Selwood v Durham County Council & Ors

This is an appeal from a striking-out order of HH Judge Walton sitting in the Newcastle upon Tyne County Court on 25 February 2011. The claimant, the appellant in this court, had brought an action for personal injuries against Durham County Council, (her employer) and two NHS trusts with whom she collaborated in the course of her work. She alleged that all three defendants had been negligent and that, as a result, she had been exposed to danger, in the course of her employment, from a man to whom I shall refer as GB who was mentally disturbed and had threatened to harm her. In the event, GB attacked her with a long-bladed knife and caused very serious injuries. The two NHS trusts (the respondents in this court) applied to strike out the action contending, successfully, that they did not owe her any duty of care in respect of the action of a third party. The appellant appeals against that decision with the permission of Macduff J. The appeal therefore raises the question of whether it is reasonably arguable that such a duty was owed in the circumstances of the case. The claimant had also pleaded that there had been a breach by the second and third defendants of her right under article 2 of the European Convention of Human Rights. The judge also struck out those claims and that issue is raised in this appeal.

For the purpose of the strike-out application, the judge correctly accepted the pleaded facts as true. Indeed, he went further and permitted the claimant to rely on facts disclosed in the report of an investigation commissioned by the North East Strategic Health Authority (the SHA report) into the attack upon her, although those extended findings had not been specifically pleaded. Very sensibly, no objection was taken to that course. The account of the facts which the judge gave and which I shall summarise was therefore more detailed than is usual in a striking-out application.

The claimant was a senior social worker employed by the Durham County Council in their Children in Need Team based in South Easington. She was the designated social worker for a daughter of GB. There were family proceedings on foot which related to GB’s children including the daughter for whom the appellant was the social worker.

The Tees, Esk and Wear Valley NHS Foundation Trust (the second defendant below) operated a Child and Adolescent Mental Health Services (CAMHS) team. This team was involved in the care of two of GB’s children, including the daughter for whom the appellant was the designated social worker. The second defendant also operated a Community Mental Health Team (CMHT) and a Crisis Resolution Team (CRT). The CMHT was an integrated health and social care team, staffed by health staff employed by the second defendant and also by social workers employed by the first defendant local authority. Due to his mental health problems, GB became a patient of the CMHT and the CRT.

The Northumberland, Tyne and Wear NHS Foundation Trust (the third defendant) operated a small acute mental health admissions ward at Cherry Knowle Hospital. The consultant psychiatrist in charge of this ward was the third defendant’s employee Dr Gupta. GB was, from time to time, as I will explain, an in-patient at this ward under the care of Dr Gupta and his team. However, as well as being the consultant in charge of the admissions ward, Dr Gupta also had responsibilities in connection with the second defendant’s CHMT.

The three defendants had signed a protocol or policy document entitled “Working together in the delivery of services to adults and children”. This was a very substantial document which set out the principles which would govern the working arrangements between the three defendants, who had to cooperate in respect of many of their activities.

The following is the history of events which the judge assumed would be proved to be factually correct.

GB was referred by his general practitioner to the mental health services of the second defendant. He told the second defendant’s community health nurse that he was involved in family court proceedings and what they entailed. He said that these proceedings were having an adverse effect on his mental state. He was referred to Dr Gupta who arranged for his admission to Cherry Knowle Hospital as a voluntary patient on 1 July 2006. He remained on the ward until 23 August 2006. A medical record dated 21 July 2006 revealed that he was known to have a history of violent behaviour and posed a risk of harm to others. On 23 August 2006, the day of his discharge, there was a review meeting attended by representatives of both NHS trusts and Dr Gupta. It was reported that GB had said that he was ‘not pleased’ with one of the social workers involved in the court case, to whom he referred as ‘the nastiest one’. The second and third defendants knew or ought to have known that GB was referring to her. That information was not passed to the claimant or to her employer.

On the following day, 24 August 2006, GB (now an outpatient) was assessed by the second defendant’s CRT. It was noted that he had been aggressive to others in order to protect his family. A risk assessment was completed. On 31 August, he attended a meeting of the CRT and it was noted that he was demonstrating increased anger, panic and there was a risk of violent outbursts. He said that there was someone involved in the court case “who I dislike and wish to harm but I am trying to avoid her”. In the SHA report, it was said that a member of the CRT telephoned GB’s care coordinator, a community psychiatric nurse, an employee of the second defendant, and told her what GB had said. The community psychiatric nurse told the SHA investigation that she had made that telephone call in the expectation that the information would be passed on to the people involved in the court case.

On 17 September, GB, being still an outpatient, told a meeting of the CMHT and CRT that he was having violent thoughts and fantasies about particular individuals involved in his and his family’s care. That information was passed to Dr Gupta. The SHA report states that a social worker (who appears to heave been employed by the second defendant) telephoned the first defendant’s organisation, Social Care Direct, to share that information in the expectation that it would be passed to the staff involved with GB’s family.

GB was readmitted to the hospital on 13 October, again as a voluntary patient. The records show that he was having paranoid delusions featuring specific individuals. Three days later, on 16 October, a fax arrived at the premises of the CMHT addressed to GB’s care coordinator, an employee of the second defendant. Because the appellant and other social workers employed by the local authority shared the same office premises and the same fax machine as the CMHT and the CRT, the appellant saw and read this fax. We have not seen that fax but apparently it contained information about GB harming another person. The appellant discussed the fax with the care coordinator and speculated whether it might refer to her. She offered to attend a review of GB which was due to take place at the hospital on 18 October. Meanwhile, on that same day, 16 October, GB was observed to be distressed and complained that he was hearing a screaming voice in his head and was ‘seeing faces’.

On 18 October, there was a review of GB’s case at the hospital, attended by Dr Gupta and other employees of the third defendant. This was the review which the claimant had offered to attend. However, when Dr Gupta asked GB whether the claimant could attend, he refused permission, saying that he would ‘kill her on the spot’ if he saw her. This threat was not passed on to the claimant or to the first defendant. The SHA report noted that GB had given Dr Gupta permission to speak to the claimant about his prognosis and treatment. It also says that a staff nurse (who must have attended the review) told the care coordinator (an employee of the second defendant) that GB had said he would kill the social worker (now identified as the claimant). The care coordinator denied receiving that information but told the investigator that if she had received it she would have recognised the importance of passing it on.

At the end of the review on 18 October, Dr Gupta agreed that GB should go home for a week’s leave. The claimant was not aware that he had left hospital. A case conference had been convened for 20 October. No security arrangements were made at the premises. GB arrived at the case conference and immediately attacked the claimant causing grave injuries, which have had lasting effect. He subsequently pleaded guilty to attempted murder and was sentenced to life imprisonment.

As I have said, the claimant sued three defendants. The first defendant local authority accepted that it owed the claimant a duty of care as its employee but contended that, on the facts, there had been no breach of duty. It had not known of the threats to the claimant; indeed, it blamed the appellant herself for not finding out more and protecting herself. It played no part in the application to strike out.

The essential allegations made against the third defendant were, first, that it should not have allowed GB to have home leave from 18 October or, if it were justified in doing so, it should have warned the claimant or her employers, the first defendant, that it had done so and that GB had made threats of violence against the claimant. Second, it had undertaken to adopt a multi-agency approach to its work with the first and second defendants as recorded in the policy document “Working together in the delivery of services to adults and children”. It had failed to work in accordance with that cooperative approach. As against the second defendant it was alleged that its employees should have warned the claimant (or her employers) that GB had been allowed home leave and that he had made threats of violence against her. The second defendant too had failed to adopt a cooperative multi-agency approach to its work with the first and third defendants.

The second and third defendants applied to strike out the claim against them, contending that they did not owe the claimant any duty of care in respect of the criminal acts of GB who was a third party for whom they were not vicariously liable. The application was referred straight to Judge Walton. It fell to the second and third defendants to demonstrate that the claims against them could not be sustained as a matter of law.

In his judgment, the judge set out counsels’ submissions at length. I will summarise them. Mr Michael Kent QC for the claimant stressed the particularly close relationship between the three defendants in respect of their various social work and medical teams. He referred to the “Working Together” protocol. Although the judge does not record this, I understand that Mr Kent was contending that the relationships between the claimant as an employee of the first defendant and the second and third defendants were so close that the claimant was in the position of quasi-employee of the second and third defendants. The second and third defendants received clear indications from GB that he intended harm towards her. They knew that he was capable of such harm. Although this is not recorded by the judge, my understanding is that Mr Kent was contending that the second defendants ought to have warned the claimant of these threats in just the same way as they should have warned one of their own employees if one had been the object of such a threat.

Mr Angus Moon QC for the second and third defendants submitted that, in order to demonstrate that the NHS trusts owed her a duty of care, the appellant would either have to satisfy the well-known tripartite test (that of foreseeability, proximity and fairness, justice and reasonableness) set out in Caparo Industries plc v Dickman [1990] 2 AC 605 or alternatively show that the defendants had assumed responsibility to protect the claimant from harm. Neither route was open to her on the facts.

As to the Caparo test, Mr Moon accepted that it was foreseeable that GB might harm the appellant. He did not accept that there was a relationship of proximity between the appellant and the NHS trusts. Nor did he accept that it would be fair, just and reasonable to impose a duty of care upon them. He submitted that, if this area of law was to be developed, this should happen in incremental steps and there was no established category of case with which this one could be regarded as analogous.

Mr Moon cited a number of authorities which, he contended, supported these submissions. He cited Palmer v Tees Health Authority [1998] Lloyds Law Rep: Med 447 QBD; [1999] Lloyds Law Rep: Med 351 (CA). In that case both the judge (Gage J) and the Court of Appeal held that there was no duty of care on the health authority towards a 4 year old child who had been murdered by a man who had been treated by the authority for mental illness and who had allegedly been discharged into the community without adequate assessment of the risk he posed. The claim failed for lack of proximity. Although the patient had made threats of violence, these were not directed towards a specific individual. It was held that, in order to establish proximity, the potential victim had at least to come into a special category of persons at risk.

Gage J had also observed obiter that there were several policy reasons why the health authority should not owe the child a duty of care. It was upon these that Mr Moon relied. The Court of Appeal did not comment upon this aspect of Gage J’s judgment but Mr Moon submitted that these policy reasons had been reiterated by the Court of Appeal in other cases, in particular Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of Sussex Police [2009] 1 AC 225; also in Mitchell v Glasgow City Council [2009] 1 AC 874.

In Smith, the claim was struck out on the ground that it would not be fair, just and reasonable to impose a duty of care on the police. The requirements of foreseeabilty and proximity were satisfied. The police were aware of the serious threats of violence which had been repeatedly made against the claimant by his former partner. The former partner subsequently injured the claimant very severely. The House of Lords struck out the claim holding (Lord Bingham of Cornhill dissenting) that it was a core principle of public policy that, in the absence of special circumstances, the police owed no duty of care to protect individuals from harm caused by criminals since such a duty would encourage defensive policing and would divert manpower and resources from their primary function of suppressing crime and apprehending criminals in the interests of the community as a whole.

In Mitchell, the House of Lords struck out a claim brought against a housing authority which had failed to warn the claimant (one of its tenants) that it had held a meeting with the claimant’s neighbour (also a tenant) at which he had been told that eviction proceedings were to be commenced against him on account of his antisocial conduct, which, to the authority’s knowledge, included serious threats of violence against the claimant. Here again, it would seem that foreseeability and proximity could be established but the House of Lords held that it would not be fair, just and reasonable to impose a duty of care on the authority. There were two main lines of reasoning. One was firmly based on public policy as Lord Hope of Craighead explained at [28]:

“As in the case of the police it is desirable too that social landlords, social workers and others who seek to address the many behavioural problems that arise in local authority housing estates and elsewhere, often in very difficult circumstances, should be safeguarded from legal proceedings arising from the alleged failure to warn those who might be at risk of a criminal attack in response to their activities. Such proceedings, whether meritorious or otherwise, would involve them in a great deal of time, trouble and expense which would be more usefully devoted to their primary functions in their respective capacities… There are other considerations too. Defensive measures against the risk of legal proceedings would be likely to create a practice of giving warnings as a matter of routine. Many of them would be for no good purpose, while others would risk causing undue alarm or reveal the taking of steps that would best be kept confidential.”

However, at paragraph 29, Lord Hope said that the position might be different if there had been an assumption of responsibility to advise the deceased tenant of the steps the authority were taking to remove the troublesome tenant. He continued:

“It would then have been possible to say not only that there was a relationship of proximity but that a duty to warn was within the scope of that relationship.”

Mr Moon also referred to Jain v Trent Strategic Health Authority [2009] 1 AC 583. There, at [28] Lord Scott of Foscote had summarised the reasons why a state authority acting under statutory powers should not owe a common law duty of care towards others who were not the intended beneficiaries of those powers. He said:

“The reason is that the imposition of such a duty would or might inhibit the exercise of the statutory powers and potentially be adverse to the interests of the class of persons the powers were designed to benefit or protect thereby putting at risk the achievement of their statutory purpose.”

Mr Moon listed several reasons why, in his submission, it would not be fair, just and reasonable to impose liability in the present case. I summarise them. The NHS trusts were obliged to act in the interests of their patient, GB. A duty to warn the claimant would create a potential conflict of interest with that of GB. Making a disclosure in breach of patient confidentiality may risk harming the doctor/patient relationship. A duty to keep GB in hospital in order to protect the claimant would create an acute conflict of interest. Imposing a duty of care on an NHS trust in respect of social workers would inevitably increase the number of claims against trusts and would impose on them a duty of investigation which would divert resources from their primary function of caring for patients. If a claim were to be allowed in circumstances such as the present, there would be liability against NHS trusts across the country for large numbers of criminal acts because it was very common for violent criminals to have received treatment for their mental health. If there was no claim against a police authority which was aware of a risk of harm to an identified person, it would be irrational for there to be a claim against an NHS trust in possession of the same information. Finally, the claimant had an alternative remedy; she had an outstanding claim against her employer and could make a claim against the Criminal Injuries Compensation Authority.

The judge recorded that Mr Moon had recognised “at least a potential alternative route” by which a duty of care might be established, namely by showing that the defendants had assumed responsibility for the appellant’s safety. Mr Moon submitted that there was no factual basis for such an assumption. Dr Gupta had not given any promise, express or implied, to protect the appellant. There was no contractual arrangement which would suggest such an assumption. The NHS Trusts’ obligations were towards their patients not towards professionals such as social workers.

As to the article 2 claim, Mr Moon submitted that there were two reasons why it could not succeed. First, there was no article 2 duty in respect of voluntary in-patients: see Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698 at [62]: per Jackson LJ. Second, even if article 2 were potentially engaged, on the facts of this case there was no ‘real and immediate risk’ to the appellant.

In reply, Mr Kent submitted that a claim should only be struck out as disclosing no reasonable cause of action (under CPR 3.4(2)(a)) in a clear and obvious case. Striking out was not appropriate in an area of developing law; the decision should be based on actual findings of fact. Under CPR 24.2(a) the question was whether the NHS Trusts could demonstrate that the claimant had no real prospect of success. The judge should not conduct a mini-trial. The jurisdiction was intended to deal with cases which were not fit for trial. The threshold for striking out was a high one.

As for the tripartite test, Mr Kent submitted that there was evidence of sufficient proximity between the claimant and the NHS trusts to support a duty of care. He relied on the protocol or policy document governing the working relationship between the three defendants. He observed that the appellant was an identified potential victim in respect of whom threats of violence had been made, to the knowledge of employees of the second and third defendants. He stressed the close working arrangements and relationship between the first defendants’ social workers and the second defendant’s teams. These working relationships amounted to quasi-employment of the claimant by the NHS trusts.

Although the judge does not record this submission, my understanding is that Mr Kent also submitted that the close working relationships were relevant when it came to consideration of whether it was fair, just and reasonable to impose a duty on the NHS trusts. The three defendants were engaged in a common endeavour. The CMHT comprised professionals from both the first and second defendant. Employees of the second defendant trust worked together with the first defendant’s Children’s Social Care Team, to which the appellant belonged, in the same office building, sharing administrative staff and, as has been seen, the use of the same fax machine. The CMHT and the Children’s Social Care Team operated together on a multi-disciplinary basis. The second and third defendant’s employees worked closely together and both organisations were part of the NHS. In the light of these factors, Mr Kent submitted that it was reasonably arguable that it would be fair, just and reasonable to impose a duty of care upon the trusts.

So far as I can see, Mr Kent did not submit that the NHS trusts had made an express assumption of responsibility in respect of the appellant; his case was that an assumption of responsibility could be inferred from the relationships, the working arrangements and in particular, the protocol. The ambit of the assumption of responsibility and the scope of the duty of care were a matter for trial.

Mr Kent also relied on an observation of Lord Brown of Eaton-under-Heywood in a lecture given to the Personal Injuries Bar Association in 2009 entitled ‘Liability for the Crimes of Others’, when he had said this was a developing area of the law where the full facts should be established before a decision was made as to the duty of care. The matter should be allowed to go to trial.

As to article 2, the judge recorded that Mr Kent had submitted that it was arguable that NHS trusts bore an operational duty towards the claimant and that it was properly arguable at trial that the risk to her life was real and immediate.

The judge began his discussion section by saying that he would concentrate on the main problem for the claim against the NHS trusts, as the law stands. He quoted a number of well-known passages setting out the general principle that the law does not normally attach responsibility to an individual for harm caused to another by the tortious acts of a third party. Something more than mere foreseeability and proximity is required. Even before Caparo there had to be some special reason for liability to be imposed. He observed that recent decisions of the House of Lords, particularly Mitchell, had emphasised assumption of responsibility as such a reason. He quoted the passage from Lord Hope’s speech in that case at [29] which I have set out at my [23] above. The judge observed that, in Mitchell, Lord Brown had formulated the scope of the duty as an assumption of responsibility for the claimant’s safety. But in the present case, the people to whom GB’s ‘disclosures’ (or threats) were made could not themselves have done anything to ensure the claimant’s safety. At the most, they could have passed on the information to someone else with a view to it being passed to the claimant herself. He concluded for that reason that there was no real prospect of the claimant establishing an assumption of responsibility by the defendants for her safety. But even if the duty were to be defined more narrowly, in terms of an assumption of responsibility to pass on a warning, the judge could not see how the claimant could succeed. There was no undertaking by Dr Gupta to transmit any threat to her to anyone on her behalf. There was no pleading that any person had given such an undertaking. All that was said is that some attempts were made to pass on the warning to her but that fell far short of showing that those persons were assuming a responsibility for transmitting information to her, let alone assuming responsibility for her safety. So, the judge concluded, the claimant could not succeed by establishing an assumption of responsibility.

The judge turned to the Caparo test. He noted that foreseeability was conceded and said that he could see how the claimant could argue a case on proximity, at least as between herself and the second defendant; they were involved in a team effort directed at GB’s daughter’s care and that might put the claimant at risk from GB. But, the judge concluded, there was no reasonable prospect of the claimant establishing that it was fair, just and reasonable to impose a duty of care. He gave two main reasons for this conclusion. First, he noted that, in Mitchell, the House had approached the test “on the basis that it (fairness, justice and reasonableness) marched hand in hand with an assumption of responsibility”. Second, he considered the practical implications of imposing such a duty. This, he said, was the approach taken in Mitchell. He thought that, if it were to be said that Dr Gupta had been under a duty to pass on a warning to the claimant, then so would any professional who heard any person utter a threat against another. He observed that such threats were commonplace in the family jurisdiction; it would add much complexity if, every time a family member uttered a threat against another family member, there had to be consideration of the weight to be attached to it and a decision made as to whether it should be passed on. The resource implications would be substantial. Also difficult issues of medical confidentiality might arise. He rejected Mr Kent’s submission that there were important fact-specific features in the present case which made it inappropriate to generalise.

The judge then dealt with the contention that Dr Gupta ought not to have allowed GB to go home on leave. He observed that, as GB was a voluntary patient, Dr Gupta could not prevent him from leaving the hospital. This allegation added nothing to the allegation that the claimant should have been warned that he was at liberty. I interpose to say that it is now accepted that that is correct and that the case for the appellant depends on the duty to warn her rather than a duty to keep GB in hospital.

Finally, on the issue of fairness, justice and reasonableness, the judge observed that it was established that the police (who had a duty to prevent crime) were not under any duty in respect of a person such as the claimant in Smith, in respect of whom they were aware of grave threats of violence. That being so, it could not be right that such a duty should be imposed on social workers, doctors and other medical attendants in respect of similar information.

As for article 2, the judge held that because GB was a voluntary patient there was no relationship between the NHS trusts and the claimant which could engage the article 2 right. He also made a subsidiary finding (presumably on the basis that he might be wrong on the first point) that there was no prospect that the claimant would be able to show that she was under a real and immediate threat of loss of life from GB.

The judge accordingly granted the applications and struck out the claim against the second and third defendants.

Although seven grounds of appeal were pleaded on this issue, in reality, there were three points. Mr Kent for the appellant argued first that the judge had fallen into error in that he had thought that a claimant could not succeed in establishing a duty of care in respect of the criminal actions of a third party unless the defendant had assumed responsibility for the claimant’s safety or at least assumed responsibility to warn the claimant of threats of which he, the defendant was aware. Mr Kent submitted that showing that there had been an assumption of risk was merely one of the ways in which it might be shown that it was fair, just and reasonable to impose the duty. The judge had been wrong to think that Lord Hope had said in Mitchell that such an assumption of responsibility would always be required. He had said only that, in general, such an assumption would be necessary.

As his second point, Mr Kent submitted that in any event the judge had been wrong in thinking that an assumption of responsibility would have to be express or at least implied from something said or done. Such an assumption could be inferred from the circumstances. He referred the court to the South African case of Silva’s Fishing Corpn (Pty) v Maweza [1957] (2) SA 256. There, the widow of a drowned fisherman sued the defendant company which had hired out a fishing boat to a crew of men on the basis that the company would have a share of the profits – in other words as a joint enterprise. The boat’s engine failed and the ship drifted and eventually sank. The company had heard of the emergency but did not mount a rescue. Its argument when sued was that it did not owe a duty for a mere omission to act. The court held the company liable. Lord Scott at [44] of Mitchell observed that, although the defendant company had not regarded itself as having assumed responsibility for taking any steps to rescue the crew, the court had treated them as having assumed that responsibility. Mr Kent submitted that this case showed that, not only could an assumption of responsibility be inferred from circumstances, it might well be inferred where the defendant and claimant were engaged in a joint enterprise, as they were in the present case.

In the present case, an assumption of responsibility could be inferred from the working arrangements operated by the NHS trusts in conjunction with the first defendant, as evidenced by the protocol ‘Working Together’. He referred us to some passages from the protocol. The protocol recognised that, in the course of the cooperative approach to the work undertaken in the signatories’ common interests, professionals might be exposed to danger. At page 75 of the protocol in operation at the relevant time, the signatories agreed that there might be circumstances in which it was necessary for a body to disclose confidential information without the consent of the ‘service user’. This could be done if someone’s health and safety would otherwise be put at risk. An example of when this might arise was when a worker was concerned that a service user or member of the same household or family might pose a risk to the health and safety of other professionals. That, submitted Mr Kent, was exactly what had happened here. All three defendants had foreseen that there might be a need to disclose confidential information in order to protect the health and safety of a professional worker. Mr Kent did not suggest that in the protocol the signatories expressly accepted responsibility for the safety of each other’s employees. However, he submitted that it should be inferred from the document and from the cooperative working arrangements that the signatories were accepting such responsibility. They were, in effect, accepting that the activities of a service user of one signatory might expose the professional employees of one of the other signatories to danger. What could be the point of such recognition if it were not to accept that they would do what was reasonable in the circumstances to protect those other professionals from harm?

Third, Mr Kent submitted that the judge had erred in concluding that it was not properly arguable that it was fair, just and reasonable to impose a duty of care on the NHS trusts. Mr Kent accepted, as indeed he had to, that on the authorities, the position was that where a public authority owed its main statutory duties to a particular class of person, it would, save in unusual circumstances, be contrary to public policy to impose a common law duty of care on that authority in respect of another person outside that class. However, submitted Mr Kent, that was not an absolute rule. It was accepted that the public authority would owe a duty of care to one of its own employees, even if that duty might create a conflict of interest with its duties towards the main beneficiaries of its services. In the present case, the NHS trusts owed their main statutory duties towards their patients. But they also owed the common law duty of care towards their employees. Clearly there was a potential conflict of interest (such as a breach of confidentiality) but that did not affect the existence of the duty to the employee. So, the rule against conflicting duties was not absolute. If there could be a duty towards an employee which conflicted with the trust’s core duties, there could also be a duty towards a person, such as the appellant, who was in a position which was closely analogous to that of an employee. To support his submission that the appellant was in a position analogous to an employee, Mr Kent relied on the protocol and the practical working arrangements between the three defendants’ professional teams to which I have referred above.

Mr Kent concluded that the overlapping issues of assumption of responsibility and fairness, justice and reasonableness were clearly arguable and the claims should be allowed to go to trial.

Mr Moon, for the respondent NHS trusts, submitted that the judge had been right for the reasons he gave. The judge had not fallen into error by thinking that an assumption of responsibility was an essential element before there could be a duty of care. He realised that it was one route by which a duty of care might be established. The judge had been right to hold that the appellant would be unable, on the facts, to show such an assumption of responsibility. Having so held, he went on to consider whether, notwithstanding that, it was still fair, just and reasonable to impose the duty of care contended for. Further, the judge had been right to hold it would not be fair, just and reasonable so to do. He was right to base his decision on the policy reasons which he had listed.

Mr Moon rejected the notion that the appellant was in a close relationship with the NHS trusts which put her in a position of quasi-employee. He said that there was no such thing; one was either an employee of a particular employer or one was not and the appellant was not an employee of either of the NHS trusts. In the course of argument, he was asked whether there would have been a duty on the second or third defendants if it had been one of their own employees who had been the object of GB’s threats. He accepted that there would have been. But he submitted that such responsibility could not cross over to someone outside the immediate relationship of employment, even though that other person might be working closely with employees of the second and third defendants.

A particular scenario was discussed. Suppose that police Force A received an emergency call that a hostage was being held at a house in a town near to the border of its operations. There was a cooperation agreement between police Force A and the adjacent Force B. On this occasion, Force B sent some officers to assist. Part way through the operation, Force A received information that the hostage taker had a gun. The Force A employee or officer who received that message negligently failed to pass it on to the officer in charge of the incident. Two police officers, one from Force A and one from Force B were in front of the house talking to the hostage-taker at an upstairs window. They would not have been there if they had known of the possibility that the man had a gun. Suddenly the man produced the gun and shot and killed the officer from Force A. Mr Moon accepted that the Chief Constable of Force A would be liable for that death. But, he submitted, if the hostage-taker had shot the officer from Force B, the Chief Constable of Force A would not have been liable. The officer was not his employee and the Chief Constable of Force A had no responsibility for him. The general rule as set out in Van Colle and Smith would apply. When it was suggested to him that that did not seem fair or just, he said that the law sometimes had to draw clear lines and that would be such an occasion.

When Mr Kent was asked about this scenario, he submitted that there would be very strong grounds for arguing that the threefold test would be satisfied and that the Chief Constable of Force A owed a duty of care to the officer from Force B. Common sense and justice demanded such a conclusion.

For many years, it has been accepted that, if it is sought to impose a duty of care on a person for the acts of a third party, something more is needed than the foresight and proximity needed to satisfy the neighbour test adumbrated by Lord Atkin in Donoghue v Stevenson [1932] AC 562. In the years before the tripartite test of Caparo Industries PLC v Dickson [1990] 2 AC 605 became the favoured test of liability, the courts had identified several types of circumstances in which that ‘additional something’ could be established. For example, if the defendant had a responsibility to supervise or control the third party which caused the harm, as in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, that could be the additional factor. Another type of situation might be where the defendant had caused or contributed to the creation of the risk of harm which was perpetrated: see for example Haynes v Harwood [1935] 1 KB 146 and Attorney General of the British Virgin Islands v Hartwell [2004] 1 WLR 1273. Another such type of circumstance, recognised as such by Lord Hope at [23] of his speech in Mitchell, is where the defendant has assumed a responsibility to the claimant which is within the scope of the alleged duty. Lord Hope gives a number of examples of such cases and circumstances. It seems to me that some of them could be analysed as belonging to one of the other categories as well as being an example of an assumption of responsibility. So, for example, in Stansbie v Troman [1948] 2 KB 48, a decorator who was working alone at a house went out without locking up. A thief came in while he was away. The decorator was held to owe a duty of care to the householder. That case was decided on the basis that the decorator had assumed responsibility for the security of the householder’s property but it could have been decided on the basis that the decorator had created the risk that the thief might enter. Similarly, in R(Amin) v Secretary of State for the Home Department [2004] 1 AC 653, the defendant perpetrated a racist attack on a cellmate and killed him. The Home Office was held to have assumed responsibility towards the youth who was killed. The killer had a history of violence. That case could be analysed as an assumption of responsibility or a duty on the Home Office of supervision and control. The point I make is that these types of situation are not necessarily in watertight compartments; they may well overlap.

It was common ground on this appeal that, since Caparo, there is no need to seek for a particular category of circumstance to provide the additional ‘something’ which will justify the imposition of a duty of care towards a claimant for the actions of a third party. It will suffice if the tripartite test of foreseeability, proximity and fairness, justice and reasonableness is satisfied. It is not necessary for the claimant to show that the defendant assumed any responsibility for some aspect of his or her safety. It is common ground between the parties that, if the Judge below thought that an assumption of responsibility was a pre-requisite of the existence of a duty of care, that would have been an error of law. Mr Kent said that he had made that error; Mr Moon said he had not.

I have come to the conclusion that the judge did not make the alleged error of law. I do accept that he came quite close to doing so. After quoting the relevant passage from [29] of Lord Hope’s speech in Mitchell and the ensuing observation that, in general, there will have to be an assumption of responsibility before there can be a duty in respect of the actions of a third party, the judge made his decision that there was no assumption of responsibility on the facts of this case. He then went on to consider fairness, justice and reasonableness. Again he returned to assumption of responsibility and said that usually the two issues will ‘march hand in hand’. That would suggest that he was about to say that it could not be fair, just and reasonable unless there was an assumption of responsibility. However, he did not say that; instead he decided the issue of fairness, justice and reasonableness by reference to various public policy considerations which he listed, mainly derived from his consideration of such cases as Van Colle and Smith and Jain. Thus it seems to me that he did give separate consideration to whether the appellant could succeed on the specific basis of an assumption of responsibility and also on the more general basis of demonstrating fairness, justice and reasonableness. Thus I would reject the appellant’s first ground of appeal.

That, however, is not the end of the question of assumption of responsibility. Mr Kent submitted that the judge was wrong to reject assumption of responsibility on the facts. I accept Mr Kent’s submission on this point. It seems to me that the judge thought that, before there could be an assumption of responsibility, something positive to that effect had to have been said or at least something done which clearly indicated such assumption. In my judgment, it is possible to infer an assumption of responsibility from circumstances, as the South African case, Silva’s Fishing Corpn, shows. That case was quoted with approval by Lord Scott and Lord Hope. The other members of the House were in agreement with Lord Hope and did not dissent from the relevance of that case. In the present case, Judge Walton did not consider whether an assumption of responsibility might be inferred from the protocol or working arrangements. I have done so and my view is that it would be open to a trial judge (having considered the whole of the protocol and having heard evidence about how the working arrangements operated in practice), 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. Accordingly I think that the judge erred in that respect.

Assumption of responsibility is, however, only one aspect of the wider issue of whether it is fair, just and reasonable to impose the duty of care. Factors relating to foreseeability of harm and proximity of relationship often also impinge on the question of fairness, justice and reasonableness. Indeed, in a case which does not involve a public authority, such as, for example, Everett v Comojo (UK) Ltd [2011] EWCA Civ 13, (where the defendant was a company operating a night club) there may be very few additional factors to take into account. Where, however, the defendant is a public authority, there certainly will be important additional factors of public policy which must be considered. And, as Mr Kent accepted, those public policy considerations will often be determinative. In Van Colle and Smith, it was said that, in the absence of special circumstances (my emphasis) the police would not owe a duty to an individual member of public to protect him or her from harm from a criminal for public policy reasons. Even there, it was recognised that there might be special circumstances which negated the general rule. So, it seems to me that there will or may be some classes of claimant who 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. It is common ground that a defendant will owe the employer’s duty of care to its employees notwithstanding that there may be a potential conflict of interest between that duty and the defendant’s duties to the recipients of its core service users. One can see that, if a duty is owed to a limited class of employees for the actions of a third party, the force of some of the policy considerations which render a wider duty undesirable is much less than if the duty is said to be owed to the world at large.

It seems to me that the judge 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. But the whole point of Mr Kent’s submissions was that this appellant was not one of the world at large; she was 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. He has great experience of such work and I would respectfully agree with what he said. He was of the view that it was important that social workers who undertook difficult and sometimes dangerous work should be protected so far as was practicable. This is perhaps an aspect of public policy which should be included in the consideration of what is fair, just and reasonable.

In my view, the judge erred in failing to consider the special position of this appellant. I have done so and I conclude that 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 NHS trusts. The point is arguable, just as I would think it would be at least arguable that, in the hypothetical scenario discussed during the hearing, the Chief Constable of Force A would owe a duty to care to the Force B officer provided for his assistance.

I would allow the appeal on the issue of common law duty of care and would send the matter for trial against all three defendants.

I propose to deal with this issue very briefly. Two points arise. The judge was of the view, following Rabone, that there was no possibility of breach of the appellants’ article 2 rights because there was no positive obligation in respect of a voluntary patient in a mental hospital. With respect to the judge, I think this was an error. Rabone was concerned with whether or not there was an operational obligation on the managers of a mental hospital in respect of a voluntary mental patient who was known to be suicidal. She went home for a weekend and killed herself during that time. I note that, since the hearing before us, the Court of Appeal’s decision in Rabone has been reversed by the Supreme Court, reported at [2012] 2 WLR 381. This court did not therefore hear argument on the effect of those judgments. In any event, it seems to me that the case was not primarily concerned with the operational duty of an NHS trust towards a person who might be at risk from a potentially dangerous voluntary mental patient. It seems to me arguable that the position of an NHS trust is analogous to the position of the police who may be under an operational duty to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved. All depends on whether the necessary factual nexus exists.

The judge fortified his rejection of the article 2 claim by saying that, even if an operational duty were owed, he would hold that the appellant had no prospect of showing that the appellant was at a real and immediate risk of harm from GB. He seems to have accepted, rightly in my view, that it was arguable that she was at a real risk of harm from him; he said that the risk could not possibly be described as immediate. He relied particularly on the fact that, on 24 August, GB had said that he was trying to avoid the appellant. However, that statement was made some weeks before the decision was made to permit GB to go home (or perhaps I should say encourage him to do so, as permission was not required) and on the very day of his departure from the ward he had said that he would kill the appellant if he saw her. That statement was made at the end of a period in which it had been recorded that GB was seeing faces and hearing voices. It may well be that the appellant will not succeed in showing that she was at real and immediate risk of a serious attack. However, I do not think it can be said that she has no hope of doing so. In my view, it should be a matter for the trial judge to decide, having heard evidence, whether the appellant was at real and immediate risk of harm.

For those reasons, I would allow the appeal and send all issues for trial.

Lord Justice Rimer: I agree

Lord Justice Thorpe: I also agree.