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Connor v Surrey County Council, Court of Appeal, 18 March 2010

26 March 2010

Stress – psychiatric injury – justiciability – whether Authority liability on the basis of failure to exercise a power in the context of an Employers Liability claim.

The facts

The Claimant was a head teacher of a school and a member of the governing body. From 2003 difficulties arose in connection with a new governor, Mr Martin, and associates. The head teacher was criticised for what was alleged to be inadequate or unsatisfactory links between the school and the community. Tensions arose with demands for information and documents being made by the governor and his associates and rudeness on the part of one of those associates. The Claimant felt worried and intimidated and turned to the Council for support. The Claimant said that she felt the situation at the school was intolerable and that she was unable to deal with it without intervention from the Council. The Council undertook a review and produced a report. The Council attempted a mediation. There followed further difficulties and Mr Martin’s eventual removal from the governing body. Mr Martin complained of institutional racism and was probably behind a malicious petition of no confidence in the Claimant. A further investigation was made by the Local Authority, producing a report with what the Court of Appeal regarded as “very surprising conclusions”. That report criticised the head teacher for indirectly displaying Islamaphobia and cultural and religious insensitivities. The Claimant referred herself to Occupational Health in 2005 and on the 27th September 2005 was signed off for stress and pressure. She subsequently spent some time in hospital, where she was referred for psychiatric assessment. The Judge at first instance found that the Authority had failed to take reasonable steps to protect the Claimant’s psychiatric health and in particular by failing to replace the governing body with an interim executive board which it was empowered to do under the School Standards and Framework Act 1998, Section 14 and Section 16A. He also found that the Authority’s decision to establish the enquiry into the complaint of the governor was made in disregard of its duty of care to the Claimant.

The Defendant Appealed on the basis that the evidence did not support the Judge’s findings of fact and steps which the Judge found the Authority should have taken to protect the Claimant’s health lay within its discretion and were mere powers in the context of its public law functions and were not justiciable in private law proceedings.

The decision

On the evidence the Judge had been entitled to make the findings of fact that he had. The Judge was entitled to find that the Authority’s concerns of accusations of racism had “quelled a proper response”. The Council had been frightened to stand up to the aggressive confidence of the governor and the bullying tactics of his associate and the support they had had from others and it had capitulated to these “sombre pressures”.

The Judge had applied the right test as to foreseeability. There was a welter of evidence from at least 2004 into 2005 that the Claimant’s mental health was imminently at risk.

The Defendant argued that the actions that the Judge held should have been taken or not taken by the Council in the discharge of their duty of care to the Claimant were not justiciable in private law proceedings.

There was much learning of high authority on the circumstances in which decisions taken by public bodies acting or declining to act under statutory power might give rise to liability for negligence. Those cases were mainly concerned with situations where a duty of care was said to arise from the very exercise of the statutory function in question. The leading cases had much less to say about the situation before the Court in this Appeal where the Council owed the Claimant a duty of care (as an employer) in any event. The question was whether this duty was violated by a failure to exercise a statutory discretion. The Appeal involved the edge between the Council’s private law duties and its public law functions. The essence of the teaching of X v Bedfordshire was to locate the limit of an old principle of the common law, namely that a public body’s acts or omissions which were authorised by Parliament generally could not be relied upon by someone in a private law case to recover damages. Common law duties of care could not be imposed on a statutory duty if the observance of such a duty of care would be inconsistent with or have a tendency to discourage the due performance by the Local Authority of its statutory duties (Lord Brown-Wilkinson in X v Bedfordshire).

This immunity extended only to the distinct act or omission with which the statute was concerned, ie: the choice of policy which the statute allowed. Accordingly, “operations” carried out under the policy were not immune. There would often be different means of executing a policy once settled. The statute’s authority only required the conferment of immunity on the choice itself: not on the choice of means nor the execution of means once chosen. In addition that immunity would not apply to a decision so unreasonable that it could not be said to have been taken under the statute. It was the Defendant’s case that the failures in this Appeal, as identified by the Judge, were policy decisions. The Defendant also relied on Stovin v Wise. In that case Lord Hoffman had said that “the distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not”. Lord Hoffman said that there were two reasons for this. Firstly, because the distinction was often illusive in practice – a decision might involve both elements. Secondly, because even if the distinction was clear cut, still the law would not necessarily impose a duty of care. Whether or not a duty could give rise to a private law cause of action depended, Lord Hoffman had said, on the policy of the statute. In his view, the minimum pre-conditions for basing a duty of care on the existence of a statutory power were first that it would, in the circumstance, be irrational not to exercise the power and secondly, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to people who suffered loss because the power was not exercised.

The Court of Appeal had some difficulty in appreciating the force of these reservations. In the Court’s view, Stovin did not promote any substantial qualification to the limits established in X v Bedfordshire of the principle that a public body’s acts or omissions which were authorised by Parliament generally could not sound in damages recoverable by a private law cause of action.

The Court considered the subsequent decision of the House of Lords in Barrett v Enfield LBC. In that case Lord Hutton had said that the Courts would not permit a claim for negligence to be brought where a decision on the existence of negligence would involve the Courts in considering matters of policy, raising issues which they were ill equipped and ill suited to assess and on which Parliament could not have intended that the Courts would substitute their views for the views of ministers or officials.

This appeared to the Court to be a more open ended approach than that found in x v Bedfordshire. There were policies and policies. The Court might be more or less competent to decide on the merits of some than on the merits of others. The reasoning in Barrett was not grounded in the formulation of a sharp edged principle but was pragmatic and flexible. The greater the element of policy involved, the wider the area of discretion accorded and therefore the more likely was that the matter was not jusiticiable. The approach in Barrett was more nuanced and less rigid than that in X.

The authorities dealt with whether and when the law should impose a duty of care. This case however proceeded on the footing that a duty of care was already established, ie: that between employer and employee. What difference did this make? The answer was that the law would, in an appropriate case, require the duty ower to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that might be done consistently with the duty ower’s full performance of his public law obligations. This was so for two reasons. Firstly, because it did not offend the general rule that public bodies acts of omissions which were authorised by Parliament did not, though they caused injury, sound in damages recoverable by private law cause of action. In this case the right to damages was not attributed to the legislative intention but to the pre-existing duty. Secondly, there was no difficulty with the question of consideration of policy. In the case before the Court there was available a concrete choice of action unmuddied by the nuance of policy.

The exercise of the discretion, in order to fulfil a pre-existing private law duty, had to be consistent with the duty owers full performance of its public law obligations. This meant that a Public Authority could not be required to act in a way which would be unlawful in public law terms. The standard tests of legality, rationality and fairness had to be met as they applied to the use of the public law power in the particular case. The principle in Padfield v Minister of Agriculture applied to the effect that a discretion had to be exercised only for the purposes for which the statute had provided it.

On these conditions the Court might require deployment of public law powers to fulfil a pre-existing duty of care. Such cases would be few in number. In this case, a decision to initial IEB procedures no later than February 2005 would have been well justified. In addition, although there were factors pro and con the institution of an enquiry, there were no public law imperatives preventing the Council from fulfilling its duty of care to the Claimant by declining to do so. That being so, their duty had obliged them to so decline and they were in breach of it. The Deputy Judge was therefore entitled to find the two heads of negligence as he did. This was however a very unusual case. There was nothing in this case that should be taken to resemble a guide for others in the future to build private law claims out of what might be sensitive and difficult decisions, including policy decisions of Public Authorities.

Appeal dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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