A RIDDLE WRAPPED IN AN ENIGMA: ASSUMPTION OF RESPONSIBILITY, AGAIN

Abstract

THE most troublesome question in negligence today remains omissions liability. The central “exception” is when a defendant assumes responsibility to take positive, protective action – notwithstanding assumption of responsibility’s cursory (even dismissive) treatment in the seminal Michael v Chief Constable [2015] UKSC 2, [2015] A.C. 1732. It was a safe prediction that more disputes about its meaning and application would engage the appellate courts. And now, following closely on Tindall v Chief Constable [2022] EWCA Civ 25 (noted Morgan [2022] C.L.J. 245), comes HXA v Surrey County Council [2022] EWCA Civ 1196. HXA comprised two separate claims by children against local authorities that had failed to take the claimants into protective care when they were being abused by members of their families. The case therefore broadly resembles the leading decision in GN v Poole B.C. [2019] UKSC 25, [2020] A.C. 720. In the High Court, Stacey J. struck out the claims in HXA: [2021] EWHC 2974 (Q.B.). She reminded herself at [64] of the emphasis on precedent and coherence in Robinson v Chief Constable [2018] UKSC 4, [2018] A.C. 736. In this spirit, she held the pleaded claims in HXA to be indistinguishable from GN v Poole, where the Supreme Court clearly laid down that a local authority did not assume responsibility by investigating and monitoring a vulnerable child’s situation. The Court of Appeal, however, thought that as allegations of assumption of responsibility “always depend on the specific facts of the case” it would be “plainly wrong” to strike the case out, when the law remained at a “relatively early stage [of] development” since the Poole case: [2022] EWCA Civ 1196 (at [105]–[106]). What emerges? First, this was an omissions case. Before Stacey J., the claimants made “valiant efforts” to identify negligent acts by the defendant authorities; Cambridge Law Journal, 81(3), November 2022, pp. 449–494 © The Authors, 2022. Published by Cambridge University Press on behalf of The Faculty of Law, University of Cambridge