CN and another v Poole Borough Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Slade |
| Judgment Date | 16 March 2016 |
| Neutral Citation | [2016] EWHC 569 (QB) |
| Docket Number | Appeal No: QB/2015/0490 |
| Court | Queen's Bench Division |
| Date | 16 March 2016 |
[2016] EWHC 569 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mrs Justice Slade DBE
Appeal No: QB/2015/0490
Case No: HQ14PO5147
Elizabeth-Anne Gumbel QC and Iain O'Donnell (instructed by Leigh Day) for the Claimant/Appellant
Paul Stagg (instructed by Wansbroughs Solicitors) for the Defendant/Respondent
Hearing dates: 16 February 2016
The Claimants CN and GN, appeal from the Judgment and Order of Master Eastman of 2 October 2015 striking out their claims for damages in negligence against Poole Borough Council ('the Council'). At all material times the Claimants' were minors. CN, who is severely disabled, is a protected party and GN who was a child, sue by their litigation friend, the Official Solicitor.
Previous proceedings issued by CN and GN and their mother against the Chief Constable of Dorset Police and Poole Housing Partnership Limited as well as the Council were dismissed as no Particulars of Claim were served.
The proceedings in issue in this appeal were brought by CN and GN and their mother. Miss Gumbel QC, counsel for CN and GN, stated that two categories of claim were set out in the Particulars of Claim of 7 April 2015. Counsel summarised them in her skeleton argument as follows:
i) A claim by all of the Claimants in common law negligence for the Defendant's failure to protect them as a consequence of its failure to remove the family from their housing on the Grange estate to a place of safety; and
ii) A claim brought by C2 and C3 only, both of whom were at all relevant times under the age of 18 years, for the failure to protect them as children and to remove them from home (and if necessary take them into the care of the local authority) if that was required to protect them from personal injury.
CN and GN appeal from the striking out of the second claim which concerns them alone. The mother does not appeal from the striking out of her claim.
Miss Gumbel summarised the issue in this appeal as whether, following Z v United Kingdom [2001] 34 EHRR 3 and subsequent authorities including in particular D v East Berkshire NHS Trust & Others in the Court of Appeal [2004] QB 558 a duty of care at common law can be owed by a local authority to children residing in its geographical area to protect them from harm, in this case risk of personal injury.
Summary of factual allegations
CN and GN allege that the Council negligently failed to take appropriate and necessary steps to safeguard them from prolonged abuse, anti-social and criminal behaviour perpetrated by members of a family who lived on the estate on which they were housed by the Council between May 2006 and December 2011. In this Judgment I will use the term 'delinquent' to describe the family although it is not part of my task in this appeal to make findings of fact about their conduct.
The Particulars of Claim refer to the distressing factual background that gave rise to the claim which is set out in paragraphs 2.0 to 3.65 of a Home Office Report into Anti-Social Behaviour dated 10 March 2010 ('the Home Office Report'). The Home Office Report paints a picture of the Claimants' family being constantly subjected to threats, harassment, anti-social and sometimes criminal behaviour on the estate where they were housed by the Council. CN attempted suicide.
The Particulars of Claim
Miss Gumbel made it clear that it is the striking out of the second category of claim set out in the Particulars of Claim concerning CN and GN alone which is the subject of the appeal before me.
Miss Gumbel referred to paragraphs 5.3.1 to 5.3.3 of the Particulars of Claim as setting out the basis for the legal duty of care asserted in the second category of claim. These paragraphs assert that:
i) the Council owed a common law duty of care to protect CN and GN, both of whom lived within the Council's geographical boundaries over the period between May 2006 and December 2011; [5.3.1];
ii) the Council had a statutory duty under the Children Act 1989 sections 17 and 47 to safeguard the welfare and promote the upbringing of all children in their area. Further section 17 makes specific reference to disabled children [5.3.2];
iii) the Children Act 2004 requires local authorities to ensure co-operation between local authorities and other agencies in order to promote the wellbeing and safety of the children in their area [5.3.3].
The particulars of negligence alleged by CN and GN alone are set out in paragraph 7.2.(l) to (p) of the Particulars of Claim. In summary these are that the Council:
i) Failed negligently to promote the safe upbringing of CN and GN when they knew that they were children in need of its protection from harm; [(7.2(l)];
ii) Failed negligently to remove CN and GN from the premises and to house them in a place of safety earlier than December 2011 [7.2(m)];
iii) Caused, permitted or suffered CN and GN to remain in the premises when they knew or ought reasonably to have known that they were at a foreseeable risk of harm [7.2(n)(o)];
iv) Failed to protect CN and GN who were vulnerable children [7.2(p)].
It is alleged that the negligence of the Council caused CN and GN to suffer physical and psychological damage.
The Judgment of Master Eastman
The Judgment of Master Eastman dealt with the application to strike out all the claims which at that stage included that of the mother. This appeal is concerned with the striking out of the negligence claims brought by CN and GN. As Miss Gumbel pointed out, the Master rightly observed that it was the "second limb" of the action which concerned CN and GN. In paragraph 11 of his Judgment he characterised the claim brought by them as raising:
"…a common law duty but also a common law negligence duty in their favour as a result of the provisions of the Children Act 1989 particularly as pleaded sections 17 and 47."
Master Eastman set out the broad measure of agreement between the parties as to four basic principles which govern negligence claims such as those before him. He stated:
"7. parties are virtually ad idem as to four basic principles which govern negligence claims in this regard. They have been put before me very helpfully this morning. Firstly in general (a) does not owe a duty of care to (b) to protect them from (c). The exception to that – and it is this exception which is pivotal to this case – exception being where (a) has assumed a responsibility to afford such a duty of care; (a) being the defendant in this case and (b) being the claimants and (c) effectively being the relevant family and their associates.
8. The second principle is that a local authority does not owe a basic common law duty of care to protect people from anti-social behaviour. That is clearly set out in the Hussain case ( [1998] EWCA Civ 843).
9. The third basic principle is that, if the local authority is merely exercising a power under a statutory scheme, it does not thereby assume a responsibility at common law to those intended to benefit from the scheme. To which the claimant in this case says yes I agree with that but there will be exceptional cases in certain circumstances where it will have assumed such a responsibility.
10. The fourth general principle to which both parties agree is that, if a local authority knows of particular circumstances affecting an individual it does not mean they assume a responsibility for those characteristics that is the Darby case ( [2015] EWHC 909 (QB))"
Of the additional claim brought by CN and GN, Master Eastman held at paragraph 18:
"18. Dealing with the second aspect of the claim namely the second and third claimants' alleged common law claims arising out of duties imposed by the Children Act I regret to say that I do not, I am not satisfied that there is any foundation in law for the assertion that there is in fact a common law duty in favour of children provided by that Act particularly in the circumstances of this case. Indeed, consulting as I have Charlesworth & Percy on negligence, chapter 11 paragraph 09, my judgment and the view that I take as to that point which post dates X v Bedfordfordshire [1995] 3 All ER 353 and Z v United Kingdom [2001] ECHR 333 which I am satisfied is a Human Rights Act case and therefore to my mind has nothing really to do with the common law duty position.
Having referred to Charlesworth on Negligence the Master observed:
"19. It is clear from that authoritative text book that the authors of that share the same view as I do that there is no separate common law duty created…."
Accordingly the Master struck out the claims and dismissed the action.
The Statutory Background to the Claims
Although CN and GN make no claim alleging breach of statutory duty by the Council it is relevant to consider the "statutory background" to the common law claim made. In X v Hounslow London Borough Council [2009] PTSR 1158 Sir Anthony Clarke MR (as he then was) held at paragraph 11:
"11. We begin with the statutory framework because the council is a creature of statue so that the question whether it owes a duty of care in any particular circumstances must be judged against the relevant statutory background. As Lord Browne-Wilkinson put it in X (Minors) v Bedfordshire County Council [1995] 2 AC 633, 739 c, the question whether there is a duty of care at common law must be profoundly influenced by the statutory framework within which the acts complained of were done. The same must be true of any omissions complained of."
Paragraph 5.3.2 of the Particulars of Claim referred to the Children Act 1989 Section...
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Poole Borough Council v GN
...1989 Act. 10 The claimants appealed in relation to the second limb of the claim only. On 16 February 2016 Slade J allowed the appeal: [2016] EWHC 569 (QB); [2016] HLR 26. She considered that the principal issue arising was whether the decision of the Court of Appeal in D v East Berkshire C......