Selwood v Durham County Council & Ors

For harm caused by a third party, foreseeability and proximity do not alone establish or exclude a duty of care. The governing inquiry remains whether the proposed duty is foreseeable, sufficiently proximate, and fair, just and reasonable. An assumption of responsibility is one possible route to that conclusion, not an indispensable precondition, and it may be inferred from circumstances such as cooperative working arrangements. Public-authority policy considerations remain important, but they must be assessed in light of the claimant’s particular relationship with the authority. A worker operating in close, multi-disciplinary cooperation with the authority’s employees may occupy a special position analogous to an employee. At strike-out stage, a claim should proceed where those issues are reasonably arguable. A pleaded Article 2 operational-duty claim may also require trial where the existence of a real and immediate risk depends on the evidence.

Claire Selwood, a senior social worker employed by Durham County Council, sued her employer and two NHS foundation trusts. She alleged that the trusts negligently failed to warn her about threats made by GB, a mentally disturbed man involved in family proceedings concerning one of his children, and failed to take appropriate protective steps. GB subsequently attacked her with a knife at a case conference.

HH Judge Walton struck out the claims against the trusts, holding that they owed no common-law duty concerning GB’s criminal acts and that the Article 2 claims had no reasonable prospect of success. The appeal concerned whether the cooperative working arrangements and a joint protocol made a common-law duty arguable, whether responsibility could be inferred from circumstances, and whether an Article 2 operational obligation and the real and immediate risk issue should proceed to trial.

1. Disposition. The appeal was allowed. The claims against the second and third defendants were not suitable for strike-out and were sent for trial against all three defendants.
2. Common-law duty. In claims concerning harm caused by a third party, something more than foreseeability and proximity is required. Since Caparo Industries plc v Dickman [1990] 2 AC 605, it is sufficient to apply the tripartite inquiry of foreseeability, proximity, and fairness, justice and reasonableness. An assumption of responsibility is one possible additional circumstance, but it is not a precondition to a duty of care.
3. Assumption of responsibility. The judge erred by treating an assumption of responsibility as requiring an express undertaking or clearly positive conduct. It may be inferred from the surrounding circumstances. The protocol and cooperative working arrangements could enable a trial judge to find that the NHS trusts had assumed responsibility to take reasonable steps to reduce or avoid foreseeable risks to an employee of a co-signatory involved in joint operations. Silva’s Fishing Corpn (Pty) v Maweza [1957] (2) SA 256 supported that approach.
4. Public-authority considerations. Public-policy factors remain important, including those identified in Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2009] 1 AC 225, Mitchell v Glasgow City Council [2009] 1 AC 874 and Jain v Trent Strategic Health Authority [2009] 1 AC 583. They must, however, be considered in relation to the claimant’s particular position. She was not one of the public at large, but a social worker working closely and cooperatively with the trusts’ employees. It was therefore reasonably arguable that the relationship was sufficiently special and that imposing a duty would be fair, just and reasonable. The accepted position that an employer owes its employees a duty was relevant by analogy.
5. Article 2. The judge erred in treating the voluntary status of GB as excluding any possible operational obligation under article 2 of the European Convention of Human Rights. The Court of Appeal decision in Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698 had subsequently been reversed by the Supreme Court, reported at [2012] 2 WLR 381. It was arguable that an NHS trust might owe an operational obligation to warn a person whom it knew to face a real and immediate risk from a dangerous patient, depending on the factual nexus.
6. The evidence, including the timing and nature of GB’s later threat to kill the claimant, meant that the claimant could not be said to have no prospect of proving a real and immediate risk. That issue, and all remaining issues, were matters for the trial judge.

1. Court of Appeal (Civil Division): Appeal allowed. The strike-out of the claims against the two NHS trusts was set aside and the issues were sent for trial against all three defendants.
2. Newcastle upon Tyne County Court: HH Judge Walton, 25 February 2011, struck out the claims against the second and third defendants, including the common-law duty of care and Article 2 claims.