Brain-damaged claimant fails in Article 8 claim against Council

Bedford v. Bedfordshire County Council, 21 June 2013, Jay J - read judgment

On 29 May 2004, Bradley Bedford, then aged 13, was beaten senseless by one AH, then 15, whom he had the misfortune to encounter entirely by chance near the seaside in Torbay. AH was in a children’s home there which was contracted to the Defendant Council; AH was a “looked after” child under section 20 of the Children Act 1989. Bradley sued the Council for failing to protect him. His claim was limited to one under the Human Rights Act, and Article 8 ECHR in particular.

Jay J dismissed the claim on the grounds that (a) it was brought too late; (b) there was not a real and immediate risk of harm to Bradley of which the Council should have been aware; (c) even if there was, the local authority took reasonable steps to eliminate or substantially reduce any risk. All these rulings are of some interest.

AH had been in and out of children’s home since he was about 5. He had regularly been violent and in trouble with the law, and by the age of 13 had committed a serious sexual assault on another resident. He was a regular visitor to the Youth Court. By late 2003, he was facing a possible custodial sentence. At this point, the Torbay children’s home offered to take him on by arrangement with the Council. He had a rocky time there with assaults on staff. There was a whole sequence of offending and absconding during the first half of 2004, with a severe deterioration in his behaviour in the run up to the assault on Bradley.

The merits

The claim was brought solely as an Article 8 claim. As the judge observed at [19], Article 3 (inhuman treatment) would “certainly” have applied, and Article 2 (right to life) “might well” have applied. That is not to say that serious personal injury cases cannot be brought under Article 8. However, as the judge pointed out, one cannot seek to get the benefit of an arguably less exacting test for liability. From [20] to [34] there is an interesting discussion of the leading human rights cases in this area, including Osman, Van Colle (see post and link here) Kolyadenko (flooding case, see my post and link here). The judge drew things together at [35]

Finally…. it remains important not to subordinate the substance of the matter below the form in which a case happens to be advanced. Albeit presented as a claim in relation to Article 8 of the Convention, this in essence is a claim under Article 3 and, highly arguably, Article 2. The Claimant can be in no better position by choosing to plead a violation of Article 8 alone, particularly where he seeks substantial damages for all the consequences of what can only be described as a breach of his Article 3 rights. Although I do not go as far as did Lord Bingham in Van Colle in deciding that there can be no question of a claim under Article 8, I do hold that the Claimant cannot be permitted to circumvent what Lord Brown in that case characterised as the ‘stringent’ pre-conditions of a claim for breach of these unqualified rights. In other words, it is a threshold requirement in circumstances such as these that a real and immediate risk of serious harm (I paraphrase) to an identified individual or individuals be established. 

The case was presented in the way it was because counsel for Bradley acknowledged that if the more strenuous Articles 2 or 3 test applied, his client could not hope to meet it. AH, violent though he was, presented a “real” but not “immediate” threat, and that risk was not to Bradley (whom had never encountered him) but to the public in general. As the judge pointed out, that might be enough for the common law of negligence, but was “quite insufficient for the purposes of the Convention.

But the common law of negligence would not have assisted Bradley, had it been relied upon; even if he had established a duty of care, he would have had to demonstrate that the Defendant took decisions of a policy nature which were wholly unreasonable: the outcome would have been the same, although the route to it would have deviated slightly [12].

The judge went on to consider and reject the various criticisms made of the Defendant; it was acceptable to place AH at the home; there was a proper system for superintending the management of AH; it was acceptable to allow AH out unsupervised. In retrospect his behaviour got worse shortly before this attack, but this was not so obvious at the time.

Limitation

This arises because s.7(5) of the Human Rights Act allows only one year in which to bring claims, subject to an equitable right to allow claims after this. Again, this is to be contrasted with personal injury claims in negligence where someone has 3 years to start their claim, and those 3 years do not start to run if the claimant is under 18 (which Bradley was) or does not have capacity (and Bradley’s injuries were so severe that he did not). But his minority cannot help him under the HRA: M v. MoJ

The one year rule meant that this claim was more than 5 years out of time. His various solicitors do not seem to have got a move on; despite his mother having gone to lawyers within 2 months of the incident, the claim was not started until October 2011. The delay seems to have caused some limited prejudice to the Council’s defence.

The judge summarised his conclusions at [93]

My overall approach is to weigh up in the balance all the circumstances of this case, including in particular the culpable delay I have identified, the length of it, the (limited) degree of prejudice to the Defendant, and the issue of proportionality. Having carried out this exercise and having regard too to the issue of overall fairness which [counsel] urged me to consider, I have come to the conclusion that it would not be equitable to extend time under section 7(5)(b) of the HRA. It follows that this claim fails for that reason alone.

Comment

Two points stand out from a very interesting judgment.

First, there is a slight difference between the common-law approach to causes of action and that applicable in an HR claim. At common law, you can pick the cause of action which suits you best – is it negligence? is it nuisance? – and if you tick the boxes, you can bring the claim. The defendant cannot say – your facts better fit negligence, and therefore you cannot rely on nuisance.

Contrast HR. The judge was quite right to say that Strasbourg does things differently – it prefers to look at the substance rather the form. Strasbourg expresses it in a slightly self-important way (usually in some such formula as “the Court, which is master of the characterisation to be given in law to the facts of the case…” taken at random from para.20 of a very odd case about judicial electricity bills in the Ukraine) – but the message is the same.

The other thing to get from this case is that if you have a personal injury HR claim, you need to get a move on. You have a lot to do in a year, and the courts are not necessarily sympathetic if you start late.

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