In this article Olga Kyriakoudi discusses tort law in relation to two markedly significant cases about public authorities and responsibility
“The law must be accessible and so far as possible intelligible, clear and predictable” – Lord Bingham
Tort law is known for its complexity when it comes to determining whether the defendant owed a duty of care to the claimant. From the infamous case of Donoghue v Stevenson of 1932 to the Caparo test, that eventually was reformed too, it is still an area of law that remains rather perplex for the legal players.
The decision of the Court of Appeal in the cases of HXA v. Surrey County Council and YXA v. Wolverhampton City Council  EWCA Civ 1196 and HXA v. Wolverhampton City Council  EWCA Civ 1197 represents a cautious yet potentially seismic alternation to the law pertaining to the liability of public authorities for failing to protect children from domestic and other types of abuse. (The defendants were represented by Lord Edward Faulks QC and Paul Stagg, on the instructions of DWF in the HXA appeal and Browne Jacobson in the YXA case).
The question that both cases raised, is whether the local authorities ever shown that they oversaw the claimants’ wellbeing and therefore owed a duty of care. Both claims will now be entertained by the court of law, after being first rejected. The decision will offer claimant lawyers hope that they can clarify what is required for an “assumption of responsibility,” even if justices were cautious to highlight that the case’s merits must still be heard. Elisabeth Laing and Lewis LJJ concurred with Baker LJ’s lead decision of the Court of Appeal. His justification for granting the appeals can be found in his opinion at paragraphs 90–108.
In HXA, the court heard arguments that when reports to social services were responded to, defendants took liability for the claimants’ welfare. It was argued that the claimants relied on their local government provide protection and safety, but the authority neglected to evaluate the risks. The precedent relied on comes from the case of N v. Poole Borough Council that the claimants, who were assaulted by neighbours at a young age, had not given enough support for establishing an assumption of responsibility. According to the court’s decision, the claimed violation of duty gave rise to “additional challenges.”
Even though the claimants in Poole were ultimately unsuccessful, claimant attorneys in HXA stated that Poole had unmistakably demonstrated that the social services department may have owed a duty of care that demonstrated the vaunted assumption of responsibility. Conversely, defence attorneys said that Poole had shown the contrary, making it unfeasible to hold social workers accountable for their error.
The ruling mainly is based on the notion that claims shouldn’t be dismissed in a “developing” field of the law, as it would jeopardize the establishment of much needed precedents to follow. Lord Justice Baker stated that, it was impossible to pinpoint where the boundary should be drawn between circumstances that lead to an assumption of responsibility and those which do not as there was no body of decisions reached after a comprehensive trial. It was not reasonable to dismiss claims unless a body of legal precedent had developed. It is lamentable for all affected that at the initial instance courts, individuals assisting claimants, and local authorities in this regard lack clear guidelines concerning whether claims are admissible. Thus, given the circumstance, the defendants have sought permission to appeal to the Supreme Court to revert and reassess the judgment.
In either case, the outcome would have been optimal for the Court to adopt a clear conclusion. Cases of this nature are generally exceedingly distressing for the claimants, and to address claims in a reasonable manner and eliminate ambiguity, underfunded defendant local authorities require adequate direction from the Courts concerning whether they are legally culpable for the alleged issues. More thorough investigation of these assertions might result in reliable judgments that eventually establish up-and-coming precedents to be followed.