An Update on Duty of Care by Natasha Partos
Articles | Fri 29th Apr, 2016
CN and GN v Poole Borough Council EWCA 569(QC) Update on duty of care
In the recent case of CN and GN v Poole Borough Council EWCA 569(QC) the Hon. Mrs Justice Slade DBE confirmed that a child is not precluded from bringing a claim of negligence against a public authority as a matter of public policy. This case confirms that a full examination of the facts of a particular case is required in order to determine whether a duty of care has been established. Furthermore, the Court confirmed that the issue of whether a child is able to establish that they were owed a duty of care by a public authority unlikely to be suitable for resolution at an interlocutory stage.
The Appellants GN and CN, were both minors (CN is also severely disabled). The children and their family were housed by the Respondent Council on an estate where they were subjected to prolonged abuse, anti- social behaviour and criminal behaviour by a family who had also been housed by the Council. The minors and their mother brought a claim against the Council for damages in negligence. The basis of the minors and mothers claim against the Council were two fold.
- Firstly, they brought a common law claim in negligence for failing to remove the family from their home to a place of safety.
- Secondly, the minors brought an independent claim, for a failure to protect them as children and remove them from the home to protect them from personal injury.
The minors claimed that the Council had;
- Failed negligently to promote the safe upbringing of CN and GN when they knew that they were children in need of their protection
- Failed negligently to remove CN and GN from the premises and to place them in a safe home before December 2011.
- Caused permitted or suffered CN and GN to remain in premises when they knew or ought to have known they were at foreseeable risk of harm.
- Failed to protect CN and GN who were vulnerable children.
With respect to the second limb of the claim, the minors relied on a common law duty of care, and a statutory duty under s.17 and 47 Children’s Act 1998 and The Children’s Act 2004 .
On 2nd October 2015 Master Eastman struck out the entirety of the minors and their mother’s claim. The minors appealed on the second limb of their claim, which came before the HON. Mrs Justice Slade DB on 16th February 2016.
The minors submitted that the Master had erred in relying on the case of X v Bedfordshire County Council 1995 2 AC 633 and had therefore erred in concluding that the minors did not have a reasonable cause of action against the Council. Furthermore, the minors submitted that the Master had failed to consider and follow the later judgment of D v East Berkshire NHS Trust and Others 2004 QB 558 which required the Court to consider the facts of each case, and determine whether it would be fair, just and reasonable to impose a duty of care on a Local Authority in the particular circumstances.
The Respondent Council argued that D v East Berkshire NHS Trust had been implicitly overruled by the subsequent case of Michael v Chief Constable of South Wales 2015 2 WLR 343 and rejected the submission that the Council owed a common law duty of care, or had failed in a statutory duty to the minors.
Both the minors and Council agreed that the starting point for the Court in considering whether the Council owed a duty of care to the minors was the three stage test of foreseeability, proximity and fairness, justice and reasonableness set out in Caparo Industries v Dickman 1990 2AC 605.
The Hon. Mrs Justice Slade DB concluded that the Master had been wrong to strike out the minors claim. Mrs Justice Slade did not accept the Respondent’s submission that D v East Berkshire NHS Trust had been implicitly overturned. Therefore, the Master had erred in relying upon X v Bedfordshire County Council. The appeal was therefore allowed and the order striking out the children’s claims set aside.
Having allowed the appeal Mrs Justice Slade went on to give general guidance for those considering whether a duty of care could be imposed on a Local Authority to minors within their ward. Mrs Justice Slade confirmed, that each case should be considered on its own facts and a full consideration of the individual case should be undertaken to determine if the duty of care has been established. At paragraph 44 of the judgment she concluded that this issue should be a matter considered ‘upon full examination of the facts and … is not apt for a determination on an application to strike out the claim under CPR3.4(2)(A)’. Therefore, it is unlikely that courts will welcome further strike out application to resolve such matters.
While this case has not extended the Courts willingness to impose a duty of care onto a Local Authority, it has confirmed that D v East Berkshire NHS Trust remains good law and that as a matter of public policy minors such as CN and GN are not precluded from bringing a claim against a Local Authority in negligence. By way of practical guidance this case has confirmed that these are complex and fact sensitive issues requiring detailed analysis, which are unlikely to be suitable for interlocutory applications.