View source for ICLR Selwood v Durham CC (2012) EWCA Civ 979, (2012) MHLO 160

''NEGLIGENCE — Duty of care — National Health Service trust — Claimant employed by local authority as designated social worker for child — Child’s mentally disturbed father under care of NHS trusts — Local authority and NHS trusts signing protocol agreement for co-operation in their care activities — Claimant attacked and injured by father — Judge striking out claimant’s action for personal injuries against NHS trusts — Whether common law duty of care based on foreseeability, proximity and fairness etc, owed by NHS trusts in respect of actions of third party — Whether requirement to show assumption of responsibility — Application of public policy factors to test of whether fair, just and reasonable to impose duty where defendant is public authority and claimant is in limited class having special relationship with defendant — Whether any assumption of liability by NHS trusts giving rise to tortious duty of care — Whether assumption of liability capable of being inferred from circumstances''

'''Selwood v Durham County Council and others'''

'''[2012] EWCA Civ 979;  [2012] WLR (D)  231'''

CA::  Thorpe, Rimer LJJ, Dame Janet Smith:  18 July 2012

When determining whether a defendant owed a common law duty of care to a claimant in respect of the actions of a third party on the basis of foreseeability, proximity and fairness, justice and reasonableness, in accordance with the test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, there was no need to show that the defendant had assumed any responsibility for the claimant’s safety. In determining whether it was fair, just and reasonable to impose that duty of care on a defendant who was a public authority, additional factors of public policy had to be considered and some classes of claimant would stand in such a special relationship with the defendant public authority that it would be fair, just and reasonable to impose a duty of care in respect of the actions of a third party. In respect of that limited class of claimants, the weight to be attached to some of the policy considerations which rendered a duty to a wider class undesirable was much less than if the duty was one owed to the world at large. In order to establish the existence of a duty of care on the basis of an assumption of responsibility, there was no requirement for something positive to that effect to have been said or something done which clearly indicated such assumption, and the assumption of responsibility could be inferred from circumstances.

The Court of Appeal so held when allowing an appeal by the claimant social worker, Claire Selwood, against the decision of Judge Walton, sitting in the Newcastle upon Tyne County Court on 25 February 2011, to strike out her claim against the second and third defendants, Tees, Esk and Wear Valleys NHS Foundation Trust and Northumberland, Tyne and Wear NHS Foundation Trust, the NHS trusts with whom she collaborated in the course of her work, for personal injuries caused by their negligence, as a result of which she was exposed in the course of her work to danger from a mentally disturbed person, G, who had made threats to the second and third defendants to harm her, and subsequently attacked her with a knife causing serious injuries. The first defendant local authority, Durham County Council, accepted that it owed the claimant a duty of care as its employee but that there had been no breach of duty, and it played no part in the application to strike out.

The claimant was the designated social worker for G’s daughter in the first defendant’s children in need team. The second defendant operated a team involved in the care of G’s two children, and a mental health team and crisis resolution team of which G became a patient. The mental health team was staffed by employees of the second defendant and also the first defendant. The third defendant operated a hospital mental health admissions ward, of which G was a patient from time to time. The consultant psychiatrist in charge of the ward was an employee of the third defendant but also had responsibilities in respect of the second defendant’s mental health team. The three defendants had signed a protocol or policy document in which they agreed to co-operate in respect of their activities. The claimant alleged that all the defendants were negligent in failing to adopt that multi-agency approach, and in respect of the second and third defendants, in failing, inter alia, to warn the claimant or the first defendant of the threats made against her by G. The first defendant contended that there had been no breach of its duty of care to the claimant as its employee, as it had not known of the threats to her. The judge allowed the second and third defendants applications to strike out the claim on the grounds that they did not owe the claimant any duty of care in respect of the criminal actions of G, a third party, for whom they were not vicariously liable.

'''DAME JANET SMITH''', allowing the appeal on the issue of the common law duty of care, said that in order to establish that the defendants owed a duty of care towards the claimant in respect of the actions of a third party it was necessary to satisfy the tripartite test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 of foreseeability, proximity and fairness, justice and reasonableness. It was common ground on the appeal that to satisfy that test it was not necessary to show that the defendants assumed any responsibility for some aspect of his or her safety. The judge correctly gave separate consideration to whether a duty of care existed on the specific basis of an assumption of responsibility, and on the more general basis of fairness, justice and reasonableness. However, the judge wrongly rejected any finding of an assumption of responsibility on the grounds that something positive to that effect had to have been said or something done which clearly indicated such assumption. It was in fact possible to infer an assumption of responsibility from circumstances. An assumption of responsibility could have been inferred from the protocol or working arrangements, and it would be open to a trial judge to conclude that the second and third defendants had assumed responsibility to do what was reasonable in the circumstances to reduce or avoid any foreseeable risk of harm to which an employee of a co-signatory was exposed in the course of their joint operations. In determining whether it was fair, just and reasonable to impose a duty of care, where a case did not involve a public authority, there might be very few additional factors to take into account, however if the defendant was a public authority, there would be important additional factors of public policy which had to be considered, which would often be determinative. There would or might be some classes of claimant who stood in such a special relationship with the defendant public authority that it would be fair, just and reasonable to impose a duty of care. If a duty was owed to a limited class of employees for the actions of a third party, the force of some of the policy considerations which rendered a wider duty undesirable was much less than if the duty was said to be owed to the world at large. The judge wrongly limited his consideration of the factors relevant to fairness, justice and reasonableness to public interest factors which were applicable to the possibility of a duty being owed to the world at large. The claimant was not one of the world at large but one of a small group of social workers, working in close proximity and cooperation with the second and third defendants' own employees. In the course of argument, Thorpe LJ stressed the importance of multi-disciplinary working in the conduct of child abuse and other public law litigation. It was important that social workers who undertook difficult and sometimes dangerous work should be protected so far as was practicable and that might be an aspect of public policy which ought to be included in the consideration of what was fair, just and reasonable. The judge erred in failing to consider the special position of the claimant and it would be open to a trial judge, taking the particular relationship between the parties into account, to conclude that it was fair, just and reasonable to impose a duty of care on the defendants. The case against all three defendants would be sent for trial.

'''THORPE''' and '''RIMER LJJ''' agreed.

'''Appearances:''' Michael Kent QC and Mark Armitage (instructed by Thompsons Solicitors, Newcastle upon Tyne) for the claimant; Angus Moon QC and James Berry (instructed by DAC Beachcroft, Newcastle upon Tyne) for the defendants.

'''Reported by:''' Sharene P Dewan-Leeson, Barrister.

© 2012. The Incorporated Council of Law Reporting for England and Wales.