“20 Provision of accommodation for children: general. (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— (a) there being no person who has parental responsibility for him; (b) his being lost or having been abandoned; or (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. of— (a) there being no person who has parental (b) his being lost or having been abandoned; or (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. (2) Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within— (a)three months of being notified in writing that the child is being provided with accommodation; or (b)such other longer period as may be prescribed in regulations made by the Secretary of State... (3) Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation. (4) A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare. (5) A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare. (6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare— (a)ascertain the child’s wishes and feelings regarding the provision of accommodation; and (b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain. (7) A local authority may not provide accommodation under this section for any child if any person who— (a)has parental responsibility for him; and (b)is willing and able to— (i)provide accommodation for him; or (ii)arrange for accommodation to be provided for him, objects. (8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section. (9) Subsections (7) and (8) do not apply while any person— (a) who is named in a child arrangements order as a person with whom the child is to live; (aa)who is a special guardian of the child; or (b)who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, agrees to the child being looked after in accommodation provided by or on behalf of the local authority. (10) Where there is more than one such person as is mentioned in subsection (9), all of them must agree. (11) Subsections (7) and (8) do not apply where a child who has reached the age of sixteen agrees to being provided with accommodation under this section….”
“(1) In this section, any reference to a child who is looked after by a local authority is a reference to a child who is— (a)in their care; or (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of theLocal Authority Social Services Act 1970 , apart from functions under sections 23B and 24B (2) In subsection (1) “accommodation” means accommodation which is provided for a continuous period of more than 24 hours. (3) It shall be the duty of a local authority looking after any child— (a)to safeguard and promote his welfare; and (b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case…” (b) provided with accommodation by the authority in the exercise of any functions (in particular those under this Act) which are social services functions within the meaning of theLocal Authority Social Services Act 1970 , apart from functions under sections 23B and 24B provided for a continuous period of more than 24 hours. (a)to safeguard and promote his welfare; and (b)to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case…”
“… the court “is satisfied (a) that the child concerned is suffering, or is likely to suffer, significant harm; and (b) that the harm, or likelihood of harm, is attributable to— (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.” (i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or (ii) the child’s being beyond parental control.”
“My Lords, it seems to me that if A assumes a responsibility to B to tender him deliberate advice, there could be a liability if the advice is negligently given. I say "could be" because the ordinary courtesies and exchanges of life would become impossible if it were sought to attach legal obligation to every kindly and friendly act. But the principle of the matter would not appear to be in doubt. If A employs B (who might. for example, be a professional man such as an accountant or a solicitor or a doctor) for reward to give advice and if the advice is negligently given there could be a liability in B to pay damages. The fact that the advice is given in words would not, in my view, prevent liability from arising. Quite apart, however, from employment or contract there may be circumstances in which a duty to exercise care will arise if a service is voluntarily undertaken. A medical man may unexpectedly come across an unconscious man, who is a complete stranger to him, and who is in urgent need of skilled attention: if the medical man, following the fine traditions of his profession, proceeds to treat the unconscious man he must exercise reasonable skill and care in doing so. In his speech in Banbury v. Bank of Montreal183Lord Atkinson said: "It is well established that if a doctor proceeded to treat a patient gratuitously, even in a case where the patient was insensible at the time and incapable of employing him, the doctor would be bound to exercise all the professional skill and knowledge he possessed, or professed to possess, and would be guilty of gross negligence if he omitted to do so." To a similar effect were the words of Lord Loughborough in the much earlier case of Shiells v. Blackburne184when he said: "... if a man gratuitously undertakes to do a thing to the best of his skill, where his situation or profession is such as to imply skill, an omission of that skill is imputable to him as gross negligence." Compare also Wilkinson v. Coverdale.185I can see no difference of principle in the case of a banker. If someone who was not a customer of a bank made a formal approach to the bank with a definite request that the bank would give him deliberate advice as to certain financial matters of a nature with which the bank ordinarily dealt the bank would be under no obligation to accede to the request: if, however, they undertook, though gratuitously, to give deliberate advice (I exclude what I might call casual and perfunctory conversations) they would be under a duty to exercise reasonable care in giving it. They would be liable if they were negligent although, there being no consideration, no enforceable contractual relationship was created. In the absence of any direct dealings between one person and another, there are many and varied situations in which a duty is owed by one person to another. A road user owes a duty of care towards other road users. They are his "neighbours." A duty was owed by the dock owner in Heaven v. Pender.186Under a contract with a shipowner he had put up a staging outside a ship in his dock. The plaintiff used the staging because he was employed by a ship painter who had contracted with the shipowner to paint the outside of the ship. The presence of the plaintiff was for business in which the dock owner was interested and the plaintiff was to be considered as having been invited by the dock owner to use the staging. The dock owner was therefore under an obligation to take reasonable care that at the time when the staging was provided by him for immediate use it was in a fit state to be used. For an injury which the plaintiff suffered because the staging had been carelessly put up he was entitled to succeed in a claim against the defendant. The chemist in George v. Skivington sold the bottle of hair wash to the husband knowing that it was to be used by the wife. It was held on demurrer that the chemist owed a duty towards the wife to use ordinary care in compounding the hair wash. In Donoghue v. Stevenson it was held that the manufacturer of an article of food, medicine, or the like, is under a duty to the ultimate consumer to take reasonable care that the article is free from defect likely to cause injury to health. My Lords, these are but familiar and well known illustrations, which could be multiplied, which show that irrespective of any contractual or fiduciary relationship and irrespective of any direct dealing, a duty may be owed by one person to another.”
“For the application to strike out to succeed it must be shown that thestatement of claim discloses no cause of action or constitutes an abuse of process of the court and for that inquiry the factual averments must be taken as true though many of them are denied by the defendants. Although the power to strike out a claim which really has no chance of succeeding in law is a very valuable one to protect defendants and to prevent the court's time being used (to the detriment of other cases waiting to be heard) in the investigation of the allegations, it has to be exercised cautiously as has so often been said. In X (Minors) v Bedfordshire County Council[1995] 2 AC 633 where the question was whether a duty of care arose in child abuse cases and in special educational needs cases Lord Browne-Wilkinson said, at pp 740-741: "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." He addedthat it could be different where the question depended only on the construction of relevant statutory provisions. At p 741 he agreed with Sir Thomas Bingham MR 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 complex range of facts in those cases shows how difficult the exercise is. In Barrett v Enfield London Borough Council[2001] 2 AC 550 Lord BrowneWilkinson repeated what he had said in the X (Minors) case and,at p 557, added that the development of the law should be on the basis of actual facts found at trial "not on hypothetical facts assumed (possibly wrongly) to be true for the purposes of the strike out". I took the view, at p 574, that "the question whether it is just and reasonable to impose a liability of negligence is not to be decided in the abstract for all acts or omissions of a statutory authority, but is to be decided on the basis of what is proved". Causation is largely a question of fact to be proved and the factsneeded to be investigated. Lord Hutton, at p 587, agreed that the claim should not be struck out "on the ground that it gives rise to issues which are non-justiciable". It seems to me that it cannot be said here that the claim that there was a duty of care owed to the parents and a breach of that duty by the defendants is unarguable, that it is clear and obvious that it cannot succeed…. On a strike out application it is not necessary to decide whether the parents' claim must or should succeed if the facts they allege are proved. On the contrary, it would be wrong to express any view on that matter. The question is whether if the facts are proved they must fail. It is not enough to recognise, as I do recognise at this stage, that the parents may have difficulties in establishing their claim.”
“81 Thus litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decisions in child abuse cases. In these circumstances the reasons of policy that led the House of Lords to hold that no duty of care towards a child arises, in so far as those reasons have not already been discredited by the subsequent decisions of the House of Lords, will largely cease to apply. Substantial damages will be available on proof of individual shortcomings, which will be relevant alike to a claim based on breach of section 6 of the Human Rights Act and a claim based on breach of a common law duty of care. 82 Can there, in these circumstances, be any justification for preserving a rule that no duty of care is owed in negligence because it is not fair, just and reasonable to impose such a duty? It is true that a claim under the Human Rights Act will only lie against public authorities and not against the individuals employed by them. But the reality is that claims in negligence are brought primarily to establish liability on the part of the local authorities and individuals are unlikely to be personally at risk. In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think that this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care. 83 In so far as the position of a child is concerned, we have reached the firm conclusion that the decision in Bedfordshire cannot survive the Human Rights Act. Where child abuse is suspected the interests of the child are paramount - seeS.1 Children Act 1989 . Given the obligation of the local authority to respect a child's Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they perform their duties. In the context of suspected child abuse, breach of a duty of care in negligence will frequently also amount to a violation of Article 3 or Article 8. The difference, of course, is that those asserting that wrongful acts or omissions occurred before October 2000 will have no claim under the Human Rights Act. This cannot, however, constitute a valid reason of policy for preserving a limitation of the common law duty of care which is not otherwise justified. On the contrary, the absence of an alternative remedy for children who were victims of abuse before October 2000 militates in favour of the recognition of a common law duty of care once the public policy reasons against this have lost their force. 84 It follows that it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care, but each case will fall to be determined on its individual facts. 85 In reaching this decision we do not suggest that the common law duty of care will replicate the duty not to violate Articles 3 and 8. Liability for breach of the latter duty and entitlement to compensation can arise in circumstances where the tort of negligence is not made out. The area of factual enquiry where breaches of the two duties are alleged are, however likely to be the same.”
“102 It is true that the categories of negligence are never closed (Heaven v Pender(1883) 11 QBD 503 ), and it would be open to the court to create a new exception to the general rule about omissions. The development of the law of negligence has been by an incremental process rather than giant steps. The established method of the court involves examining the decided cases to see how far the law has gone and where it has refrained from going. From that analysis it looks to see whether there is an argument by analogy for extending liability to a new situation, or whether an earlier limitation is no longer logically or socially justifiable. In doing so it pays regard to the need for overall coherence. Often there will be a mixture of policy considerations to take into account.”
“114 It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.”
“26. Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients. As Lord Browne-Wilkinson explained in Barrett v Enfield London Borough 63. Council[2001] 2 AC 550 , 560, “Once the decision is taken that, say, company auditors though liable to shareholders for negligent auditing are not liable to those proposing to invest in the company ... that decision will apply to all future cases of the same kind”
“Marc Rich should not be regarded as an authority which has a relevance to cases of personal injury or as adding any requirements that an injured plaintiff do more than bring his case within established principles. If a plaintiff is attempting to establish some novel principle of liability, then the situation would be different.”
“Assumption of responsibility 66. It is apparent from the cases so far discussed that the nature of an assumption of responsibility is of importance in the present context. That topic should be considered before turning to the circumstances of the present case. 67. Although the concept of an assumption of responsibility first came to prominence in Hedley Byrne in the context of liability for negligent misstatements causing pure economic loss, the principle which underlay that decision was older and of wider significance (see, for example, Wilkinson v Coverdale (1793) 1 Esp 75). Some indication of its width is provided by the speech of Lord Morris of Borth-y-Gest in Hedley Byrne, with which Lord Hodson agreed, at pp 502-503: “My Lords, I consider that it follows and that it should now be regarded as settled that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise. The fact that the service is to be given by means of or by the instrumentality of words can make no difference. Furthermore, if in a sphere in which a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise.”
“I think, therefore, that there is ample authority to justify your Lordships in saying now that the categories of special relationships which may give rise to a duty to take care in word as well as in deed are not limited to contractual relationships or to relationships of fiduciary duty, but include also relationships which in the words of Lord Shaw in Norton v Lord Ashburton[1914] AC 932 , 972 are ‘equivalent to contract,’ that is, where there is an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. ... I shall therefore content myself with the proposition that wherever there is a relationship equivalent to contract, there is a duty of care. … Where, as in the present case, what is relied on is a particular relationship created ad hoc, it will be necessary to examine the particular facts to see whether there is an express or implied undertaking of responsibility.” 68. Since Hedley Byrne, the principle has been applied in a variety of situations in which the defendant provided information or advice to the claimant with an undertaking that reasonable care would be taken as to its reliability (either express or implied, usually from the reasonable foreseeability of the claimant’s reliance upon the exercise of such care), as for example in Smith v Eric S Bush, or undertook the performance of some other task or service for the claimant with an undertaking (express or implied) that reasonable care would be taken, as in Henderson v Merrett Syndicates Ltd and Spring v Guardian Assurance plc[1995] 2 AC 296 . In the latter case, Lord Goff observed at p 318: “All the members of the Appellate Committee in [Hedley Byrne] spoke in terms of the principle resting upon an assumption or undertaking of responsibility by the defendant towards the plaintiff, coupled with reliance by the plaintiff on the exercise by the defendant of due care and skill. Lord Devlin, in particular, stressed that the principle rested upon an assumption of responsibility when he said, at p 531, that ‘the essence of the matter in the present case and in others of the same type is the acceptance of responsibility’. … Furthermore, although Hedley Byrne itself was concerned with the provision of information and advice, it is clear that the principle in the case is not so limited and extends to include the performance of other services, as for example the professional services rendered by a solicitor to his client: see, in particular, Lord Devlin, at pp 529530. Accordingly where the plaintiff entrusts the defendant with the conduct of his affairs, in general or in particular, the defendant may be held to have assumed responsibility to the plaintiff, and the plaintiff to have relied on the defendant to exercise due skill and care, in respect of such conduct.” 69. That approach is reflected in the cases previously discussed. In X (Minors) v Bedfordshire, the social workers were held not to have assumed any responsibility towards the claimants in the child abuse cases on the basis that they were not providing their professional services to the claimants, and it was not reasonably foreseeable that the claimants would rely on the reports which they provided to their employers. In the education cases, on the other hand, the local authority assumed responsibility for the advisory service which it was understood to provide to the public, since the public could reasonably be expected to place reliance on the advice; a school assumed responsibility for meeting the educational needs of the pupils to whom it provided an education; the headmaster came under a duty of care by virtue of his responsibility for the school; and an advisory teacher assumed responsibility for advice which he knew would be communicated to a child’s parents and on which they would foreseeably rely. In Barrett v Enfield, the local authority assumed responsibilityfor the welfare of a child when it took him into its care. In Phelps v Hillingdon, the educational psychologist assumed responsibility for the professional advice which he provided about a child in circumstances where it was reasonably foreseeable that the child’s parents would rely on that advice. 70. It is convenient at this point to consider a submission advanced on behalf of the council in the present case, said to be supported by some recent decisions of the Court of Appeal, that a public authority cannot assume responsibility merely by operating a statutory scheme. The submission was based primarily on the judgment of Dyson LJ in Rowley v Secretary of State for Work and Pensions[2007] EWCA Civ 598 ;[2007] 1 WLR 2861 , paras 51-55, where it was held that the Secretary of State, in carrying out his statutory duty to make an assessment of child support maintenance, did not assume a responsibility towards the parent with care of the children in question. Dyson LJ focused on the requirement that responsibility must be “voluntarily accepted or undertaken”, as Lord Devlin put it in Hedley Byrne at p 529: a requirement which, he held, was not met merely by the Secretary of State’s performance of his statutory duty under the legislation. 71. That decision was followed in X v Hounslow London Borough Council[2009] EWCA Civ 286 ;[2009] 2 FLR 262 , a case with similarities to the present case, where it was held that a local authority’s social services and housing departments had not assumed a responsibility to protect vulnerable council tenants and their children from harm inflicted by third parties. Sir Anthony Clarke MR, giving the judgment of the Court of Appeal, observed at para 60 that the case was not one of assumption of responsibility unless the assumption of responsibility could properly be held to be voluntary. That was because “a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann’s example [in Gorringe, para 38] of the doctor patient relationship.”
“It does not much matter why he decided to do it; it may be that he thought it would be profitable or it may be that he was providing a service pursuant to some statutory duty, as in Phelps v Hillingdon London Borough Council[2001]2 AC 619and Ministry of Housing and Local Government v Sharp[1970] 2 QB 223 .”
“The question of whether the order can have generated a duty of care is comparable with the question of whether a statutory duty can generate a common law duty of care. The answer is that it cannot: see Gorringe v Calderdale Metropolitan Borough Council[2004] 1 WLR 1057 . The statute either creates a statutory duty or it does not. (That is not to say, as I have already mentioned, that conduct undertaken pursuant to a statutory duty cannot generate a duty of care in the same way as the same conduct undertaken voluntarily.) But you cannot derive a common law duty of care directly from a statutory duty. Likewise, as it seems to me, you cannot derive one from an order of court.” 73. There are indeed several leading authorities in which an assumption of responsibility arose out of conduct undertaken in the performance of an obligation, or the operation of a statutory scheme. An example mentioned by Lord Hoffmann is Phelps v Hillingdon, where the teachers’ and educational psychologists’ assumption of responsibility arose as a consequence of their conduct in the performance of the contractual duties which they owed to their employers. Another example is Barrett v Enfield, where the assumption of responsibility arose out of the local authority’s performance of its functions under child care legislation. The point is also illustrated by the assumption of responsibility arising from the provision of medical or educational services, or the custody of prisoners, under statutory schemes. Clearly the operation of a statutory scheme does not automatically generate an assumption of responsibility, but it may have that effect if the defendant’s conduct pursuant to the scheme meets the criteria set out in such cases as Hedley Byrne and Spring v Guardian Assurance plc.”
“The present case 74. In the light of the cases which I have discussed, the decision in X (Minors) v Bedfordshire can no longer be regarded as good law in so far as it ruled out on grounds of public policy the possibility that a duty of care might be owed by local authorities or their staff towards children with whom they came into contact in the performance of their functions under the 1989 Act, or in so far as liability for inflicting harm on a child was considered, in the Newham case, to depend upon an assumption of responsibility. Whether a local authority or its employees owe a duty of care to a child in particular circumstances depends on the application in that setting of the general principles most recently clarified in the case of Robinson. Following that approach, it is helpful to consider in the first place whether the case is one in which the defendant is alleged to have harmed the claimant, or one in which the defendant is alleged to have failed to provide a benefit to the claimant, for example by protecting him from harm. The present case falls into the latter category.”
“75. Understandably, the reasoning of Irwin LJ in the Court of Appeal in the present case did not follow the approach set out in Robinson, which was decided after the Court of Appeal had given its decision. The first consideration on which Irwin LJ placed particular emphasis, namely the concern expressed in X (Minors) v Bedfordshire and Hill v Chief Constable of West Yorkshire that liability in negligence would complicate decision-making in a difficult and sensitive field, and potentially divert the social worker or police officer into defensive decision-making, has not been treated as sufficient reason for denying liability in subsequent cases such as Barrett v Enfield, Phelps v Hillingdon and D v East Berkshire. His view that the decision of the Court of Appeal in D vEast Berkshire had been implicitly overruled by Michael was mistaken: the decision in D v East Berkshire has not been overruled by any subsequent decision. In Michael, as explained earlier, this court rejected an argument which was said to be supported by D v East Berkshire, but it did not disapprove of the true ratio of that decision. More fundamentally, in cases such as Gorringe, Michael and Robinson both the House of Lords and this court adopted a different approach (or rather, reverted to an earlier approach) to the question whether a public authority is under a duty of care. That approach is based on the premise that public authorities are prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and may therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owe no duty of care by relying on public policy, it has been held that even if a duty of care would ordinarily arise on the application of common law principles, it may nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority is operating. In that way, the courts can continue to take into account, for example, the difficult choices which may be involved in the exercise of discretionary powers.”
“78. The claim against the council is based instead on an assumption of responsibility or “special relationship”
“In purporting to investigate the risk that the claimants’ neighbours posed to the claimants and subsequently in attempting to monitor the claimants’ plight as set out in the sequence of events above, the defendant had accepted a responsibility for the claimants’ particular difficulties and/or there was a special nexus or special relationship between the claimants and the defendant. The defendant purported to protect the claimants by such investigation and in as far as such investigation is shown to have been carried out negligently and/or negligently acted on the defendant is liable for breach of duty.”
“85. The particulars of claim state: “Each of the social workers and/or social work managers and other staff employed by the defendant who was allocated as the social worker or manager for the claimants or tasked with investigating the plight of the claimants owed to the claimants a duty of care.”
“ 83 The issue on this appeal is whether the respondent has reasonable prospects of establishing its case that the appellant owed it a duty of care. The circumstances are that the appellant arrested Mr Luca, took him into custody, stopped him from using two of his mobile phones, took the keys of the lorry, left it in a remote layby, and did not speedily fulfil a promise made by officers to get the operator's contact details from the lorry when it was known to the respondent that there was a risk of thefts from unattended lorries in the area. 84 I do not consider that I have been referred to any case which decides that issue. This case shares some general features with the decisions to which I have been referred, but it is not the same as, or similar to, any of them. As Lord Reed pointed out in Robinson, the common law proceeds incrementally, by analogy. A court which proceeds by analogy has to understand the underlying basis of the principles which are stated by the courts when they apply the law of negligence to different facts. However, previous decisions of the courts are not statutes, and the principles enunciated in the cases and the language which is used are not to be read as if they were a statute. 85 Unless it is very clear that the existence of a duty of care is precluded by authority or by the certain applications of the principles which can be deduced from authority, the possibility that as court may by that incremental process decide that the appellant did owe the respondent a duty of care cannot be excluded. But there is a more basic point, which is Mr Barraclough's submission that this case involves nothing more than the application of the normal principles of negligence. 86 I do not consider that this is a case in which it is clear beyond argument, as Ms Johnson submits, that a duty of care is excluded by the certain application of the principles stated in the decided cases to the facts. Leaving aside Mr Barraclough's fundamental submission that the case simply involves the application of the general principles of negligence to the facts of this case, the first ambiguity, which I consider can only be resolved after a trial on the basis of findings of fact, is whether this case fits into the analytic structure on which Ms Johnson relies or not.”
“87 Is it an act or omission case (or, in Lord Reed's words in Poole, at para.28) a case in which the appellant caused harm (made things worse) or one in which the appellant failed to confer a benefit (did not make things better)? I note that the relevant decisions recognise that it can be difficult on the facts to decide whether or not a case is an act or omissions case. See, for example, para.81 of the decision in Poole. See also the fact that one of the issues in Robinson, which went to the Supreme Court, was whether or not that case was to be classified as an act or omissions case, and see the statement by Lord Reed in para.69.4 of Robinson that, while the distinction between acts and omissions is fundamental, it can be difficult to draw in borderline cases. 88 In my judgment, this is not clearly a case in which the respondent relies solely on an omission by the appellant or completely, on the other hand, a case in which the respondent relies on a positive act by the appellant. This case shares features with both types of case. If it is not purely an omission case, I do not consider it is unarguable that the police in the circumstances of this case might owe the respondent a duty of care.” 89 Moreover, like the Recorder, I consider there is a wider public interest in a decision after evidence and argument about whether the police owe any duty of care to a property owner in respect of property which they encounter in the course of an arrest and which, in consequence of the arrest, is separated from its custodian. I do not consider that such a duty is clearly precluded by the reasoning in the cases about the victims of violent crime.” 90 It follows, in my judgment, that this is not clearly a case which can be analysed as a case in which the appellant failed to act or to provide a service. The appellant did fail to keep the lorry safe, but it is arguable that it also took steps which prevented others from keeping the lorry safe.”
“91 In any event, if that is wrong and, in accordance with Ms Johnson's submissions, this case does fit fairly and squarely into her analytical framework as an omission case, the next question is whether it is unarguably clear that the respondent cannot bring itself within one of the exceptions to the principle that a person is not generally liable for the acts of third parties. 92 Much time was spent in submissions about the concept of assumption of responsibility. There is, I recognise, some force in Ms Johnson's submissions on this aspect of the case. I accept that this is not clearly a case in which the appellant assumed responsibility for keeping the lorry safe in accordance with the principles enunciated in the cases precisely because the respondent did not know until it was too late what the appellant had done or failed to do. The respondent arguably did not rely on what the appellant did because the respondent did not know what the appellant had done. The respondent had no choice about any part of the transaction between the appellant and its driver, Mr Luca. Nevertheless, it seems from the cases to which I was referred that the concept of assumption of responsibility is somewhat elastic and has, in the words of Lord Toulson in para.101 of Michael, been "imposed by the court rather than assumed by the defendant." 93 I note that, in para.82 of the Poole case (albeit in a different context) Lord Reed cautioned that inferences of an assumption of responsibility depend on the facts of a particular case, and that there may well be cases in which it cannot be decided on a strike-out application that there was no assumption of responsibility. I do not consider that, if this is the right area of the analytical framework, it would be right to strike out this claim without findings of fact. Moreover, I do not consider that it is unarguable that this case might be found to fit into one of the other exceptions listed in para.34 of Lord Reed's judgment in Robinson. 94 Finally, as Lord Toulson made clear in para.102 of his judgment in Michael, the list of exceptions to this rule is not closed. I consider that the Recorder was right to hold that the issues of causation were for trial, and that it was not appropriate to decide them on an application to strike out the claim. I consider that the same reasoning applies to the question, if it arises, of whether any duty, if owed, was discharged on the facts.”
“28. This is a case which it seems to me in essence falls squarely on all fours with Poole. I do not consider the distinctions which the Plaintiff sought to draw to be persuasive; and thus when I consider the allegations of breach of duty, I am satisfied that they fall within the second category of case identified by Lord Reed, namely that the true nature of the case advanced is that the Defendant has failed to provide a benefit to the Plaintiff, by failing to protect the Plaintiff. I can identify no area or circumstance in which it could conceivably be inferred that the Defendant has assumed a responsibility for the Plaintiff; and in this respect I adopt the Defendant's analysis set out at para 3.5 of Mr Bershadski's revised skeleton argument. Furthermore, I see nothing in the matters pleaded from which the apparent manner in which the Plaintiff was treated gave rise to an assumption of responsibility; and I am also satisfied that there is nothing in St Helena's circumstance which alone or in conjunction with any of the matters pleaded permits an inference to be drawn that St Helena's Social Services in some way thus assumed a responsibility. Additionally, and patently, it was not the Defendant who created the danger which indubitably caused the Plaintiff harm. I am satisfied therefore, that this is indeed one of those cases, rare as they may be, where it is appropriate to strike out the Plaintiff's claim as disclosing no cause of action given the absence of any prospect on the Plaintiff's behalf that the Defendant owed her a common law duty of care. If this action were permitted to proceed it would involve all parties in considerable cost with no prospect at the end of the day that the Plaintiff's case could succeed.”
“30. A claim should only be struck out as disclosing no reasonable cause of action underCPR 3.4 (2)(a) in a clear and obvious case. As the Court of Appeal said in Hughes v Colin Richards & Co[2004] EWCA Civ 266 , an application should not be granted unless the court is certain that the claim is bound to fail. 31. The short point is that in my judgment, the case is not bound to fail. I say that for the following reasons: i) The case must be looked at in the context that the law of tort in relation to the assumption of responsibility is still developing and emerging. ii) The Supreme Court was at pains to point out in Poole Borough Council that each case turns on its own facts. iii) An assumption of responsibility can arise where a claimant entrusts a defendant with the conduct of his affairs in general or particular. Such situations can arise where the defendant undertakes the performance of some task, or the provision of some service for the claimant, with an undertaking that reasonable care will be taken. Such an undertaking is commonly implied by reason of the foreseeability of reliance by the claimant on the exercise of such care. iv) The existence of an assumption of responsibility can be highly dependent on the facts of a particular case, and where there appears to be a real possibility that such a case might be made out, a court will not decide otherwise on a strike out application (para. 89 of Poole). v) The Claimant has set out in detail numerous positive acts, which the Defendant undertook for the assistance of the Claimant. The Claimant was reliant upon the Defendant’s Social Services Department and the positive acts taken by the Defendant are sufficient to give rise to an arguable assumption of responsibility. For the purposes of this case, it is common ground that it must be accepted that the Defendant was negligent and the Claimant has suffered sexual, physical and psychological injuries. vi) I was taken by both parties to a number of first instance decisions, some of which had been upheld on appeal. In my judgment they provide very limited assistance because in some of them the facts are obscure and in others the facts are distinguishable or very different.”
“32 Although there are (as there always would be, even between closely analogous cases) some factual elements present in the history which differ from Poole, it does not involve a factual undertaking of responsibility being taken to be relied upon by the Claimants. I agree with the submission that save for the general plea of reliance in para.17 of the Particulars of Claim, there is no allegation here of reliance on any specific act or undertaking of the local authority and nor realistically could there be. 33 A duty of care is recognised to arise when a care order is made, because the local authority has parental responsibility. But up until that point, parental responsibility remains unequivocally with the parent(s). A duty of care cannot, in my view, effectively be reverse engineered from the point at which a duty arises on the making of a care order, in the way that the First Claimant would wish. This involves saying that because the duty arises on the making of the order, so there is a duty to conduct any care proceedings brought competently; and so, there is a duty to decide whether to institute care proceedings competently; therefore, there is a duty to investigate competently to decide whether to bring care proceedings. That attempt to trace back a duty at an earlier and earlier stage does not provide a viable route to an arguable case here, in my judgment.”
“35 But in case it becomes relevant, I will deal with those points, albeit more briefly as I do not consider that they assist the First Claimant: i) Adding to the danger (paras.20-21 of the Particulars of Claim): it is said that the Defendant did this by "endorsing the parenting provided to the Claimants…[and]…allowing [Mr D] and [Mr A] who were both known Schedule One offenders to live in the Claimants' home…[and]…did not remove [Mr D or Mr A] of the Claimant's from the home". I do not follow how that was adding to the danger. The Defendant had no statutory power to remove partners of their mother from the home. The children could not be removed without a Court Order. The danger is created by those individuals coming into the home and that does not amount to the Defendant adding to the danger. The harm is something the Claimants are already being exposed to. The flaw in this proposition can also be confirmed by applying such a proposition to the Poole case. If correct, this proposition would have been a complete answer to the charge that there was no duty of care in Poole, if it could be said that the Defendant there added to the danger by not bringing the harassment to an end. ii) Failing to control wrongdoers (paras.22 to 23 of the Particulars of Claim): again, this is a reference to Mr D and Mr A, "…the only way of controlling their access to the Claimants was to remove the Claimants [from the home]". It is also a reference to the Claimants' mother and the same allegation is made that this probably could only have been achieved by removing the Claimants. Again, the difficulty here is that there was no right to control the behaviour of those third parties of a type which would be required to lead to an arguable duty. An example is the control which the Home Office had over the actions of the Borstal boys, who escaped whilst under supervision on an island visit and caused property damage in, Home Office v Dorset Yacht Co Ltd[1970] QB 1004 . But here there was no such control over or right to control the wrongdoers. Furthermore, this would be tantamount, in my view, to the exception extinguishing entirely the effect of the rule of non-liability for omissions, by creating a liability for all omissions which the case law indicates is incorrect as a proposition. iii) Preventing Others from Protecting the Claimant[s] (paras. 24 to 25 of the Particulars of Claim]: the allegation here is effectively that other referrers, agencies and participants in child protection conferences would likely have taken further steps by making further referrals or taken action themselves which would have led to protective measures being put in place, had the Defendant not held out that it would investigate competently. Again, I do not think that this allegation raises any reasonable grounds for an arguable duty of care. There are no facts pleaded to the effect that another agency wanted to put in place protective measures but was dissuaded from doing so by the local authority. This exception to the rule does not appear to have any relevance to the facts as pleaded. The only effective measure would have been to remove the Claimants from the home. No other agency could or would practically have achieved that here. The Police have a limited power to take a child to a place of safety (seesection 46 of the Children Act 1989 ) but are not meant to do so if an emergency protection order is in place or in contemplation. There is a reference in the history to the NSPCC, but Mr Levinson did not contradict Mr Stagg's explanation in his skeleton argument and oral submissions that the NSPCC has not exercised its notional power to bring care proceedings since 1993; it now liaises with local authorities to protect children. There is no realistic basis for saying that the Defendant prevented any other agency from providing protection.” protection.”
“44 Whilst I have borne closely in mind the cautionary words in the authorities, including Poole, in my judgment this is a case where the allegations of an assumption of responsibility can and should be determined on a strike-out application. There is no real possibility that such a case might be made out so as to mean it should be permitted to proceed to trial. Notwithstanding it is a significant hurdle for a Defendant to overcome, especially in an application which turns on the absence of an arguable duty of care, in my view the application has been made out.”
“46 My task has been to determine whether there are viable claims against the Defendant local authority arising out of their child protection activities in relation to the First Claimant. In the circumstances and for the reasons discussed above the relevant claims are, in my judgment, bound to fail as there is no arguable duty of care. Where there is a recent Supreme Court judgment which is on point or at least closely analogous, I do not accept that this can be described as a developing area of law (or a developing point within that area). Such a conclusion is not inconsistent with other aspects of abuse claim jurisprudence still developing. I reiterate the learning from Robinson about the importance of precedent, of maintaining the coherence of the law and avoiding inappropriate distinctions. Were I to accede to the First Claimant's response to the application here, I consider that I would be making inappropriate distinctions to avoid applying a clear precedent from the highest court, thereby allowing legally flawed claims to continue past the interim stage. To do so would be no kindness to the First Claimant only for the relevant claims to fail at trial, as I consider inevitable; better to focus on an arguable allegation (upon which it will be for others to rule on another occasion). It would also be contrary to the overriding objective to permit the relevant claims to proceed as it would result in significant further costs and court resources being expended on the wider issues, beyond the much narrower point of the disclosure to the school. 47 In reality, whilst there are naturally some factual differences, there is much overlap in the process of monitoring, investigation and assessment carried out by the local authority in Poole and the present case. Poole cannot sensibly be distinguished from this case in terms of the appropriate legal analysis to be applied to the respective factual matrices when considering the question of duty of care.”