S. v Walsall Metropolitan Borough Council

This is an appeal from an order of His Honour Judge Davison sitting in the Walsall County Court on 10th and 11th December 1984, by which he ordered that the plaintiff in the action should recover against the third defendant in the action the sum of £750 in respect of damages for negligence.

The action was one in the name of the plaintiff's next friend, on behalf of a young child, Dawn Linda Sargent, against the Walsall Metropolitan Borough Council as first defendant, and against the second and third defendants, who are a married couple and who at the material time were acting as foster parents to the child.

The circumstances are unusual and unhappy. What occurred in this case was that the child, Dawn, was born in July of 1972. Her parents were in a highly unsatisfactory state. Her mother left her with her father, who was facing arrest and a possible prison sentence which in fact he subsequently underwent, and the child and her brother were taken into care on 15th October 1974 under s.l of the Children Act 1948 by the first defendant, the Walsall Metropolitan Borough Council.

They were boarded out by the council in pursuance of the council's statutory duties under the Act, with the second and third defendants. I should say straight away that there is no allegation that the council was in any way negligent in selecting these two respectable and careful foster parents as foster parents of the child Nor is there any suggestion that the supervision exerted by the council, again in pursuance of its statutory duties, was in any way inadequate or improper. I do not know whether those allegations were made below but certainly the learned judge, in the course of his judgment, disposed of them and there is no appeal against that; and in this court Mr. Royer, in presenting the appeal has expressly disclaimed any such suggestion.

Unfortunately while the child was with her foster parents (she was then only 2 ¹/₂ years of age) she suffered, in a way which never became clear, severe burns to the soles of her feet. They were very severe burns; they were third degree burns. She was subsequently taken to hospital, where she remained for quite a long time—not, I think, necessarily because it was essential that she should remain there for treatment, but because, in view of the type of injury that she had sustained, a query had been raised as to whether it was right to release her into the care of these foster parents. Let me say again, straight away, that the learned judge entirely acquitted the foster parents of any form of deliberate maltreatment or anything of that sort; the accident was entirely unexplained and never was explained but, proceeding on the principle of res ipsa loquitur, the learned judge found that the third defendant, the foster mother, Mrs. Spencer, had been negligent and was therefore responsible for the injuries which the child had sustained, and he assessed the general damages at £750. He dismissed the claim against the first defendant, and that really is the substantial ground upon which the plaintiff, through Mr. Royer, has appealed to this court.

There is a second question, because there is also an appeal against the judge's decision as to the amount of damages, on the footing that £750 was an inadequate award and that the damages ought to be increased. It think it will be convenient to deal with that a an entirely separate issue.

The suggestion which was being canvassed in the court below was that the first defendants, the local authority, although not in any way negligent in the performance of their duties, were nevertheless responsible for any negligent act which had been committed by either of the foster parents in the course of their acting as foster parent on the footing of vicarious liability; that it could not be claimed—as Mr. Royer in this court has not sought to suggest—that the foster parents were servants of the local authority, but it was suggested that there was a relationship of principal and agent or of a sufficient proximity between the foster parents and the local authority to make the local authority liable for the acts of the foster parents. That was disposed of in a very short passage of the judgment of the learned judge, in which he said this:

"So the only other matter I need to go into is whether the Local Authority can be brought into this action. I have said enough to make it clear that in my judgment this is very very far from a case where it can be said foster parents can be in any way employed or were agents of the Local Authority or that the relation of Master and Servant has any place in Local Authority Foster Parents. I have rejected the submissions that the First Defendant was in loco parentis—definitely not".

On that footing he dismissed the action against the first defendant.

Mr. Royer has submitted that in coming to that conclusion the learned judge was wrong. He has, if I may say so, presented the case with admirable economy; as he has pointed out, there is no authority one way or the other which really assists in this case; he points out that under s.l of the 1948 Act a local authority has a duty to receive the child into its care; he has drawn attention to the Boarding Out of Children Regulations of 1955, which were made under the Act; and he has drawn our attention to the evidence of the structure within the local authority of its Social Services Departme and of the terms upon which the child was boarded out and how the system of inspection worked. The submission simply is that there was a chain of command in the local authority which, according to Mr. Royer's submission, provides a direct relationship between the local authority and the foster parents, and which furnishes, as he put it, a sufficiently close relationship to establish vicarious liability. Mr. Royer has, as I have said, frankly confessed that there is no authority which directly assists him; he has sought to derive some support for the submission from the case of Scarsbrook and Others v. Mason, (1961) 3 All England Reports 767, a case concerning a passenger in a motor car, who had apparently agreed to pay some four shillings towards the cost of the petrol for a spree in the country, and who was held to be responsible for the negligence of the driver of the car on the footing that he was the...