Sandford & Anor v London Borough of Waltham Forest

A statutory duty imposed on a local authority to assess needs and provide welfare equipment does not, without more, create a private law claim for damages. A claimant cannot recast the same obligation as a common law duty of care to provide the equipment within a reasonable time. A common law duty may arise where the authority undertakes an activity with care and skill, or enters a relationship or assumes a responsibility having an orthodox common law foundation. The distinction is between careless performance of an independently undertaken activity and failure to perform the statutory welfare duty itself. The court also confirmed that claimants bear the burden of proving causation and the claimed loss on the balance of probabilities.

The executors of Lydia Sandford claimed damages from the local authority for the consequences of her fall and femur fracture. They alleged that the Council had assessed cot-sides as necessary but had failed to provide them before the accident. They claimed damages for pain, suffering and loss of amenity, and for contributions towards nursing-home accommodation.

The Council denied that the cot-sides would have prevented the injury. It also argued that the alleged duty was only the performance of statutory community-care obligations and was not actionable in private law. The central issues were whether the Council owed the alleged common law duty, whether the cot-sides would probably have prevented the injury, and whether the claimed nursing-home costs were proved to have resulted from the accident.

1. The action was dismissed. Even if the disputed facts had been resolved in the claimants’ favour, the alleged duty of care did not arise.
2. The statutory scheme required the Council to assess needs and, having regard to that assessment, provide necessary aids and equipment. The duty alleged was in substance identical to the statutory duty to provide the cot-sides. Wyatt v Hillingdon London Borough Council had established that the relevant statutory provisions did not give rise to a private law action for damages. The approach was reinforced by O’Rourke v Camden London Borough Council and X v Bedfordshire County Council.
3. The Council had not voluntarily assumed responsibility to Mrs Sandford. It was carrying out functions which statute compelled it to perform. Following the reasoning applied in Rowley v Secretary of State for Work and Pensions, performance of a compulsory statutory task did not, by itself, create a common law duty of care.
4. The distinction recognised in Gorringe v Calderdale Metropolitan Borough Council remained important. A public authority may owe a common law duty when it has undertaken an activity or entered a relationship having an orthodox common law foundation. That did not convert a statutory obligation to provide welfare benefits into a tortious duty. The alleged duty to supply the cot-sides within a reasonable time was, in substance, a duty to supply them at all.
5. The proposed timing duty was also unsuitable for tort. Determining a reasonable period would require assessment of stock, distance, available delivery resources, competing demands, suppliers, price and delivery times. That type of obligation was more suitable for contract than negligence. The factual setting in Kent v Griffiths was materially different because an ambulance had been accepted for an urgent call with no competing resource issue. A v Essex County Council was also distinguishable.
6. In any event, the claimants failed to prove causation. The best evidence showed that Mrs Sandford fell while getting out of bed, and there was no reliable evidence that she would probably have been unable to overcome a cot-side. The claim for nursing-home costs also failed because the evidence did not establish when she would otherwise have entered residential care.