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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Furnell v Flaherty (t/a Godstone Farm) [2013] EWHC 377 (QB) (27 February 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/377.html Cite as: [2013] PTSR D20, [2013] EWHC 377 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/02/2013

Mr Justice Turner:

Introduction

1. Godstone Farm and Playbarn in Surrey is a commercial venture which offers, as its name suggests, a range of recreational activities on an agricultural theme intended to be particularly attractive to families with young children. The proprietor of the business is the defendant, Jacqueline Flaherty.
2. Visitors to the farm are encouraged to touch and stroke a wide variety of domesticated animals and pets. This is not, of itself, inherently unsafe but there is a risk that when people (particularly young children) are exposed to animals and their immediate environment they may fall victim to harmful strains of E. coli resulting from contact with the animals' excrement. In order to minimise the risk of infection it is important that strict precautionary steps are taken. These include maintaining good standards of cleanliness, providing washing facilities for the visitors and making sure that these are used.
3. In the late summer of 2009, Godstone Farm became the source of a very serious outbreak of E. Coli O157. Many visitors to the farm, most if not all of whom were children, became infected. Some fell very seriously ill and, it is believed, a number are likely to continue to suffer from long term health problems. Fortunately, there were no deaths despite the fact that it is recognised that this particular strain of E. coli is potentially fatal.
4. Among the visitors to the farm over the Bank Holiday weekend commencing 29 August 2009 were twins, Aaron and Todd Furnell aged two, who were accompanied by their parents and older sister. After the visit, all three children fell seriously ill with E. coli infection. The twins were so badly affected that they were admitted to hospital and underwent dialysis under general anaesthesia.
5. On 17 June 2010, a claim for compensation was brought in respect of the twins' injuries. It was alleged that the defendant was liable on a number or grounds including negligence, occupiers' liability and breach of statutory duty. The defendant denied liability in a defence dated 29 September 2010 and simultaneously brought additional claims under CPR Part 20 against the Health Protection Agency ("the Agency") and Tandridge District Council ("the Council"). She contends that these bodies (to whom, for the sake of convenience, I will refer collectively as "the third parties") are liable to the claimants in respect of the same damage as she was. She claims, therefore, to be entitled to an indemnity or contribution under section 1(1) of the Civil Liability (Contribution) Act 1978. In essence, she alleges that the third parties were aware of the outbreak traceable to the farm before she was but that, thereafter, they took no or no adequate steps to act upon that knowledge and thereby limit or prevent the exposure of visitors to the infection.
6. The Agency and the Council deny liability and, specifically, deny that they owed a duty of care to the visitors to the farm including the twin claimants. On 6 December 2011, the third parties applied to strike out the defendant's additional claims against them pursuant to CPR 3.4(2)(a) or under the inherent jurisdiction of the court. The relevant test under the rules is whether the statement of case discloses no reasonable grounds for bringing the claim. The third parties concede that their additional reliance upon the inherent jurisdiction of the court adds nothing of relevance to this. The Civil Procedure Rules apply generally to additional claims as if they were claims. The application to strike out came before Senior Master Whitaker on 12 March 2012. In a judgment dated 9 May 2012, the Master determined the issue in favour of the third parties and struck out the additional claims by order of 2 July 2012. He refused permission to appeal. Permission was subsequently granted by Cranston J. on 10 October 2012.

The farm

7. Those who run petting farms are not subject to bespoke regulations or codes of practice setting out a detailed framework within which they are required to operate. Nevertheless, in common with all employers, they are subject to the general safety provisions of the Health and Safety at Work etc. Act 1974 (which, by the operation of section 47, do not give rise to obligations breach of which can support a claim for civil liability) and regulations made under section 15 (any breach of which, where damage is caused, generally does give rise to civil liability). In addition, they owe the familiar duties imposed by the common law and under the provisions of the Occupiers' Liability Act 1957 to their visitors.
8. In this case, those acting on behalf the defendant have formally admitted liability in writing to compensate the twin claimants without, however, specifying the precise jurisprudential basis upon which this admission is founded.

The Health Protection Agency

9. The Agency was created by the Health Protection Agency Act 2004. Section 2 identifies the functions of the Agency. These include the protection of the community (or any part of the community) against infectious disease and the prevention of the spread of infectious disease.
10. The activities which the Agency is permitted to perform in order to fulfil its functions are set out in section 4 (1) of the Act. They include, at (1) (f) and (g), the powers to:

(f) make available to any other body such persons, materials and facilities as it thinks appropriate;

(g) provide information and advice.

11. In addition, the Agency is required by the provisions of section 6 of the Act to co-operate with other bodies which exercise functions relating to health or any other matter in relation to which the Agency also exercises functions. They, in turn, are required to cooperate with the Agency. It is not disputed that the Council was a body which shared mutual obligations of co-operation with the Agency under this section.
12. A more detailed framework document sets out the protocol under which the Agency operates. The SySxHPU ("HPU") was the local unit to whom the HPA delegated or devolved the responsibility of carrying out its functions in the Surrey and Sussex area. The HPU had a Multi-Agency Outbreak Control Plan dated January 2008 which sets out in some detail the steps involved in recognising and dealing with outbreaks of infectious disease. This document illustrates the relatively complex interrelationship between the various public bodies and their officers when co-operation is required to respond to such outbreaks.
13. In contrast to the Council, the HPA has no powers of enforcement in relation to public health.

Tandridge District Council

14. The responsibility of enforcing the provisions of the Health and Safety at Work etc. Act 1974 is distributed between the Health and Safety Executive ("HSE") and local authorities. The issue as to which body has the enforcement role in any given case is determined by the nature of the undertaking of the relevant employer whose activities are under scrutiny. Regulation 3 of the Health and Safety (Enforcing Authority) Regulations 1998 (SI 1998 No. 494) provides for local authorities to be the appropriate enforcing authorities in respect of the health and safety of those categories of undertaking specified in Schedule 1 thereto. Paragraph 11 of the Schedule covers petting farms. In consequence, the Council in this case was equipped with statutory powers identical to those available to the HSE when that body is acting within the scope of its allocated jurisdiction. Thus, the Council's environmental health officers in this case operated as health and safety inspectors pursuant to section 19 of the 1974 Act.
15. The powers afforded to inspectors under section 20 of the 1974 Act are both comprehensive and extensive. They include powers of entry, inspection and examination and the right to require any person to answer relevant questions. In addition, inspectors have the power to issue enforcement notices under sections 21 and 22 of the Act requiring the improvement or prohibition of activities which, if not complied with, may lead to criminal prosecution and, upon conviction, the risk of imprisonment.

The defendant's allegations

16. For the purposes of this appeal, it is accepted by the third parties that it must be assumed that the defendant's factual case as pleaded would be made out in full at trial. The case as presently pleaded was amended following some level of disclosure by the third parties. The Master gave permission for the amendments to be made before striking the case out.
17. The factual narrative which follows must, therefore, be treated for the purposes of this appeal as if it were an entirely accurate factual basis upon which to determine the existence or otherwise of a duty of care.
18. The defendant contends that the Council was responsible for investigating an earlier E.coli O157 outbreak that occurred at the farm in September 2000. As a consequence of that outbreak, a number of recommendations were made for the improvement of safety at the farm with a view to preventing any recurrence. These were subsequently enforced by the Council through the exercise of its statutory powers. The Council appeared to be satisfied with the risk assessments and control measures that were put in place by the farm in response to that outbreak throughout the period 2000-2002. Further, the Council encouraged contact between the farm and the Health and Safety Executive, which led to the latter congratulating the defendant upon her "systematic approach to identifying how transmission can occur" and upon the control measures that had been put in place.
19. Thereafter, the Council, by the way in which it conducted and communicated the findings of its inspections of the farm throughout the period from 2002 up until the outbreak in August 2009, both approved of and appeared satisfied with the suitability and sufficiency of the farm's risk assessments and the control measures that were in place to address the risks therein identified.
20. On 11 September 2006, an environmental health officer from the Council, Ms. Grant, visited the farm and on the following day she confirmed by letter that "there is plenty of hand washing equipment around the site", approving both the extent and location of such facilities in terms of protecting the safety of the visiting public. Her only recommendation was to install several "child friendly" signs in order to encourage children to wash their hands.
21. On 23 April 2008, another environmental health officer from the Council, one E. Davies, visited the farm following an isolated complaint of a case of E.coli at the farm. Afterwards, she filed a "Complaint Report" dated 24 April 2008 which stated: "Visited Godstone Farm. No sick or new animals recently. 18 hand washing units available on site and signage in main wash area and throughout premises. Photographs taken. No problems with water supply etc recently and all units supplied with warm water and bactericidal soap. Advice sent out to schools prior to visit and verbal advice given to visitors on site. No obvious issues."
22. On 19 November 2008, E. Davies conducted "a survey of the premises, practices and procedure" at the farm which included an examination of the defendant's "Risk Diary" and risk assessments. The only recommendation made as a consequence of that visit was that the farm should undertake a risk assessment for young persons. There were further visits by environmental health officers in April and July 2009 in response to (unrelated) accidents at the farm during the course of which they examined the farm's risk assessments and the accompanying control measures in place to ensure the safety of employees and the visiting public.
23. On Thursday 20 August 2009, both the third parties were informed of a case of E.coli O157 involving a person who had visited the farm on 8 August 2009. The date of onset was 13 August 2009. This information was not passed on at that time to the defendant or anyone else at the farm.
24. On Wednesday 26 August 2009, both the third parties were informed of a case of E.coli O157 involving a another person who had visited the farm. The visit had taken place on 15 August 2009 with symptoms manifesting themselves on the following day. By this stage, there was a potential "outbreak" within the recognised understanding of that term both generally in the health protection industry and specifically as defined in the Agency's "Outbreak Control Plan" for Surrey and Sussex. The third parties ought then to have treated the matter as a potential outbreak and made arrangements to instigate an Outbreak Control Team. They would or should, contends the defendant, have known that:

i) The infection was an uncommon type of infection;

ii) It was plainly very serious;

iii) There was apparently only a single source;

iv) There appeared to be continued exposure to that source (with the dates of the respective visits being a week apart);

v) The strain of infection was one that was associated with petting farms such as Godstone Farm.

25. The defendant alleges that by this time it should have been apparent to both the Agency and the Council that it was necessary (within the terms of the Outbreak Control Plan) to liaise with each other in order to convene an Outbreak Control Team so that they could take "proactive management" of the situation.
26. On Thursday 27 August 2009, the Agency was informed of a further case of E-coli from a visitor to the farm on 21 August 2009. This provided additional confirmation of the existence of an outbreak and, again, ought to have resulted in the Agency instigating an Outbreak Control Team.
27. The details of this case were not communicated by the Agency to the Council until the following day, Friday 28 August 2009. Neither of the third parties visited the farm before or during the Bank Holiday weekend over which it is alleged that the claimants and many others visited the farm. The only contact the farm had with either third party during this period was by telephone. The Council telephoned the farm on 28 August 2009 to say that there were three "unconfirmed" cases of E.coli O157 associated with the farm. The impression given was that this was a tentative and unconfirmed association and it was not suggested that there was ongoing exposure.
28. Neither third party at any stage during this period suggested that the farm should be closed to the public or that the defendant should curtail the extent to which she permitted contact between the visitors and her animals. The only advice provided from the Council was to the effect that extra signage should be introduced to warn of the importance of hand washing after coming into contact with the animals and before eating and that arrangements should be made for a visit by the Council after the Bank Holiday weekend.
29. According to the "Review of the Major Outbreak of E.Coli 0157 in Surrey, 2009" ("the Griffin Report"), which was the result of an independent investigation carried out on behalf of the Agency in the aftermath of the outbreak, the failure by both third parties to recognise the potential outbreak at this stage was attributable, in part, to:

i) A breakdown in communication within the Agency's Surrey and Sussex Unit;

ii) The failure of the Agency's computerised case management and decision support system (HPZone);

iii) Uncertainty and confusion within the Agency's Surrey and Sussex Unit about the size of the outbreak.

30. In the event, neither third party visited the farm before Thursday 3 September 2009. A Control Outbreak Team was first convened on 7 September 2009. At that meeting, the Control Outbreak Team reached the conclusion that there was no ongoing risk and that no further measures were required to be taken by the farm. The advice given to the defendant was that the farm did not have to close.

The defendant's case on the duty of care

31. To the extent that the defendant brings this claim under the provisions of the Civil Liability (Contribution) Act 1978, it is important to bear in mind that the relevant duty of care which falls to be established is one owed by the third parties to the claimants and not to the defendant.
32. The defendant pleads, in summary, that there was, as at 26^th August 2009, a foreseeable risk of injury combined with a proximate relationship between both of the third parties and those who were subsequently to visit the infected farm. It is alleged that it would be just and equitable to impose a common law duty on both of the third parties, notwithstanding the public nature of the functions they perform, in circumstances where both the farm and the public visiting the farm were reliant upon the knowledge, skill and expertise of both of them to identify any potential risk of infection and take the necessary measures to prevent any further spread of such an infection.
33. This pleading is plainly worded so as to engage with the familiar "three-fold test" for the existence of a duty of care introduced by the House of Lords in Caparo Industries Plc v Dickman [1990] 2 AC 619 requiring foreseeability, proximity and an assessment of what is fair just and reasonable. The requirement of foreseeability is agreed by the third parties, for the purposes of this appeal, to have been satisfied in this case.
34. Under paragraph 19 of the Amended Additional Claim, the defendant contends that the Agency assumed a duty of care by reason of several factors including, by way of summary:

i) the information it had acquired in the performance of its statutory function that indicated that the farm was a continuing source of E.Coli O157 related infections;

ii) its own definition of its "role and responsibilities" upon acquiring such information, contained within the Outbreak Control Plan, namely:

a) the effective surveillance and reporting of infections to achieve early recognition of a potential outbreak;

b) the responsibility to "assume the lead" in the event of any such outbreak which, from the information they had acquired, should have happened by 26 August 2009;

c) the provision of advice and assistance to those involved in the infection as to the necessary measures to take to prevent its further spread;

d) the provision of epidemiological input.

iii) the control that it had in fact assumed over the conduct of the investigation, including the taking of decisions as to when to pass on such information as it had acquired to the defendant and the public and also as to what further measures should be taken and when.

35. Under paragraph 20 of the Amended Additional Claim, the defendant contends that the Council assumed a duty of care by reason of, in summary:

i) the inspections it conducted, as a direct consequence of the previous outbreak in 2000, to establish and satisfy itself as to:

a) the suitability and sufficiency of the risk assessments at the farm in relation to the risk of an outbreak of E.coli O157;

b) the existence of suitable and sufficient control measures to guard against any such outbreak and reduce the risk of the same to the lowest level reasonably practicable;

ii) the various expressions of approval and advice and confirmation provided in correspondence that the measures that the farm had in place were sufficient, so far as was reasonably practicable, to avert the risk of an outbreak of E.coli O157 infection amongst visitors to the farm or its own employees;

iii) the information it acquired, by reason of its statutory function, that indicated that the farm was a continuing source of E.coli O157 related infections;

iv) the control that was assumed, in conjunction with the Agency, in determining the amount of information that was to be passed on to the farm and the public and the time at which such communications were to be made;

v) the advice given to the farm, during the telephone call on 28 August 2009, as to the nature of the infection that had been identified, its extent in terms of the number of suspected cases, the reliability of such data to demonstrate a continuing source of infection and the measures that should be taken to prevent any further spread of the infection;

vi) the fact that the Council knew or ought to have known that the defendant would rely and act upon any advice which it gave.

36. Paragraph 21 of the Amended Additional Claim alleges that:

"Both the third parties were uniquely placed, by reason of their statutory powers and the regulatory framework for health protection in England and Wales, to be able to link reported cases of infection, to identify the source of that infection and its nature and to determine whether the extent of the infection was such as to indicate an outbreak that required specific measures of containment. The defendant was entirely reliant upon them to discover such information and entirely reliant upon their expertise in infection control as to what measures were required to avert any further spread of the infection. The defendant did in fact rely on them in this regard, knowing they were both working together at this time."

Statutory duties and powers

37. In this case, the defendant does not point to any statutory duty imposed on either of the third parties breach of which is alleged to have give risen to a free standing right to claim damages. Furthermore, she concedes that nothing that either of the third parties did (as opposed to omitted to do) caused or contributed to the injuries, loss and damage sustained by the claimants. Notwithstanding these features she invites the court to conclude that a common law duty of care arose in the circumstances of this case. To assist me in resolving the issues raised on this appeal, I have been referred to more than thirty authorities. I have also familiarised myself with the views of academic commentators comprising: D. Howarth, "Public Authority Non-Liability: Spinning Out of Control?" [2004] C.L.J. 546, J. Morgan, "Slowing the Expansion of Public Authorities' Liability" (2005) 121 L.Q.R. 43 and D. Nolan, "The Liability of Public Authorities for Failing to Confer Benefits" [2011] 127 L.Q.R. 260.
38. The first issue to be determined, therefore, is as to whether, subject to the application of ordinary private law principles (to which I will return later in this judgment), it is arguable that the statutory duties and powers with which the third parties have been equipped could arguably be sufficient, without more, to give rise to a duty of care.
39. The starting point of this analysis must be the decision of the House of Lords in East Suffolk Rivers Catchment Board v Kent and Another [1941] AC 74. In that case, a very high tide caused a breach in a sea wall as a result of which the respondents' land was flooded. The appellants, in the exercise of their statutory powers, undertook the repair of the wall but carried out the work so inefficiently that the flooding continued for several months. As a result, the respondents' pasture land was severely damaged. By the exercise of reasonable skill the breach in the wall might have been repaired in a fortnight.
40. The view of the majority was encapsulated in the general rule identified by Lord Romer:

"Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing."

41. However, nearly forty years later, serious inroads were made into the rule in East Suffolk by the House of Lords in Anns v Merton LBC [1978] AC 728. In that case, the local council approved building plans for a block of flats. Some years later, structural movements led to walls cracking and other damage. The lessees of the flats commenced proceedings against the council, alleging that its inspectors ought to have noticed that the foundations were not compliant with the specifications on the plans. It was held that under the Public Health Act 1936 the council had a power, as opposed to a duty, to inspect building work to ensure compliance with the by-laws but that, nevertheless, failure to carry out inspections could render the council liable in negligence if it were proved both that it had failed properly to exercise its discretion not to make inspection and that it had failed to exercise reasonable care to ensure compliance with the by-laws.
42. The reign of Anns was, however, destined to be a short one. One by one in subsequent cases the principles it had appeared to establish were incrementally distinguished out of existence. One such case was Stovin v Wise [1996] AC 923. The plaintiff motorcyclist in that case was seriously injured when he collided with the defendant motorist who had emerged into his path from a junction. The junction was known by the county council, as the highway authority, to be potentially dangerous because the road users' view was restricted by a bank on adjoining land. Accidents had occurred there on at least three previous occasions. Nearly a year before the accident, after a site meeting, a divisional surveyor of the council accepted that a visibility problem existed and recommended removal of part of the bank. The council accepted the recommendation providing the owner of the land agreed. There was a further site meeting attended by representatives of the owner but the plaintiff's accident occurred before any further action had been taken. The plaintiff's claim against the defendant for damages for his personal injuries was settled but the defendant joined the council as third party, alleging negligence and breach of statutory duty.
43. Lord Hoffmann held at p 953 B-E:

"If… a [statutory] duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory 'may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolk case and I shall go on to consider the circumstances (such as 'general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare.

In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised."

44. On any reading, this was a bid, at the very least, substantially to narrow down the circumstances in which a failure to exercise a statutory power could generate a common law claim. Nevertheless, even the tightly drawn minimum preconditions speculated upon in the final paragraph of this part of Lord Hoffmann's speech (the "two stage test") was to leave the door open to the Court of Appeal subsequently to find circumstances in which the statutory "may" could still lay the foundations of a common law cause of action.
45. An example in point is provided by the case of Larner v Solihull MBC [2001] R.T.R. 32 in which the claimant suffered injury in a road traffic accident which she blamed on the highway authority's alleged failure adequately to warn motorists of a junction ahead. She alleged that section 39 of the Highways Act 1988 which imposes general duties upon highway authorities in respect of road safety could, in some circumstances, form the basis of a common law duty of care. The claimant lost her case but Lord Woolf held at paragraph 15:

"However, so far as section 39 of the 1988 Act is concerned, we would accept that there can be circumstances of an exceptional nature where a common law liability can arise. For that to happen, it would have to be shown that the default of the authority falls outside the ambit of discretion given to the authority by the section. This would happen if an authority acted wholly unreasonably."

46. The judgment in Larner was handed down just a matter of days before the trial of the claim of another motorist was to start before Roger Thorn QC sitting as a deputy high court judge in Leeds. The claimant in that case, Mrs Denise Gorringe, had lost control of her car on a country road as a result of which it collided with a bus coming in the opposite direction. She claimed damages against the highway authority alleging that it was in breach of a common law duty adequately to deploy signs and road markings to warn of the sharp change in the natural contours of the road which she blamed for her loss of control.
47. The decision in Larner equipped the trial judge to find that the defendant was liable to the claimant, without deduction for contributory negligence, in respect of the breach of a duty of care parasitic upon section 39. The Court of Appeal, by a majority, allowed the defendant's appeal on the facts of the case but felt obliged to accept the correctness of Larner. The claimant appealed to the House of Lords and, once again, the law on the interrelationship between statutory powers and duties and common law remedies was open to analysis and review.
48. In Gorringe v Calderdale MBC [2004] 1 WLR 1057 Lord Hoffmann took the opportunity to catch and kill the hare which had been set running by his own reference in Stovin to a possible "two stage test". He conceded at para. 28 that "…it may have been ill-advised to speculate on such matters." He went on to observe at para. 32:

"I find it difficult to imagine a case in which a common law duty can be founded simply on the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide."

49. Lord Scott held at para. 71:

"In my opinion, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. I would respectfully accept Lord Browne-Wilkinson's comment in X (Minors) v Bedfordshire County Council, at p. 739, that "the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done". But that comment cannot be applied to a case where the defendant has done nothing at all to create the duty of care and all that is relied on to create it is the existence of the statutory duty. In short, I do not accept that a common law duty of care can grow parasitically out of a statutory duty not intended to be owed to individuals."

50. Lord Rodger held at para. 90:

"As Lord Hoffmann pointed out on behalf of the majority in Stovin v Wise [1996] AC 923, 952g–h, and as he has pointed out again in his speech today, if such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed."

51. Although, their Lordships expressed their conclusions in different ways and with different shades of emphasis it should now be taken as settled law that no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty or to exercise a statutory power however irrational such failure may turn out to have been.
52. As Lord Hoffmann went on to conclude in his Bar Council Law Reform Lecture: "Reforming the Law of Public Authority Negligence", 17 November 2009:

"The decision of the House of Lords [in Gorringe] slammed shut the door which had been left slightly ajar in Stovin v Wise and said clearly that you cannot get a common law duty of care out of a statutory power or public law duty. Such powers or duties are simply irrelevant to whether a common law duty of care is owed. Such a duty is created, if at all, by what the public body has actually done: whether it assumed responsibilities or done acts which, if they had been done by a private body, would have given rise to a duty of care.

In my view, the law on this point is now simple and clear…"

This summary, although lacking the force of precedent, articulates, in my view, an inescapable consequence of the decision in Gorringe.

53. The justification behind tracing the history of the approach of the courts to the relationship between public failures and private claims in negligence over the last seventy years or more is to demonstrate that care needs to be taken chronologically to place any given authority firmly in the judicial context in which it was decided. That exercise is a particularly important one with respect to Health and Safety Executive v Thames Trains [2003] EWCA Civ 720 upon which the defendant understandably places considerable reliance,
54. That case arose from the Ladbroke Grove disaster in which thirty-one people were killed and hundreds were injured when two trains collided. Thames Trains set about the task of settling the compensation claims but sought a contribution or indemnity from the HSE. The HSE applied to strike out the claim under CPR Rule 3.4(2). The Court of Appeal upheld the decision of Morland J. who accepted that there was no arguable case to support the contention that the HSE owed a statutory duty breach of which gave rise to a right of action without more. However, he and the Court of Appeal also held that there could be circumstances in which a parasitic common law duty might arise and that the facts were not sufficiently clear from the pleaded case to justify striking out this part of the claim.
55. However, caution must be exercised in determining the weight to be attached to this authority. Of particular importance is the fact that it was decided before Gorringe. Accordingly, the state of the law was then taken to be defined by Lord Hoffmann's speculation in Stovin as to the possible existence of a common law duty founded upon the "two stage" test which Gorringe was subsequently to lay to rest. In the Thames Trains case, both Waller L.J. (para. 29) and May L.J. (paras. 44 and 47) were prepared to entertain the possibility that the evidence at trial might sustain the contention that there had been an actionable irrational failure to act on the part of the HSE. Following Gorringe such an approach would no longer be permissible. In addition, the Court of Appeal assumed that the decision in Larner was good law to the extent that cases may arise in which irrationality in the purported exercise of a statutory duty might be sufficient, without more, to sustain a common law claim. This approach, too, cannot survive Gorringe in which the approach in Larner was expressly disapproved. It is to be noted that their Lordships in Gorringe were not referred to the decision in Thames Trains. Indeed, so far as I have been able to determine, Thames Trains, which is unreported, has never been referred to in any subsequent case until now.
56. It may be possible to distinguish the actual decision in Thames Trains on the grounds that it was a case in which the HSE had arguably performed positive acts which had caused or contributed to the disaster. As Waller L.J. observed at para 24:

"I am not clear at present that the case against the HSE is confined to "omissions" alone. The pleading includes allegations of conduct whereby it is alleged that the HSE assumed responsibility by their actual involvement in the design or positioning of SN109, or the safety of the track outside Paddington generally; the allegation is also that the HSE permitted an unsafe signalling system, not simply that they did nothing."

57. A further point of distinction may be that the possible liability of the HSE arose from the application of ordinary private law principles and, in particular, the concept of reliance or assumption of responsibility but this is a separate consideration to be dealt with later in this judgment. Suffice it to say that Thames Trains should not be taken as any authority for the proposition that the HSE or any enforcement body exercising equivalent functions owe, without more, a common law duty of care parasitic upon their public powers and duties.
58. Of course, that is not necessarily an end of this appeal because situations arise in which the application of ordinary private law principles apply to attach liability. As Lord Hoffmann stated in Gorringe (para. 38) :

"My Lords, I must make it clear that this appeal is concerned only with an attempt to impose on a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negate the existence of a duty."

59. It is now, therefore, necessary to examine whether it is open to the defendant to contend, in the circumstances of this case, that the application of ordinary private law principles may equip her to argue that a duty of care was owed by the third parties to the claimants.

Private law principles

60. There are two broad circumstances of case in which a public body remains vulnerable to an action in negligence notwithstanding the state of the law now governed by Gorringe. The first arises where the careless acts of the defendant have left the claimant in a worse position than if it had done nothing at all. Such a situation may have arisen in this case if, for example, employees of the third parties had visited the farm and, through negligent procedures, had actually made the infection worse. However, as Mr Waite QC readily and realistically conceded, the defendant is not able to assert on the facts of this appeal that either of the third parties made the situation worse than it would have been if they had done nothing whatsoever. Paragraph 18(e) of the defendant's skeleton argument asserts that some of the allegations raised against the third parties ought properly to be categorised as acts rather than omissions but these acts cannot be conceptually differentiated from the ineffectual acts of the defendant council in East Suffolk to the extent that in neither case did they make matters worse.
61. The second category of case in which ordinary private law principles could apply in a relevant way is that in which there has been an assumption or attachment of responsibility. In the context of the Caparo approach this is, at least in part, an aspect of the test of "proximity". In this case, the defendant contends that the facts summarised above in paragraphs 18 to 30 inclusive are such as arguably to bring her claim within this category.
62. One important factor to be considered in this context is whether the defendant is at the material time acting primarily for the individual claimant (or claimants) or for the common good. When the East Suffolk case came before the Court of Appeal, McKinnon L.J. concluded, without apparent difficulty, that by going on the land and doing the work the council had assumed a responsibility which generated a duty of care to the landowner. He held (p. 335):

"When therefore the appellants elected to exercise their powers, and do work on the respondents' land, I think they assumed the duty of doing that work with as much expedition as was consistent with the exercise of reasonable skill, care, and diligence."

63. Du Parcq L.J. (in a dissenting judgment later vindicated by the House of Lords' reversal of the majority in the Court of Appeal) rejected this conclusion and remarked (p. 340):

"The defendants were acting not for the plaintiffs, but, it must be assumed, for the common good."

64. This distinction ("the central distinction") between relationships between public bodies and individuals on the one hand and public bodies and members of the public at large on the other is a valid and conceptually satisfactory one.
65. Firstly, it concentrates the process of analysis upon the private law consequences of the conduct of the public body and reduces the risk of contaminating the common law of negligence with public law concepts as exemplified, in particular, by the short lived irrationality component of the now superseded two stage Stovin test.
66. Secondly, maintaining the central distinction means that the scope for public bodies to be exposed to claims from unlimited numbers of members of the public is curtailed.
67. Indeed, the importance of the central distinction is evident from many of the decided cases. In Gorringe, Lord Hoffmann considered examples of cases in which the imposition of a duty of care was attributable to an assumption of responsibility thereby generating a private law obligation. In each case, there was a close relationship between the statutory body and the claimant as an individual sufficient to give rise to duties of care. He explained at paras. 39 and 40:

"39. In Barrett v Enfield London Borough Council [2001] 2 AC 550 the plaintiff claimed that when he was taken into care, the council assumed parental responsibilities over him and so came under a duty of care in respect of the way he was treated. It was alleged that various acts and omissions had been in breach of this duty. The council tried to get the claim struck out as disclosing no cause of action because it had been exercising wide statutory discretions. The House refused to strike out the action. The plaintiff did not rely upon a common law duty of care generated by the existence of statutory powers. It is true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so. It was that which the plaintiff alleged gave rise to the duty. The statutory powers and duties might have provided the council with defences in respect of its specific acts or omissions but that could not be decided without an investigation of the facts.

40 Similarly in Phelps v Hillingdon Borough Council [2001] 2 AC 619 the local education authority employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties. The psychologist negligently failed to diagnose dyslexia and, as a result, the plaintiff left school with fewer skills than she would have learned if she had been diagnosed earlier. The council relied upon the fact that it had provided the psychologist pursuant to its public law duties which were not actionable in private law. But the House held that the duty of care did not depend upon the statute. It arose because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Heath Service. The fact that the doctor-patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence. The House decided that no such defence had been established."

68. Lord Hoffmann drew a contrast these examples with a case in which the duty was properly analysed to be one of a public nature falling outside the scope of a private common law obligation at para. 24:

"For example, in O'Rourke v Camden London Borough Council [1998] AC 188 a homeless person sued for damages on the ground that the council had failed in its statutory duty to provide him with accommodation. The action was struck out on the ground that the statute did not create a private law right of action. In a speech with which all other members of the House concurred, I said at p. 193:

"The Housing Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done.""

69. There are, however, some circumstances in which it is somewhat harder to conclude with confidence whether the duty owed ought to be categorised as being personal or for the public good. The emergency services cases provide examples.
70. In Capital & Counties plc v Hampshire County Council [1997] QB 1004 the Court of Appeal rejected the contention that a fire authority owed a duty of care to owners of burning buildings (save to the extent that its fire-fighters had actually made the damage worse than if they had not turned up at all). This decision was cited with approval in Gorringe. Lord Hoffmann at para. 32 made specific reference to the fact that fire authorities: "have a general public law duty to make provision for efficient fire-fighting services: see section 1 of the Fire Services Act 1947."
71. On the other side of the line fell Kent v Griffiths [2001] QB 36 in which the Court of Appeal held that an ambulance service which had accepted an emergency call thereafter had assumed personal responsibility giving rise to a common law duty of care owed to the patient. Lord Woolf held at para 45:

"Here what was being provided was a health service. In the case of health services under the 1977 Act the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors or nurses? In addition the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services' primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the health service. Its care function includes transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But, in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called."

72. The House of Lords in Gorringe expressed no view on the correctness of the decision in Kent for the simple reason that it was not cited in argument.
73. I now turn to the decision of the Court of Appeal in Selwood v Durham CC [2012] P.I.Q.R. P20. In that case, the claimant was employed by the first defendant as a social worker. The second and third defendants were two NHS trusts with whom she collaborated in the course of her work. The claimant suffered serious injuries when she was attacked by the father of a client to whom she was the designated social worker. She brought claims against all the defendants alleging that they should have done more to control the perpetrator or, at least, warn the claimant of the risk which he posed to her. The two NHS trusts sought to strike out the claims against them on the ground that they did not owe her a duty of care.
74. The Court of Appeal overruled the decision of the judge at first instance and refused to strike out the claims. Dame Janet Smith held at para. 52:

"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 Corp, 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."

75. And at para 54:

"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."

76. This approach is, therefore, entirely consistent with the approach of the House of Lords in Gorringe but because, perhaps surprisingly, there appeared to be no reference to Gorringe either in argument before or in the judgment of the Court of Appeal, the exercise was performed with Caparo as the starting point. Selwood should therefore, in my view, be treated as being a case the circumstances of which fall within the private law remedy exception to Gorringe. If a public body fails to provide a benefit which it is under a duty or has a power to provide then no action in negligence will lie against it unless brought within the context of a genuinely private law claim arising out of an assumption or attachment of liability. To reintroduce the test of what is "fair, just and reasonable" as a means by which to resurrect a duty of care not permitted by a pure application of Gorringe would be to reopen the door which the House of Lords had been at such pains to slam shut. To put it another way, it will only be fair, just and reasonable to impose a duty of care on a public body in respect of an omission to exercise a public duty or power where there has been an assumption of responsibility and not otherwise.
77. The position was stated with clarity by Sir Anthony Clarke MR in X v Hounslow [2009] EWCA Civ 286 at para. 60:

"In these circumstances, as we see it, the question is whether this case falls within Lord Hoffmann's category of case in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care… Only in such a case would it be fair, just and reasonable to hold that a local authority such as the Council on facts such as these owe a duty of care to the respondents. This is not a case of control like Dorset Yacht. Nor is it a case where the defendant has created or increased the danger to the respondents. Moreover it is not a case of assumption of responsibility unless it can properly be held that there was a voluntary assumption of responsibility: see Rowley v Secretary of State for Work and Pensions [2007] EWCA Civ 598, [2007 1 WLR 2861, especially per Dyson LJ at [51] to [54]. This is because, as the cases cited above show, a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann's example of the doctor patient relationship."

78. In another case, to which I was referred at some length, Perrett v Collins [1998] 2 Lloyd's Rep 255, a home made aircraft crashed. The injured passenger sued the builder and the flying association and its inspector as first to third defendants respectively. The second and third defendants had certified the craft as fit to fly. They denied owing a duty of care to the plaintiff. The Court of Appeal disagreed. I did not find this authority to be of great help. The flying association was not a public body and the relationship between the second and third defendants and the plaintiff was sufficiently close to lead to an attachment of responsibility in very different circumstances to those in the instant case.
79. In Neil Martin v Revenue and Customs Commissioners [2007] EWCA Civ 1041 the claimant applied to the Revenue for a CIS certificate which the revenue were under a duty to provide pursuant to the provision of section 561(2) of the Income and Corporation Taxes Act 1988. As a result of careless administrative errors, the certificate was not provided within a reasonable time. The Court of Appeal rejected the suggestion that the defendant, without more, owed a private law duty arising from the mandatory public law duty imposed upon it. In one respect, however, the Court of Appeal found that the defendant had acted so as to assume a responsibility to the claimant which was sufficient to generate a common law duty of care. An employee of the defendant had elected to complete a declaration form on behalf of the claimant which he had been given no authority from the claimant to do. The basis upon which the Court of Appeal distinguished this act from all others amounted, therefore, to a purely orthodox application of Gorringe.
80. Chadwick L.J. held at para. 62:

"In those circumstances it seems to me impossible to avoid the conclusion that the duty which section 561(2) does impose—a duty to issue a tax certificate to an applicant in respect of whom the relevant conditions are satisfied—does not, of itself, give rise to a common law duty owed to the applicant to process the application with reasonable expedition. Powerful support for that conclusion is found in the passages in the Stovin [1996] AC 923 and Gorringe [2004] 1 WLR 1057 cases on which the judge relied."

81. In justifying the exception created by the unsolicited application for registration, he went on to hold:

"Nevertheless, I take the view that the judge would have been wrong to hold that no common law duty of care was owed to the claimant company by the unidentified employee in the Furness office who chose to complete the declaration in support of an application for a registration card on the July CIS 3 form without the authority of Mr Martin or the claimant company. That, as it seems to me, goes beyond an administrative mistake made in the ordinary course of processing the application under section 561(2) . In completing the declaration in support of an application for a registration card the employee took it upon himself (or herself) to make an application on behalf of the claimant company: an application which the claimant company had chosen not to make, and which it had not made. The employee was not processing an application which had been made: he was assuming an authority to make an application which had not been made. I can see no reason why, in assuming that authority, the employee should not be taken to have assumed a responsibility to the applicant. In those circumstances it does seem to me fair just and reasonable that the common law should recognise that a duty of care exists."

82. It should be emphasised that it is evident from this passage that a common law duty was created not because the action of the employee who made the application could be categorised as irrational from a public law perspective but because it was sufficient to generate an assumption of responsibility.

The present case

83. I am in no doubt from the principles set out in Gorringe that it would be wrong to hold that the third parties in this case could be held to owe a blanket duty of care to those foreseeably likely to suffer injury, loss or damage as a result of their omissions even in the event that such omissions could be shown to have been irrational. The question arises, however, whether the third parties assumed a private law duty of care in the particular circumstances of this case.
84. I find that they did not.
85. As is so often the case when performing the task of determining the existence of a duty of care, the process of analysis involves an inevitable overlap of considerations and so the following reasons are not intended to be presented as if they were mutually exclusive.
86. Firstly, applying the central distinction, the third parties were, at the material time, acting primarily for the public good and not in the private interests of visitors to the farm. Mere knowledge on the part of the third parties of an outbreak or potential outbreak from the farm falls far short of giving rise to an assumption of responsibility whatever the defendant may or may not have known. The defendant, in contrast, owed an incontrovertible private law duty to her visitors to take reasonable steps to keep them reasonably safe and the attachment of collateral responsibility in common law negligence to the third parties would be neither necessary nor appropriate.
87. Secondly, those likely to be affected by the alleged failures of the third parties were not limited to an identified person (as in Kent) or to a limited class of persons such as employees or quasi-employees (as in Selwood). The potential victims of the disease were not even limited to the actual visitors to the farm but also to an indeterminate class of people to whom the infection could be spread thereafter by contact with faecal matter carried away by visitors after they had left the farm.
88. Thirdly, there was no proximate engagement with those likely to be affected by conditions at the farm. There was no contact between the third parties and the visitors to the farm at any level or at any time in the days prior to the events giving rise to the contraction of the disease. These cases are fact sensitive but examples of much closer degrees of proximity than in the instant case have consistently fallen short of founding a basis of liability (see Smith v Chief Constable of Sussex Police [2009] 1 AC 225 and OLL Ltd v Secretary of State for Transport [1997] 3 All ER 897).
89. Fourthly, caution ought to be exercised before finding too readily that a private duty has arisen as a result of an assumption of responsibility in cases where the public body concerned must strike a balance between competing legitimate interests. Otherwise, enforcement authorities and their advisors would be provided with an incentive to err on the side of caution. The decision as to what, if any, enforcement action to take, and when, should be uncluttered by considerations of exposure to civil suit. Bad decisions can, where appropriate, be met with internal disciplinary consequences and/or public law challenges.

Striking out

90. The defendant relies upon the observations of Lord Browne-Wilkinson in X v. Bedfordshire County Council [1995] 2 AC 633 and Barrett v Enfield London Borough Council [2001] 2 AC 550 sounding notes of caution against striking out claims where the proper analysis may depend upon what facts may be found at trial. These warnings are to be found in many of the cases dealing with the court's jurisdiction to strike out pleadings.
91. The third parties respond with reference to the observations of Lord Brown in Smith v Chief Constable of Sussex Police [2009] 1 AC 225 at para. 140:

"In common, I think, with all your Lordships, I regard this issue as plainly one which the House should decide one way or the other on the pleaded facts. Either a duty of care arises on these facts or it does not. No useful purpose would be served by allowing the action to go to trial for facts to be found and then for further consideration to be given to the applicable law."

92. In my view, the position was correctly stated by Lord Bingham MR in X v. Bedfordshire at p 695:

"If it is clear, whether by statute or from previous authority, that the relationship between the parties is not or cannot be such as to give rise to a duty of care, then the court can safely strike out the statement of claim. If, however, that is not clear, or the answer may depend on the exact relationship of the parties and what passed between them and what each knew, did or said at any time, or the court is unable safely to decide whether (on the facts pleaded) it is just and reasonable to impose a duty of care, then the case is not one in which a striking out order can be appropriate."

93. In this case, there has been a substantial amount of disclosure provided by the third parties. The defendant pointed to certain categories of document which have not yet been disclosed relating, primarily, to the internal protocols of and formal relationship between the third parties. It was further argued that cross-examination at trial might reveal, for example, that some discussions had taken place between the third parties the occurrence and contents of which had not been documented.
94. Ultimately, however, I remain unpersuaded that any such further evidence could salvage the defendant's case on the existence of a duty of care. The defendant placed emphasis on the undisputed fact that this case provided a completely new situation in which it had been alleged that a duty of care had arisen; but novelty is no substitute for merit.
95. Accordingly, I am satisfied that the Senior Master was right to strike out this claim and this appeal is dismissed.