X v Bedfordshire CC [1995] 2 AC 633

Key point

  • Applied four special rules that protected public authorities from duties of care: 1. public policy exemption 2. policy/operation distinction 3. no duty within field of statutory discretion 4. justiciability

Facts

  • 5 cases alleging that local authority had failed to protect children from abuse or had wrongly taken a child from her family, resulting in psychiatric damage
  • Cs sued under two causes of action: 1. tort of breach of statutory duty and 2. negligence
  • The cases have been struck out at the lower courts due to lack of cause

Held (House of Lords)

  • The decision to strike out due to lack of cause of action was upheld
  • Neither a tort for breach of statutory duty nor a tort of negligence could be made out

Lord Browne-Wilkinson

1. Tort of breach of statutory duty

Nature & requirements

  • It is a private cause of action that does not arise from the mere breach of a statutory duty alone
  • This cause of action can arise if as a matter of construction of the statute,
    1. The statutory duty was imposed for the protection of a limited class of the public and
    2. Parliament intended to confer on members of that class a private right of action for breach of the duty

Current case

  • Regulatory or welfare legislation is not to be treated as being passed for the benefit of particular individuals but for the benefit of society in general
  • In legislation creating a system of social welfare, exceptionally clear words must show that Parliament intended to create a private law claim
  • The actual words in the legislation were inconsistent with any such intention

2. Negligence

Policy/operation dichotomy

  • A broad distinction has to be drawn between: (a) cases in which it is alleged that the authority owes a duty of care in the manner in which it exercises a statutory discretion; (b) cases in which a duty of care is alleged to arise from the manner in which the statutory duty has been implemented in practice

Statutory discretion

  • If decisions fall within the ambit of such statutory discretion they cannot be actionable in common law
  • A common law duty of care cannot be imposed on a statutory duty if observance would have a tendency to discourage the due performance of statutory duty
  • But it would not be right to strike out the claim on this ground because it is possible that the appellants might be able to demonstrate at trial that decisions were so unreasonable as to be outside of statutory discretion

Justiciability

  • If the exercise of the discretion includes matters of policy, the court cannot adjudicate on such policy matters and therefore cannot reach the conclusion that the decision was outside the ambit of the statutory discretion
  • Therefore a common law duty of care in relation to the taking of decisions involving policy matters cannot exist
  • The current case was justiciable: alleged breaches of duty relate to failure to take reasonable practical steps, do not involve any question of general policy

No duty on public policy grounds

  • It is not fair and reasonable to impose a common law duty
  • It cuts across the statutory system for protecting children at risk which involves many different bodies making joint decisions in the Child Protection Conference
  • Delicate decisions are made on balancing rights of the child and disrupting family environment
  • Authorities will take defensive approach in their duties, e.g. more delays for further inquires when a speedy decision has to be made
  • The cost of litigation will be diverted from performance of social services