H v Norfolk 1997

FACTS:-

The Claimant had been taken into care at the age of 4 and placed with foster parents until he was 14. He alleged that he had been physically and sexually abused by his foster-father and that the council had been negligent in failing to supervise his placement, to investigate reports of abuse and to remove him from foster care. His claim was struck out at first instance on the grounds that it disclosed no reasonable cause of action, following the authority of X v Bedfordshire County Council [1999] 2 AC 633. The Claimant applied for leave to appeal against this order.

HELD:-

Simon Brown LJ referred to the case of X v Bedfordshire. He said that in this case, as in the Bedfordshire case, the ultimate issue was whether the Claimant could satisfy the three pronged case in Caparo Industries plc v Dickman [1990] 2 AC 605, namely whether it was just and reasonable to impose a common law duty of care in all the circumstances. Forseeability of damage and proximity of relationship were not in doubt or dispute. He went over the judgment of the judge at first instance, Harrison J.

Harrison J had said that the public policy considerations in X v Bedfordshire did apply to this case and they applied whether the child in question was in care or not in care. Whilst this case was distinguishable from X v Bedfordshire, insofar as the Claimant in this case was in care whilst the Claimants in Bedfordshire were not, this factor was primarily relevant to the proximity of the relationship between the Claimant and the local authority rather than to the question of public policy. Therefore the claim could not succeed.

Simon Brown LJ considered the legislative provisions relevant to this case. The Claimant was not asserting that the contended for breach of the local authority’s duties conferred upon him any private law right of action for breach of statutory duty. The statutory monitoring system imposed on the council did not preclude the existence of duties owed by other bodies such as the police, educational bodies and doctors. It would remain unfair to impose a common law liability upon one only of the relevant bodies, and if liability were imposed on all of them, then there would be the problem of allocating responsibility amongst all of them.

The policy considerations in this case were not in every respect identical to those arising in the X v Bedfordshire case, but they were strictly comparable and had sufficient potency to override the competing consideration that wrongs should be remedied.

The Claimant’s counsel had sought to rely upon Surtees v Kingston upon Thames Borough Council; Surtees v Hughes and Another [1991] 2 FLR 559 in which the Claimant had suffered injury whilst in foster care. In that case, Stocker LJ had said that as a matter of causation, the claim was bound to fail unless the injuries were deliberately inflicted. The Claimant’s counsel had invited the court to infer that if the injuries in Surtees were deliberately inflicted, a duty of care would have been found to exist.

Simon Brown LJ was not prepared to draw that inference and in any event all such decisions fell to be considered in the light of X v Bedfordshire. He referred to an Australian decision Hahn v Conley [1971] 45 ALJR 631 in which the court said that there would be a duty on the person into whose care the child had been placed and accepted to take reasonable care to protect the child against foreseeable danger. Simon Brown LJ said that this was in his judgment, a duty on someone equivalent to the foster parent rather than the local authority who has put the child into foster care.

The Claimant’s counsel had also advanced the analogy of a school. Simon Brown LJ said that this was unhelpful because the liability there would generally be based on vicarious liability for the actions of the school’s employees. Furthermore the degree of control exercisable over activities taking place within the confines of a school was likely to be substantially greater than that which could practicably be exercised by a local authority over foster parents.

Therefore the application for leave to appeal would be refused.