Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm.
July 29, 2019
Poole Borough Council v GN (through his litigation friend “The Official Solicitor”) and another
 UKSC 25
Supreme Court of the United Kingdom
Lady Hale, P; Lord Reed, DP; Wilson, Hodge, Black, LJJ
June 6, 2019
Reported by Faith Wanjiku
Tort Law-duty of care- negligence- local authorities’ employees-circumstances local authorities owed a common law duty of care-where it was alleged that children had suffered personal injuries due to negligence of local authorities employees’ to provide housing functions-whether a local authority or its employees could owe a common law duty of care to children affected by the manner in which it exercised or failed to exercise its functions of provision of services for children in need, their families and others, and if so, in what circumstances-Children Act, 1989, sections 17 (1), (10) and 47 (1)
Tort Law-duty of care-local authorities-assumption of responsibility- where local authorities could owe a common law duty of care-what was the nature of assumption of responsibility in relation to local authorities owing a common law duty of care to protect from harm private individuals or bodies?
The claimants sought damages for personal injuries suffered while they were children living in the area of the defendant council. They maintained that the injuries were suffered as a result of the council’s negligent failure to exercise its powers under the Children Act 1989 (the 1989 Act) so as to protect them from harm at the hands of third parties. The claimants alleged that in May 2006 they and their mother were placed by the council in a house on an estate in Poole next to a family who, to the council’s knowledge, persistently engaged in anti-social behaviour.
The claimants and their mother became the target of harassment and abuse at the hands of that family, which persisted over a period of several years until they were re-housed in December 2011. That included vandalism of the mother’s car, attacks on the family home, threats of violence, verbal abuse, and physical assaults on the mother and one of the claimants. As a result, the claimants suffered physical and psychological harm. During the period in question, both claimants were identified by the council as children in need as defined in the 1989 Act, and had social workers allocated to them.
The claimants initially brought their claim on the basis that the council had been negligent in the exercise of both its housing functions and its functions under the 1989 Act. The claim was struck out by Master Edelman on the basis that no relevant duty of care towards the claimants arose out of the statutory powers and duties relied on. The claimants appealed in relation the council’s functions under the 1989 Act only. The appeal was allowed by the High Court. The Court of Appeal then allowed the council’s further appeal. The claimants then appealed to the Supreme Court.
- What was the nature of assumption of responsibility in relation to public authorities owing a common law duty of care to protect from harm private individuals or bodies?
- Whether a local authority or its employees could owe a common law duty of care to children affected by the manner in which it exercised or failed to exercise its functions of housing and provision of services for children in need, their families and others, and if so, in what circumstances.
Relevant Provisions of the Law
Children Act, 1989
Section 17- Provision of services for children in need, their families and others.
(1)It shall be the general duty of every local authority (in addition to the other duties imposed on them by this Part)—
(a) to safeguard and promote the welfare of children within their area who are in need; and
(b) so far as is consistent with that duty, to promote the upbringing of such children by their families,
by providing a range and level of services appropriate to those children’s needs.
(10)For the purposes of this Part a child shall be taken to be in need if—
(a) he is unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, or further impaired, without the provision for him of such services; or
(c) he is disabled,
Section 31- Care and Supervision
(1)On the application of any local authority or authorised person, the court may make an order—
(a) placing the child with respect to whom the application is made in the care of a designated local authority; or
(b) putting him under the supervision of a designated local authority F1. . ..
(2)A court may only make a care order or supervision order if it is satisfied—
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to—
(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him; or
(ii) the child’s being beyond parental control.
Section 47- Local authority’s duty to investigate.
(1)Where a local authority—
(a)are informed that a child who lives, or is found, in their area—
(i)is the subject of an emergency protection order; or
(ii)is in police protection; F1. . .
(iii)F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b)have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm,
the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.
- The court had previously distinguished between a duty to take reasonable care not to cause injury and a duty to take reasonable care to protect against injury caused by a third party. A duty of care of the latter kind would not normally arise at common law in the absence of special circumstances, such as where the police had created the source of danger or had assumed a responsibility to protect the claimant against it. The absence of a duty of care to protect against harm caused by a third party, in the absence of special circumstances, did not lay down a general rule that, for reasons of public policy, the police could never owe a duty of care to members of the public.
- Previous decisions did not impose a universal tripartite test for the existence of a duty of care, but recommended an incremental approach to novel situations, based on the use of established categories of liability as guides, by analogy, to the existence and scope of a duty of care in cases which fell outside them. The question whether the imposition of a duty of care would be fair, just and reasonable formed part of the assessment of whether such an incremental step ought to be taken.
- In the ordinary run of cases, courts should apply established principles of law, rather than basing their decisions on their assessment of the requirements of public policy. Secondly, there was the significance of the distinction between harming the claimant and failing to protect the claimant from harm including harm caused by third parties. Thirdly, public authorities were generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation required a departure from those principles. That was the basic premise of the consequent framework for determining the existence or non-existence of a duty of care on the part of a public authority.
- Public authorities could owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and was therefore excluded by, the legislation from which their powers or duties were derived; public authorities did not owe a duty of care at common law merely because they had statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm; and public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation.
- If someone possessed of a special skill undertook, quite irrespective of contract, to apply that skill for the assistance of another person who relied upon such skill, a duty of care would arise. The fact that the service was to be given by means of or by the instrumentality of words could make no difference. If in a sphere in which a person was so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, a person took it upon himself to give information or advice to, or allow his information or advice to be passed on to, another person who, as he knew or should know, would place reliance upon it, then a duty of care would arise.
- The categories of special relationships which could give rise to a duty to take care in word as well as in deed were not limited to contractual relationships or to relationships of fiduciary duty, but included also relationships which were equivalent to contract, that was, where there was an assumption of responsibility in circumstances in which, but for the absence of consideration, there would be a contract. Wherever there was a relationship equivalent to contract, there was a duty of care. Where, as in the present case, what was relied on was a particular relationship created ad hoc, it would be necessary to examine the particular facts to see whether there was an express or implied undertaking of responsibility.
- The question of whether a court order could have generated a duty of care was comparable with the question of whether a statutory duty could generate a common law duty of care. The answer was that it could not. The statute either created a statutory duty or it did not. That was not to say that conduct undertaken pursuant to a statutory duty could not generate a duty of care in the same way as the same conduct undertaken voluntarily. But one could not derive a common law duty of care directly from a statutory duty. Likewise, you could not derive one from an order of court.
- The approach as to whether a public authority was under a duty of care was based on the premise that public authorities were prima facie subject to the same general principles of the common law of negligence as private individuals and organisations, and could therefore be liable for negligently causing individuals to suffer actionable harm but not, in the absence of some particular reason justifying such liability, for negligently failing to protect individuals from harm caused by others. Rather than justifying decisions that public authorities owed no duty of care by relying on public policy, it had been held that even if a duty of care would ordinarily arise on the application of common law principles, it could nevertheless be excluded or restricted by statute where it would be inconsistent with the scheme of the legislation under which the public authority was operating. In that way, the courts could continue to take into account, for example, the difficult choices which could be involved in the exercise of discretionary powers.
- The present case was not brought on the basis that the council was in the second, third or fourth of those situations. It was suggested in argument that a duty of care might have arisen on the basis that the council had created the source of danger by placing the claimants and their mother in housing adjacent to the neighbouring family. The difficulty of sustaining such an argument was however apparent as there was a consistent line of authority holding that landlords (including local authorities) did not owe a duty of care to those affected by their tenants’ anti-social behaviour. It was also necessary to remember that there was no claim against the council based on its exercise of its functions under housing legislation.
- A public body which offered a service to the public often assumed a responsibility to those using the service. The assumption of responsibility was an undertaking that reasonable care would be taken, either express or more commonly implied, usually from the reasonable foreseeability of reliance on the exercise of such care. Thus, whether operated privately or under statutory powers, a hospital undertook to exercise reasonable care in the medical treatment of its patients. The same was true, mutatis mutandis, of an education authority accepting pupils into its schools.
- In the instant case, on the other hand, the council’s investigating and monitoring the claimants’ position did not involve the provision of a service to them on which they or their mother could be expected to rely. It could have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them, but anxiety did not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. In short, the nature of the statutory functions relied on in the particulars of claim did not in itself entail that the council assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care.
- It was of course possible, even where no such assumption could be inferred from the nature of the function itself, that it could nevertheless be inferred from the manner in which the public authority had behaved towards the claimant in a particular case. Since such an inference depended on the facts of the individual case, there could well be cases in which the existence or absence of an assumption of responsibility could not be determined on a strike out application. Nevertheless, the particulars of claim had to provide some basis for the leading of evidence at trial from which an assumption of responsibility could be inferred.
- In the instant case, however, the particulars of claim did not provide a basis for leading evidence about any particular behaviour by the council towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred. Reference was made to an email written in June 2009 in which the council’s anti-social behaviour co-ordinator wrote to the claimants’ mother that they did as much as it was in their power to fulfil their duty of care towards her family, and yet they couldn’t seem to get it right as far as the family was concerned, but the email did not appear to have been concerned with the council’s functions under the 1989 Act, and in any event a duty of care could not be brought into being solely by a statement that it existed.
- The particulars of claim did not set out an arguable claim that the council owed the claimants a duty of care. Local authorities did not under any circumstances owe a duty of care to children in relation to the performance of their social services functions and the particulars of claim in the instant case did not lay a foundation for establishing circumstances in which such a duty might exist.
- From the particulars of claim, it appeared that social workers carried out assessments of the claimants’ needs on the council’s instructions, and provided the council (and others who could have been involved in decision-making) with information and professional advice about the children for the purpose of enabling the council to perform its statutory functions. There was no doubt that, in carrying out those functions the social workers were under a contractual duty to the council to exercise proper professional skill and care. The question was whether, in addition, they also owed a similar duty to the claimants under the law of tort. That depended on whether the social workers assumed a responsibility towards the claimants to perform their functions with reasonable care.
- The concept of an assumption of responsibility was not confined to the provision of information or advice. It could also apply where the claimant entrusted the defendant with the conduct of his affairs, in general or in particular. Such situations could arise where the defendant undertook the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care would be taken. Such an undertaking could be express, but was more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. In the present case, however, there was nothing in the particulars of claim to suggest that a situation of that kind came into being.
- The existence of an assumption of responsibility could be highly dependent on the facts of a particular case, and where there appeared to be a real possibility that such a case might be made out, a court would not decide otherwise on a strike out application. In the circumstances described, however, the particulars of claim did not set out any basis on which an assumption of responsibility might be established at trial.
- Any uncertainty as to whether the case was one which could properly be struck out without a trial of the facts was eliminated by the further difficulties that arose in relation to the breach of duty alleged. The case advanced in the particulars of claim was that any competent local authority should and would have arranged for [the claimants’] removal from home into at least temporary care. In order to satisfy the threshold condition for obtaining care orders under section 31(2) of the 1989 Act, it would be necessary to establish that the claimants were suffering, or were likely to suffer, significant harm which was attributable to a lack, or likely lack, of reasonable parental care. The threshold condition applicable to interim care orders required the court to be satisfied that there were reasonable grounds for believing that the circumstances with respect to the child were as mentioned in section 31(2). Nothing in the particulars of claim suggested that those conditions could possibly have been met. The harm suffered by the claimants was attributable to the conduct of the neighbouring family, rather than a lack of reasonable parental care. There were simply no grounds for removing the children from their mother.
- The particulars of claim in those proceedings did not disclose any recognisable basis for a cause of action. The complaint was that the council or its employees failed to fulfil a common law duty to protect the claimants from harm inflicted by their neighbours by exercising certain statutory powers. The relevant provisions did not themselves create a cause of action. Reliance was placed on an assumption of responsibility arising from the relationship between the claimants and the council or its employees, but there was nothing to suggest that those relationships possessed the necessary characteristics for an assumption of responsibility to arise. It was clear that the alleged breach of duty, namely a failure to remove the claimants from the care of their mother, had no possible basis. Although the court did not have before it all the evidence which might emerge at a trial, there was no reason to believe that the claimants could overcome those fundamental problems as to the legal basis of their claim. That being so, it was to the advantage of all concerned that the claim should not proceed to what would be a costly but inevitably fruitless trial.
Relevance to the Kenyan Situation
In Kenya, there are laws that provide for the welfare and best interests of the child, these are mainly the Constitution of Kenya, 2010 and the Children Act, No. 8 of 2001. The Constitution provides for children in article 53 on their right to among others basic nutrition, shelter and health care, to be protected from abuse, neglect, all forms of violence, inhuman treatment and punishment et al. The article concludes that a child’s best interests are of paramount importance in every matter concerning them.
As for the Children Act, it was enacted to make provision for parental responsibility, fostering, adoption, custody, maintenance, guardianship, care and protection of children among others. Section 40 provides for role of local authorities which includes to safeguard and promote the rights and welfare of children within its jurisdiction and to promote the good up-bringing of children by their families, through the establishment of suitable family-oriented programmes, creation of a department to deal with the rights and welfare of children.
The Act also provides in sections 43-45 that a local authority can be a municipal or county council and that the local authority may delegate its duties and powers to charitable children’s institutions or an approved officer.
The case of Nickson Muthoka Mutavi v Kenya Agricultural Research Institute  eKLR adopted the provision of Clerk & Lindsell on Torts, Eighteenth Edition at paragraph 11-04 page 600 which provided as follows in regard to statutory duty of care:
- The claimant must show that the damage he suffered falls within the ambit of the statute, namely that it was of the type that the legislation was intended to prevent and that the claimant belonged to the category of persons that the statute was intended to protect. It is not sufficiently simply that the loss would not have occurred if the defendant had complied with terms of the statute. This rule performs a function similar to that of remoteness of damage.
- It must be proved that the statutory duty was breached. The standard of liability varies considerably with the wording of the statute, ranging from liability in negligence to strict liability.
- As with other torts, the claimant must prove that the breach of statutory duty caused his loss, which he will fail to do if the damage caused his loss, which he will fail to do if the damage would have occurred in any event.
In Kiamokama Tea Factory Co. Limited v Joshua Nyakoni  eKLR, it was held that breach of statutory duty is a tort. Although the Limitations of Actions Act only defines ‘tort’ broadly to include devastavit, Black’s Law Dictionary 8th ed. defines tort as “a civil wrong, other than breach of contract, for which a remedy may be obtained, usually in the form of damages; a breach of duty that the law imposes on persons who stand in a particular relationship to one another.”
In Kenya Wildlife Service (KWS) v Pauline Awino Omondi  eKLR, thecourt held that the defendant being the custodian of human-wildlife conflict, they ought to have warned the deceased about the dangers of fishing on particular areas of the Lake. Furthermore, the defendant/ Appellant submitted on grounds 2 and 3 of the Appeal that the custodian of such animal has a responsibility to keep the said animals away from situations where they can cause death, injury or harm to humans and destruction of property. Thus, there is admission that where the defendant fails to ensure that animals are kept away from situations where they can cause injury or death or harm to humans or destruction of property, then such defendant would be liable. it was incumbent upon the defendant /appellant to sensitize people and warn them of the particular areas to be avoided during their various activities as the personnel of the defendant are the ones with the know-how of the dangers posed by the presence of wildlife which information the common person may not be privy to hence the defendant/ appellant bore the greatest burden and responsibility.
The above UK case is therefore jurisprudential in Kenya in matters of public authorities not owing a duty of care at common law merely because they have statutory powers or duties. It has clearly distinguished the vice versa and laid out principles on assumption of responsibility under a statutory duty of care owed by a public authority to private individuals or bodies to which they ought to strictly prove.