The assumption of a duty of care
A public authority can assume responsibility towards someone by inference from its conduct towards them, as Laurence Toczek explains following the Supreme Court’s re-evaluation of the Caparo test
The Supreme Court has established the correct approach to the duty of care in claims against public bodies. In June 2019, judgment was delivered in Poole Borough Council (Respondent) v GN and another (Appellants)  UKSC 25.
The respondent council placed the claimants and their mother in a house on an estate adjacent to another family who, to the council’s knowledge, had persistently engaged in antisocial behaviour. The claimants were nine and seven years old at the time.
The nine-year-old was severely disabled both mentally and physically. Soon after they moved in, the claimants and their mother were subjected to harassment and abuse by the neighbouring family.
Despite numerous complaints to the council, the harassment and abuse continued until the claimants and their mother were rehoused away from the estate in December 2011.
Proceedings were issued against the council in 2014, alleging that in failing to fulfil its duty under the Children Act 1989 to safeguard the welfare of children in its area, it had breached its common law duty to protect the claimants from harm.
The council’s strike out application made its way to the Supreme Court. In a unanimous decision, the justices held that the proceedings should be struck out as disclosing no cause of action.
The deputy president Lord Reed gave the leading speech in a judgment which is important for two reasons:
- It corrects a common misunderstanding relating to the application of the well-known duty test in Caparo Industries plc v Dickman  2 AC 605; and
- It sets out the correct approach to be adopted in claims against public bodies.
As far as the Caparo test is concerned, Lord Reed states: “Clarification of the general approach to establishing a duty of care in novel situations was provided by Caparo... but the decision was widely misunderstood as establishing a general tripartite test which amounted to little more than an elaboration of the Anns approach, basing a prima facie duty on the foreseeability of harm and ‘proximity’, and establishing a requirement that the imposition of a duty of care should also be fair, just and reasonable: a requirement that in practice led to evaluations of public policy which the courts were not well equipped to conduct in convincing fashion [author’s italics].”
As an example of this misunderstanding, Lord Reed refers to X (Minors) v Bedfordshire County Council  2 AC 633, a case in which five children brought claims for damages against the council for failing to exercise its statutory powers and duties so as to protect them from harm at the hands of their parents.
Lord Browne-Wilkinson gave the leading speech and rejected the contention that the council was liable. One of the reasons he did so was because in his view it was not fair, just and reasonable to impose a duty of care.
There were a number of public policy reasons for denying liability, for instance, the risk that local authorities would respond to the imposition of liability by adopting a defensive approach to decision making.
A matter of public policy
Lord Reed says the decision in X (Minors) v Bedfordshire can no longer be regarded as good law “in so far as it ruled out on grounds of public policy the possibility that a duty of care might be owed.”.
Academics have long been critical of judges who rule against the existence of a duty on policy grounds without any empirical evidence to support those grounds. Lord Reed, who seems to be putting his weight behind those criticisms, says the correct approach to Caparo is that adopted by the Supreme Court in Robinson v Chief Constable of West Yorkshire Police  UKSC 4.
He says Robinson “explained that Caparo did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fall outside them.
The question whether the imposition of a duty of care would be fair, just and reasonable forms part of the assessment of whether such an incremental step ought to be taken. It follows that in the ordinary run of cases, courts should apply established principles of law rather than basing their decisions on their assessment of the requirements of public policy”.
So what are those ‘established principles of law’ where cases involving public authorities are concerned? Lord Reed identifies three such principles:
- Public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless it would be inconsistent with the legislation from which their powers or duties are derived.
- Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if by exercising their statutory functions they could prevent a person from suffering harm.
- Public authorities can come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty. For example, where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. Lord Reed’s third principle gives a non-exhaustive list of situations where a public authority can come under a duty of care.
He goes on to approve a comprehensive list of situations where the common law imposes this duty on public authorities as identified by Tofaris and Steel in Negligence Liability for Omissions and the Police: “In the tort of negligence, a person A is not under a duty to take care to prevent harm occurring to a person B through a source of danger not created by A unless (i) A has assumed a responsibility to protect B from that danger, (ii) A has done something which prevents another from protecting B from that danger, (iii) A has a special level of control over that source of danger, or (iv) A’s status creates an obligation to protect B from that danger.”
Public authorities and the assumption of responsibility
In the present context, the most important exception is the ‘assumption of responsibility’ exception, which immediately brings to mind the well-known pure economic loss case of Hedley Byrne & Co Ltd v Heller & Partners Ltd  AC 465.
Lord Reed makes it clear that the guidance in that case on when an assumption of responsibility arises is of general application: “Although the concept of an assumption of responsibility first came to prominence in Hedley Byrne in the context of liability for negligent misstatements causing pure economic loss, the principle which underlay that decision was older and of wider significance.”
Accordingly, the ‘reasonable reliance’ concept emphasised in Hedley Byrne applies equally to claims against public authorities – but how will it operate in such cases? Lord Reed refers to various decided case to illustrate this.
In X (Minors) v Bedfordshire, for example, the council had not assumed responsibility because it was not reasonably foreseeable the claimants would rely on the reports provided by the social workers to the council.
By contrast, in Phelps v Hillingdon London Borough Council  2 AC 619 a number of children brought claims against the council for failing to assess their special educational needs, with the result that they did not receive the educational facilities which would otherwise have been provided. The educational psychologist was held to have assumed responsibility towards the claimants as it was reasonably foreseeable their parents would rely on his advice.
Causing harm v failing to confer benefit
Note that the assumption of responsibility principle only applies where the public authority’s alleged breach of duty is based on a failure to act, rather than a positive act.
Interestingly, Lord Reed uses different terminology from that which we are used to: “I am intentionally drawing a distinction between causing harm (making things worse) and failing to confer a benefit (not making things better), rather than the more traditional distinction between acts and omissions, partly because the former language better conveys the rationale of the distinction drawn in the authorities, and partly because the distinction between acts and omissions seems to be found difficult to apply.”
Presumably, where the public authority causes harm, the courts will look for an existing precedent or apply the Caparo test in the way outlined above.
The Poole strike out
Returning to the facts of Poole, Lord Reed explains the reason for striking out the claim. He said “the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely”.
He stressed, however, that this does not mean claims arising from facts similar to those in Poole will always fail. He explains: “It is of course possible, even where no such assumption [of responsibility] can be inferred from the nature of the function itself, that it can nevertheless be inferred from the manner in which the public authority has behaved towards the claimant in a particular case … such inference depends on the facts of the individual case.”
Practitioners should take this on board and ensure that when dealing with this type of case, they draft particulars of claim to include any such “facts of the individual case” – if indeed any exist. If they don’t, the claim is destined to fail and should not be commenced.
Lord Reed’s speech is mostly concerned with the primary liability of the defendant council and whether it owed a direct duty towards the claimants.
However, the claimants also argued that the council was vicariously liable for the negligence of the social workers responsible for their welfare.
These employees provided the council with advice about the claimants for the purpose of enabling it to perform its statutory functions.
Applying the same reasoning as that which informed his rejection of the primary claim, Lord Reed swiftly dismissed this alternative basis of liability. He says: “There is no doubt that, in carrying out these functions, the social workers were under a contractual duty to the council to exercise proper professional skill and care.
“The question is whether, in addition, they also owed a similar duty to the claimants under the law of tort. That depends on whether the social workers assumed a responsibility towards the claimants to perform their functions with reasonable care... In the present case, there is no suggestion that the social workers provided advice on which the claimants’ mother would foreseeably rely.”
The first question, for those acting in cases involving public authorities, is whether the imposition of a duty of care would be inconsistent with the legislation under which they are acting.
If there is no such inconsistency, the second question is whether there is an existing precedent. Practitioners should bear in mind that precedents in which a duty was denied solely on the basis of policy reasons will need to be revisited.
If there is no existing precedent, the third question is whether the situation involves causing harm or failing to confer a benefit. If the former, the Caparo test should be applied in the way described by Lord Reed.
If the latter, no duty will arise unless the situation falls within one of the exceptions listed above. In many cases, it will be necessary to consider whether the defendant has assumed responsibility for the claimant.
Laurence Toczek is a solicitor and a tutor at BPP University Law School in Leeds bpp.com