Sandford v London Borough of Waltham Forest [2008] EWHC 1106 QB

This case was brought by the executors of L (S) against the London Borough of Waltham Forest for failing to supply cot-sides to her bed as recommended by an occupational therapist instructed by the council to assess her needs on its behalf as part of its duty under s47(1) National Health Service and Community Care Act 1990.     The basis of S’s claim was that had cot-sides been provided L would not have fallen in the bedroom of her house and therefore not sustained a fracture to her right femur.  The cot- sides were eventually provided by the council three days after L’s fall.  S also claimed damages in respect of the contributions made by L towards the costs of her accommodation in the nursing home to which she was admitted following the fall.  The need to incur the cost of contributions it was claimed was directly attributable to the fall which in turn was directly referable to the absence of cot-sides on her bed.  The council claimed that L had not fallen out of bed but fallen whilst getting out of bed and that the absence of cot-sides was irrelevant to L’s fracture. 

The court was required to consider whether L had any cause of action against the Council for failing to provide cot-sides before her fall.  S47(1) of the 1990 Act requires a local authority to carry out an assessment of needs for a person in need of community care services and that “having regard to the results of that assessment shall then decide whether his/her needs call for the provision by them of any such services.”  S29 (1) National Assistance Act 1948 imposes a duty on a local authority to make arrangements for promoting the welfare of certain categories of disabled persons.  Thus, the council was bound to assess L’s needs for practical assistance and for the provision of additional facilities in relation to her illness and was then bound to supply what was required to meet any eligible needs.  The council argued that the imposition of a statutory duty did not by itself give rise to a private law cause of action unless the duty was imposed for the protection of a limited class of the public; regulatory or welfare legislation should not be treated as being passed for the benefit of individuals but for the benefit of society in general per Lord Browne-Wilkinson in X v Bedfordshire County Council.  S contended that the council owed L a duty of care at common law once it had carried out its assessment to supply any necessary equipment within a reasonable time and this was not the same as the statutory duty imposed by s2 Chronically Sick and Disabled Person Act 1970.  The court accepted that where a plaintiff alleges carelessness in the manner in which an act is performed by the person who owes the statutory duty the question is of whether or not there is a common law duty falls to be decided by applying the principles in Caparo Industries plc v Dickman i.e.

• Was the damage reasonably foreseeable?
• Was the relationship sufficiently proximate?
• Was it fair, just and reasonable to impose a duty of care?

Whether or not this common law duty exists will be influenced by the statutory framework within which the acts complained of were done and should be consistent with the statutory duties imposed on local authorities. 

S contended that once resources have been identified and allocated a relationship of proximity existed to a claimant and it should provide that resource as soon as was reasonably possible Kent v Griffiths applied. The court held that the undertaking by a public body of a task which it is compelled to undertake by statute cannot found a duty of care at common law as to the manner or timing of the undertaking of the task because the body undertaking the task is not voluntarily assuming responsibility to anyone who may be affected by how that task is undertaken.  In reality, the claimant’s case related to the way in which the defendant council performed its statutory duty under the 1970 Act. The court held that claimants’ case against the council should have been properly characterised as a failure to provide cot-sides within a reasonable period of time rather than a failure to supply them at all before L fell.  If the cot-sides had been supplied prior to L’s fall and it was contended that they had not been supplied within a reasonable time no-one could sensibly find that the council was in breach of duty of care.  The court held that the council did not owe L a duty of care at common law.  The council’s duty of care to the claimant arose under the 1970 Act and was not a voluntary undertaking but something that it was required to do by statute.  A duty of care at common law had never been founded on the premise that one should do something at a specific point in time as opposed to doing it at another when neither of these points was immediately.  The nature of the supposed common law duty was one more appropriate to an obligation under contract between the parties.

Claim against the council failed.

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