Council responsible for "lamentable capitulation to aggression" over headmistress

Surrey County Council was responsible for a 'lamentable capitulation to aggression' in failing to protect a headmistress from hostile accusations and behaviour by some of her primary school's Muslim governors, the Court of Appeal has held.

The ruling breaks new ground in holding that councils and other public bodies can be required to fulfil a private law duty of care by the exercise of a public law power.

Delivering the leading judgment in Connor v Surrey County Council [2010] EWCA Civ 286, Lord Justice Laws said Connor was headmistress of New Monument primary in Woking between 1998 and 2005, when she retired due to work-related stress. Most of the children at the school are Muslim.

Connor, awarded £407,700 in damages for negligence by the High Court, argued that the council was under a duty of care to protect Connor's mental health by replacing the school's governors with an interim executive board by 2005.

She argued that the council's decision to set up an inquiry to investigate racism and Islamophobia allegations made against her by one of the governors was a further breach of its duty of care.

The council argued that both decisions lay 'wholly in the field of their public law functions' and as such were not justiciable in a private personal injury action.

Lord Justice Laws ruled that the law 'will in an appropriate case require the duty-ower to fulfil his pre-existing private law duty by the exercise of a public law discretion, but only if that may be done consistently with the duty-ower's full performance of his public law obligations.

He said this conclusion 'offered no offence' to the general rule that acts or omissions by public bodies authorised by Parliament are not subject to private law damages claims.

'In the case we are considering, the right to damages is not attributed to the legislative intention but to the pre-existing duty,' he said.

'Secondly, there is no difficulty occasioned by any broader perception that in any particular case the courts should stay off the field because of the element of policy involved in the question in hand.

'It is a premiss of the issue we are considering that in the particular case the only or primary means of the pre-existing duty of care's fulfilment consists in the exercise of public law power; but that premiss implies the availability of a concrete choice of action, unmuddied by the nuance of policy, which serves the duty.'

However, Laws LJ warned: 'This is an unusual case, partly because of the council's lamentable capitulation to aggression, partly because the remedy '“ damages for negligence consisting in the use or non-use of public law power '“ must, as I have said, rarely be available.'

Lord Justice Laws dismissed Surrey County Council's appeal. Lord Justice Sedley agreed. Lord Justice Thomas agreed that the appeal should be dismissed, but not on the basis of the council's decision to set up an inquiry to investigate accusations against the headmistress.

Cloisters chambers acted for Connor. Will Dobson, an employment specialist, said: 'While the court makes clear it expects scenarios such as this one to be extremely rare, this is a ground-breaking decision, as the court explicitly recognised.

'In this case the council owed a pre-existing duty of care to Ms Connor and separately a public duty to ensure the proper functioning of the school and education of its children.

'Here the private and public law duties 'marched together', as Lord Justice Laws put it.'

A Surrey County Council spokesman said: 'We are disappointed with the judges' decision because we believe that we provided the correct support, advice and guidance for Ms Connor.

'We are considering the implications of this judgment carefully and will look at all options, including whether there are grounds to appeal to the Supreme Court.'