Connor v Surrey County Council

A public authority which already owes an employee a common-law duty of care may, in an appropriate case, be required to use a public-law discretion to fulfil that duty. This is permissible only where the proposed use of the power is consistent with the authority’s full public-law obligations and the statutory purpose.

Where a serious breakdown in school governance was likely to prejudice educational standards, intervention under the School Standards and Framework Act 1998 would both serve the statutory purpose and protect the employee. The employer’s failure to begin the intervention process could therefore be negligent. In the absence of a public-law imperative to investigate a complaint, the employer’s duty to avoid an unreasonable risk of psychiatric injury could require it to decline an inquiry. The result depended on the exceptional facts and provides no general route for private claims over sensitive public decisions.

The claimant was the headteacher of a maintained primary school and an employee of the defendant local authority. Prolonged conflict within the school’s governing body, allegations concerning the school’s relationship with its Muslim community, and a hostile petition caused her severe psychiatric injury.

A deputy High Court judge held that the council had breached its duty of care by failing to initiate procedures to replace the governing body with an Interim Executive Board by May 2005, and by establishing and widening an inquiry into a former governor’s racism and Islamophobia complaint. The council appealed, contending that these matters were public-law decisions which could not found a private negligence claim, and challenging breach, foreseeability and causation.

The central issue was whether an established employer’s duty of care could require the exercise, or non-exercise, of public-law powers.

1. Appeal dismissed. Laws LJ held that the deputy judge was entitled to find negligence. Sedley LJ agreed. Thomas LJ agreed that the failure to establish an Interim Executive Board was negligent and that the appeal must be dismissed, but disagreed that the decision to establish the inquiry was itself a separate breach.

2. The council’s employer’s duty to take reasonable care for the claimant’s psychiatric health existed independently of its statutory functions. The authorities on statutory powers therefore did not determine whether a duty existed. They informed its scope. A public authority may be required to fulfil a pre-existing private-law duty through a public-law discretion, but only where this is consistent with legality, rationality, fairness, proportionality where applicable, the statutory purpose, and the authority’s full public-law obligations.

3. The statutory conditions for intervention were met. The governing body was dysfunctional and its conduct was likely to prejudice pupil-performance standards within section 15(2)(a)(ii) of the School Standards and Framework Act 1998. On the findings, the public-law purpose of intervention and the employer’s duty to protect the claimant marched together. The council should have issued a formal warning by February 2005, enabling an Interim Executive Board to be in place by about May. Its omission was a breach of duty.

4. The majority further held that the inquiry into the racism complaint was not required by a specific statutory framework. Although the council remained subject to its race-relations obligations, no public-law imperative prevented it from declining an inquiry which exposed the claimant to an unreasonable psychiatric risk. Its duty of care therefore required it to decline the inquiry. Thomas LJ considered that the deputy judge’s findings did not sufficiently establish that the inquiry was inconsistent with the council’s wider public duties; however, the continuing failure to establish an Interim Executive Board caused the harm in any event.

5. The ordinary negligence test applied. This was not a Bolam case. Specific psychiatric injury was foreseeable on the evidence, and the deputy judge’s causation findings were open to him. The court stressed that damages claims based on the use or non-use of public powers will rarely be available and that this result depended on the exceptional history.

• Court of Appeal (Civil Division): the council’s appeal was dismissed in [2010] EWCA Civ 286.

• High Court of Justice, Queen’s Bench Division: Mr John Leighton Williams QC, sitting as a deputy High Court judge, held on 19 March 2009 that the council had breached its duty of care and was liable for the claimant’s psychiatric injury. No citation for that judgment is stated.