From: Jason W
Neyers <jneyers@uwo.ca>
Sent: Thursday
21 December 2023 12:13
To: robert.stevens;
Matthew Dyson; obligations
Subject: Re: HXA v
Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52
Bailments
are status relationships too, I think.
From: Robert Stevens <robert.stevens@law.ox.ac.uk>
Sent: Thursday, December 21, 2023 5:04:50 AM
To: Jason W Neyers <jneyers@uwo.ca>;
Matthew Dyson <matthew.dyson@law.ox.ac.uk>;
obligations <obligations@uwo.ca>
Subject: RE: HXA v Surrey County Council; YXA v Wolverhampton City
Council [2023] UKSC 52
If the gist of the wrong were the
detrimental reliance, then you'd expect the award to put you in the position as
if you hadn't relied. But it never does, it puts you in the position you would
have been in if the defendant had not been negligent.
Reliance may be relevant to whether the assumption of responsibility can be
withdrawn, but it is not the gist of the matter (see also sub-bailment where
reliance is also irrelevant).
-----Original Message-----
From: Jason W Neyers <jneyers@uwo.ca>
Sent: Thursday, December 21, 2023 1:05 AM
To: Matthew Dyson <matthew.dyson@law.ox.ac.uk>;
obligations <obligations@uwo.ca>
Subject: RE: HXA v Surrey County Council; YXA v Wolverhampton City Council
[2023] UKSC 52
Dear Matt:
Thank you for sharing this case. For me one of the more interesting
issues/questions is whether reliance is a necessary part of the/an assumption
of responsibility analysis. My gut reaction is that the court has confused the
Hedley Bryne relationship (which it acknowledges generally requires detrimental
reliance) with a status relationship such as parent-child (which do not) and
conflated the two, thereby casting doubt on the requirement of reliance
generally. They then propose a factual difference for the different rules, one
is about economic loss and the other about harmed children.
Instead, the difference is legal/conceptual: the control/management of
another's affairs exercised by those in loco parentis can only be rightful if
done for the benefit of the child, and therefore anyone who assumes that status
is liable with or without the consent/reliance of the child. This is very
different from the situation where I invite someone to rely on my provision of
a service and they thereby suffer detrimentally by so relying. I think that
this distinction is consistent with the way they analyze the cases but is not
quite what they say.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
-----Original Message-----
From: Matt Dyson <matthew.dyson@law.ox.ac.uk>
Sent: Wednesday, December 20, 2023 9:41 AM
To: obligations <obligations@uwo.ca>
Subject: HXA v Surrey County Council; YXA v Wolverhampton City Council [2023]
UKSC 52
Dear All,
An early Christmas present for those who like bright sparkly line rules and for
local authorities has been handed down today in the UKSC. The two cases, heard
together, were on what triggers and responses by the local authority
demonstrate an assumption of a duty to take reasonable care of a minor, short
of fully taking the child into care. The claims were in both direct and
vicarious liability, with respect to alleged serious abuse during the time the
children remained with their parents/parent and partner (sexual abuse by
mother's partner and mother in HXA; over-medicating and smacking of child with
epilepsy, learning disabilities and autism spectrum disorder) :
HXA v Surrey County Council; YXA v Wolverhampton City Council [2023] UKSC 52
https://www.supremecourt.uk/cases/uksc-2022-0149.html
Trial judge had struck out. CA reinstated. UKSC allows both appeals in a
unanimous decision, Lords Burrows and Stephens giving the judgment, with Lords
Reed, Briggs and Sales agreeing. UKSC claims to be straightforwardly applying N
v Poole, with the core section of the judgment from paras 86 to 107.
There's a clear sense that local authorities' failures to carry out either or
both of what they esolve to do and what they would likely admit their own
procedures trquire, will not generate an assumption of responsibility. E.g., re
HXA, [95], "internal decisions to carry out keep safe work and assessment,
designed to keep the children safe within the family and to find out further
information, fall significantly short of being an assumption of responsibility
to use reasonable care to protect HXA from the abuse. They are merely initial
steps to prepare the ground for a possible later application for a care
order." And re YXA, the failure to investigate, and abiding by the duty to
return from respite care, are aligned by the court (e.g., [97]-[99].). The
matters which trigger the assumption of responsibility are pushed back from any
investigative stage. One might wonder what route, if any, is best for failures
to investigate, for failures to investigate properly, for failures to carry out
promised investigations and even for wilfully blind failures to investigate, as
the implication is they will not easily fit into the assumption of
responsibility route.
The court accepts that there could be situations short of the obvious fully
taking a child into care (e.g. Barrett v Enfield), where an assumption of
responsibility is made out. That included the time the child spent on respite
care, [107]: "The assumption of responsibility flows from the fact that
the child s safety has been entrusted to the local authority by the parents,
the local authority has accepted that responsibility, and indeed the parents
may be said to have delegated parental responsibility to the local authority
(see para 36 above)." Ex hypothesi that was not relevant to a claim in
respect of abuse suffered when at home away from respite care.
The UKSC added a footnote, in the main text:
"10. A footnote on reliance
108. In the last two paragraphs, we have discussed situations in which there
may be an assumption of responsibility, and hence a duty of care owed, by a
local authority to protect a child from harm. That discussion suggests that it
appears not to be a necessary feature of an assumption of responsibility in
this area that there is reliance, in any real sense, by the claimant. For
instance, in a case like YXA, where one has a vulnerable young child with
learning difficulties, it would be inappropriate to insist on specific reliance
by the child in order to find that there was an assumption of responsibility
triggering a duty of care during the respite period."
Perhaps the court were trying to draw a line against further cases like
this: that the case was taken at all (4 years after N v Poole, and the judgment
stating it is simply applying N v Poole), and then heard on
24-25 October with and a relatively concise and unanimous judgment handed down
just under two months later. At the same time, the court stressed how fact
sensitive assumption of responsibility cases would be; there seem no end of
possible variations and one might succeed, just likely not for a while.
(With thanks to Roderick Bagshaw and others for mentioning that the case was
coming out, and to the UKSC's effective publication of their decisions; I hear,
by the by, that the UKSC will soon, perhaps next year, make publicly available
pleadings for their cases, following in the footsteps of the HCA).
All best wishes,
Matt
--
Professor of Civil and Criminal Law
Director of the Institute of European and Comparative Law Faculty of Law,
University of Oxford matthew.dyson@law.ox.ac.uk
Global Professor of Law, London Law Programme at the University of Notre Dame
in England Associate Member of 6KBW College Hill
Matthew Dyson, Explaining Tort and Crime (CUP, 2022), available here:
https://www.cambridge.org/gb/academic/subjects/law/private-law/explaining-tort-and-crime-legal-development-across-laws-and-legal-systems-18502020?format=HB
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