Barrett v Enfield London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD WOOLF, MR,LORD JUSTICE EVANS,LORD JUSTICE SCHIEMANN |
| Judgment Date | 25 March 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0325-4 |
| Docket Number | CCRT1 96/0842/G |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 1997 |
[1997] EWCA Civ J0325-4
The Master of the Rolls
(Lord Woolf)
Lord Justice Evans
Lord Justice Schiemann
CCRT1 96/0842/G
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COLCHESTER AND CLACTON COUNTY COURT
(HIS HONOUR JUDGE BRANDT)
Royal Courts of Justice
Strand
London WC2
MR A LEVY QC and MISS E GUMBEL (Instructed by Thompson Smith & Puxon, Essex CO1 1EB) appeared on behalf of the Appellant.
MR N BAKER QC and MR B ROCHE (Instructed by Messrs Browne Jacobson, Nottingham, NG1 7BJ) appeared on behalf of the Respondent.
In X (Minors) and Others v Bedfordshire County Council [1995] 2 A.C. 633, The House of Lords was concerned with the extent of the duty owed by local authorities to children prior to their being taken into care. This appeal concerns the extent of the duty owed by local authorities after children have been placed in the care of a local authority.
The appeal is from a judgment of His Honour Judge Nicholas Brandt given on the 30th April 1996 at the Colchester County Court. The judge, allowed an appeal from District Judge Skerratt and made an order striking out the plaintiff's claim for damages for personal injuries against the London Borough of Enfield.
Background Facts
The plaintiff was age of 10 months when a care order was made in favour of the defendant, the London Borough of Enfield. He remained in care until June 1990 when he started to live independently at a time when he was approaching the age of 18. He is now 24, having been born on the 10th October 1972. While in care he was moved on 9 different occasions between placements.
Since the decision of the judge, the particulars of claim have been re-amended. The appeal is argued on the basis of that re-amended pleading. This Court indicated that the plaintiff could have the necessary leave to amend. The facts are taken to be those set out in that re-amended pleading.
Although that pleading includes allegations of breach of statutory duty, on this appeal the plaintiff accepts that those allegations can not as a matter of law succeed. He acknowledges that he is restricted to his claim for damages for breach of duty at common law. He relies on the alleged breach of that duty by the defendant and the defendant's employees.
The pleading alleges that the defendant was under a duty to act as a parent of the plaintiff would and to show the standard of care which could be expected of a responsible parent. There was, he alleges a duty to protect him from physical, emotional, psychiatric or psychological injury. In addition there was a duty to provide him with education and a home where his safety would be secured and monitored. To promote his development, to plan both his short term and long term future, to secure his rights to family life and to provide competent and suitably qualified and experienced social workers to monitor his welfare.
It is also alleged that the social workers who were responsible for looking after the plaintiff were under similar duties. Six different social workers are identified as having been responsible for the plaintiff during seven different periods.
The pleading also identified the different statutory provisions which applied to the activities which the defendants were performing on behalf of the plaintiff. The legislation changed from time to time. Reference is therefore made to section 12 of the Children Act 1948 and the amendments made by section 59 Children Act 1975 to the Children and Young Persons Act 1969 (section 1, 24 and 28) and sections 18 (and 76) of the Child Care Act 1980.
As it is no longer suggested that those provisions give rise to a private duty for the breach of which the plaintiff is entitled to damages, it is not necessary to set out the relevant statutory provisions. It is sufficient to indicate that they place a wide responsibility on the defendant to promote the well being of the plaintiff and that the statutory obligations are similar to the common law duties on which the plaintiff continues to rely.
The claim sets out copious particulars of negligence which cover the whole period during which the plaintiff was in the defendant's care. The particulars are divided chronologically under different sub-headings relating to the different periods. I start with those which fall under the sub-heading. "On and after the removal from the plaintiffs natural mother". They refer to the first and then the second foster placement of the plaintiff and includes the time from October 1986 to June 1990 which he spent at the five different residential homes, between which he was moved on six occasions. Among the complaints which are made are failing to arrange for the plaintiff's adoption, inappropriate placements with foster parents and community homes and the lack of proper monitoring and supervision of the plaintiff while he was at the different placements. There is also criticism of the failure to obtain appropriate psychiatric treatment for the plaintiff and an allegation of failing properly to manage the reintroduction of the plaintiff to his mother in 1986 after he had not seen her for 11 years. Reference should also be made to the criticism of how his relationship with his half sister was managed.
The pleading then sets out Particulars of Causation which conclude by alleging:
"If the defendant and the social workers who from time to time were allocated to the plaintiff had carried out their duties towards him he would not on the balance of probabilities have left the care of the local authority as a young man of 18 years with no family or attachments whatsoever, who had developed a psychiatric illness causing him to self harm and who has been involved in criminal activities".
They are followed by the Particulars of Injury, which include "deep seated psychological and psychiatric problems"; the different occasions when he has injured himself, the fact that he has been unable to find work, the failure of his marriage and his alcohol problem. Finally there are set out Particulars of Special Damage which include loss of earning from October 1990 to date apart from the two months when he was working at McDonalds.
The Particulars of Injury refer to two medical reports which were included in the papers which are before us. These are of a provisional nature. Discovery has already taken place so if the action is to proceed, it is unlikely that any new material will become available to the plaintiff which would significantly change the nature of his case.
Do the recommended Particulars of Claim reveal a cause of action ?
A pleading can be struck out under the relevant rules or under the inherent jurisdiction of the court. As this was a case proceeding in the county court, the relevant rule is Order 13 rule 5(1)(a) of the County Court Rules 1981. This rule is in substantially the same terms as Order 18 rule 19 of the Rules of the Supreme Court.
The approach of the court on an application to strike out is well settled. The court approaches the facts alleged in the pleading on the basis that they are true. The court will also only strike out the claim "where it is clear and obvious that in law the claim cannot succeed" (Lord Browne-Wilkinson in the case of X at p748), or to say very much the same thing, where the court is satisfied that the plaintiff has no realistic prospect of success. In "X" (at p741B) Lord Browne-Wilkinson was concerned that in some situations it can only be ascertained whether a duty of care exists when the exact nature of the decision under attach is identified and the facts relevant to it have been ascertained because for example this can be critical in determining whether a particular discretionary decision is justicible. In this appeal, this is less of a problem because the nature of the injuries alleged to have been caused by the breaches of duty mean that it is the general course of conduct on which the plaintiff must rely upon rather than any particular identifiable incident. This is because it is not possible to attribute the plaintiff's deep seated psychological and psychiatric problems to any single incident. This is the position although the particulars of negligence do include specific allegations, for example failing to visit the plaintiff in his foster home for a period of two months. Quite clearly it would be impossible to attribute any part of the plaintiffs present problems to that single failure even if it is factually correct and would amount to a breach of duty.
Although there are differences between the situation here and that considered by the House of Lords in "X", the general guidance provided by Lord Browne-Wilkinson in his speech in "X" must be the starting point for an examination of the principles which are applicable. Without "attempting any general statement of the applicable law" Lord Browne-Wilkinson identified four different categories of private law claims:
(A) Actions for breach of statutory duty simplicita (i.e. irrespective of carelessness);
(B) Actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action
(C) Actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it;
(D) Misfeasance in a public office (See P730H/731D).
On this appeal category C is the only relevant category. There are two situations under C in which the Authority can be under a liability. It can be directly liable or it can be under a vicarious liability. (See p735B/C).
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