Stevenson [1932] AC 562, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, Dorset Yacht Co Ltd v Home Office [1970] AC 1004, Anns v Merton London Borough Council [1978] AC 728 and others – and continued:
- But the learning largely leaves aside our case, in which the prospective defendant owes the claimant a duty of care arising independently of the impact of action or inaction under statute. The authorities show that where there is no such separate and independent duty of care the court's task is to see whether an affected person may after all enjoy a right, created by the attribution of a duty of care in the particular context, to sue in respect of injuries suffered by him which in fact flow from action or inaction under the statute. These following states of affairs may be discerned in the succession of authority. (1) Where it is sought to impugn, as the cause of the injury, a pure choice of policy under a statute which provides for such a choice to be made, the court will not ascribe a duty of care to the policy-maker. So much is owed to the authority of Parliament and in that sense to the rule of law. (2) If a decision, albeit a choice of policy, is so unreasonable that it cannot be said to have been taken under the statute, it will (for the purpose of the law of negligence) lose the protection of the statute. While this must, I think, point to the same kind of case as does the Wednesbury rule (since only a Wednesbury perverse decision will be outwith the statute), Wednesbury is not made a touchstone of liability for negligence in such cases: the immunity arising in (1) is lost, but the claimant must still show a self-standing case for the imposition of a duty of care along Caparo lines and he may be unable to do so. (3) There will be a mix of cases involving policy and practice, or operations, where the court's conclusion as to duty of care will be sensitive to the particular facts: "the greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought" (per Lord Slynn in Barrett). This is likely to be a large class of instances. (4) There will be purely operational cases, like that of the bus driver on the school trip, where liability for negligence is likely to attach without controversy.
- How does a case like the present fit, where there is a pre-existing and independent duty of care? Mr Faulks submits (skeleton paragraph 52) that "[t]he justiciability question arises not only when it is being contended that a duty of care situation arises out of the statutory power, but also when it is being alleged that an established duty of care was breached by reason of a failure to exercise a statutory power". The argument seems to be that the bite of the case law is the same whether or not the defendant owes a duty of care arising aliunde – independently of the relevant statute. But this is not a coherent position. The succession of authority I have discussed is concerned with whether and when the law should impose a duty of care. By contrast cases like the present proceed on the footing that a duty of care is already established. The same set of principles cannot serve as a touchstone both to resolve instances where the existence of a duty of care is a given, an axiom of the debate, and also instances where the existence of a duty of care is the debate's very issue.
- The authorities I have discussed are however by no means irrelevant to those cases, such as the present, where the existence of a duty of care is a given and the argument is as to the duty's scope. The scope of a pre-existing private law duty, whose edges are not fixed ("fair, just and reasonable"), may be affected by the bite of public law responsibilities. In a case like the present, where the issue is only as to the duty's scope, there is an overriding question along these lines: if in the particular instance the only or primary means of the pre-existing duty of care's fulfilment would on the facts consist in the exercise of a public law discretion, should the law sanction such fulfilment and require the duty-ower to act accordingly, or is use of the public law power disqualified in principle as a means of fulfilling the duty of care?
- The answer, in my judgment, is that the law will in an appropriate case require the duty-ower to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that may be done consistently with the duty-ower's full performance of his public law obligations. Lord Hoffmann's observations in Gorringe at paragraph 38 (see paragraph 100 above) suggest that at least in some cases a pre-existing duty of care may fall to be satisfied by the exercise of public law power. In principle this must be so, for two reasons. First, such a conclusion offers no offence to the general rule (a major theme in X v Bedfordshire CC) that public bodies' acts or omissions which are authorised by Parliament do not, though they cause injury, sound in damages recoverable by private law cause of action: in the case we are considering, the right to damages is not attributed to the legislative intention but to the pre-existing duty. Secondly, there is no difficulty occasioned by any broader perception that in any particular case the courts should stay off the field because of the element of policy involved in the question in hand. It is a premiss of the issue we are considering that in the particular case the only or primary means of the pre-existing duty of care's fulfilment consists in the exercise of public law power; but that premiss implies the availability of a concrete choice of action, unmuddied by the nuance of policy, which serves the duty.
- Thus a duty-ower may be required to fulfil his pre-existing private law duty by the exercise of a public law discretion. But I have said that may only be done consistently with the duty-ower's full performance of his public law obligations. What is the reach of this qualification? The demands of a private law duty of care cannot justify, far less require, action (or inaction) by a public authority which would be unlawful in public law terms. The standard tests of legality, rationality and fairness must be met as they apply to the use of the public law power in the particular case. If the case is one where the action's severity has to be measured against its effectiveness, it must also be proportionate to whatever is the statutory purpose. The varying states of affairs which I have identified from the principal authorities, though no touchstone of liability in this present context, may bring into focus the relevant public law constraints and demands created by the statutory scheme in hand. That will help to set the measure, case by case, of the requirement that the duty-ower, if he is to fulfil his duty of care by means of a public law discretion, must act consistently with the full performance of his public law obligations.
- An especially important aspect of the need for conformity between private and public law duties in the present context is the principle given by Padfield v Minister of Agriculture [1968] AC 997. As is well known the House of Lords there held that a discretion, apparently conferred in unfettered terms, must nevertheless be exercised only for the purposes for which the statute has provided it; and the ascertainment of that purpose is a matter of statutory construction for the court. The Padfield principle must in particular be in point where the question is whether public law powers may lawfully be used for a seemingly collateral end, here the fulfilment of a private law duty of care. The effect of the principle is to require that there be no inconsistency between the private law aim and the public law purpose; and that in exercising the public law discretion in fulfilment of the duty of care, the duty-ower should in no way diminish or undercut his service of the public purpose.
- It is upon these conditions, in my judgment, that the court may require deployment of public law powers to fulfil a pre-existing duty of care. I apprehend that such cases will be few in number. The last question we must decide is whether this is one of them.
- And so I turn back to look again at the deputy judge's findings of breach of duty. The first of these was the council's failure to initiate by February 2005 the procedures required for setting in place an IEB, in which the first step would have been a formal warning.
- As I have indicated (paragraph 58) the statutory footing on which the judge concluded that IEB intervention would have been justified is to be found in s.15(2)(a)(ii) of the 1998 Act, viz. that "there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, [the standards of performance of pupils at the school]". The council's duty to correct that position, and their duty of care to the claimant, plainly marched together. A decision to initiate IEB procedures no later than February 2005 would on the judge's findings, and on the evidence, have been well justified: see the summary points set out above at paragraphs 60 – 62. The constraints on the use of public law powers to serve an established private law duty of care were in my judgment well met.
- As I have foreshadowed, the position as regards this second head of liability found by the deputy judge is rather different. The decision in June 2005 to investigate Mr Martin's complaints was not (see paragraph 75 above) something done under any particular statutory authority. There is no suggestion that the action was ultra vires the council (if it were, it would plainly enjoy no kind of immunity from private law suit), and the council were presumably acting under their general statutory powers. The result, however, is that there is no specific statutory framework which might tell against the council's fulfilment of their duty of care to the claimant by means of a refusal to investigate the complaint. That is not to say that public law considerations might not be material to the range of action open to the council. If it were shown on the facts that the only reasonable recourse (in Wednesbury terms) was to institute the investigation, that imperative would not be over-ridden by the council's duty of care to the claimant. The council is, moreover, always subject to its general obligation pursuant to s.71 of the Race Relations Act 1976 (I summarise) to promote good race relations; and that is necessarily unaffected by the impact of any private law duty of care.
- Notwithstanding these considerations, the absence of any specific statutory framework enlarges the scope of the council's choice of action for the fulfilment of its private law duty. In the result, while there may have been factors pro and con the institution of an enquiry, there were in my judgment no public law imperatives which should have prevented the council from fulfilling their duty of care to the claimant by declining to do so. That being so, their duty obliged them so to decline.
- Accordingly I conclude that the deputy judge was entitled to find the two heads of negligence as he did. But I should sound a note of caution. This is an unusual case, partly because of the council's lamentable capitulation to aggression, partly because the remedy – damages for negligence consisting in the use or non-use of public law power – must, as I have said, rarely be available. It is of the first importance to recognise that the deputy judge's conclusions, both as to the IEB and the enquiry into Mr Martin's complaints, are only justified by their specific place in the whole extraordinary history of events. It is only within that context that these events possess the least legal significance for the purpose of the claim. They were, so to speak, no more than tips of the iceberg. Their effects cannot be judged or criticised without the whole being understood. I wish for my part, therefore, to stress that the result in this case offers nothing remotely resembling a vade mecum for others in the future to build private law claims out of what may be sensitive and difficult decisions, including policy decisions, of public authorities.
- I would dismiss the appeal.
- Like Lord Justice Laws, I consider that the deputy judge arrived at a proper conclusion and committed no error of law in doing so. But because – surprisingly perhaps – the case breaks new ground, I take the liberty of summarising my own reasons. They differ, it at all, in nuance rather than in substance from those of Lord Justice Laws, but in a field in which other crops may grow this may turn out to matter.
- This was a claim at common law for damages for negligence, built upon the duty of care which every contract and relationship of employment contains. The negligence alleged here was, in brief, that the claimant's authority as a headteacher and eventually her health and wellbeing were unnecessarily and foreseeably put in jeopardy by the inaction of her employer in the face of a campaign to undermine her professional standing.
- It is upon the adverb "unnecessarily" that this appeal turns. The local authority points out, rightly, that in addition to its contractual obligations as the employer of teachers in its schools, it has a series of public law functions to fulfil, and some of the latter may well be in tension with the former. This, Mr Faulks QC submits, is what has happened here, and it exonerates the council from blame for the impact on Ms Connor of what were undoubtedly distressing events.
- It is equally true of many private employers that they have obligations – to shareholders, to the public, to regulators and so forth – which may pull against their obligations to their own staff. No employer, for example, can responsibly fail to investigate an allegation of fraud, even though it will plainly cause the employee concerned much stress. But it can be fairly said that the public law duties resting on a local education authority are larger and in many ways less manageable. Their performance, too, is controlled by an elected body which may act according to a political agenda. All of this is capable of producing legitimately different outcomes where negligence is alleged in the public sphere of employment; but it does not alter the essential common law duty resting on an employer.
- Surrey County Council found itself faced with the unenviable task of responding in an equitable fashion to an inequitable campaign designed to capture a secular state school for a particular faith which happened to be that of a majority of the families whose children attended the school. Had this been a purely theological issue, the authority's proper response would have been simple and straightforward; it was because there was a strong ethnic component that the issue became complicated.
- Where, on the deputy judge's entirely justified findings, the council nevertheless went wrong was in temporising and compromising with this move instead of protecting the head, the staff and the school from it. What is critical in this case is that doing so would have been consonant both with their public law functions and with their private law obligations. We are not, in other words, considering a situation in which private law demanded one thing and public law demanded its opposite.
- Thus, as the deputy judge found, there was no adequate reason for delaying for much of 2005 before securing the replacement of the disrupted and disruptive governing body with an appointed board; and there was good and obvious reason in the school's interests for doing so swiftly. The failure to do so very plainly brought about the claimant's ultimate breakdown.
- More problematical, I think, is the role of the inquiry which the council chose to institute. They had no obligation to set it up, but neither was there any legal reason why they should not do so. Some of the deputy judge's critique of it comes much too close, in my view, to retaking a decision which was theirs and not his. But the reason why the inquiry is relevant to the claim in negligence is that, albeit lawfully set up, it was used as a further excuse for doing nothing when there was a now urgent need for intervention.
- The picture which emerges from the careful and thorough judgment is of a local education authority which had allowed itself to be intimidated by an aggressively conducted campaign to subvert the school's legal status, a campaign which was plainly destabilising the school and placing the headteacher under intolerable pressure. The need for the authority to act decisively much sooner than it did arose equally from its public law and its private law duties. Although, as Lord Justice Laws has made clear, it is the latter that give rise to this claim, it is because the former offered no obstacle that the deputy judge was entitled to find in the claimant's favour. What might have been the proper outcome had the two things pulled in opposite directions is a question for another day and another claim.
- I agree, save that on one small aspect of this appeal - the finding of negligence in the decision to set up an independent inquiry - I have reached a different conclusion which I will endeavour briefly to explain.
- I gratefully adopt the exposition of the facts set out by Laws LJ. There can be no doubt that the Council and in particular Dr Paul Gray, the Director of Education and Ms Wright, the Director of Schools, and its other senior officers lost sight of their duties to the school by failing to ensure that there was provided a proper structure of governance at the school. Instead, by their vacillation and appeasement, they allowed a dysfunctional system of governance to develop and persist. This undermined the authority of the claimant as headmistress, brought about serious damage to what had been a happy and successful school and caused the claimant to suffer personally the harm described. No one can read the facts of this case without having immense sympathy for the claimant and a sense of dismay at the abdication of responsibility by those who were meant to protect the interests of educating primary school children in Surrey.
- I agree with the approach to the law in this case set out in such a clear and compelling manner in the judgment of Laws LJ. In respect of the Council's decision to set up the IEB, I also agree that the Council was in breach of its duty to the Claimant.
- However, as has been made clear by both Laws LJ and Sedley LJ the position in relation to the Deputy Judge's findings of negligence in relation to the decision to hold an inquiry is more difficult. It highlights the problems that have arisen on this appeal because the Deputy Judge did not address the issue of what has been termed the justiciability of the public law duty and of the relationship between the exercise of the private law duty owed to the claimant by the Council as her employer and its wider public law duties.
- As is set out in paragraph 111 of the judgment of Laws LJ, the public law duty of the Council to set up an IEB and the private law duty of care owed to the claimant as her employer march together on the findings of fact made by the Deputy Judge. The Council's failure to initiate by February 2005 procedures to establish an IEB was a breach of its public law duty, as it was plainly negligent from every perspective. There were no wider considerations which could have led to the Council reaching a different conclusion without negligence on its part. There had been a breakdown in governance which necessitated intervention through an IEB which, as the Deputy Judge found, should have been in place by May 2005 at the latest. There is no conflict between the duties on the findings of facts in the case.
- However any decision to set up an inquiry by an employer in the public sector will often give rise to a conflict between the stress it will cause the employee and the public need to hold one. If it is reasonable from a public law perspective to hold an inquiry, it would be difficult to say one should not be held because it would cause actionable stress. This is a point the Deputy Judge did not consider on the facts of the case. He set out sound reasons why the decision was a breach of the private law duty at paragraph 272, but did not make findings in relation to the broader considerations which might have led the Council, acting consistently with its public duties, to hold an inquiry in discharge of its public duty to investigate the complaint of racism.
- The Deputy Judge found that the Council should have initially stood by the findings of the October 2004 review (referred to at paragraph 26-28 of the judgment of Laws LJ); that, if the Council had decided on an inquiry, it should have been conducted in a low key manner. However he did not consider in this context the finding (as set out at paragraph 37 of the judgment of Laws LJ) that the Council was advised by its Complaints Management and Equalities Commissioner that it should commission an inquiry or face the risk of referral to the Commission for Racial Equality. The fact that such a complaint is made does not mean that a decision to set up an inquiry is a proper response. It may well, as in this case, not have been.
- But I regret that I am unable to infer on the findings made by the Deputy Judge that the decision to set one up was either negligent or inconsistent with the full performance of the Council's duties in the wider public law context. Nor is it clear what gave rise to the Deputy Judge's conclusion that it should have been conducted in a low key manner. Was that because its terms of reference were negligently set? Or was it because the independent persons who conducted it conducted it in the way they did? If so, were the Council in breach of duty for the actions of the independent inquiry?
- The decision to hold an inquiry was a matter on which the public and private duties therefore did not necessarily march together.
Accordingly it is, in my view, difficult to conclude on the limited findings that the Deputy Judge made that the decision to hold one was not consistent with the careful and full performance of the public law obligations of the council, even though it was in breach of its private law duty as an employer. - However this can make no difference to the outcome. Although the decision to set up the inquiry could not in itself be considered a breach of its public law duty, the way in which the Council acted when the petition was circulated was an egregious manifestation of the consequences of its earlier and continuing breach in failing to have an IEB in place by at the latest May 2005. The failure to establish an IEB by that time had meant that there was in place no effective system of governance at the school which could support the claimant in her duties as headmistress. Instead, the Council, primarily through Ms Wright, used the establishment of an inquiry as an excuse for doing nothing (as Sedley LJ points out at paragraph 123). Ms Wright's e-mail of 20 June 2005 stated that she thought that this was "the only way to defeat the claims of racism", but even if that was correct (which the Deputy Judge considered it was not), her letter of the following day (referred to at paragraph 42 of Laws LJ's judgment) clearly demonstrated the consequences of the Council's failure to provide for a proper system of governance at the school. Even when on 5 July 2005, the Council was again urged to taken action in relation to the Governing Body, again Ms Wright temporised.
- Although therefore I cannot support the Deputy Judge's conclusion on the breach of duty in establishing the inquiry or in its conduct, the harm to the claimant continued to be caused by the breach of duty in failing to set up an IEB.
- There may also have been ample material to hold on the primary facts found by the Deputy Judge that the Council was also, through the conduct of Mrs Wright at the time of and after the petition, in breach of its duty to the claimant as an employer in respects where there was no need to rely on the Council's public law duties. However, it is not necessary to determine in the light of my conclusions on the Council's public law duties whether it would be appropriate for an appellate court to make such a finding.
Lord Justice Laws :
INTRODUCTION
THE LEGISLATION
"12. Regulation 4... provides that GBs shall exercise their functions with a view to fulfilling a largely strategic role in the running of the school and shall establish a strategic framework for the school by setting aims and objectives, setting policies
for achieving those aims and objectives and setting targets for achieving those aims and objectives and shall act as 'critical friend' to the head teacher 'that is to say, they shall support the head teacher in the performance of his functions and give him constructive criticism.' By Regulation 5 the head teacher is made responsible for the internal organisation, management and control of the school, and the implementation of the strategic framework established by the GB."
"14(1) If at any time section 15 applies to a maintained school by virtue of any of the following provisions of that section, namely—
(a) subsection (1) (school subject to formal warning),
(b) subsection (4) (school with serious weaknesses), or
(c) subsection (6) (school requiring special measures),
the provisions mentioned in subsection (2) below (which confer powers of intervention on local education authorities) shall also apply to the school at that time...
(2) Those provisions are—
(a) section 16 (power to appoint additional governors);
(aa) section 16A (power to provide for governing body to consist of interim executive members); and
(b) section 17 (power to suspend right to delegated budget).
...
15(1) This section applies to a maintained school by virtue of this subsection if—
(a) the local education authority have—
(i) given the governing body a warning notice in accordance with subsection (2), and
(ii) given the head teacher of the school a copy of the notice at the same time as the notice was given to the governing body;
(b) the governing body have failed to comply, or secure compliance, with the notice to the authority's satisfaction within the compliance period; and
(c) the authority have given reasonable notice in writing to the governing body that they propose to exercise their powers under either or both of sections 16 and 17...
(2) A local education authority may give a warning notice to the governing body of a maintained school where—
(a) the authority are satisfied—
(i) that the standards of performance of pupils at the school are unacceptably low and are likely to remain so unless the authority exercise their powers under either or both of sections 16 and 17, or
(ii) that there has been a serious breakdown in the way the school is managed or governed which is prejudicing, or likely to prejudice, such standards of performance, or
(iii) that the safety of pupils or staff of the school is threatened (whether by a breakdown of discipline or otherwise); and
(b) the authority have previously informed the governing body and the head teacher of the matters on which that conclusion is based; and
(c) those matters have not been remedied to the authority's satisfaction within a reasonable period.
(3) For the purposes of subsections (1) and (2) a 'warning notice' is a notice in writing by the local education authority setting out—
(a) the matters referred to in subsection (2)(b);
(b) the action which they require the governing body to take in order to remedy those matters; and
(c) the period within which that action is to be taken by the governing body ('the compliance period').
..."
"(1) If at any time this section applies to a maintained school in accordance with section 14(1), then (subject to subsections (2) and (3)) the local education authority may, with the consent of the Secretary of State, give the governing body a notice in writing stating that, as from a date specified in the notice, the governing body are to be constituted in accordance with Schedule 1A (governing bodies consisting of interim executive members)."
S.16(2) and (3) are concerned with "serious weaknesses" and "special measures" cases (s.15(4) and (6)), and provide that in those cases the power under s.16A(1) is only exercisable where the Secretary of State has given the LEA a notice under s.16A(3) of the School Inspections Act 1996 (which has to be given if, in summary, an inspection has revealed serious weaknesses or the need for special measures). S.16A(4) provides that before exercising the power given by s.16(1) the LEA must consult the GB (and in the case of a foundation or voluntary school, other bodies also). By s.18A, in the case of "serious weaknesses" or "special measures" the Secretary of State may himself give the GB a notice that it is to be constituted in accordance with Schedule 1A.
"(1) The governing body of the school shall consist of members appointed by the appropriate authority [sc. in a s.16A(1) case, the LEA], instead of being constituted in accordance with regulations made by virtue of section 19 of the Education Act 2002.
(2) In the following provisions of this Schedule—
(a) the governing body as constituted in accordance with this Schedule is referred to as 'the interim executive board', and
(b) the members of the governing body as so constituted are referred to as 'interim executive members'."
Paragraph 3(1) of Schedule 1A requires that on the date specified in the notice under s.16A(1), the existing governors must vacate office. Paragraph 4(1) requires that the number of interim executive members must not be less than two.
THE FACTS
Before 2003
"[The school] is multicultural but most of the pupils are Muslim. The Claimant told me that 80% to 85% of the pupils were Muslim, approximately 64% were Pakistani Muslims and the others were of various nationalities. In 2003 about 50% of the pupils were on the special needs register. She said, and I accept, that many of the parents were not literate in English and some not literate in their own languages. Mrs Veasey, the former deputy head, told me that 90% of the pupils were EAL (English as an Alternative Language). Between 1998 and 2002 SATS results improved very considerably under the Claimant's leadership. In subsequent years the results were more variable: she said that the reasons in part were the changed composition and classification of the pupils. She ran a happy and successful school where there were no real problems until 2003."
New Governors in 2003
"On 8 October 2003 there was a GB meeting. Mrs [Sofia] Syed was appointed as a co-opted governor, proposed by Mr Martin, and the GB recommended that Mr Shahin and Mr [Mumtaz] Saleem be recommended for consideration as LEA Governors. Mr Martin put himself forward for the vacancy as Chairman of the GB on condition that there was a non-denominational prayer to invoke the blessing of the Almighty before the meeting started... The governors in Mr Martin's absence unanimously agreed that 30 seconds silence for personal reflection would be more appropriate. On return Mr Martin said he sensed tension between the school and the community to which the Claimant replied that the staff had worked hard at building a partnership with the community and felt they had been successful in this. Mr Saleem expressed an interest in being considered for the position of Vice Chair when appointed."
"Mr Shahin soon ceased to play any part but it is clear to me that Mr Martin's and Mr Saleem's conduct, and to a much lesser extent Mrs Syed's, and the issues they raised created considerable problems for the Claimant, the school and the LEA. What those problems were and how the LEA, in particular, dealt with them has been the subject of considerable scrutiny in this case."
From this time onwards the facts disclose a hardening insistence, in particular by Mr Martin and Mr Saleem, on the promotion in the GB and the school of issues and interests which concerned them, to the increasing frustration and distress of the claimant. That however is an incomplete summation, for it leaves out of account the responses from time to time of the council, which are key to the force of the claim. The history is in any event quite complex. The deputy judge set it out in considerable detail and his account should be consulted for a relatively full picture of what happened. The following, shorter, description draws heavily on the judge's narrative. I intend it to be sufficient to expose the factual foundation of my conclusions in the appeal.
December 2003 – November 2004
"The Claimant told me she remembered coming away from the meeting feeling intimidated and very worried for the future."
"[i]t appeared to Mrs Marsden that there was a major underlying issue that Mr Martin had not articulated and when asked what it was he stated it was that the school did not have good communication with the Muslim community." (judgment, paragraph 31)
The next morning Mr Martin and Mrs Syed e-mailed the claimant asking her to produce the schools inclusion and ethnic minority achievement policies and associated policy documents by the following day. There was some anxious correspondence between the claimant and Mrs Marsden. The deputy judge recorded (paragraph 33) that "[t]he Claimant accepted that Mrs Marsden was being helpful at this time but said that as time went on Mrs Marsden was 'finding it more difficult' and possibly under pressure herself".
"I appreciate this appears perhaps to be an emotional response rather than a professional one but I am at my wits end and came away from the meeting very dispirited. It certainly seemed the last straw and I feel uncertain as to how I may proceed. I would be grateful if you would look closely at the minutes... but I am floundering a little at this stage as there seems to be a determination to question the work of the school without any reference to or apparent concern for, what is already happening and indeed how this impacting on the staff."
Other views about the meeting on 4 February were expressed by participants. A parent governor, Mrs Davies (who did not give evidence), wrote to Mrs Marsden saying she was "totally disgusted" at the way the claimant was treated by Mr Saleem, and that never in her five years as a parent governor had she felt so intimidated, and angry that anyone might be so treated. Mr Martin, on the other hand, e-mailed Mrs Marsden on 7 February stating that the meeting on 4 February had been "quite positive and there have been some conciliatory moves".
"As you will imagine I now have serious concerns as this is affecting the school and all the staff tremendously..."
The claimant was to tell the deputy judge that she received no reply from Dr Gray, though it seems that at about the end of February 2004 he enquired of Mrs Marsden what had been happening at the school.
"I am concerned that the attitude and behaviour displayed by these governors is having an extremely negative effect on the morale of the other governors, the morale and well being of the teachers and management team of the school... and, worst of all, is adversely affecting the health and well-being of Erica who works tirelessly for the benefit of the school and the community. I believe the time is well overdue for the LEA to step in and investigate the operation of this governing body, with a view to re-constitution or, at the very least, some form of special measures in order to demonstrate support for the school, its teaching staff and ultimately the pupils.
... [Q]uite honestly the only reason I am still in post is out of a sense of duty towards Erica and the school, who should simply not be suffering from this type of behaviour and attitude."
"Dr Gray wished to reassure her that the LEA was aware of the difficulties at New Monument, that they would do what they could to support the school with some possible follow up training for the staff."
"Mrs Marsden recorded that the Claimant became very emotional stating she 'could not go on' and that she was 'in the middle trying to please everyone'. The Claimant told me that at this time she was feeling desperate and did not know where to turn. She also told me that at this time parents were telling her that meetings were taking place in the community 'trying to get me out'. She said she felt on the verge of a breakdown. She also felt that at this stage Mrs Marsden was getting a little fed up with the situation."
Mrs Marsden made a note in which she acknowledged that the claimant was "highly stressed" but was
"not leading staff appropriately on this issue... The issues surrounding [Mr Martin], I believe, continue because of a reluctance to appreciate that [he] has concerns (founded or not) and so [the claimant] will not meet with him, other than with her Union representative. [She] is very defensive. [Mr Martin] has a difficult manner, which compounds the situation...
I would recommend that a review of governance is undertaken to establish the effectiveness of relationships ...and to review practices and procedures of the governing body..."
"1. To determine the quality of the relationships between the governors, community, parents, school, LEA and the local council.
2. To assess the impact and effectiveness of the diversity and inclusion policies, as well as working practices, on those pupils attending the school."
The review was conducted by three appropriately qualified people including Ms Bergamasco, who had teaching experience in a similar school. It took place on 5 and 6 October 2004. Also on 6 October there was a further GB meeting which the deputy judge described as "somewhat stormy". After it two governors complained to the chairman, Mr Tackley-Goodman. One was the redoubtable Mrs Davies. The other was Mrs Mir, one of the teachers whom Mr Martin had earlier criticised. She complained of Mr Martin's and Mr Saleem's conduct at GB meetings. She said she had become emotionally ill because of Mr Martin's behaviour, felt demoralised, and questioned her own choice of teaching as a career. She asked whether they had a hidden agenda.
Report of the Council's Review
"5.2... Staff are conscious of the tensions within the governing body and report that this is impacting on their work in school. Such tension is reinforced by comments made during governing body meetings while staff observers are present. If inspected by OFSTED it is likely that governance would be unsatisfactory.
5.3 The head teacher has established a strong and enthusiastic team of staff who are committed to doing their best for pupils, both those who need help to learn English and those who have special educational needs... However a considerable amount of school time is spent on issues arising from governance. Leadership cannot operate in a vacuum, and there is an overall weakness in the partnership between the governing body and the senior management team."
"all governors being clear about the aims of the school and the values it should promote, which... was only likely to happen if all governors committed to
All governors must understand the limits of their role as an individual."
"the last few meetings have been monopolised by Paul Martin and Mumtaz Sheehan and that they have continually led the meetings away from the written agenda with an inordinate amount of time spent on discussions concerning the mosque/school relationship".
Mr Martin's Complaints in November 2004; Mediation
"I am extremely disappointed with the actions of the LEA: as chair of governors I reached out to the LEA for help and advice and having tried to sidestep the issue through a watered down review, the LEA are now casting those who have tried to resolve the anti-Christian and anti-secular antics of a small group of individuals, as the parties at fault. I feel that by attempting to resolve the matter as described the LEA are missing the point. The precise point being that a small number of people, without the support of the local community, are attempting to undermine the governing body to the extent that there is a take over by anti-secular people who will transform the educational environment at the school to the detriment of the children and the community. Therefore addressing the matter described will not resolve the issues unless some action can be taken to protect the principle of secular education."
However Mr Tackley-Goodman was prepared to proceed with the mediation "in a good spirit", and the claimant also agreed to participate.
Mr Martin Removed from the Governing Body
"[A]t this stage all I can do is remind you of the LEA powers to remove a governing body and replace it with an interim executive board of their choice if conditions and their impact warrant it."
The deputy judge was to observe (paragraph 259):
"Mr Martin's removal led to a backlash, which was not entirely unforeseeable in the light of his past conduct, even if the mechanism could not have been anticipated."
Mr Martin's Complaint of Institutional Racism
"removal [sc. from the GB] was in large part due to the fact that [he] had become a whistle blower for institutional racism within the school.
Racism, particularly low level institutional racism, is very hard to prove but is nevertheless pernicious."
He went on to say that of seven children shown on the cover of an internal school document, "Our Vision for the Future", only one was brown. He said that the council had not involved the community in the proposed move to a two-school federation (whose details I need not describe), and the six-member GB steering group for federation included not one governor with an ethnic minority background. He asked that this be investigated as a matter of urgency, and observed that the recently commissioned council review had no expert in the field of racism. He said he would like to see a full race equality audit carried out at the school, ideally by someone from a Pakistani background who was an expert in ethnic minority achievement.
The Petition
"We the undersigned, parents of children at New Monument School, no longer have confidence in Erica Connor to educate our children in a way that respects and values our faith, culture and heritage."
It described the claimant as "a racist and Islamophobic. She is using school to implement her personal prejudices and to further her career ambitions". The report set out eleven instances of her alleged racism/Islamophobia. They included "Erica believes that Pakistanis are less intelligent because Islam allows cousins to marry", "She... has an active campaign to distance the children from Islam", and "She refuses to discuss or permit better links with the Mosque or the community...". It proceeds to give eight instances where the claimant had allegedly transferred resources from "brown Muslim children to white special needs children". Allegations under this head included the following:
"Erica has used Mark Tackley-Goodman, her friend, to be the chairman of the governing body. This man has no connection with the children/school/community/area/culture/religion. He was brought in to stop a Muslim becoming the chair."
"She use[d] Mark Tackley-Goodman to bully Br. Khalil [Mr Martin's Muslim name]. She wanted to intimidate Br. Khalil into stop asking questions about her management of the school."
The petition also set out eight respects in which it was alleged the claimant was furthering her own career and ambitions. It alleged:
"Erica's prime motivation is her own career, she has no respect for the needs of the community. She is contemptuous of the parents and has as little to do with them as possible. Erica dresses in a way that is inappropriate to our community's values."
"It was Mr Caswell's impression that the officers he consulted were generally unwilling to pursue these issues."
The claimant linked the petition with Mr Martin. It referred to her part-Jewish background, and her evidence was that she had told Mr Martin about that. Mr Shah gave evidence that Mr Martin had been seen distributing the petition. The deputy judge was satisfied (paragraph 259) that he had played a part, "probably a leading part", in initiating the petition. There is no challenge to this finding.
"The Local Authority has no evidence that these statements are factually correct. A number of the statements are personally defamatory. We have contacted the police because of our concern and they have visited the school this morning. We are also taking legal advice. We carried out a leadership and management review of the school eight months ago and found no evidence of racism or Islam[o]phobia."
The deputy judge's comment (paragraph 136) was:
"This was described, not unfairly in my judgment, as a somewhat anodyne response. It is not a letter which was clearly and unequivocally supportive of the staff and the Claimant."
Counsel's advice was at length taken on the question whether the school might maintain a cause of action in defamation in relation to the petition; it is enough to say that the advice proved unpromising.
"The letter nowhere stated expressly what staff wanted to hear: namely that the school was sound, that the allegations were rejected and that the Claimant had the LEA's full support."
Late June to September 2005
"We could see a lot more of this happening or some possible personal injuries cases against the LEA if we are not careful."
"What had struck her from her conversations with the staff was the fact that there was no white/Muslim divide in their views and that disapproval of external Muslim pressure was common to all staff no matter what their creed. It was clear to her too that external unfair pressures were being brought to bear on Muslim staff... She considered that after the petition 'we were doing everything we could'.
She was a very fair and impressive witness with what I consider was a balanced view of what was happening. I accept her evidence of the state of affairs she confronted and described. The only reservation I have is whether the Defendants, as opposed to her, did everything they could have after the petition was in circulation."
"I am becoming increasingly concerned about the pressure that is being applied onto Erica – whilst I am the first to acknowledge that a lot of this is outside the direct control of the LEA the fact remains that as the 'employer' [the council] has a legal duty of care towards all the staff at Monument Hill..."
On the same day in a phone call to the council the claimant asked for assistance "preferably someone to deputise for her and... she was being bombarded with bullying and offensive e-mails mainly from Mr Saleem asking for documentation relating to collective worship". In an e-mail to Ms Wright on 4 July she stated:
"I wish to reiterate that I am astounded that I am being expected to continue working with particular individuals on the GB. I cannot believe that the LEA is putting me and the staff members in a position that is both threatening and completely unproductive. I feel the LEA should be making a stand on this and supporting the school. By allowing these governors to continue in this way a clear message is being sent to them, the staff and the community. I am continually baffled and disappointed by actions taken and indeed so often not taken – by the LEA at this time."
"At what point is the LEA going to take any action against Paul Martin or is he going to continue to destroy my reputation, my career and indeed as it feels at the moment, my life, unabated...
I reiterate my deep distress and concern regarding these and many other issues. I am totally vulnerable as is the school and staff. Support we have finally received in the form of counselling etc is welcome but the fact remains that individuals continue on a daily basis to undermine me, the school and the staff and there is no determined action from the LEA to put a halt to this. It appears that Paul Martin can do what he wishes and the LEA will jump to his requests, complaints and demands at the expense of LEA employees' welfare and health."
"it appeared that Mr Martin could make any allegation and the LEA would react whereas it appeared the LEA had ignored many staff letters".
A third demanded "immediate closure so that they could move forward under [the claimant's] leadership".
"We have not been able to find sufficient evidence to uphold the complaint of racism by the school or the local authority.
We have upheld the complaint that the school has not been responsive to the needs of the faith community. This was in part due to the headteacher's belief that she knew best how to provide multicultural education and was reluctant, if not dismissive, of anybody outside the school community who challenged this view or her autonomy... There was also the fear that Paul Martin and others were attempting to place the school in Special Measures in order to bring about an Islamic school. This unfounded fear became widespread throughout the school and was shared by some members of the [GB]."
We have to question whether this fear amounted to Islamophobia... We believe the head teacher, along with some other governors, indirectly displayed Islamophobia through ignorance and fear of losing control... [W]e believe that in a significant number of responses heard during the investigation the headteacher had shown 'cultural and religious insensitivities'. But this was more as a result of lack of knowledge and understanding than hatred towards Muslims or Islam."
THE FACTUAL CASE IN NEGLIGENCE
The Background Summarised
The Deputy Judge's Findings
"234... From late 2003 down to the summer of 2005 the GB was dysfunctional. The cause... was the conduct, in particular, of Mr Martin and Mr Saleem. I am satisfied that they sought to monopolise GB meetings with a view to imposing their own agenda, and were prepared to do so regardless of the interests of the school and anyone who resisted that agenda. What was that agenda? It was at the very least to introduce an increasing role for the Muslim religion in New Monument School... In my judgment it was not unreasonable for the Claimant and the staff to consider that there was an agenda to convert New Monument into an Islamic faith school.
235... [Mr Martin and Mr Saleem] sought to dominate the agenda at GB meetings and Mr Saleem's approach extended to offensive verbal attacks at GB meetings, followed by requests for information from the school. Mr Martin's approach... extended to persistent complaining until he had his way and, once excluded from the GB, extended to extra mural activities stirring up disaffection in the local community. LEA officers appear to have realised this. Certainly they ought to have done so.
236. But, by excessive tolerance, they failed to keep such activities in check. They also, in my judgment, had misplaced sympathy for Mr Martin...
237. In responding to Mr Martin's demands, complaints and suggestions the Defendants lost sight of the adverse effects of such conduct and their response to such on the school. The lack of timely intervention in the GB meant that Mr Martin's and Mr Saleem's conduct there had the effect of tearing apart the GB, and these matters together with poor response by the Defendants had as their effect 2 years of anxiety and low morale for the school staff, stress leading to need for early retirement in some staff and the Claimant and disruption in the local community with, on the evidence, little, if anything, positive to show for it."
The judge proceeded to observe (paragraph 238) that "for the purposes of this case these are background matters". I would not so describe them. These facts are inextricably bound up with the deputy judge's conclusion at paragraph 247:
"I am satisfied that there were two closely linked causes of the Claimant's stress and depression. Mr Martin's and Mr Saleem's conduct, in particular that of Mr Martin, and the Defendants' failure to provide the Claimant with support to protect her from such conduct and its consequences..."
Then dealing with the period after Ms Wright's appointment as Director of Schools,
"254. Ms Wright's arrival presented an opportunity for a clean sweep. She was there to make decisions. Sadly she failed to grasp the nettle. From this moment on efforts appear to have centred more on dealing with Mr Martin's allegations rather than considering what was best for the school and the staff. Mrs Marsden's advice was that Mr Martin's complaints re the GB Chairman (Mr Tackley-Goodman) and the Claimant should be dealt with by the GB and should that fail, as it seems appeared likely to Mrs Marsden, then an independent investigation could be considered. I was provided with no evidence about who had suggested an independent investigation. No one appears to have considered removing Mr Saleem, which would have taken the heat out of part of the GB meetings nor at this stage reminding the GB of the options open to them. No one appears to have considered an IEB at this stage despite the view that the school would have failed an OFSTED inspection for lack of proper governance.
255. Instead Ms Wright decided upon mediation. This was in my judgment a mistaken decision for the reasons given by the Claimant namely that the problem which needed to be dealt did not derive from differences in personality but from different philosophies...
256. The effect of having the mediation was to put LEA intervention on hold... There were significant staff anxiety and morale problems at the school in April and May such that both Mr Caswell and Mr Clark contacted Dr Gray and Ms Wright, Mr Caswell pointing out that the health and welfare of the staff seemed to be a lower priority than other things and Mr Clark stating that the LEA needed to take a more proactive stance.
…
258… The Defendants never appear to have considered that the GB, not being party to the mediation, could, might, or would likely go its own way and remove Mr Martin as was within their power and, in my judgment was not unlikely given Mr Martin was in a minority… The GB's decision made the mediation process a waste of time and money. And time was an important commodity so far as the health and welfare of the staff, including the Claimant, were concerned.
…
260. [After the petition] Ms Wright had to be prompted into a little more support than she would instinctively have given but her short letter to parents, apparently written after legal advice, was hardly fulsome support for the Claimant and the school. No show of public support was provided when that is what the school and the Claimant needed. Nor, in my judgment, was there any good reason why such support could not have been given. The Defendants had accepted the Review's findings which provided the Defendants with good ammunition to refute the substance of what was being alleged in the documents accompanying the petition, but its finding was mentioned only briefly. Fears over accusations of racism appear to have quelled a proper response.
261. The Defendants were not responsible for the petition nor could they have prevented its circulation. The most they could have done was warn the Claimant of its circulation. But their reaction to Mr Martin's complaints was their responsibility and that reaction apparently depended on Ms Wright. Lacking experience in multicultural issues she sought advice, in part from outside the LEA. Part of that advice warned of the risk of referral to the CRE.
262. It is clear that Ms Wright was concerned about the reference to racism and, in particular, that if Mr Martin was not content with the Defendants' response they were at risk of a complaint to the CRE. It seems to me that such concern took precedence over what I consider ought to have been her better judgment. The complaint of racism and Islamophobia had already been investigated by the Review. Limited enquiry would have revealed that Mr Martin's approach appears to have been never to accept what appeared to be against his interests.
263… [Ms Wright] appears to have taken the view that [Mr Martin] was reasonable when met as a reliable indicator of what he was really like without reference to what was alleged by others against him. And she appears to have accepted, without question, that he was a respected member of the local community. She never put his concerns into their proper perspective as merely one of the issues to be addressed so far as the school, staff, the Claimant and the community were concerned, but treated them as the foremost issue to be addressed. I consider it quite understandable that in her email to Ms Wright on 14 July the Claimant said 'the welfare of the staff and the duty of care in this regard matter little'...
264. Nor in making her decision does Ms Wright appear to have considered properly the disadvantages of holding the inquiry, namely the depressing effect on the staff and at such a busy time of year. Mrs Cicero-Scott's report had made clear the need for support and the dangers of not providing it. Nor did she pay any attention to the staff's letter asking to halt the inquiry. She went ahead. And although she promised support for the Claimant in the form of assistance on the ground, none was forthcoming. She promised that staff would see the report but later withdrew from that. It seems likely that the process had not been thought through. And to compound matters she extended the scope of the inquiry beyond Mr Martin's complaint to deal with the school's relationship with the community, again despite the considerable praise for that relationship in the Review, without notifying the school staff, and probably the Claimant, and without regard for the extra problems such could cause...
265... In my judgment, when by late 2004 it was apparent that the GB remained dysfunctional [Ms Wright] should have gone ahead speedily with disbanding the GB and setting up an IEB; then she should have stood by the conclusions of the Review so far as the allegations of racism were concerned. There was insufficient evidence of racism and Islamophobia as the Inquiry in due course found...
266. Ms Wright's decision [to] respond to Mr Martin's complaint via such an independent inquiry was in my judgment flawed, coming so soon after the Review. I do not accept her views that it was the only way to defeat the claims of racism. Her view that setting up an IEB might well have fuelled the flames has to be seen not as a general observation but as relating to the minority group on the GB. It reflects that her greater concern was appeasing this group as opposed to considering the welfare of the school and staff. The GB decision to remove Mr Martin was an attempt to put out the flames which were troubling the school and an IEB, which she later decided on, would have clinched that argument. I have seen nothing to persuade me that the GB would not have welcomed an IEB...
267. Nor in my judgment was the Inquiry itself handled well by the LEA. I have already mentioned the decision not to disclose its contents to the staff. Of concern, too, is extending the scope of the inquiry without notice to those being interviewed and failure to provide the identities of those consulted, at least on a confidential basis, so that the sources of evidence relied on for the conclusions may be considered by those criticised... The lack of opportunity for criticism by the Claimant before it was made available also seems to me to be flawed particularly since the Claimant was being criticised... Nor does any attempt appear to have been made to accommodate her corrections. Instead the findings of the Inquiry were accepted promptly and uncritically by the LEA."
"269. But the question for decision is not whether these were flawed decisions but whether any of them were negligent in the context of this case. In my judgment delay in setting up an IEB, and setting up the independent inquiry were, because they disregarded the health and welfare of the Claimant and her staff when such ought to have been central considerations.
...
271. In my judgment the Defendants should have issued a formal warning no later than the end of February 2005. That would have enabled an IEB to have been set up no later by about May at the latest. Knowledge that this was going to happen would very likely have stalled further GB action with the result that the GB would not have proceeded with removing Mr Martin alternatively their powers to do so would have been removed. That in my judgment would have prevented much if not all of the backlash that resulted. And importantly taking over the GB would have removed the influence of Mr Martin and Mr Saleem, demonstrated that the Defendants were supporting the school and the Claimant and helped alleviate the stress and its harmful consequences. The Defendants failed to provide the Claimant with the support she needed.
272. I consider the decision to set up the Inquiry to deal with Mr Martin's complaint of racism and Islamophobia and extending the Inquiry's scope to include the school's relations with the community, both highly sensitive areas so far as the health and welfare of the staff and the Claimant were concerned, were made in disregard of the duty of care the Defendants owed the Claimant and the staff, concern for which had earlier been expressed on many occasions, but most clearly in Mrs Cicero-Scott's report. Earlier Mr Ambrose had said 'when will it ever stop... It must be dreadful in the school'. It was the Defendants' duty to put a stop to it so far as was within their power. If the Defendants decided not to stand by the findings of the earlier Review, which in my judgment they should initially have done, but decided on an inquiry, independent or otherwise, it should have been kept low key whereas the present inquiry actively involved the school, against their will, in participating in something they regarded as a extremely damaging."
And so the judge found negligence established.
Factual Errors?
"Where there are a number of options for the teacher as to the manner in which he might discharge that duty, he is not negligent if he chooses one which, exercising the Bolam test (1957] 1 WLR 582), would be within a reasonable range of options for a reasonable teacher exercising that duty of care in the circumstances."
Foreseeability
Causation
"I have no difficulty in concluding that the school problems, which I define as the conduct of Mr Martin and his associate governors and its effect on the Claimant, coupled with the LEA's failure to provide support but by their actions instead appearing to support Mr Martin, resulted in the Claimant's depression. Not being a psychiatrist I cannot say when the Claimant first became clinically depressed. Clearly she was so when she ceased work in September 2005 but it may well be that she could have been diagnosed as clinically depressed at some earlier stage or stages. It seems to me that the relevant trigger was the Defendants' conduct in June/July 2005 in commissioning the report coupled with the lack of support at that time which left her having to deal with the problems very much in isolation. Seeing the Report and its unfair and wrong conclusions was probably the final straw and that clinical depression was present almost immediately thereafter. But I stress that is very much a matter for a psychiatric view. It matters little to my assessment of damages."
These findings are in my judgment unassailable.
THE LEGAL CASE IN NEGLIGENCE
"The statutory provisions governing interventions by local authorities in schools lie in the realm of public, rather than private law. The powers may only be exercised if prescribed conditions are met, and even where they are, Parliament has chosen to confer a discretion rather than a duty to intervene. A decision to exercise the powers will involve balancing competing interests and risks of a policy type which are unsuitable for adjudication by a court... [T]he very fact of intervention may in itself destabilise a school by alarming parents or attracting negative publicity to the school; imposing an interim executive board involves dissolving a locally accountable body which may in turn provoke a community backlash; divisions on a governing body may reflect division in the community served by the school" (skeleton argument paragraph 53).
There is much learning of high authority on the circumstances in which decisions taken by public bodies acting (or declining to act) under statutory powers may give rise to liability for the tort of negligence. The cases are mainly concerned with situations where a duty of care is said to arise from the very exercise of the statutory function in question. Faced with claims that such a duty so arises, the courts have evolved principles or guidelines upon which to decide whether it does so or not. But the cases have much less to say about the situation which confronts us in this appeal, where the council owes the claimant a duty of care in any event. The duty is a function of the relationship between employer and employee. It arises quite independently of the impact of action or inaction under statute. The question is whether this duty is violated, so as to give rise to a claim for damages, by a failure to exercise a statutory discretion. The appeal therefore involves the edge between the council's private law duties and its public law functions. In order to understand what route the law will take in such a case it is necessary to examine the themes of the principal authorities, though they do not deal with such a case themselves. In addition, and I must return to this, we should not lose sight of the fact that the second breach of duty found by the deputy judge, the decision to establish an enquiry into Mr Martin's complaint of racism and Islamophobia, was not something done under any specific statutory authority; certainly none has been identified to us.
X v Bedfordshire CC [1995] 2 AC 633
"raise[d] 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" (730C-D).
Lord Browne-Wilkinson proceeded to address a number of questions which fell to be considered within this overall issue. By way of preliminary, some statutes, as Lord Browne-Wilkinson pointed out, of themselves give rise to private law claims for breach of statutory duty. These are statutes passed for the protection of a limited class of members of the public in particular circumstances. The Factories Acts are a good example. The courts have elaborated tests to ascertain whether any given Act is of this kind: see Cutler v Wandsworth Stadium Ltd [1949] AC 398. But the House in X v Bedfordshire CC was not concerned with such cases and nor are we. There could be no suggestion that s.16A of the 1998 Act as amended (together with associated provisions) created a private law right of action on proof of damage caused by breach of the statute.
"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."
"(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."
So expressed, I have with great deference found the distinction somewhat difficult to understand. However Lord Browne-Wilkinson proceeded:
"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" (735G-H).
"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" (736A-C).
Lord Browne-Wilkinson cited Dorset Yacht [1970] AC 1004 and Anns v Merton LBC [1978] AC 728. Now, the reasoning here is dense. What is meant by a "decision... fall[ing] within the ambit of [a] statutory discretion"? Despite the last sentence of the passage just cited, it cannot simply mean a decision which is not irrational in public law terms. If it did, a public law rule would be made the test of a private law claim: breach of the former would give rise to the latter. But Lord Browne-Wilkinson himself is at pains to disavow (736F-H) the application, in the field of liability for negligence, of public law concepts such as Wednesbury unreasonableness which go to the validity or vires of decisions taken under statute. (A view seemingly in contrast with the line taken in Dorset Yacht by Lord Diplock; and I must come in due course to what was said about the Wednesbury test by Lord Hoffmann in the later case of Stovin v Wise [1996] AC 923, 953 and also the remarks of Lord Hutton in Barrett v Enfield LBC [2001] 2 AC 550, 586.) I will offer a suggestion below as to the possible intended effect of the reference to unreasonableness in X at 736C.
"[I]n 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... 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."
"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."
The citations from Anns and Rowling show that matters of policy are here being distinguished from "operational" matters. Rounding off this part of his reasoning Lord Browne-Wilkinson said (739C-E):
"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... [I]n 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."
Stovin v Wise [1996] AC 923
"In summary... I think that the minimum pre-conditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the
policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."
Barrett v Enfield LBC [2001] 2 AC 550
"I consider that subsequent decisions have shown that the underlying principle to be derived from the passages in the judgments of Lord Reid and Lord Diplock in the Dorset Yacht case relating to negligence in the exercise of a statutory discretion is that the courts will not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the courts in considering matters of policy raising issues which they are ill-equipped and ill-suited to assess and on which Parliament could not have intended that the courts would substitute their views for the views of Ministers or officials."
This appears to be a more open-ended approach than is to be found in X. There are policies and policies. The courts may be more, or less, competent to decide on the merits of some than on the merits of others. And the emphasis is firmly pragmatic: the court bars a claim in the circumstances envisaged because it would involve consideration of "issues which they are ill-equipped and ill-suited to assess". This is, I think, in contrast to the approach in X, which is as I see it firmly based on a principle of immunity owed to the authority of Parliament and the rule of law. Lord Hutton proceeds to cite Anns, Rowling, Lonrho plc v Tebbit [1994] 4 AER 973 and Stovin (including the passage in which Lord Hoffmann states that "the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not"). Then he says this (583C-D):
"Therefore, these judgments lead me to the provisional view that the fact that the decision which is challenged was made within the ambit of a statutory discretion and is capable of being described as a policy decision is not in itself a reason why it should be held that no claim for negligence can be brought in respect of it. As I read it this is what is said by the Privy Council in its judgment in Rowling v. Takaro Properties Ltd at p. 501G. It is only where the decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion."
This passage reinforces the pragmatic approach. The competence of the court, rather than the authority of the legislature, is made the test of what is justiciable by way of private law claim. Finally from Lord Hutton:
"I further consider that the decision of this House in Stovin v Wise [1996] AC 923 is not an authority which precludes a finding that there was a duty of care in this case, because Stovin v Wise was concerned solely with the omission by a highway authority to perform a statutory power, whereas in the present case the allegation of negligence relates to the manner in which the local authority exercised its statutory duty and powers.
In the Bedfordshire case [sc. X] [1995] 2 AC 633, 736F Lord Browne-Wilkinson said: '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.' I am in agreement with this view and I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff's claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness... to determine if the decision fell outside the ambit of the statutory discretion. I further consider that in each case the court's resolution of the question whether the decision or decisions taken by the defendant in exercise of the statutory discretion are unsuitable for judicial determination will require, as Lord Keith stated in the Takaro case [1988] AC 473, 501, a careful analysis and weighing of the relevant circumstances" (586B-F).
"Where a statutory power is given to a local authority and damage is caused by what it does pursuant to that power, the ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no role to play. The two tests (discretion and policy/operational) to which I have referred are guides in deciding that question. The greater the element of policy involved, the wider the area of discretion accorded, the more likely it is that the matter is not justiciable so that no action in negligence can be brought... I share Lord Browne-Wilkinson's reluctance [sc. in X at 736F-H] to introduce the concepts of administrative law into the law of negligence, as Lord Diplock [sc. in Dorset Yacht] appears to have done. But in any case I do not read what either Lord Reid or Lord Wilberforce in the Anns case... said as to the need to show that there has been an abuse of power before a claim can be brought in negligence in the exercise of a statutory discretion as meaning that an action can never be brought in negligence where an act has been done pursuant to the exercise of the discretion. A claim of negligence in the taking of a decision to exercise a statutory discretion is likely to be barred, unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests; acts done pursuant to the lawful exercise of the discretion can, however, in my view be subject to a duty of care, even if some element of discretion is involved. Thus accepting that a decision to take a child into care pursuant to a statutory power is not justiciable, it does not in my view follow that, having taken a child into care, an authority cannot be liable for what it or its employees do in relation to the child without it being shown that they have acted in excess of power. It may amount to an excess of power, but that is not in my opinion the test to be adopted: the test is whether the conditions in the Caparo case have been satisfied" (571F-572D).
Phelps v Hillingdon LBC [2001] 2 AC 619
"It does not follow that the local authority can never be liable in common law negligence for damage resulting from acts done in the course of the performance of a statutory duty by the authority or by its servants or agents. This House decided in Barrett v. Enfield LBC... that the fact that acts which are claimed to be negligent are carried out within the ambit of a statutory discretion is not in itself a reason why it should be held that no claim for negligence can be brought in respect of them. It is only where what is done has involved the weighing of competing public interests or has been dictated by considerations on which Parliament could not have intended that the courts would substitute their views for the views of ministers or officials that the courts will hold that the issue is non-justiciable on the ground that the decision was made in the exercise of a statutory discretion... If a duty of care would exist where advice was given other than pursuant to the exercise of statutory powers, such duty of care is not excluded because the advice is given pursuant to the exercise of statutory powers. This is particularly important where other remedies laid down by the statute (e.g. an appeals review procedure) do not in themselves provide sufficient redress for loss which has already been caused.
Where... a person is employed by a local education authority to carry out professional services as part of the fulfilment of the authority's statutory duty, it has to be asked whether there is any overriding reason in principle why (a) that person should not owe a duty of care... and (b) why, if the duty of care is broken by that person, the authority as employer or principal should not be vicariously liable..."
This lends further high authority to the more flexible, pragmatic approach which was prominent in Barrett.
Gorringe v Calderdale MBC [2004] 1 WLR 1057
"3. In recent years four House of Lords decisions have been milestones in the evolution of this branch of the law and have helped to clarify the correct approach, without answering all the questions: 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 London Borough Council [2001] 2 AC 619. There are two comments on these decisions which I would make. First, except on a very careful study of these decisions, there is a principled distinction which is not always in the forefront of discussions. It is this: in a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy. In contradistinction in a case framed in negligence, against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy. An assimilation of the two enquiries will sometimes produce wrong results."
38. My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. A hospital trust provides medical treatment pursuant to the public law duty in the National Health Service Act 1977, but the existence of its common law duty is based simply upon its acceptance of a professional relationship with the patient no different from that which would be accepted by a doctor in private practice. The duty rests upon a solid, orthodox common law foundation and the question is not whether it is created by the statute but whether the terms of the statute (for example, in requiring a particular thing to be done or conferring a discretion) are sufficient to exclude it. The law in this respect has been well established since Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430."
Standing Back
"[I]n addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other."
Lord Bridge acknowledged the impossibility of building upon this overall framework a precise vade mecum for the ascertainment of a duty of care in any given case. He also recalled Lord Atkin's observation in Donoghue at 580:
"To seek a complete logical definition of the general
principle is probably to go beyond the function of the judge,
for the more general the definition the more likely it is to
omit essentials or to introduce non-essentials."
However Caparo, though it is no rule-book, represents the modern backdrop against which to judge any putative negligence claim. All the learning I have reviewed is a discussion of what is fair, just and reasonable in the cases scrutinised. And though there seems to be something of a shift from the sharp-edged rule of immunity for policy decisions found in X towards the looser spectrum from strategic to specific decision-making found in Barrett and later authorities, the corpus is a principled whole.
This Case: Pre-Existing Duty of Care
Failure to Initiate IEB Procedures by February 2005
Enquiry into Mr Martin's Complaints
CONCLUSION
Lord Justice Sedley:
Lord Justice Thomas: