26.25X and Y v Hounslow LBC [2009] EWCA Civ 286, (2009) 12 CCLR 254
A local authority did not owe a duty of care to protect vulnerable adults from anti-social behaviour
Facts: X and Y, who were vulnerable adults requiring ongoing support in the community, were abused and victimised by a group of local youths as, meanwhile, Hounslow took ineffectual steps to transfer them elsewhere and protect them. The abuse then resulted in serious and sustained assaults. At first instance Maddison J held Hounslow liable in negligence but Hounslow then appealed.
Judgment: the Court of Appeal (Sir Anthony Clarke MR, Tuckey and Goldring LJJ) allowed Hounslow’s appeal, on the ground that (i) it had not created the danger; (ii) it was not in control of or supervising the offenders, (iii) none of its officers had been in a conventional duty of care relationship with X and Y (such as doctor and patient); and (iv) it had simply exercised its statutory powers inadequately, without having assumed a special responsibility to protect X and Y from harm:
59. In Mitchell [2009] PTSR 778 it was common ground as it is here that the alleged duty was not part of the councils contractual duties as a landlord, which it was accepted did not extend to the exercise of discretionary powers under the relevant statute: Hussain v Lancaster City Council [2000] QB 1. As stated by Lord Hope, at [2009] PTSR 778, para 26, the question in the Mitchell case on the facts was whether, acknowledging that the council was the deceased’s neighbours landlord, it was fair, just and reasonable that it should be held liable in damages for the omissions to warn relied upon. It was a matter of fairness and public policy. The House of Lords held that the answer was ‘no’. Lord Hope said, at para 29, that the position would have been different if there had been a basis for saying that the council had assumed a responsibility to advise the deceased of the steps that they were taking or in some other way had induced the deceased to rely on them to do so.
60. In these circumstances, as we see it, the question is whether this case falls within Lord Hoffmann’s category of cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. Examples of such cases are given in the Mitchell case. Only in such a case would it be fair, just and reasonable to hold that a local authority such as the council on facts such as these owe a duty of care to the claimants. This is not a case of control like Dorset Yacht [1970] AC 1004. Nor is it a case where the defendant has created or increased the danger to the claimants. Moreover, it is not a case of assumption of responsibility unless it can properly be held that there was a voluntary assumption of responsibility: see Rowley v Secretary of State for Work and Pensions [2007] 1 WLR 2861, especially per Dyson LJ, at paras 51–54. This is because, as the cases cited above show, a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann’s example of the doctor patient relationship.
Comment: cf Đorđevi´c v Croatia Application no 41526/10, (2012) 15 CCLR 657 (the authorities were in breach of Articles 3 and 8 ECHR by failing to protect a disabled man and his mother from harassment by local ragamuffins)(see also cases in chapter 25 ‘Human rights’).