P1 et al. v. Bedfordshire County Council, (1995) 185 N.R. 173 (HL)

• Case Date: Thursday June 29, 1995
• Jurisdiction: Canada (Federal)
• Citations: (1995), 185 N.R. 173 (HL)

P1 v. Bedfordshire County Council (1995), 185 N.R. 173 (HL)

MLB headnote and full text

P1 and Others (Minors) (appellants) v. Bedfordshire County Council (respondents)

In Re M (A Minor) (1994) and Another (A.P.) (appellant)

In Re E (A Minor) (1994) (A.P.) (respondent)

Christmas (A.P.) (respondent) v. Hampshire County Council (appellants)

Keating (A.P.) (Original respondent and cross-appellant) v. Mayor etc. of the London Borough of Bromley (Original appellants and cross-respondents)

Indexed As: P1 et al. v. Bedfordshire County Council

House of Lords

Lord Jauncey of Tullichettle, Lord Lane,

Lord Ackner, Lord Browne-Wilkinson

and Lord Nolan

June 29, 1995.

Summary:

The plaintiffs claimed that they were injured by public authorities in carrying out duties imposed by statute. One group of claims (the Bedfordshire case and the New­ham case) involved allegations that public authorities negligently carried out, or failed to carry out, statutory duties imposed on them for protecting children from child abuse. The second group of claims (the Dorset case, the Hampshire case and the Bromley case) involved allegations that the education authorities failed to carry out statutory duties respecting children with special educational needs. At issue was whether the plaintiff's claims should be allowed to proceed to trial or whether they should be struck as disclosing no cause of action.

The House of Lords ruled accordingly on which claims could proceed and reviewed the law respecting the extent to which public authorities charged with exercising statutory duties are liable in damages to individuals injured by the failure of authorities to prop­erly perform statutory duties.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - [See Torts - Topic 9159 and all three Torts - Topic 9163].

Crown - Topic 1563

Torts by and against Crown - Negligence by Crown - Breach of statutory duty - [See both Torts - Topic 9151, Torts - Topic 9159 and third Torts - Topic 9163].

Education - Topic 2681

Schools - Liability - General - [See Education - Topic 6470 and all three Torts - Topic 9163].

Education - Topic 6463

Teachers - Duties - Duty of care - The House of Lords stated that "... in the case of the advisory teacher brought in to advise on the educational needs of a spe­cific pupil, if he knows that his advice will be communicated to the pupil's parents he must foresee that they will rely on such advice. Therefore in giving that advice he owes a duty to the child to exercise the skill and care of a reasonable advisory teacher." - See paragraph 143.

Education - Topic 6463

Teachers - Duties - Duty of care - [See Education - Topic 6470].

Education - Topic 6470

Teachers - Duties - Principals - General - The House of Lords stated that "... a school which accepts a pupil assumes responsibility not only for his physical well-being but also for his educational needs ... The head teacher, being respon­sible for the school, himself comes under a duty of care to exercise the reasonable skills of a headmaster in relation to such educational needs. If it comes to the atten­tion of the headmaster that a pupil is under-performing, he does owe a duty to take such steps as a reasonable teacher would consider appropriate to try to deal with such under-performance ... If such head teacher gives advice to the parents, then ... he must exercise the skills and care of a reasonable teacher in giving such advice." - See paragraph 142.

Torts - Topic 226

Negligence - Exercise of statutory power - [See first Torts - Topic 9151].

Torts - Topic 275

Negligence - Breach of statute - General principles - [See first and second Torts - Topic 9151].

Torts - Topic 9151

Duty of care - Claims against public officials or authorities - General - The House of Lords reviewed the law respect­ing the extent to which an authority charged with statutory duties is liable in damages to individuals injured by an au­thority's failure to properly perform its statutory duties - See paragraphs 1 to 43.

Torts - Topic 9151

Duty of care - Claims against public officials or authorities - General - The House of Lords stated that private law claims for damages against public authori­ties can be classified into four categories: (A) actions for breach of statutory duty simpliciter (i.e., irrespective of careless­ness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; and (D) misfeasance in public office - The court then reviewed the principles applicable and the case law under categories A, B and C - See paragraphs 9 to 43 - The court stated, inter alia, that careless performance of a statutory duty (Category B) does not in itself give rise to any cause of action in the absence of either a statutory right of action (Category A) or a common law duty of care (Category C) - See paragraphs 15, 22.

Torts - Topic 9159

Duty of care - Claims against public officials or authorities - Social services - Five siblings sued the county council (social services) for damages for not re­moving them from an abusive situation (Bedfordshire action) - A mother and child sued a borough council, the local health authority and its psychiatrist for wrongfully taking a child (Newham action) - The House of Lords affirmed that the plaintiffs had no private law claim in damages - The relevant statutes did not create a claim for damages for breach of statutory duty simpliciter, it was not just and reasonable to superimpose a common law duty of care on authorities respecting performance of statutory duties relating to child protection, and the professionals involved were under no separate duty of care to the plaintiffs for breach of which the local authorities could be vicariously liable - See paragraphs 44 to 96.

Torts - Topic 9163

Duty of care - Claims against public officials or authorities - Education au­thorities - A child sued a local authority for damages (the Hampshire case), alleging that the authority was vicariously liable for a school headmaster's and county advisory service's negligence - Allegedly, the head­master negligently failed to refer the child for formal assessment of his special edu­cational needs or to an educational psy­chologist - Further, the advisory service teacher was negligent in failing to ascer­tain and diagnose whether the child had a specific learning difficulty and in failing to refer the child to an educational psycholo­gist - The House of Lords allowed the claims to proceed, holding, inter alia, that the head teacher and the advisory teacher were under a duty of care to the pupil in relation to his educational well-being - See paragraphs 134 to 146.

Torts - Topic 9163

Duty of care - Claims against public officials or authorities - Education au­thorities - A child sued a local authority for damages for breach of statutory duty and negligence (the Dorset case), alleging that the authority failed to properly provide for his special educational needs, the au­thority's "psychology service" negligently advised his parents, and psychologists and other authority employees owed him a duty of care in their assessments and advice, for breach of which the authority was vicariously liable - The House of Lords held that the authority was under no liability at common law for the negligent exercise of the statutory discretion con­ferred by the relevant legislation - How­ever, the authority could be liable, both directly and vicariously, for negligent operation of the psychology service and negligent advice given by its officers - See paragraphs 112 to 133.

Torts - Topic 9163

Duty of care - Claims against public officials or authorities - Education au­thorities - A child sued a local authority for damages for breach of statutory duty and negligence (the Bromley case), alleg­ing that the authority failed to properly provide for his special educational needs - The House of Lords held that the child's claims based on breach of statutory duty simpliciter were properly struck out where the applicable statutes did not confer a private right of action - Further, the child's claim against the authority alleging direct liability at common law should be struck out because there is no common law duty of care in relation to the exercise of such statutory discretion - The court, however, allowed the child's claim against the au­thority based on vicarious liability to pro­ceed - See paragraphs 147 to 165.

Cases Noticed:

Dorset Yacht Co. v. Home Office, [1970] A.C. 1004 (H.L.), consd. [paras. 3, 19].

Geddis v. Proprietors of Bann Reservoir (1878), 3 App. Cas. 430, consd. [paras. 3, 16].

Metropolitan Asylum District v. Hill (1881), 6 App. Cas. 193, refd to. [paras. 3, 17].

Allen v. Gulf Oil Refining Ltd., [1981] A.C. 1001 (H.L.), refd to. [paras. 3, 17].

Caparo Industries v. Dickman et al., [1990] 2 A.C. 605; 108 N.R. 81 (H.L.), refd to. [paras. 4, 35].

Cutler v. Wandsworth Stadium Ltd., [1949] A.C. 398 (H.L.), refd to. [paras. 13, 14].

Lonrho Ltd. v. Shell Petroleum Co. (No. 2), [1982] A.C. 173 (H.L.), refd to. [para. 13].

Groves v. Lord Wimborne, [1898] 2 Q.B. 402, refd to. [para. 13].

R. v. Deputy Governor of Parkhurst Prison; Ex parte Hague, [1992] 1 A.C. 58; 141 N.R. 161 (H.L.), refd to. [para. 14].

Rylands v. Fletcher (1868), L.R. 3 H.L. 330, refd to. [para. 17].

Sutherland Shire Council v. Heyman (1985), 157 C.L.R. 424, refd to. [para. 18].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 28].

Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223 (C.A.), refd to. [para. 29].

O'Reilly v. Mackman, [1983] 2 A.C. 237 (H.L.), refd to. [para. 29].

Lonrho plc v. Tebbit, [1992] 4 All E.R. 280, refd to. [para. 29].

Rowling v. Takaro Properties Ltd., [1988] A.C. 473 (P.C.), refd to. [para. 33].

Hill Estate v. Chief Constable of West Yorkshire, [1989] A.C. 53; 102 N.R. 241 (H.L.), refd to. [para. 35].

Henderson v. Merrett Syndicates Ltd. - see Arbirthnott et al. v. Fagan and Feltrim Underwriting Agencies Ltd. et al.

Arbirthnott et al. v. Fagan and Feltrim Underwriting Agencies Ltd. et al., [1994] 3 W.L.R. 761; 173 N.R. 173 (H.L.), refd to. [paras. 36, 81].

Gold v. Essex County Council, [1942] 2 K.B. 293, refd to. [paras. 39, 127].

Cassidy v. Ministry of Health, [1951] 2 K.B. 343 (C.A.), refd to. [para. 39].

Roe v. Minister of Health; Woolley v. Minister of Health, [1954] 2 Q.B. 66, refd to. [para. 39].

Wilsons and Clyde Coal Co. v. English, [1938] A.C. 57, refd to. [para. 39].

McDermid v. Nash Dredging & Reclama­tion Co., [1987] A.C. 906 (H.L.), refd to. [para. 39].

Thornton v. Kirklees Metropolitan Borough Council, [1979] Q.B. 626 (C.A.), refd to. [para. 65].

Cocks v. Thanet District Council, [1983] A.C. 286 (H.L.), not appld. [para. 65].

Yeu et al. v. Hong Kong (Attorney Gen­eral), [1988] A.C. 175; 82 N.R. 321 (P.C.), refd to. [para. 78].

White et al. v. Jones et al., [1995] 2 W.L.R. 187; 179 N.R. 197 (H.L.), refd to. [para. 81].

Smith v. Bush (Eric S.), [1990] 1 A.C. 831; 104 N.R. 355 (H.L.), refd to. [para. 83].

Everett v. Griffiths, [1920] 3 K.B. 163; [1921] 1 A.C. 631, refd to. [para. 86].

Watson v. M'Ewan, [1905] A.C. 480, refd to. [para. 92].

Evans v. London Hospital Medical College (University of London), [1981] 1 W.L.R. 184, refd to. [para. 93].

Palmer et al. v. Durnford Ford (a firm) et al., [1992] 1 Q.B. 483, refd to. [para. 94].

Ministry of Housing and Local Govern­ment v. Sharp, [1970] 2 Q.B. 223 (C.A.), refd to. [para. 124].

Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, refd to. [para. 130].

Van Oppen v. Trustees of the Bedford Charity, [1990] 1 W.L.R. 235 (C.A.), refd to. [para. 141].

R. v. Secretary of State for Employment; Ex parte Equal Opportunities Commis­sion, [1995] 1 A.C. 1, refd to. [para. 152].

Gateshead Union v. Durham County Council, [1918] 1 Ch. 146, refd to. [para. 153].

Meade v. Haringey London Borough Council, [1979] 1 W.L.R. 637 (C.A.), refd to. [para. 153].

Ching v. Surrey County Council, [1910] 1 K.B. 736 (C.A.), refd to. [para. 154].

Statutes Noticed:

Child Care Act (U.K.), 1980, sect. 1, sect. 2, sect. 76(1)(a) [para. 57].

Children Act (U.K.), 1989, sect. 17(1), sect. 17(2), sect. 20(1), sect. 47(1), sect. 47(8), Schedule 2 [para. 58].

Children and Young Persons Act (U.K.), 1969, sect. 1, sect. 2 [para. 57].

Education Act (U.K.), 1944, sect. 7, sect. 8 [para. 98]; sect. 33(2) [para. 99]; sect. 34(4) [para. 100].

Education Act (U.K.), 1981, sect. 2(1) [para. 104]; sect. 2(2), sect. 2(3) [para. 105]; sect. 4(1), sect. 5(1) [para. 106]; sect. 7(1) [para. 107].

Local Authority Social Services Act (U.K.), 1970, sect. 7(1), sect. 7A(1) [para. 60]

Authors and Works Noticed:

Brennan, Gerard, Liability in Negligence of Public Authorities: The Divergent Views (1990), 48 The Advocate 842, pp. 844, 845, 846 [para. 18].

Report of the Inquiry into Child Abuse in Cleveland (1987), p. 244 [para. 74].

United Kingdom (Secretary of State), Working Together (1991), generally [paras. 61, 73].

Counsel:

P1 et al.

Rupert Jackson, Q.C., and Elizabeth Gumbel, for the appellants;

Ian Karsten, Q.C., and Lord Meston, for the respondents.

In Re M

James Munby, Q.C., and Robert Sherman, for the appellants;

Ian Karsten, Q.C., and Edward Faulks (L.B. Newman) and James Holman, Q.C., and Richard Tyson (Health Au­thority), for the respondents.

In Re E

Michael Beloff, Q.C., and Cherie Booth, for the appellants;

John Friel and Deborah Hay, for the re­spondents.

Christmas

Michael Beloff, Q.C., and Cherie Booth, for the appellants;

Beverley Lang and Tom Croxford, for the respondents.

Keating

Michael Beloff, Q.C., for the appellants;

Roger Ter'Haar, Q.C., and John Green­bourne, for the respondent.

Agents:

P1 et al.

Conway Wood & Co., for the appellants;

Vizards, for the respondents.

In Re M

Clinton Davis Cushing & Kelly, for the appellants;

Barlow Lyde & Gilbert (L.B. Newman) and Field Fisher Waterhouse (Health Authority) for the respondents.

In Re E

Veitch Penny, for the appellants;

A.E. Smith & Son, for the respondents.

Christmas

County Secretary & Solicitor for Hampshire, for the appellants;

Bindmans, for the respondents.

Keating

Borough Secretary & Solicitor for Bromley, for the appellants;

Teacher Stern Selby, for the respondents.

These appeals were heard on October 10-13, 17-20, 24-27, 1994, before Lord Jauncey of Tullichettle, Lord Lane, Lord Ackner, Lord Browne-Wilkinson and Lord Nolan of the House of Lords. The decision of the court was delivered on June 29, 1995, including the following opinions:

Lord Jauncey of Tullichettle - see para­graph 1 to 4;

Lord Lane - see paragraph 5;

Lord Ackner - see paragraph 6;

Lord Browne-Wilkinson - see para­graphs 7 to 167;

Lord Nolan - see paragraphs 168 and 169.