M and Another v London Borough of Newham and Others; X and Others v Bedfordshire County Council

CourtHouse of Lords
JudgeLord Jauncey of Tullichettle, Lord Lane, Lord Ackner, Lord Browne-Wilkinson, Lord Nolan
Judgment Date29 Jun 1995
JurisdictionEngland & Wales

[1995] UKHL J0629-1

House of Lords

Lord Jauncey of Tullichettle

Lord Lane

Lord Ackner

Lord Browne-Wilkinson

Lord Nolan

P1 and Others (Minors)
Bedfordshire County Council
In Re M (A Minor) (1994) and Another (A.P.)
In Re E (A Minor) (1994) (A.P.)
Christmas (A.P.)
Hampshire County Council
Keating (A.P.)
(Original Respondent and Cross-Appellant)
Mayor Etc. of the London Borough of Bromley
(Original Appellants and Cross-Respondents)


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.


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] A.C. 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] A.C. 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 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 failed 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.


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 wavs: it can be based on breach of statutory dury 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.



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 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 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.


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...

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