IntroductionBolam test
26.1In the social and health care context, the critical question is often whether the public authority, a professional or some other person is liable in negligence for personal injury, property damage or, exceptionally, economic loss. Where the answer is ‘no’, the fall-back question is whether there may be liability under the ECHR.
26.2The starting point is that:
•a duty of care arises in relationships where case-law has historically recognised a duty of care as arising and, sometimes, in analogous or incremental cases (ie there is no ‘general principle’, such as foreseeability of harm, that can be applied to create new duty of care relationships);
•a duty of care will only arise if harm is foreseeable, the parties are in a relationship of ‘proximity’ or ‘neighbourhood’ and it would be ‘just, fair and reasonable’ to recognise a duty of care as existing. These factors cannot be precisely defined or distinguished from each other. They describe features of relationships where the case-law has historically recognised a duty of care as existing and function as restraints against anything other than a cautiously incremental extension of liability beyond such relationships;
•where the defendant has acted in accordance with their powers or duties under a statutory scheme, it is relevant to consider the objectives and limits of the statutory scheme when considering whether harm was foreseeable, there was ‘
proximity’, and whether it would be ‘just, fair and reasonable’ to recognise a duty of care as existing
: Caparo Industries plc v Dickman.
1[1990] 2 AC 605. 26.3On that latter point, in Caparo it was relevant that the auditor who prepared the defective report did so pursuant to legislation, the purpose of which was to enable shareholders to monitor the activities of the company, rather than to assist shareholders to make investment decisions. That was relevant to the decision that the auditor did not owe a duty of care to shareholders who suffered loss as a result of investment decisions based on the auditor’s report.
26.4In adult social care cases involving public authorities there will almost inevitably be a relevant statutory context and, in most cases, public authorities and professionals will be discharging a statutory function. These are factors that, in general, tilt against the existence of a common law duty of care except where the legislation simply causes the coming together of a professional relationship (eg of doctor and patient) (see further below).
26.5Before exploring in greater detail the circumstances in which a duty of care may arise in such cases one may dispose of two outliers:
•a failure to discharge a statutory duty can, in some cases, give rise to a claim in the tort of breach of statutory duty. However, except where legislation explicitly creates such liability, it is almost impossible to satisfy the criteria for establishing a claim for breach of statutory duty, which are that (i) the duty in question was imposed for the protection of a limited class of the public, and (ii) Parliament intended to confer a private right of action for breach of that duty.
2X v Bedfordshire CC [1995] 2 AC 633 at 731D.Those criteria would not be satisfied in the case of any adult social care legislation;
•at the other end of the scale, the statutory framework may be such as to indicate that the matter is not justiciable at all, for example, where it involves the weighing of competing public interests or is dictated by considerations that the courts are not fitted to assess
3Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 WLR 2312 at paras 20–35.. Such cases are uncommon, but do arise from time to time: for example, decisions by local authorities about how much information to provide potential adopters about the children concerned have been held not to be justiciable unless perhaps a particular decision is wholly and utterly unreasonable.
4A v Essex CC [2003] EWCA Civ 1848, (2004) 7 CCLR 98. 26.6Otherwise, in general, and bearing in mind that in many cases all of the relevant facts will need to be evaluated before assessing whether or not the criteria for recognising a duty of care exist:
•common law negligence may occur incidentally in the course of exercising a statutory duty or power (eg the gas undertaker who lights a cigarette causing an explosion will be in breach of a duty of care); however,
•the proximity created by a statutory relationship will almost never by itself create a duty of care:
5Mohammed v Home Office [2011] EWCA Civ 351, [2011] 1 WLR 2862 at paras 12–14.those who suffer injury or loss as a result of the incompetent exercise of statutory power should in general (i) use judicial review; or (ii) use complaints procedures and recourse to the Local Government or Parliamentary Ombudsmen to secure redress including financial redress; or (iii) seek to bring a claim under the ECHR, including for damages by way of just satisfaction.
26.7The courts will recognise a duty of care where, albeit that a person is discharging a statutory function, they are in fact also exercising a particular skill or profession, which has historically been recognised as involving a duty of care to a class of persons to which the claimant belongs (eg the work undertaken by a doctor, psychologist, psychiatrist, teacher, education officer, nurse or social worker).
6Phelps v Hillingdon LBC (2000) 3 CCLR 158.26.8Even then it will often be difficult to establish a breach of duty:
•given the competing considerations that such persons generally have to use their judgment to assess, when they are also discharging a statutory function;
•given the
Bolam7Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.test, under which a professional person is only negligent if they fail to act in accordance with a practice accepted at the time as proper by a responsible body of persons of the same profession or skill;
8Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 WLR 2312 at paras 32–51. •given the frequent existence of factors that tilt against the courts recognising a duty of care as existing, the most common of which are:
•where the primary focus of legislation is the protection of members of a different class than the class to which the claimant belongs. Thus, for example, no matter how serious the damage is, persons (including doctors, psychiatrists and social workers) investigating whether children have been abused do not owe a duty of care to the parents
9JD v East Berkshire Community Health NHS Trust [2005] UKHL 23, (2005) 8 CCLR 185.; and regulators investigating whether residents of a care home have experienced inadequate care owe no duty of care to the home owners
10Jain v Trent Strategic Health Authority [2004] UKHL 4, [2009] 1 AC 853 at paras 21–28.(although such persons could be liable under the ECHR
11Jain v Trent Strategic Health Authority [2004] UKHL 4, [2009] 1 AC 853 at paras 21–28; MAK and RK v United Kingdom (2010) 13 CCLR 241.);
•where the claimant has been injured by the deliberate wrongdoing or criminal acts of a third party, a public authority will only owe a duty of care to protect an adult claimant,
12 A different approach can apply in the case of children: CN and GN v Poole BC [2016] EWHC 569 (QB), (2016) 19 CCLR 309.no matter how foreseeable the danger, if it creates the danger, is in a position of control or supervision of the wrongdoer, or goes beyond merely discharging its statutory functions and does something special to undertake a voluntary assumption of responsibility to take care to protect the claimant from such harm
13X v Hounslow LBC [2009] EWCA Civ 286, [2009] PTSR 1158 at paras 37–61.(although there could well be a remedy under the ECHR).
14Đorđevi´c v Croatia Application no 41526/10, (2012) 15 CCLR 657. 26.8.1In addition, Parliament has legislated with the apparent intention of tilting the balance in favour of certain types of defendant. Section 1 of the Compensation Act 2006 provides that when a Court considers a claim in negligence of breach of statutory duty and determines whether the defendant should have taken particular steps to meet a standard of care, the court ‘may…have regard to whether a requirement to take those steps might – (a) prevent a desirable activity from being undertaken at all, or to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity’. The courts seem to have interpreted this as requiring a more lenient approach to liability in the case of ‘desirable activities’.
15Sutton v Syston Rugby Football Club Ltd [2011] EWCA Civ 1182; Humphrey v Aegis Defence Services Ltd [2014] EWHC 989 (QB). That general idea has been taken further by the stirringly named Social Action, Responsibility and Heroism Act 2015. No doubt the courts would take such factors into account as a matter of course but the Heroism Act requires a court which is determining what was required to meet a standard of care in a specific case to have regard to:
•whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members (section 2);
•whether the person, in carrying out the activity in the course of which the alleged negligence or breach of statutory duty occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others (section 3); and
•whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger (section 4).
26.9On the other hand, where a public authority has control over a child or vulnerable adult for the purpose of assuming a function for which it had assumed responsibility, which would normally give rise to a duty of care, that duty of care will normally not be delegable (so the public authority will be liable for injury caused by the negligence of an independent contractor).
16Woodland v Swimming Teachers Association [2013] UKSC 66, [2014] AC 537.26.10A public authority, and any other person, will be vicariously liable for the torts of:
•their employee, when there is a sufficiently close connection between what the employee was employed to do and the torts in question, as where an employee abuses the position entrusted to them;
17Lister v Hesley Hall Ltd [2001] UKHL 22, [2002] 1 AC 215; A M Mohamud v WM Morrison Supermarkets PLC [2016] UKSC 11. •an individual who, whilst not being an employee, carries out an activity to further an integral aspect of the undertaking in question, otherwise than for an independent business, where the risk arises out of that individual being assigned to carry out the activity that led to the tortious act.
18Cox v Ministry of Justice [2016] UKSC 10.