CN & Anor v Poole Borough Council

A local authority is not automatically immune from a negligence claim by a child because the alleged harm arose while it was exercising statutory functions. The exclusionary effect of X v Bedfordshire County Council was restricted by later authority. Following D v East Berkshire NHS Trust, a child’s claim concerning failure to safeguard the child from abuse is not barred as a matter of law. The ordinary questions remain whether harm was foreseeable, whether there was sufficient proximity or an assumption of responsibility, and whether imposing liability would be fair, just and reasonable. Those questions generally require examination of the facts and may be unsuitable for determination on a strike-out application.

CN and GN, who were children during the material period, appealed against Master Eastman’s order striking out their negligence claims against Poole Borough Council. They alleged that the Council failed to safeguard them from prolonged anti-social and criminal behaviour at housing provided by the Council, including by failing to remove them to a place of safety.

The claim relied partly on the Council’s statutory functions under the Children Act 1989. The central issue was whether D v East Berkshire NHS Trust remained binding, or had been implicitly overruled by Mitchell v Glasgow City Council or Michael v Chief Constable of South Wales.

1. The appeal was allowed and the order striking out CN and GN’s claims was set aside.

2. The court applied the three-stage approach in Caparo Industries v Dickman: foreseeability, proximity or assumption of responsibility, and whether it would be fair, just and reasonable to impose liability.

3. X v Bedfordshire County Council did not create an absolute bar to a negligence claim by children against a local authority. In D v East Berkshire NHS Trust, the Court of Appeal had restricted the effect of X v Bedfordshire County Council and held that, in relation to children, its exclusionary rule could not survive the Human Rights Act 1998. Whether a duty existed remained fact-sensitive.

4. Mitchell v Glasgow City Council did not overrule the child claimant’s successful appeal in D v East Berkshire NHS Trust. Its reference to that case concerned the parents’ appeal. Nor did Michael v Chief Constable of South Wales implicitly overrule the relevant Court of Appeal decision. The references in Michael were either to counsel’s submissions, to the parents’ appeal, or to a dissenting judgment.

5. The statutory background was relevant to the common law question, but the existence of statutory duties did not itself establish a common law duty. The pleaded facts required examination to determine whether the Council had assumed responsibility and whether the remaining Caparo requirements were satisfied. The issue was therefore not apt for disposal under CPR 3.4(2)(a).

6. An anonymity order was made for the claimants until judgment in the substantive proceedings or further order.

• High Court (Queen’s Bench Division): The appeal from Master Eastman’s order dated 2 October 2015 was allowed. The order striking out CN and GN’s negligence claims was set aside.