Negligence – duty of care – statutory tort – immunity from suit – striking out – human rights
A claim for negligence in the exercise of a statutory discretion could be justiciable and acts done pursuant to the lawful exercise of the discretion could be subject to a duty of care, even if some element of discretion was involved. While a decision to take a child into care pursuant to a statutory power was not justiciable, it did not follow that, having taken a child into care, a local authority could not be liable for what it or its employees did in relation to the child without it being shown that they had acted in excess of power.
Further, the importance of seeing whether what had been done was an act which was justiciable or whether it was an act done pursuant to the exercise or purported exercise of a statutory discretion which was not justiciable required, except in the clearest cases, an investigation of the facts, and whether it was just and reasonable to impose a liability for negligence had to be decided on the basis of what was proved. Making blanket exceptions for liability in negligence was contrary to Article 6 of the European Convention on Human Rights, which guarantees a right to a fair trial.