Barrett v. London Borough of Enfield

The House of Lords allowed the appellant's appeal against an order striking out his negligence claim against the local authority. The court held that a local authority which has a child in its care can, in principle, owe a common law duty of care in the practical implementation of its statutory obligations and that such a duty is not automatically excluded merely because the authority is exercising statutory discretions. The Caparo tripartite test (foreseeability, proximity and whether it is fair, just and reasonable to impose a duty) remains the relevant framework: foreseeability and proximity were satisfied on the pleaded facts, and the question whether imposition of liability is just and reasonable must be decided on the real facts at trial rather than summarily on strike-out. The court emphasised the need to distinguish non-justiciable policy decisions from operational acts and to treat causation as a factual question; it refused to strike out the claim because issues of justiciability, causation and whether conduct fell outside the ambit of statutory discretion required trial investigation.

The appellant was taken into care as an infant by Enfield Borough Council and remained in local authority care until age 17. He sued the council in negligence alleging a sustained failure in the practical implementation of statutory child-care duties — including unsuitable placements, failure to consider adoption, inadequate supervision, poor management of contact with his mother and failure to obtain psychiatric treatment — which he alleged cumulatively caused deep-seated psychiatric injury.

The defendant sought strike-out on the ground that the pleaded case disclosed no cause of action. The claim had been struck out at first instance on appeal to Judge Brandt and the Court of Appeal upheld that strike-out, holding that many of the alleged failures involved the exercise of statutory discretions and that it would not be just and reasonable to impose a common law duty in that context; the Court of Appeal also considered there was no realistic prospect of establishing causation.

At the House of Lords the central issues were:

• Whether a common law duty of care could arise in respect of the way a local authority exercised statutory duties towards a child in care, or whether such claims are automatically barred where statutory discretions are exercised;
• Whether the claims were non-justiciable policy decisions for which the courts should not impose liability;
• Whether causation (in particular cumulative causation of psychiatric injury) could be ruled out at the strike-out stage.

The House emphasised that statutes do not automatically exclude concurrent common law duties: where a public authority, in exercising statutory powers, creates a relationship importing proximity a duty of care may arise unless Parliament clearly intended otherwise or the matter is non-justiciable. The court explained that the policy/operational and discretion/ultra vires distinctions are useful guides but not conclusive; decisions dictated by matters the courts are ill-equipped to assess (for example difficult allocative policy decisions) may be non-justiciable, but many supervisory and operational failings are justiciable. On the Caparo test, foreseeability and proximity were satisfied on the pleadings; whether it is fair, just and reasonable to impose liability requires weighing policy considerations in light of actual evidence. Causation was a question of fact and could not be dismissed on assumed pleadings where expert evidence suggested negligent management might be a significant causal determinant of psychiatric injury. Accordingly the House allowed the appeal and remitted the matter for trial so that the factual matrix could be explored.

Appeal allowed. The House of Lords held that the claim should not have been struck out because (i) a common law duty of care may arise in respect of a local authority's practical implementation of its statutory duties towards a child in care and is not automatically excluded where statutory discretions are exercised; (ii) the policy/operational and discretion distinctions are guides but resolution depends on factual investigation; and (iii) causation was a matter for trial and could not safely be dismissed on a strike-out application.

County Court: claim issued 6 October 1993. District Judge Skerratt refused defendant's strike-out application (4 March 1996). Judge Brandt granted strike-out on appeal (30 April 1996). Court of Appeal dismissed appellant's appeal (reported [1998] Q.B. 367). House of Lords allowed the appeal (17 June 1999).