United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/18/255

P1 and others (minors) (A.P.) (Appellants) v. Bedfordshire

County council (Respondents)
In re M (a minor) (1994) (A.P.) and another (A.P.) (Appellant)

In re E (a minor) (1994) (A.P.) (Respondent)
Christmas (A.P.) (Respondent) v. Hampshire County Council

(Appellants)

Keating (A.P.) (Original Respondent and Cross-Appellant)

v. Mayor etc. of the London Borough of Bromley

(Original Appellants and Cross-Respondents)

(Conjoined Appeals)




JUDGMENT

Die Jovis 29° Junii 1995

Upon Report from the Appellate Committee to whom was
referred the Cause PI and others (minors) against Bedfordshire
County Council, In re M (a minor) (1994) and another, In re E (a
minor) (1994), Christmas against Hampshire County Council and
Keating against Mayor etc. of the London Borough of Bromley, That
the Committee had heard Counsel as well on Monday the 10th as on
Tuesday the 11th, Wednesday the 12th, Thursday the 13th, Monday
the 17th, Tuesday the 18th, Wednesday the 19th, Thursday the
20th, Monday the 24th, Tuesday the 25th, Wednesday the 26th and
Thursday the 27th days of October last upon the Petitions and
Appeals of P1, P2, P3, P4 and P5 (minors) suing by their next
friend the Official Solicitor to the Supreme Court of 81 Chancery
Lane, London WC2A 1DD, Kelly Mills (a minor) suing by her mother
and next friend Trudy Page and also the said Trudy Page both of
16 Stanley Rise, Chelmer Village, Chelmsford, Essex, Dorset
County Council of County Hall, Colliton Park, Dorchester, Dorset
DT1 1XJ, Hampshire County Council of The Castle, Winchester SO23
8UJ and the London Borough of Bromley of Bromley Civic Centre,
Stockwell Close, Bromley, Kent BR1 3UH, and upon the Petition and
Cross-Appeal of Sefton James Keating, of 43 Steyning Close,
Nottingham, London, SE9 4NG, praying that the matter of the
Orders set forth in the Schedules thereto, namely Orders of Her
Majesty's Court of Appeal of the 23rd day of February 1994 and
the 29th day of April 1994, might be reviewed before Her Majesty
the Queen in Her Court of Parliament and that the said Orders
might be reversed, varied or altered or that the Petitioners
might have such other relief in the premises as to Her Majesty
the Queen in Her Court of Parliament might seem meet; as upon the
cases of Bedfordshire County Council, the Mayor and Burgesses of
the London Borough of Newham, the East London and the City Health
Authority, Eileen Vizard, Martyn Oliver Edwards (a minor, by his
father and next friend Derek Edwards), Mark John Christmas and
Sefton James Keating lodged in answer to the said Appeals and as
upon the case of the London Borough of Bromley lodged in answer
to the said Cross-Appeal; and due consideration had this day of
what was offered on either side in this Cause:




HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPPEAL FOR JUDGMENT

IN THE CAUSE




P1 AND OTHERS (MINORS)

(APPELLANTS)

v.

BEDFORDSHIRE COUNTY COUNCIL
(RESPONDENTS)

IN RE M (A MINOR) (1994) AND ANOTHER (A. P.)

(APPELLANT)

IN RE E (A MINOR) (1994) (A.P.)
(RESPONDENT)

CHRISTMAS (A.P.)
(RESPONDENT)

v.

HAMPSHIRE COUNTY COUNCIL
(APPELLANTS)

KEATING (A.P.)
(ORIGINAL RESPONDENT AND CROSS-APPELLANT)

v.

MAYOR ETC. OF THE LONDON BOROUGH OF BROMLEY
(ORIGINAL APPELLANTS AND CROSS-RESPONDENTS)




ON 29 JUNE 1995




Lord Jauncey of Tullichettle
Lord Lane
Lord Ackner
Lord Browne-Wilkinson
Lord Nolan




LORD JAUNCEY OF TULLICHETTLE

My Lords,

I have had the advantage of reading in draft the speech of my noble
and learned friend. Lord Browne-Wilkinson. I am in entire agreement with
his carefully detailed reasoning and with the conclusions which he has reached
and I too would make the orders which he proposes.

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

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

"but there is very good authority for the proposition that if a person
performs a statutory duty carelessly so that he causes damage to a
member of the public which would not have happened if he had
performed his duty properly he may be liable. In Geddis v.
Proprietors of Bann Reservoir (1878) 3 App Cas 430 Lord Blackburn
said, at pp.455-456:

'For I take it, without citing cases, that it is now thoroughly
well established that no action will lie for doing that which the
legislature has authorised, if it be done without negligence,
although it does occasion damage to anyone; but an action does
lie for doing that which the legislature has authorised, if it be
done negligently.'

The reason for this is, I think, that Parliament deems it to be in the
public interest that things otherwise unjustifiable should be done, and
that those who do such things with due care should be immune from
liability to persons who may suffer thereby. But Parliament cannot
reasonably be supposed to have licensed those who do such things to
act negligently in disregard of the interests of others so as to cause
them needless damage." (The emphasis is mine)

and to which Lord Blackburn was referring in the above quotation from
Geddis v. Proprietors of Bann Reservoir. See also Metropolitan Asylum
District v. Hill (1881) 6 App.Cas. 193. 213, per Lord Watson: Allen v. Gulf
Oil Refining Ltd. [1981] AC 1001, 1011E. per Lord Wilberforce.

Where a statute empowers or ordains the doing of an act which, if
done with due care, will cause no harm to a third party but which, if done
carelessly will be likely to cause harm, and the circumstances also satisfy the
other two requirements in Caparo Industries Plc. v. Dickman [1990] 2 A.C.
605. namely that the relationship between plaintiff and defendant is sufficiently

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proximate and that it would be just and reasonable to impose a duty of care,
an action will lie at common law. But it will lie simply because careless
performance of the act amounts to common law negligence and not because
the act is performed under statutory authority. Thus the owners of a National
Health Service Hospital owe precisely the same duty of care to their patients
as do the owners of a private hospital and they owe it because of the common
law of negligence and not because they happen to be operating under statutory
provisions. Conversely an act which, if performed in a particular manner by
a private individual, would give rise to no cause of action will no more be
actionable if it happens to be performed in the same way in exercise of a
statutory power or duty, breach of which does not confer a private law right
of action, even if such performance is careless.

LORD LANE

My Lords,

I have read in draft the speech of my noble and learned friend Lord
Browne-Wilkinson. I agree with his reasoning and conclusions.

LORD ACKNER

My Lords,

I have read in draft the speech of my noble and learned friend Lord
Browne-Wilkinson. I agree with his reasoning and conclusions.

LORD BROWNE-WILKINSON

My Lords,

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

- 3 -

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

General Approach
Introductory - Public Law and Private Law.

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

Private law claims for damages can be classified into four different
categories. viz:

(A) Actions for breach of statutory duty simpliciter (i.e. irrespective or
carelessness).

(B) Actions based solely on the careless performance of a statutory duty
in the absence of any other common law right of action.

3. Actions based on a common law duty of care arising either from the
   imposition of the statutory duty or from the performance of it.

4. Misfeasance in public office, i.e. the failure to exercise, or the
   exercise of, statutory powers either with the intention to injure the
   plaintiff or in the knowledge that the conduct is unlawful.

- 4 -

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

(A) Breach of statutory duty simpliciter.

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

The principles applicable in determining whether such statutory
cause of action exists are now well established, although the
application of those principles in any particular case remains difficult.
The basic proposition is that in the ordinary case a breach of statutory
duty does not, by itself, give rise to any private law cause of action.
However a private law cause of action will arise if it can be shown, as
a matter of construction of the statute, that the statutory duty was
imposed for the protection of a limited class of the public and that
Parliament intended to confer on members of that class a private right
of action for breach of the duty. There is no general rule by reference
to which it can be decided whether a statute does create such a right
of action but there are a number of indicators. If the statute provides
no other remedv for its breach and the Parliamentary intention to

protect a limited class is shown, that indicates that there may be a
private right of action since otherwise there is no method of securing
the protection the statute was intended to confer. If the statute does
provide some other means of enforcing the duty that will normally
indicate that the statutory right was intended to be enforceable by those
means and not by private right of action: Cutler v. Wandsworth
Stadium Ltd. [1949] A.C. 398: Lonrho Ltd. v. Shell Petroleum Co.
Ltd. (No.2) [1982] A.C. 173. However, the mere existence of some
other statutory remedy is not necessarily decisive. It is still possible
to show that on the true construction of the statute the protected class
was intended by Parliament to have a private remedy. Thus the
specific duties imposed on employers in relation to factory premises
are enforceable by an action for damages, notwithstanding the
imposition by the statutes of criminal penalties for any breach: see
Groves v. Lord Wimborne [1898] 2 QB 402.

Although the question is one of statutory construction and
therefore each case turns on the provisions in the relevant statute, it is
significant that your Lordships were not referred to any case where it
had been held that statutory provisions establishing a regulatory system
or a scheme of social welfare for the benefit of the public at large had
been held to give rise to a private right of action for damages for



- 5 -

breach of statutory duty. Although regulatory or welfare legislation
affecting a particular area of activity does in fact provide protection to
those individuals particularly affected by that activity, the legislation
is not to be treated as being passed for the benefit of those individuals
but for the benefit of society in general. Thus legislation regulating
the conduct of betting or prisons did not give rise to a statutory right
of action vested in those adversely affected by the breach of the
statutory provisions, i.e. bookmakers and prisoners: see Cutler [1949]
A.C. 398; Reg. v. Deputy Governor of Parkhurst Prison, Ex parte
Hague [1992] 1 AC 58. The cases where a private right of action
for breach of statutory duty have been held to arise are all cases in
which the statutory duty has been very limited and specific as opposed
to general administrative functions imposed on public bodies and
involving the exercise of administrative discretions.

(B) The careless performance of a statutory duty - no common law duty or
care.

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

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

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

- 6 -

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

In Geddis the defendants were authorised to construct and
maintain a reservoir the water from which was discharged, via a new
artificial watercourse, into an old watercourse which the defendants
were authorised by the statute to widen and maintain. Water
originating from the reservoir flooded from the old watercourse onto
the plaintiff's adjoining land, such flooding being due to the
"negligent" failure of the defendants to maintain the old watercourse
adequately. The cause of action relied upon by the plaintiff is not
clear from the report: it could have been either nuisance (including
Rylands v. Fletcher (1868) LR 3 HL 330) or negligence. If the
cause of action founded upon was in nuisance, the question was
whether the statutory power to construct and maintain the works
provided a defence to what would otherwise constitute an actionable
wrong. It is well established that statutory authority only provides a
defence to a claim based on a common law cause of action where the
loss suffered by the plaintiff is the inevitable consequence of the
proper exercise of the statutory power or duty: Metropolitan Asylum
District v. Hill (1881) 6 App. Cas. 193: Allen v. Gulf Oil Refining
Ltd. [1981] AC 1001. Therefore the careless exercise of a statutory
power or duty cannot provide a defence to a claim based on a
freestanding common law cause of action, whether in trespass,
nuisance or breach of a common law duty of care. If Lord
Blackburn's dictum in Geddis, 3 App Cas 430. 455-456, merely
refers to the circumstances in which statutory authority can be used as
a defence it raises no problems.

In my judgment Geddis is best treated as a decision that the
careless exercise by the defendant of a statutory duty or power
provides no defence to a claim by the plaintiff based on a freestanding
common law cause of action. It was so treated by Lord Wilberforce
in Gulf Oil who said, at p. 1011:

"It is now well settled that where Parliament by express
direction or by necessary implication has authorised the
construction and use of an undertaking or works, that carries
with it an authority to do what is authorised with immunity
from any action based on nuisance. The right of action is
taken away: Hammersmith and City Railway Co. v. Brand
(1869) L.R. 4 H.L. 171. 215 per Lord Cairns. To this there
is made the qualification, or condition, that the statutory
powers are exercised without 'negligence' - that word here
being used in a special sense so as to require the undertaker, as
a condition of obtaining immunity from action, to carry out the



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work and conduct the operation with all reasonable regard and
care for the interests of other persons: Geddis. ..."

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

In this context I must consider the decision in Dorset Yacht Co.
Ltd. v. Home Office [1970] AC 1004 which was relied upon in
argument as showing that there was a cause of action for the careless
exercise of statutory powers. In that case it was alleged that Borstal
boys detained under statutory powers had been taken to an island under
the control and supervision of three Borstal officers. The boys escaped
and sought to leave the island by stealing a yacht which they so
mishandled as to damage the plaintiffs yacht which was at anchor
nearby. It was alleged that the three officers were negligent in failing
to control the Borstal boys and that the Home Office was vicariously
responsible for their actions. This House rejected an application
by the Home Office to strike out the claim. In later cases most
attention has been concentrated on the speech of Lord Diplock.
But in my judgment his views do not reflect the majority approach.
Lord Morris of Borth y Gest and Lord Pearson both approached the
case by first asking whether at common law there was a duty of care
owed by the officers to the plaintiffs to take reasonable steps to control
the Borstal boys so as to prevent them causing foreseeable damage to
the plaintiffs property. They held that there was: see pp. 1034-1035:
1054G-1055G. They further held that the extent of the duty owed to
the plaintiff fell to be measured taking into account the fact that the
boys were detained under statutory powers and the officers discharging
statutory functions. But, applying Geddis 3 App Cas 430. 455-456,
both held that the careless performance by the officers of statutory
functions would not provide a defence to the common law claim:
pp. 1036A; 1055H-1056E. Lord Reid also held that, apart from
statutory authority, the officers owed a common law duty of care to
the plaintiffs: pp. 1027D-1030E. He then relied on the Geddis
principle and, although his language is not clear beyond doubt, in my
view he relied on that principle as showing not that the statutory
provisions imposed a statutory duty of care but that the negligent
performance of the statutory duties would provide no defence to a
claim for breach of the common law duty of care: p. 1030E-1030H.

As I read Lord Diplock's closely reasoned speech his approach
was different. First, he held that in the absence of the statutory
provisions the prison officers would not have been under a duty of
care at common law to prevent the Borstal boys damaging the
plaintiffs property: pp. 1062C; 1064C; 1066H. He treated the



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Geddis principle as being inapplicable to public Acts of Parliament
conferring wide statutory discretions and pointed out that the principle
only applies to negative reliance on statutory authority as a defence to
a common law right of action which would otherwise have existed:
pp. 1066H-1067F. At this stage (p. 1067) he expressed the view that
in relation to acts done under statutory powers conferring discretions,
no right of action at common law can exist unless the defendant has
acted ultra vires those powers. He then held that the Home Office
itself, in establishing a liberal regime for the treatment of Borstal
offenders, could not have been acting ultra vires. However if the
Borstal officers had exercised their powers in breach of their
instructions they would have acted ultra vires the powers delegated to
them. He further held that, in the circumstances, if the prison officers
had acted ultra vires, they might owe a common law duty of care to
the plaintiff.

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

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

(C) The common law duty of care

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

Mr. Munby, in his reply in the Newham case, invited your
Lordships to lay down the general principles applicable in determining

- 9 -

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

1. Co-existence of statutory duty and common law duty of care.

It is clear that a common law duty of care may arise in the
performance of statutory functions. But a broad distinction has to be
drawn between:

1. cases in which it is alleged that the authority owes a duty or
   care in the manner in which it exercises a statutory discretion:

2. cases in which a duty of care is alleged to arise from the
   manner in which the statutory duty has been implemented in
   practice.

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

2. Discretion: justiciability and the policy/operational test.
(a) Discretion

Most statutes which impose a statutory duty on local
authorities confer on the authority a discretion as to the extent
to which, and the methods by which, such statutory duty is to
be performed. It is clear both in principle and from the
decided cases that the local authority cannot be liable in



- 10 -

damages for doing that which Parliament has authorised.
Therefore if the decisions complained of fall within the ambit
of such statutory discretion they cannot be actionable in
common law. However if the decision complained of is so
unreasonable that it falls outside the ambit of the discretion
conferred upon the local authority, there is no a priori reason
for excluding all common law liability.

That this is the law is established by the decision in
Dorset Yacht and by that part of the decision in Anns v. Merton
London Borough Council [1978] AC 728 which, so far as I
am aware, has largely escaped criticism in later decisions. In
Dorset Yacht Lord Reid said, at p. 1031:

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

See also per Lord Morris, at p. 1037F.

Lord Diplock, as I have said, took a rather different
line, making it a condition precedent to any common law duty
arising that the decision impugned should be shown to be ultra
vires in the public law sense. For myself, I do not believe that
it is either helpful or necessary to introduce public law concepts
as to the validity of a decision into the question of liability at
common law for negligence. In public law a decision can be
ultra vires for reasons other than Wednesbury unreasonableness
(Associated Provincial Picture Houses Ltd. v. Wednesbury
Corporation [1948] 1 KB 223) (e.g. breach or the rules of
natural justice) which have no relevance to the question of
negligence. Moreover it leads, in my judgment mistakenly, to
the contention that claims for damages for negligence in the
exercise of statutory powers should for procedural purposes be
classified as public law claims and therefore, under O'Reilly v.
Mackman [1983] 2 AC 237 should be brought in judicial
review proceedings: see Lonrho Plc. v. Tebbit (1992] 4 All
E.R. 280. However, although I consider that the public law

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doctrine of ultra vires has, as such, no role to play in the
subject under discussion, the remarks of Lord Diplock were
plainly directed to the fact that the exercise of a statutory
discretion cannot be impugned unless it is so unreasonable that
it falls altogether outside the ambit of the statutory discretion.
He said [1970] AC 1004. 1068:

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

Exactly the same approach was adopted by Lord Wilberforce
in Anns v. Merton London Borough Council [1978] AC 728
who, speaking of the duty of a local authority which had in fact
inspected a building under construction, said, at p. 755E-F:

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

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

In deciding whether or not this requirement is satisfied,
the court has to assess the relevant factors taken into account
by the authority in exercising the discretion. Since what are
under consideration are discretionary powers conferred on



- 12 -

public bodies for public purposes the relevant factors will often
include policy matters, for example social policy, the allocation
of finite financial resources between the different calls made
upon them or (as in Dorset Yacht) the balance between
pursuing desirable social aims as against the risk to the public
inherent in so doing. It is established that the courts cannot
enter upon the assessment of such "policy" matters. The
difficulty is to identify in any particular case whether or not the
decision in question is a "policy" decision.

(b) Justiciability and the policy/operational dichotomy.

In English law the first attempt to lay down the
principles applicable in deciding whether or not a decision was
one of policy was made by Lord Wilberforce in Anns v
Merton London Brorough Council [1978] AC 728. 754C:




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

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

"Their Lordships feel considerable sympathy with
Quilliam J.'s difficulty in solving the problem by
reference to this distinction. They are well aware of
the references in the literature to this distinction (which



- 13 -

appears to have originated in the United States of
America), and of the critical analysis to which it has
been subjected. They incline to the opinion, expressed
in the literature, that this distinction does not provide a
touchstone of liability, but rather is expressive of the
need to exclude altogether those cases in which the
decision under attack is of such a kind that a question
whether it has been made negligently is unsuitable for
judicial resolution, of which notable examples are
discretionary decisions on the allocation of scarce
resources or the distribution of risks: see especially the
discussion in Craig on Administrative Law (1983).
p. 534-538. If this is right, classification of the
relevant decision as a policy or planning decision in this
sense may exclude liability; but a conclusion that it
does not fall within that category does not, in their
Lordships' opinion, mean that a duty of care will
necessarily exist." (Emphasis added.)

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

3. If justiciable, the ordinary principles of negligence

apply. If the plaintiffs complaint alleges carelessness, not in
the taking of a discretionary decision to do some act, but in the
practical manner in which that act has been performed (e.g. the
running of a school) the question whether or not there is a
common law duty of care falls to be decided by applying the
usual principles, i.e. those laid down in Caparo Industries Plc.
v. Dickman [1990] 2 AC 605. 617-618. Was the damage to
the plaintiff reasonably foreseeable? Was the relationship
between the plaintiff and the defendant sufficiently proximate?
Is it just and reasonable to impose a duty of care? See Rowling
v. Takaro Properties Ltd. [1988] AC 473: Hill v. Chief
Constable of West Yorkshire [1989] AC 53.

- 14 -

However the question whether there is such a common
law duty and if so its ambit, must be profoundly influenced by
the statutory framework within which the acts complained of
were done. The position is directly analogous to that in which
a tortious duty of care owed by A to C can arise out of the
performance by A of a contract between A and B. In
Henderson v. Merrett Syndicates Ltd. [1994] 3 W.L.R. 761
your Lordships held that A (the managing agent) who had
contracted with B (the members' agent) to render certain
services for C (the Names) came under a duty of care to C in
the performance of those services. It is clear that any tortious
duty of care owed to C in those circumstances could not be
inconsistent with the duty owed in contract by A to B.
Similarly, in my judgment a common law duty of care cannot
be imposed on a statutory duty if the observance of such
common law duty of care would be inconsistent with, or have
a tendency to discourage, the due performance by the local
authority of its statutory duties.

4. Direct liability and vicarious liability.

In certain of the appeals before the House, the local
authorities are alleged to be under a direct duty of care
to the plaintiff not only in relation to the exercise of a
statutory discretion but also in relation to the
operational way in which they performed that duty.

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

This distinction between direct and vicarious liability
can be important since the authority may not be under a direct
duty of care at all or the extent of the duty of care owed
directly by the authority to the plaintiff may well differ from
that owed by a professional to a patient. However, it is
important not to lose sight of the fact that, even in the absence
of a claim based on vicarious liability, an authority under a



- 15 -

direct duty of care to the plaintiff will be liable for the
negligent acts or omissions of its servant which constitute a
breach of that direct duty. The authority can only act through
its servants.

The position can be illustrated by reference to the
hospital cases. It is established that those conducting a hospital
are under a direct duty of care to those admitted as patients to
the hospital (I express no view as to the extent of that duty).
They are liable for the negligent acts of a member of the
hospital staff which constitute a breach of that duty, whether or
not the member of the staff is himself in breach of a separate
duty of care owed by him to the plaintiff: Gold v. Essex
County Council [1942] 2 K.B. 293. per Lord Green at p. 301:
Cassidy v. Minister of Health [1951] 2 K.B. 343. per Denning
L.J.: Roe v. Minister of Health [1954] 2 QB 66: see also
Wilsons & Clyde Coal Ltd. v. English [1938] AC 57:
McDermid v. Nash Dredging & Reclamation Co. Ltd. [1987]
A.C. 906. Therefore in the cases under appeal, even where
there is no allegation of a separate duty of care owed by a
servant of the authority to the plaintiff, the negligent acts or
that servant are capable of constituting a breach of the duty of
care (if any) owed directly by the authority to the plaintiff.

Summary

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

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

1. Is the negligence relied upon negligence in the exercise of a
   statutory discretion involving policy considerations: if so the
   claim will pro tamo fail as being non-justiciable;

2. were the acts alleged to give rise to the cause of action within
   the ambit of the discretion conferred on the local authority; if
   not

(c) is it appropriate to impose on the local authority a common law
duty of care.

- 16 -

(2) Vicarious liability of the local authority

1. Is the duty of care alleged to be owed by the servant of the
   local authority consistent with the proper performance of his
   duties to the local authority: if so

2. is it appropriate to impose on the servant the duty of care
   alleged.

Striking out.

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

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

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

THE ABUSE CASES [1994 1 VV.L.R. 554
The facts - the Bedfordshire case.

I gratefully adopt the Master of the Rolls' summary of the allegations
made in the statement of claim, the truth of which has to be assumed for the
purposes of the present appeal. The plaintiffs are five children of the same



- 17 -

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

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

The third period began in July 1991 when the children's father asked
the county council to take the children into care for adoption, a suggestion he
made again in May 1992. The county council took no action. For nine days
in August 1991 the three older children were placed on their mother's
application with foster parents who found them dirty, underfed and with poor
personal hygiene. In September 1991 the county council was told the
condition of the second and third children's bedroom had deteriorated further;
that the children were said to have been locked outside the family home and
to have screamed constantly; that the children were left in their bedrooms for
long periods and smeared faeces on the windows; and that the second, third
and fourth of the children had been seen stealing food. No action was taken
save that respite care was recommended to assist the mother. In November
1991 the mother asked the county council to accommodate the three older
children: the county council offered her short term respite care. On their
mother's application, the three older children spent much of the early months
of 1992 with foster parents with whom they gained in weight. In March 1992
the county council considered the results of this foster placement and respite
care and monitoring were recommended. In April 1992 the mother asked the
county council to remove the second and third children from her care and
place them for adoption. In June 1992 the mother told the county council that
if the children were not removed from her care she would batter them. As a



- 18 -

result the county council placed the children with foster parents. On 22 June
1992 the children were placed on the child protection register hut the county
council took no steps to seek care orders. The county council did accept that
the children should not return to live with their parents. In October 1992 the
county council decided to seek care orders and took steps to that end. As a
result interim care orders were made in December 1992 and final orders in
April 1993. It is fair to add that the children's plight was not being ignored.
The statement of claim refers to no less than 13 meetings held to discuss their
position.

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




The facts - the Newham case.

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

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

The child was interviewed by the psychiatrist in the presence of the
social worker. The mother was not present but was in an adjoining room.
The interview was recorded on videotape. It is pleaded that the social worker
and/or the psychiatrist concluded that the child had been sexually abused and
that XY (the mother's boyfriend) was the abuser. This identification was
based on the child indicating that the first name of the abuser was "X". which
was the first name of XY. The fact was that the child was referring not to
XY as the abuser but to a cousin with the same first name who had previously-
lived at the mother's address. It is alleged that, had the psychiatrist and the
social worker taken the full history of the mother's domestic circumstances.



- 19 -

they would have discovered that XY was not the abuser and that the abuser
was no longer living at the mother's home. At the end of the interview the
mother was told by the psychiatrist and social worker that the child had been
sexually abused and that XY was the abuser. The mother asked the child
privately if XY had abused her. The child said he had not. The mother told
the social worker of this denial but the social worker and the psychiatrist
wrongly took this as an attempt to persuade the child to retract the allegation
which they understood her to have made.

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

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

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

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

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

- 20 -

The decision in the Court of Appeal

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

there could be a duty of care to the children.




The statutory provisions

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

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

The Child Care Act 1980, sections 1 and 2 provide so far as relevant as
follows:

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

2(1) Where it appears to a local authority with respect to a child in
their area appearing to them to be under the age of 17 - . . .

(b) that his parents . . .are, for the time being or permanently,
prevented by reason of mental or bodily disease or infirmity or
other incapacity or any other circumstances from providing for
his proper accommodation, maintenance and upbringing: and



- 21 -

(c) in either case, that the intervention of the local authority
under this section is necessary in the interests of the welfare of
the child.

it shall be the duty of the local authority to receive the child into their
care under this section."

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

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

"(1) It shall be the general duty of every local authority (in addition to
the other duties imposed on them by this Part) -

1. to safeguard and promote the welfare of children within
   their area who are in need; and

2. so far as is consistent with that duty, to promote the
   upbringing of such children by their families,

by providing a range and level of services appropriate to those
children's needs.

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

Schedule 2. Part I paragraphs 1(1) and 4(1) provide:

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

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

Part III of the Act includes section 20 (1) which reads:

"20(1) Every local authority shall provide accommodation for any
child in need within their area who appears to them to require
accommodation as a result of - . . .

- 22 -

(c) the person who has been caring for him being prevented
(whether or not permanently, and for whatever reason) from
providing him with suitable accommodation or care."

In Part V of the Act. section 47(1) and (8) provide:
"(1) Where a local authority - ...

(b) have reasonable cause to suspect a child who lives, or is
found, in their area is suffering, or is likely to suffer significant
harm,

the authority shall make, or cause to be made, such enquiries as they
consider necessary to enable them to decide whether they should take
any action to safeguard or promote the child's welfare. "

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

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

Since 1 April 1991 there has been a statutory complaints procedure
applicable to these provisions. Under section 7(B) of the Local Authority
Social Services Act, 1970, (as inserted by section 50 of the National Health
Service and Community Care Act 1990) provision was made for the Secretary
of State to require, as from 1 April 1991. the local authority to establish a
complaints procedure in accordance with his directions. This power was
exercised by the Local Authority Social Services (Complaints Procedure)
Order 1990 (S.I. 1990 No. 2244) which came into force on 1 April 1991.
Under that procedure, complaints can be brought relating to all the local
authorities duties under the Children Act 1989. In addition, section 26 (3) of
the 1989 Act contains a provision requiring the local authority to establish a
complaints procedure relating to its function under Part III of the Act.
Therefore since 1 April 1991 there have in effect been statutory complaints
procedures applicable to all the local authorities functions under the 1989 Act.

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

"7(1) Local authorities shall, in the exercise of their social services
functions, including the exercise of any discretion conferred by any
relevant enactment act under the general guidance of the Secretary of
State."

- 23 -

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

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

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

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

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

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

It is true that the legislation was introduced primarily for the protection
of a limited class, namely children at risk, and that until April 1991 the
legislation itself contained only limited machinery for enforcing the statutory
duties imposed. But in my view those are the only pointers in favour of



- 24 -

imputing to Parliament an intention to create a private law cause of action.
When one turns to the actual words used in the primary legislation to create
the statutory duties relied upon in my judgment they are inconsistent with any
intention to create a private law cause of action.

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

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

The decision in Thornton v. Kirklees Metropolitan Borough Council
[1979] Q.B. 626 was relied upon as showing that a statute can create a private
law cause of action for damages for breach of a statutory duty even if the duty
is dependent upon the defendant having first formed a subjective belief. That
decision is in some respects a puzzling one and may need to be reconsidered
at some future date: see Cocks v. Thanet District Council [1983] 2 AC 286.
It is sufficient to say that it has no application to the present case since in that
case it was conceded by the defendants that the condition precedent to the
creation of the statutory duty (i.e. the formation of the belief) had been
satisfied (see at pp. 636B-C and 643G) and that a legal duty was owed to the
plaintiff as an individual: p. 638F-G.

In the Newham case, the claim by the plaintiffs for damages for breach
of statutory duty (Category (A)) was founded solely on sections 1 and 18 of
the 1980 Act: the 1989 Act was not in force at the relevant time. The claim
was only faintly pursued by Mr. Munby and. for the reasons given by Peter
Gibson L.J. in the Court of Appeal [1994] 2 W.L.R. 554. 590, in my
judgment it is ill founded.

- 25 -

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

Direct common law duty of care owed by the local authorities

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

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

Next, do the allegations of breach of duty in the operational field all
relate to decisions the power to make which Parliament has conferred on the
local authority, i.e. are they all decisions within the ambit of the local
authority's statutory discretion? I strongly suspect that, if the case were to go
to trial, it would eventually fail on this ground since, in essence, the complaint
is that the local authority failed to take steps to remove the children from the
care of their mother, i.e. negligently failed properly to exercise a discretion
which Parliament has conferred on the local authority. But again, it would
not be right to strike out the claim on this ground because it is possible that
the plaintiffs might be able to demonstrate at trial that the decisions of the
local authority were so unreasonable that no reasonable local authority could
have reached them and therefore, for the reasons given by Lord Reid in
Dorset Yacht [1970] AC 1004, 1031, as at p. 15, fall outside the ambit of
the discretion conferred by Parliament.

I turn then to consider whether, in accordance with the ordinary
principles laid down in Caparo [1990] 2 AC 605, the local authority in the



- 26 -

Bedfordshire case owed a direct duty of care to the plaintiffs. The local
authority accepts that they could foresee damage to the plaintiffs if they
carried out their statutory duties negligently and that the relationship between
the authority and the plaintiffs is sufficiently proximate. The third
requirement laid down in Caparo is that it must be just and reasonable to
impose a common law duty of care in all the circumstances. It was submitted
that this third requirement is only applicable in cases where the plaintiffs'
claim is for pure economic loss and that it does not apply where, as in the
child abuse cases, the claim is for physical damage. I reject this submission:
although Caparo and many other of the more recent cases were decisions
where only pure economic loss was claimed, the same basic principles apply
to claims for physical damage and were applied in, for example, Hill v. Chief

Constable of West Yorkshire [1989] AC 53.




Is it, then, just and reasonable to superimpose a common law duty of
care on the local authority in relation to the performance of its statutory duties
to protect children? In my judgment it is not. The Master of the Rolls took
the view, with which I agree, that the public policy consideration which has
first claim on the loyalty of the law is that wrongs should be remedied and
that very potent counter considerations are required to override that policy
[1994] 2 W.L.R. 554, 572F. However, in my judgment there are such
considerations in this case.

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

Second, the task of the local authority and its servants in dealing with
children at risk is extraordinarily delicate. Legislation requires the local
authority to have regard not only to the physical well being of the child but
also to the advantages of not disrupting the child's family environment: see,
for example, section 17 of the 1989 Act. In one of the child abuse cases, the



- 21 -

local authority is blamed for removing the child precipitately: in the other,
for failing to remove the children from their mother. As the Report of the
Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) ("Cleveland Report
1987") said, at p. 244:

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

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

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

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

Finally, your Lordships' decision in Caparo [1990] 2 AC 605 lays
down that, in deciding whether to develop novel categories of negligence the
court should proceed incrementally and by analogy with decided categories.
We were not referred to any category of case in which a duty of care has been
held to exist which is in any way analogous to the present cases. Here, for



- 28 -

the first time, the plaintiffs are seeking to erect a common law duty of care
in relation to the administration of a statutory social welfare scheme. Such a
scheme is designed to protect weaker members of society (children) from
harm done to them by others. The scheme involves the administrators in
exercising discretions and powers which could not exist in the private sector
and which in many cases bring them into conflict with those who. under the
general law. are responsible for the child's welfare. To my mind, the nearest
analogies are the cases where a common law duty of care has been sought to
be imposed upon the police (in seeking to protect vulnerable members of
society from wrongs done to them by others) or statutory regulators of
financial dealings who are seeking to protect investors from dishonesty. In
neither of those cases has it been thought appropriate to superimpose on the
statutory regime a common law duty of care giving rise to a claim in damages
for failure to protect the weak against the wrongdoer: see Hill [1987] A.C.
53 and Yuen Kun Yeu v. Attorney-General of Hong Kong [1988] A.C. 175.
In the latter case, the Privy Council whilst not deciding the point said, at p.
198F, that there was much force in the argument that if the regulators had
been held liable in that case the principles leading to such liability

"would surely be equally applicable to a wide range of regulatory
agencies, not only in the financial field, but also, for example, to the
factory inspectorate and social workers, to name only a few."

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

Vicarious liability

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

In the Bedfordshire case the position is less clear. As I read the
pleadings they allege only a direct duty of care owed by the county council to
the plaintiffs and breaches of that duty of care by the council: the particulars
of such breach by the council are described as failures by "the defendants,
their servants or agents". There is no pleading of a separate duty of care
owed by one or more of the servants or agents of the council, for which the
council is vicariously liable. On a strict reading, this is only a pleading of
breach by the county council of its duty of care, such breach being committed
by the servants or agents. Since in my judgment the county council itself



- 29 -

owed no duty of care, that claim must tail. However, this point was not taken
by the county council, presumably because they adopted the sensible view that
it could be cured by amendment. In the argument before the House it was
therefore common ground that the plaintiffs' case could be founded on
vicarious liability of the county council for breach by a member of its staff of
a professional duty of care owed by such professional to the plaintiffs.

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

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

The position is not the same as in the case of the purchaser of property
who is owed a duty of care by a surveyor instructed by the building society
which is going to advance the money: see Smith v. Eric S. Bush [1990] 1
A.C. 831. In such a case the surveyor is only liable to the purchaser in
negligence because he is aware that the purchaser will regulate his (the



- 30 -

purchaser's) conduct by completing the purchase in reliance on the survey
report. In the child abuse cases, even if the advice tendered by the
professionals to the local authority comes to the knowledge of the child or his
parents, they will not regulate their conduct in reliance on the report. The
effect of the report will be reflected in the way in which the local authority
acts.

Nor is the position the same as in Henderson v. Merrett Syndicates
Ltd. where, pursuant to a contract with the members' agents, the managing
agents undertook the management of the insurance business of the indirect
Names. The managing agents were held to be under a tortious duty of care
to the indirect Names, notwithstanding that the managing agents were
operating under the terms of a contract with a third party. But the duty of
care to the Names in that case arose from, and fell within the ambit of, the
terms of the retainer contained in the contract between the managing agents
and the members' agents. The Names were not seeking to impose on the
managing agents any obligation beyond that which the retainer itself required
to be performed. So also in White v. Jones [1995] 2 W.L.R. 187.

In my judgment in the present cases, the social workers and the
psychiatrist did not, by accepting the instructions of the local authority,
assume any general professional duty of care to the plaintiff children. The
professionals were employed or retained to advise the local authority in
relation to the well being of the plaintiffs but not to advise or treat the
plaintiffs.

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

Even if, contrary to my view, the social workers and psychiatrist
would otherwise have come under a duty of care to the plaintiffs, the same
considerations which have led me to the view that there is no direct duty of
care owed by the local authorities apply with at least equal force to the



- 31 -

question whether it would be just and reasonable to impose such a duty of care
on the individual social workers and the psychiatrist.

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

Witness immunity

In the Newham case the health authority argued that the psychiatrist
was immune from liability in negligence because she knew that, if at the
interview she came to the conclusion that the child had been abused and that
the abuser was living in the same household as the child, there were likely to
be care proceedings in which her assessment of the interview would be
relevant evidence. This argument was upheld by the judge, but rejected by
the Master of the Rolls and Staughton L.J. in the Court of Appeal. Peter
Gibson L.J. expressing no view.

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

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

The immunity of witnesses from any action founded on their evidence
was originally designed to ensure in the public interest that witnesses would
not, through fear of later civil proceedings, be inhibited from giving frank
evidence in court. This immunity was widened bv this House in Watson v.
M'Ewan [1905] AC 480 to cover information and reports given by a



- 32 -

potential witness to the legal advisors of a party for the purpose of preparing
a proof.

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

"The immunity given to a witness or potential witness is because 'the
administration of justice would be greatly impeded if witnesses were
to be in fear that . . . persons against whom they gave evidence might
subsequently involve them in costly litigation': see per Salmon J. in
Marrina v. Vibart [1963] 1 Q.B. 234. 237.

"If this object is to be achieved I think it essential that the
immunity given to a witness should also extend to cover statements he
makes prior to the issue of a writ or commencement of a prosecution,
provided that the statement is made for the purpose of a possible action
or prosecution and at a time when the possible action or prosecution
is being considered. In a large number of criminal cases the police
have collected statements from witnesses before anyone is charged with
an offence; indeed sometimes before it is known whether or not any
criminal offence has been committed.

"If immunity did not extend to such statements it would mean
that the immunity attaching to the giving of evidence in court or the
formal statements made in preparation for the court hearing could
easily be outflanked and rendered of little use. For the same reason
I think that the immunity must extend also to the acts of the witness in
collecting or considering material on which he may later be called to
give evidence."

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

In the present case, the psychiatrist was instructed to carry out the
examination of the child for the specific purpose of discovering whether the
child had been sexually abused and (if possible) the identity of the abuser.



- 33 -

The psychiatrist must have known that, if such abuse was discovered,
proceedings by the local authority for the protection of the child would ensue
and that her findings would be the evidence on which those proceedings would
be based. It follows in my judgment that such investigations having such an
immediate link with possible proceedings in pursuance of a statutory duty
cannot be made the basis of subsequent claims.

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

THE EDUCATION CASES [1994] 3 W.L.R. 853
The legislation

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

The Education Act 1944

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

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

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

"(1) It shall be the duty of every local education authority to secure
that there shall be available for their area sufficient schools -

1. for providing primary education . . .

2. for providing secondary education . . .

and the schools available for an area shall not be deemed to be
sufficient unless they are sufficient in number, character and
equipment to afford for all pupils opportunities for education
offering such variety of instruction and training as may be



- 34 -

desirable in view of their different ages, abilities, and
aptitudes, and of the different periods for which they may be
expected to remain at school, including practical instruction and
training appropriate to their respective needs.

"(2) In fulfilling their duties under this section, a local education
authority shall, in particular, have regard - ...

(c) to the need for securing that provision is made for
pupils who suffer from any disability of mind or body
by providing, either in special schools or otherwise,
special educational treatment, that is to say. education
by special methods appropriate for persons suffering
from that disability; ..."

Section 33(2) provides:

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

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

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

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

Under section 68 the minister, if satisfied that the local education
authority have acted or are proposing to act unreasonably with respect to the
exercise of any power conferred or the performance of any duty imposed by
or under that Act, can give such directions as to the exercise of the power or



- 35 -

the performance of the duty as appears to him to be expedient. Under section
99 of the Act if the minister is satisfied that the local education authority have
failed to discharge any duty imposed upon them by the Act can make an order
declaring the authority to be in default and give directions for the purpose of
enforcing the execution thereof.

The Education Act 1981

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

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

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

Section 2(2) and (3) provide:

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

"(3) The conditions are that account has been taken, in accordance
with section 7, of the views of the child's parent and that
educating the child in an ordinary school is compatible with -

1. his receiving the special educational provision that he
   requires;

2. the provision of efficient education for the children with
   whom he will be educated: and

(c) the efficient use of resources."

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



- 36 -

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

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

"(1) Where, in the case of a child for whom a local education
authority are responsible, the authority are of the opinion -

(a) that he has special educational needs which call for the
authority to determine the special educational provision
that should be made for him; or

(b) that he probably has such special educational needs:

they shall make an assessment of his educational needs under this
section."

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

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

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

- 37 -

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

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

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

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

Under the Education (Special Educational Needs) Regulations 1983
(S.I. 1983 No. 29), regulation 4 imposes a duty on an education authority, tn
making an assessment under the Act, to seek educational advice, medical
advice, psychological advice and any other advice which the authority
considers desirable. Under regulation 5, the educational advice is to be
sought from a qualified teacher who is, if the child has attended a school
within the preceding 18 months, the head teacher of that school. Under
regulation 6 the medical advice has to be obtained from a qualified medical
practitioner selected by a district health authority. Under regulation 7 the
psychological advice is to be sought from an educational psychologist
employed by the education authority or from a person appointed, ad hoc, by
the authority as an educational psychologist. The form of the statement to be
made under section 7 is prescribed by the regulations: the statement must set



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out in the appendices the educational, medical and psychological advice which
has been obtained by the authority.

The Dorset case
The facts

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

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

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

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

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

The plaintiff, by his statement of claim, claimed damages for breach
of statutory duty and negligence. The claim in negligence was formulated in
a number of alternative ways, viz

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1. that the authority negligently failed to make a proper statement
   or make proper provision for his special educational needs as
   required by sections 2 and 7 of the Act of 1981;

2. that the authority provided a "psychology service" which
   negligently advised the plaintiff's parents, who relied on such

advice:

(c) that the psychologists and other officers employed by the
authority owed a personal duty of care to use professional skill
and care in their assessments and advice, for breach of which
the authority is vicariously liable.

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

Common law duty of care - direct

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

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

- 40 -

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

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

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

We were not referred to any category of case by analogy with which,
in accordance with the Caparo principles [1990] 2 AC 605, it would be right



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

In my judgment, as in the child abuse cases, the courts should hesitate
long before imposing a common law duty of care in the exercise of
discretionary powers or duties conferred by Parliament for social welfare
purposes. The aim of the Act of 1981 was to provide, for the benefit of
society as a whole, an administrative machinery to help one disadvantaged
section of society. The statute provides its own detailed machinery for
securing that the statutory purpose is performed. If, despite the complex
machinery for consultation and appeals contained in the Act, the scheme fails
to provide the benefit intended that is a matter more appropriately remedied
by way of the Ombudsman looking into the administrative failure than by way
of litigation.

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

I turn then to the other duty of care which, it is alleged, the defendant
authority owes directly to the plaintiff. There the position is wholly different.
The claim is based on the fact that the authority is offering a service
(psychological advice) to the public. True it is that, in the absence of a
statutory power or duty, the authority could not offer such a service. But
once the decision is taken to offer such a service, a statutory body is in
general in the same position as any private individual or organisation holding
itself out as offering such a service. By opening its doors to others to take
advantage of the service offered, it comes under a duty of care to those using
the service to exercise care in its conduct. The position is directly analogous



- 42 -

with a hospital conducted, formerly by a local authority now by a health
authority, in exercise of statutory powers. In such a case the authority
running the hospital is under a duty to those whom it admits to exercise
reasonable care in the way it runs it: see Gold v. Essex County Council
[1942] K.B. 293.

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

Common law duty of care - vicarious

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

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

The position of the psychologists in the education cases is quite
different from that of the doctor and social worker in the child abuse cases.
There is no potential conflict of duty between the professional's duties to the
plaintiff and his duty to the educational authority. Nor is there any obvious
conflict between the professional being under a duty of care to the plaintiff



- 43 -

and the discharge by the authority of its statutory duties. If. at trial, it
emerges that there are such conflicts, then the trial judge may have to limit
or exclude any duty of care owed by the professional to the plaintiff. But at
this stage no obvious conflict has been demonstrated.

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

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

The Hampshire case

The facts

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

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

- 44 -

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

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

The plaintiff's claim was struck out by Master Murray whose decision
was upheld by Otton J. on 7 April 1993. On 29 April 1994, the Court of
Appeal (Sir Thomas Bingham M.R., Evans and Rose L.JJ.) [1994] 3 W.L.R.
853 allowed the plaintiff's appeal and granted leave to appeal to your
Lordships' House.

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

Mr. Beloff, for the defendant authority, submitted that because
Parliament has established the statutory regime for the protection of children
with special educational needs, it was inconsistent with that scheme to find a
parallel common law duty of care owed to children with special educational
needs. I reject this submission. Although, as I have said, it is impossible to
impose a common law duty of care which is inconsistent with, or fetters, a
statutory duty, I can see no legal or common sense principle which requires
one to deny a common law duty of care which would otherwise exist just
because there is a statutory scheme which addresses the same problem. There
is no inconsistency or incompatibility between the statutory scheme for
children with special educational needs and any duty owed by headmasters and
teaching advisors to give careful advice as to the educational needs of their
pupils. If the child were being educated at a private fee paying school or
consulted a private teaching advisor, the existence of the statutory scheme



- 45 -

(which applies both to the private and public sectors) would be irrelevant.
Why should it be relevant simply because the school and teaching advice is
provided by a local education authority?

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

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

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

Once it is established that a head teacher or advisory teacher is under
some duty of care to the pupil in relation to his educational well being, it is
impossible to strike out the claim in this case. But I must again emphasise
that the failure to strike out the claim does not indicate any view as to the
likelihood of success in the action. The head teacher and the advisory teacher
were only bound to exercise the skill and care of a reasonable head teacher
and advisory teacher. The Bolam test [1957] 1 W.L.R. 582 will apply and the
judge at the trial will have to decide whether or not the advice tendered by the
head teacher and advisory teacher was in accord with the views that might
have been entertained at the time by reasonable members of the leaching
profession. The headmaster and advisory teachers were not under any duty
to exercise a higher degree of skill such as that of an educational psychologist.
Nor would they have been in breach of any duty of care if they held, and



- 46 -

communicated, a reasonable view of dyslexia shared at that date by a
responsible body of educational thinking.

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

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

The Bromley case
The facts.

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

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

By the statement of claim, the plaintiff claims damages against the
local authority for breach of statutory duty and/or negligence in

1. failing to secure the availability of efficient primary and/or
   secondary education;

2. placing the plaintiff in special schools when he did not have
   any serious disability and could and should have been educated
   in ordinary school;

(c) failing to make arrangements for provision to meet the
plaintiff's educational needs, in particular by failing to make or
maintain a statement of his special educational needs;

- 47 -

4. during the period from July 1977 to May 1979 and from
   September 1985 to November 1986 failing to provide a place
   for the plaintiff at any school:

5. failing to pay proper regard to or heed the plaintiff's mother's
   requests during the time that he did not have a school place at
   all that he be provided with one and her requests between 1982
   and 1986 that he be provided with a place at an ordinary
   school;

6. in the circumstances failing to provide the plaintiff with any
   reasonable education.

On 16 July 1993 Mr. Peter Weitzman Q.C., sitting as a deputy High Court
judge in the Queen's Bench Division, struck out the action under Ord. 18.
r. 19 as disclosing no reasonable cause of action. The plaintiff appealed to the
Court of Appeal (Sir Thomas Bingham M.R., Evans and Rose L.JJ.), who
allowed the plaintiff's appeal in relation to his claim founded on common law
negligence but dismissed the appeal in relation to the claim founded on breach
of statutory duty. The Court of Appeal gave leave to the authority to appeal
to your Lordships' House and to the plaintiff leave to cross-appeal against the
dismissal of his claim based on breach of statutory duty.

Breach of statutory duty simpliciter (Category 64))
There are two aspects to the plaintiff's case:

1. the failure by the authority to provide him with any schooling
   at all between June 1977 and May 1979 and from September
   1985 to November 1986:

2. the provision by the authority of inappropriate education (i.e.
   at special schools rather than at an ordinary school) resulting
   from failures to carry out proper assessment procedures.

The claim in relation to the failure to provide any schooling is based
on an alleged breach of section 8 of the 1944 Act. Mr. Ter Haar QC (for the
plaintiff) formulated the statutory duty as follows. If a local education
authority has established a school or schools pursuant to its obligation to
provide sufficient schools within its district, without payment of fees, a failure
to accept a child for education in one of those schools is a breach of statutory
duty actionable at the suit of an individual. I am quite unable to extract any
such obligation from the words of section 8 itself. Indeed, I think Mr. Ter
Haar accepted that this was the position. However, he advanced an argument
along the following lines. First, the legislation which preceded the Act of
1944 had much in common with the system set up by the 1944 Act. In
particular local education authorities had and have an obligation to ensure the
provision of sufficient elementary schools for which purpose they can provide



- 48 -

the schools themselves or alternatively rely upon schools provided by others.
Schools provided by the local education authority pursuant to the statutory
provisions are to be maintained by the local education authorities and adequate
free schooling is to be provided. Second, it was submitted, it has been
decided by a long line of authorities that breach of those statutory duties under
the old Acts gave rise to a private right of action for damages. Third, the
1944 Act must not be taken to have removed by implication an existing right
of action.

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

In his judgment, the Master of the Rolls ([1994] 3 W.L.R. 853, 867-
872) analyses all the cases relied on by Mr. Ter Haar and demonstrates that,
with the possible exception of two dicta, one by Scrutton L.J. in Gateshead
Union v. Durham County Council [1918] 1 Ch. 146, 167 and the other by
Lord Denning M.R. in Meade v. Haringey London Borough Council [1979]
1 W.L.R. 637, 647, all the cases relied upon were concerned with the
enforcement of public law rights by way of declaration and injunction and do
not establish any private law claim for damages for breach of statutory duties
imposed by the Education Acts. I cannot improve on the Master of the Rolls'
analysis and gratefully adopt it.

As to the two dicta suggesting the existence of a private law claim for
damages Mr. Ter Haar (to my mind rightly) no longer relies on the remarks
of Lord Denning M.R. which, as the Master of the Rolls demonstrates, have
no basis in authority. As to the dictum of Scrutton L.J. that a statutory right
of action for damages would lie, the authority he relied upon (Ching v. Surrey
County Council [1910] 1 KB 736) was concerned with a claim for damages
for common law negligence not for breach of statutory duty. There was no
prior authority for the statement by Scrutton L.J. and in my judgment it was
wrong. Therefore, as the Master of the Rolls has demonstrated, there is no
long line of authority supporting the existence of a statutory right of action for
damages for breach of section 8 of the 1944 Act and in my judgment no such



- 49 -

right exists. Nothing I have said should be taken as casting any doubt on the
authorities so far as they are concerned with issues of public law.

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

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

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

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

Common law duty of care - direct

The statement of claim alleges, in paragraph 2(1), that the defendant
authority were under statutory duties arising from sections 8. 33 and 34 of the
Act of 1944 and sections 4, 5, 7 and 2 of the Act of 1981. Paragraph 2(2)
alleges that the defendant authority owed the plaintiff a duty to take reasonable



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care "in and about the exercise of their functions under the said statutory
provisions". The allegation is that damage to the plaintiff was "caused by
breach of statutory duty and/or negligence on the part of the defendants, their
servants or agents". The particulars which are given of the alleged negligence
in effect allege nothing more than that the defendants failed to take proper
care in relation to the assessment of the plaintiff's disability in making the
decision to educate him in special schools. At no stage does the pleading
identify what was done, by whom or the respects in which it was negligent so
to act.

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

claim alleging a direct liability at common law should be struck out.

Common law duty of care - vicarious

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

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

The Court of Appeal were well aware of these defects in the pleading:
the Master of the Rolls [1994] 3 W.L.R. 853, 872-873. inferred that the
plaintiff alleged negligence against officials of the local authority and also
possibly teachers and educational psychologists. Evans L.J., at pp. 882-883.
also correctly pointed out the need to identify employees who owed a common
law duty of care independently of the statute. However, the Court of Appeal
assumed that such separate duty owed by a servant could be relied upon and
the sole ground for their decision not to strike out the claim was the possibility
of the plaintiff being able to establish that the defendants were under a
vicarious liability for torts committed by their servants.

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

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

Conclusion

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

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

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LORD NOLAN

My Lords.

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

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

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