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Poole Borough Council v GN [2019] UKSC 25

Decided in June this year, Poole Borough Council v GN constitutes the latest episode in the series of cases dealing with public body liability and is therefore essential knowledge for anyone considering the duties of such defendants towards others. As with similar cases, understanding in Poole necessitates first understanding the factual framework of the case, before inferences can be made regarding its effect on legal principle.

Facts

The claimants were two children (ages nine and seven) living in council accommodation with their mother in Poole (i.e. the defendant's jurisdiction) from 2006. The older of the two, who was severely disabled, required significant care, and to this end the defendant council had adapted the house and provided a number of social and health services. Their allocated house, however, was next door to a family that – to the defendant's knowledge – had a history of anti-social behaviour. This history realised itself when the next door neighbours engaged in a campaign of targeted harassment and abuse against the claimant family, including physical assault, vandalism and threats thereto. These were reported, and a variety of punitive measures were applied to the neighbours, including injunctions, contempt of court proceedings, anti-social behaviour orders, and prison sentences, although these did not abate the behaviour. The claimants' mother then contacted both her local and national representatives and the media, resulting eventually into a report into the issue, which was critical of both council and police failures.

As a result of the harassment, the younger of the two claimant children began to suffer from mental health issues, expressing suicidal wishes across 2008 and 2009, running away at one point and leaving a suicide note. After this incident the claimant was both referred to mental health services and provided with psychotherapy. Across the following two years, the claimant was assessed and reassessed by the defendants' services, although it would later emerge that these reassessments were made necessary by repeated failures to properly account for the claimant's mental health condition(s.) The claimant family was eventually moved to a different property in 2011.

Legal History

Following on from the above facts, the claimants made a claim against the defendant on the basis that they had suffered physical and psychological harm from the abuse and harassment from the neighbours. This was based on the proposition that the defendant had two concurrent duties towards the claimants: firstly, that a duty existed with regard to the council's housing functions, and that this duty extended to preventing the family from abuse and anti-social behaviour of the type suffered. Secondly, it was asserted that a duty existed under s.17 and s.47 of the Children Act 1989, which was not met as a result of their continuing living conditions.

At trial, both claims were struck out, on the basis of an assertion that X (Minors) v Bedfordshire County Council prevented duties from arising with regard to how public authorities exercised their powers. The claimants then appealed the decision with regard to the second duty (only.) This appeal was allowed, on the basis that D v East Berkshire Community NHS Trust provided that claims against public authorities are not prohibited, and instead that the claimants' case merited a full examination. This appeal was successful, albeit resulting in a further appeal by the defendants.

Issues

The primary issue in question was the same one as seen in a variety of public body liability cases: did a common law duty of care exist between the defendant public body and the claimants? This determination, however, is better characterised as asking two component questions:

  • Does a general rule exist preventing a duty of care from arising?
  • Does a duty exist to prevent the harmful actions of third parties from manifesting themselves?

Held

Regarding the existence of a general rule against imposing liability, the court affirmed that this did not exist, regarding X (Minors) v Bedfordshire to have been misapplied, both at trial, and in other cases where it was suggested that the case prevented a duty from arising.

Regarding the second question of a duty existing with regard to the actions of third parties, it was held that given the facts at hand, a duty could not be said to arise. This decision was arrived at via the application of assumption of duty mechanism (as exemplified in Dorset Yacht Co Ltd v Home Office.) It was noted that a distinction need be made (in accordance with the aforementioned X (Minors) v Bedfordshire) between cases in which services are offered which involve an assumption of responsibility – such as those involving hospital treatment or the acceptance of pupils into a school – and those which do not. The case at hand was regarded as failing into this latter category: it could not be demonstrated that either implicitly or explicitly, responsibility had been assumed by the defendant to prevent the actions of malicious third parties. It could not be shown that there was reliance on the defendant's services that amounted to an assumption of responsibility with regard to third party acts. Further, it was noted that the defendant had explicitly considered whether it should take the claimants into care (and thus assume responsibility for them) but had decided not to do so.

In summary: a duty of care can exist if public authority services are performed negligently, but, in line with tort law at large, there is no general duty to prevent the actions of third party malfeasors. Whilst such a duty might be imposed via an assumption of responsibility, this is by no means a given.

Thus the appeal failed, albeit for slightly different reasons than those given in the lower court.

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Analysis

Finding a Duty: Operation versus Policy

Poole Borough Council v GN fits into a larger framework of cases regarding public authority liability. Unfortunately, as might be inferred from the judiciary's wrangling of prior cases this framework is by no means clearly defined (e.g. different elements of X v Bedfordshire are used to both support and oppose the claimants' claim in different ways.) This is perhaps because public authorities tend to constitute the exceptions to general rules: they are not given special protection per se, but tend to enjoy the benefits of the law's numerous control mechanisms.

It is first relevant to note that there exists no general immunity for public authorities by merit of status alone: the notion of state immunity was done away with some 150 years ago, as per Geddis v Proprietors of the Bann Reservoir.

Instead, the test for public body liability is the same as for any other defendant in tort: where actions are in question, Caparo Industries v Dickman, and Robinson v Chief Constable of West Yorkshire Police determine duty: where facts are similar, Robinson will provide for a duty, and where they are not, the Caparo test will be applied. However, unlike the average defendant, public bodies will often benefit from the 'fair, just and reasonable' aspect of the test – although not always. This can be seen in the case at hand: Lord Reed notes (at 74) that X (Minors) v Bedfordshire should not be read as providing a blanket assertion that it is not reasonable to impose liability in any situation involving public policy. Instead, Lord Reed posits that Robinson reasserts the need to consider each case on its own merits, regardless of the innate characteristics of the defendant. Whilst clarified now, the courts can be seen to struggle with attempting to implement a bright-line distinction between tort-'worthy' activities of public authorities and unworthy activities. Indeed, as per East Suffolk Rivers Catchment Board this line was previously drawn between policy decisions and activities of public bodies: as long as a harmful action was attributable to a reasonably implemented policy, empowered via statute (as practically all public authorities are) then it was regarded as illegitimate to impose a duty. Such a distinction substantially remains in place, albeit on a non-bright line basis. As discussed in the case at hand, Michael v Chief Constable of South Wales concludes that a failure by police to promptly attend an emergency call will not give rise to a duty, as long as that failure is attributable to existing policy (i.e. to categorise emergency calls according to perceived priority.)

It is for these reasons that the first major point of law from the case at hand emerges: it affirms that any application of X (Minors) v Bedfordshire that relies on there being a bright line distinction between action and policy is faulty – and that the court of first instance had erred in striking out the case on a mistaken belief that a duty could never arise as a result of policy decisions.

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Assumed Duties

The second main point of law in Poole arises from its analysis of the how a public authority might be held liable for its omissions. Again, as with other aspects of public body liability, the primary communication from the court appears to be that public bodies are subject to the same principles as any other defendant – including the principles governing liability for omissions (or general lack thereof.) Indeed, it is telling that Dorset Yacht Co v Home Office is itself a public body case, stating that assumed responsibility is one of the few means of establishing a duty to avoid harmful omissions. More recent cases fit into this pattern too. The conjoined appeals of D v East Berkshire Community NHS Trust are particularly illuminating, given the similar characteristics of the claimants. In short, claims were brought on the basis that the defendant had mishandled investigations into child abuse, declaring there to be abuse when in fact the purported victim was suffering from rare disorders which merely gave the appearance of abuse (brittle bone disease and a blood disorder.) In considering whether a duty existed, the court found that responsibility had been assumed by the defendant towards the involved child, but not towards their parents.

Poole applies this same model, even if the end result is to deny the existence of a duty. This is demonstrable: Lord Reed notes (at 81) that the council had conducted investigations into the welfare of the claimants and had concluded that there was no need to take the pair into care, and thus had explicitly considered whether it should assume responsibility for them or not, deciding in the negative. It is important to note, however, that this does not mean that taking children into care is the only way that duty might be assumed – indeed, Lord Reed notes this as well (at 89): whether responsibility has been assumed will turn on the facts of a given case. Again, this relates back to the first main point made by the court: public authority liability turns on the facts of the case, rather than the status of the defendant.

Neither of these main points should be regarded as particularly surprising: the courts have been remiss to make declarations of blanket liability or immunity for some two decades in the wake of Osman v UK, with both Osman and similar cases noting that the human rights provisions enshrining a right to fair trial (and thus a right to have a case considered on its individual merits.)

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Concluding Remarks

Poole Borough Council v GN can thus be seen as somewhat of a strange case, although one which addresses a strange aspect of tort law. At first glance, it appears to simply affirm established principles of tort and their application to public bodies – hardly a revolutionary act. However, the importance of this affirmation becomes clearer when the development of public body liability is traced, and it noted that there has historically been a certain level of disarray, with previous cases indicating much confusion has arisen as to the status of the public body defendant. This is why Poole will likely stand as a leading case for some time, as with Robinson: it undertakes some sorely needed tidying up of the law, cutting away the misinterpretation of the law which has arisen over the decades.

References

  1. X (Minors) v Bedfordshire County Council [1995] 2 AC 633.
  2. D v East Berkshire Community NHS Trust [2003] EWCA Civ 1151.
  3. Dorset Yacht Co Ltd v Home Office [1970] UKHL 2.
  4. Geddis v Proprietors of the Bann Reservoir (1877-78) LR 3 App Cas 430.
  5. Caparo Industries v Dickman [1990] UKHL 2.
  6. Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4.
  7. East Suffolk Rivers Catchment Board v Kent [1941] AC 74.
  8. Michael v Chief Constable of South Wales [2015] UKSC 2.
  9. Dorset Yacht Co Ltd v Home Office [1970] AC 1004 at 1030.
  10. D v East Berkshire Community NHS Trust and other cases [2005] UKHL 23
  11. Osman v United Kingdom [1998] ECRR 101

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