Tort A - Liability of Public Authorities

HideShow resource information

Policy concerns?

There are many policy reasons as to why public authorities should not be held liable for their actions. 

Paying compensation diverts resources from providing services. 

It may lead to defensive practices to avoid being liable, being overly cautious at public expense

There are often statutory alternatives to obtaining a remedy, or judicial review

It undermines the framework of public protections

The courts should not submit to a ligitious society

Many public bodies are acting under statutory powers. Does the statute IMPOSE a duty to act or merely GIVES a power to act? The general position is that public bodies are NOT LIABLE IN NEGLIGENCE. The courts will consider the implications of precedent before imposing liability, and have taken different approaches to different professions and groups. 

Just because an authority CAN do something doesn't mean there are damages available if they do not.Did Parliament intend litigation to be available for a failure of statutory function?

1 of 45

Actions against local authorities

Actions against local authorities are common, even if contribution to the damage is miniscule, because they have money available to pay compensation. 

HOWEVER, IT IS VERY DIFFICULT TO SUCCEED IN AN ACTION AGAINST A LOCAL AUTHORITY. 

In deciding the question of liability, the court will examine the wording of the statute under which the local authority has acted and determine whether the function in question has been given for the benefit of individuals or only to serve govenmental purpose. 

2 of 45

STOVIN V WISE [1996]

The defendant drove out of a side road and collided with the claimant motorcyclist injuring him. The defendant said she could not see the claimant due to a bank of earth at the junction. The local authority knew that the junction was dangerous and had the power to remove the earth but had not done so. The question was whether the authority could be liable in negligence for this omission to exercise its statutory power. The House of Lords said two conditions must be met. 

Firstly, it must have been IRRATIONAL for the authority not to exercise its power. 

Secondly, there had to be exceptional grounds for compensation to be paid. 

Takin no action was not irrational, as there had been NO DUTY TO ACT. It was only a matter of discretion. 

So, there was no liability for the failure to act. They had a POWER to improve the junction but not a DUTY to do so. 

3 of 45

GORRINGE V CALDERDALE MBC [2004]

The claimant had been severely injured when driving her car head into a bus which was concealed from view on the other side of a steep hill. She argued that the council had caused the accident by failing to give her proper warning of the danger of driving quickly over the hill when she could not see what was coming, arguing that they should have painted 'SLOW' on the roads. Their Lordships were unsympathetic, and Mrs Gorringe lost her case. They pointed out that drivers are expected to look after themselves by driving at an appropriate speed and theree was no duty imposed to give warnings about obvious dangers. Parliament, in giving local authorities statutory obligations in sign and road markings, had not intended compensation to be payable to individuals for a breach of those obligations.

4 of 45

GOODES V EAST SUSSEX CC [2000]

The Court of Appeal denied liability when a driver was injured after the council failed to salt a road to prevent the formation of ice.

5 of 45

KANE V NEW FOREST DC

This is a case with exceptional circumstances where it was possible to find a duty of care in the exercise of statutory functions, proving that it is not impossible to make a claim. 

The claimant was seriously injured when he emerged from a footpath onto a main road and was hit by an oncoming car. The council had required the construction of the footpath for planning permission and the main road was supposed to have been widened so that drivers could see any pedestrians, but this was yet to be done. Since the footpath was a source of danger CREATED by the council's positive act, then the case was distinguishable from Stovin v Wise. The council should not have opened the footpath and had created the danger and had so assumed responsibility to protect a claimant from harm. 

6 of 45

X V HOUNSLOW LBC [2009]

There was a married couple both of whom had learning difficulties. The council knew the couple had taken to allowing youths to make use of their flat and were at risk of serious harm, and the couple were then subjected to sexual and physical assaults. A remedy in negligence was denied because the Court of Appeal held that the council in actively trying to rehouse them was exercising its statutory functions, and this was not sufficient to create a duty of care. For a duty of care to exist there had to be an assumption of responsibility for the claimant's welfare arising INDEPENDENTLY of the mere exercise of statutory functions. They did not owe a duty to rehouse them in time.

7 of 45

CONNOR V SURREY CC [2010]

A head teacher suffered psychiatric illness after she was subject to criticism and inappropriate behaviour by the school governors. She argued her illness had been caused by the local authority's failure to intervene and replace the board of governors. The Court of Appeal held that the local authority did owe the claimant a duty of care because its duty as an employer had been breached by its failure to exercise a statutory discretion to intervene. 

However it would only be liable for its failure to provide appropriate protection for its employee if it would be consistent with the statutory powers in question

8 of 45

FURNELL V FLAHERTY [2013]

You cannot generally bring a claim against the actions of regulatory bodies as they are regulated for the benefit of customers. 

In this case there was an outbreak of E-Coli caused by a petting zoo. If Health Protection had done their job properly then the farm would have been shut down before the claimants go E-Coli. However it was held that there was no duty of care, because the claims were too broad and it would not have been fair, just and reasonable to impose a duty of care.

9 of 45

FURNELL V FLAHERTY [2013]

You cannot generally bring a claim against the actions of regulatory bodies as they are regulated for the benefit of customers. 

In this case there was an outbreak of E-Coli caused by a petting zoo. If Health Protection had done their job properly then the farm would have been shut down before the claimants go E-Coli. However it was held that there was no duty of care, because the claims were too broad and it would not have been fair, just and reasonable to impose a duty of care.

10 of 45

JAIN V TRENT STRATEGIC HEALTH AUTHORITY [2009]

Following alleged mistreatment, all residents were moved from Jain's carehome. Once the claims rumoured were proved false, the business had already been destroyed. Could the authority be liable for destroying the business with its investigation? It was held there was no liability due to conflicting duties. The duty to protect the elderly patients from mistreatment had priority over protecting companies from economic home, and they also had the opportunity to appeal through an independent tribunal procedure. 

11 of 45

THE NICHOLAS H [1996]

Classification society issued a certificate indicating seaworthiness of a ship which subsequently sank. It was held the loss was not clearly foreseeable and therefore there was no duty of care owed to the owner of the cargo lost. The society was a non-profit making entity. Not fair, just and reasonable to impose a duty of care. 

12 of 45

WATTLEWORTH V GOODWOOD ROAD RACING CO LTD [2004]

A racing driver died crashing into the tyre-faced side of the track. His widow sought to recover damages who had approved the track as safe, but the court held that even though the drivers were owed a duty of care, in these circumstances they were not in breach of the duty as the design of the track had met a reasonable standard of safety. 

13 of 45

SERBY V COMPANIES HOUSE [2015]

Even though it is generally difficult to bring claims against a regulatory body successfully, in the following case it was achieved. However, this situation is abnormal and had especial circumstances. It was fair, just and reasonable to impose a duty. 

There is a list of all registered companies in the UK available to anyone which says if a company is active or in liquidation. A winding up order was made against Taylor and Son Ltd to be noted on the list, but the company entered the 'in liquidation' note next to the wrong company, Taylor and SonS. This company went into liquidation as a result as no one would do business with them and they suffered huge financial loss. It was fair, just and reasonable in this situation that a duty was owed, as the claim would not be able to be made in any other form except in tort. It would also not open the floodgates to any other claims as this was a specific circumstance. 

14 of 45

WELTON V NORTH CORNWALL [1997]

In this case a food inspector went into a B&B and shut it down unless they did 50 things, but the inspector was utterly wrong and they were actually in compliance with regulatory requirements. This meant they incurred expensive and unncessary charges. In this case the courts held that there was a duty of care as there had been an assumption of responsibility in telling people what to do. 

15 of 45

PERRETT V COLLINS [1998]

The Court of Appeal decided that an inspector's role in certifying the airworthiness of light aircraft was critical, as a result of direct negligence the plaintiff suffered personal injury. The Court saw no reason why he shouldn't owe a duty of care

16 of 45

The Police

For the police it is necessary to distinguish between two types of cases. For the first, the courts have little problem in holding that the police owe a duty of care. In the second, the courts deny liability - it is a CORE PRINCIPLE that POLICY REASONS PREVENT THE POLICE FROM OWING A DUTY OF CARE IN RESPECT OF THEIR GENERAL PUBLIC FUNCTIONS OF INVESTIGATING AND SUPPRESSING CRIME. 

Cases where the police DO owe a duty of care are examples of OPERATIONAL NEGLIGENCE where the police cause damage by NEGLIGENT PERFORMANCE OF EVERYDAY ACTIVITIES, in the same way that a normal defendant would, eg, hitting a pedestrian with a police car. 

These claims are treated the same as any other negligence claim. 

17 of 45

RIGBY V CHIEF CONSTABLE OF NORTHAMPTONSHIRE [1985]

A burglar broke into the claimant's gunshop and started firing. The police fired a CS cannister into the shop which started a fire. The police knew the risk of fire but did not have any firefighting equipment. The court found that if the equipment had been available then less damage would have been caused. The defendants were held liable in negligence. 

18 of 45

MULLANEY V CHIEF CONSTABLE OF WEST MIDLANDS [2001]

The police authority was held liable when a probationary constable suffered serious injury while attempting to arrest in circumstances where fellow officers failed to respond to his calls for assistance. 

19 of 45

SWINNEY V CHIEF CONSTABLE OF NORTHUMBRIA POLICE [1

A duty of care was owed by the police after an informant recieved death threats from a violent suspect after her contract details were stolen from an unattended police car. The police had assumed responsbiliity for the informant's safety. 

20 of 45

GIBSON V ORR [1999]

The police failed to put up a sign saying a bridge had washed away and 4 died driving into the river. They were held liable for their failed civil operational task. 

21 of 45

KNIGHTLY V JOHNS [1982]

There was a car accident in a tunnel in Birmingham. The police closed off the tunnel by riding against the flow of traffic. A policeman was hit by a car. There was a duty of care owed in this failed performance of civil operational traffic management duties. 

22 of 45

AN INFORMER [2013]

The claimant was acting as a confidential intelligence source against a criminal gang for the police in return for non-prosecution, but was arrested by other police officers and caused economic loss due to the confiscation of his property. It was held that he was owed a duty of care as they had assumed responsibility to protect him. Economically safe????

23 of 45

ROBINSON V CHIEF CONSTABLE OF WEST YORKSHIRE POLIC

Officers were giving a drug dealer the chase and Mrs Robinson, an innocent bystander, was knocked down by them running and suffered injuries. She brought claims against the polie, but it was held that there was no duty of care to third parties in carrying out arrests as there is a lack of proximity between the public and the police. It may deter criminal arrests and prevent split-second decision making if liaiblity were imposed. 

24 of 45

HILL V CHIEF CONSTABLE OF WEST YORKSHIRE [1989]

It was this case that established that there is no liability in cases where the police have made an error in the course of fulfilling their general public functions of investigating and preventing crime. The courts have persistently refused to allow negligence liability in such cases due to the core principle. Policy reasons have pre-cluded the existence of a duty of care. 

The mother of the last victim of the Yorkshire Riiper sued the police in negligence, alleging that they had failed to use reasonable care in apprehending him. He had been investigated previously by the police and subsequently released. It was argued that the police had carelessly failed to realise early enough that he was the murdered. If they had, Hill would not have been killed. 

The House of Lords refused to impose a duty of care, as there was no exceptional risk to Hill personally as there was insufficient proximity between her as a potential victim and the police. It was also argued that the prospect of liability would lead to defensive practices which would impede investigations. Defending this type of claim would also take much time, trouble and expense and divert police resources from their function - the suppression of crime. 

25 of 45

OSMAN V FERGUSON [1993]

The reasonning in Hill v Chief Constable West Yorkshire has been applied broadly and consistently in a variety of different factual contexts. 

The police only have a duty to KEEP THE GENERAL PUBLIC SAFE, they do not owe a duty to individuals. 

The police in this case knew that the perpetrator was obsessed with one of his pupils. Eventually, he murdered the pupil's father. Hill was applied and it was found that no duty was owed even knowing the risk posed by the perpetrator. 

26 of 45

SMITH V CHIEF CONSTABLE OF SUSSEX [2009]

The ex-partner threatened his former partner and made violent threats in text, telephone and internet messages, even containing explicit death threats. The police were given details to investigate, but did not take much interests. The ex-partner shortly afterwards attacked and Smith was nearly murdered, bringing a claim in negligence against the police. The House of Lords refused to impose liability due to the core principle established in Hill

27 of 45

BROOKS V COMMISSIONER OF POLICE [2005]

Brooks was mistreated by police following Stephen Lawrence's murder as a witness. However, it was held that there was no duty owed in the investigation of the crime as this would impede their ability to perform. 

28 of 45

MICHAEL V CHIEF CONSTABLE OF SOUTH WALES [2015]

In this case, Hill was revisited. A violent ex-boyfriend had taken away Michael's new partner and said he was coming back to kill her. She called the police. The victim, the perpetrator, the threat and the timeframe were all known. The call handler coded the call wrongly to within 60 minutes rather than immediate response. By the time the police showed up Michael had been killed. However, in spite of everything being known, there was no duty owed. There was no sufficient relationship to displace the general rule for omissions and there had been no assumption of responsbility. Even the fact that the operator had told her to keep her phone free and that police would call her was not deemed to be an assumption of responsibility. 

The police are not to be held liable for the actions of third parties, or for omissions. Just because they have a special power to intervene does not mean that the duty to intervene should be imposed upon them. The police are not given a special position, but they only have limited resources, but the facts of the case in Michael make it clear that it is in EXTREMELY LIMITED CIRCUMSTANCES that the police will be held liable. 

29 of 45

MULCAHY V MINISTRY OF DEFENCE [1996]

The Court of Appeal held that, in battle conditions, common sense and sound policy dictated that the army could not owe a duty of care to its members. The plaintiff had been injured in the Gulf War, his injury being due to negligence of his sergeant causing a fun to fire while he was in front fetching water. The court accepted the argument that a duty of care would lead to defensive practices and undue caution which would be wholly inappropriate in battle conditions where split second decisions must be made. 

Therefore, this immunity is applied to all war-time activities. 

30 of 45

JEBSON V MINISTRY OF DEFENCE [2000]

The claimant was injured during drunken horse-play in the back of an army truck on the way back from an organised social event. The Court of Appeal held that the defendants were in breach of their duty to provide suitable transport and supervision of soldiers in high spirits. 

The immunity of the armed forces is unlikely to extend to activities in peace-time

31 of 45

SMITH V MINISTRY OF DEFENCE [2013]

This case reconsidered the scope of combat immunity in relation to injuries sustained by soldiers in Iraw. The claimants alleged that the MoD had breached its duty of care in failing to properly equip and train soldiers which led to an incident in which soldiers had been kiled and injured in friendly fire between two tanks. The complaints had been related to failure in training anf provision of technology. If the tanks had had beacons the incidents may not have happened. 

It was held that this did not fall under combat immunity as there was plenty of time to make procurement decisions and it was not making split second decisions. Combat immunity is interpreted narrowly to be only in relation to acts of war. This decision has received criticism from the MOD. 

A duty of care is owed in decisions off the battlefield to employees at least

32 of 45

PHELPS V HILLINGDON LBC [2001]

The House of Lords held that in certain circumstances, a local authority could owe a duty of care in respect of the provision of education services. The claimant suffered from dyslexia as a child causing her severe learning difficulties at school but a psychologist had failed to notice. She left school with no qualifications and sued the authority for failing to provide her with an education. The House of Lords held in her favour. it was reasonable to expect them to put measures in place to assist education. Special relationship between school and pupil. 

33 of 45

KEARN-PRICE V KENT CC [2003]

After Phelps it seemed that a general duty of care was owed by local authorities to care for the welfare of children in state schools. 

A local authority was held liable in this case when a boy of 14 was struck in the eye by a leather football. The school had banned use of the footballs because of potential danger but had not enforced the ban. The local authority argued that because it happened at the start of the school day they could not be expected to supervise the children outside school hours, but this argument was ignored by the Court of Appeal. 

34 of 45

KEARN-PRICE V KENT CC [2003]

After Phelps it seemed that a general duty of care was owed by local authorities to care for the welfare of children in state schools. 

A local authority was held liable in this case when a boy of 14 was struck in the eye by a leather football. The school had banned use of the footballs because of potential danger but had not enforced the ban. The local authority argued that because it happened at the start of the school day they could not be expected to supervise the children outside school hours, but this argument was ignored by the Court of Appeal. 

35 of 45

BRADFORD-SMART V WEST SUSSEX CC [2002]

This duty to children is limited. In this case it was not held to be fair, just and reasonable to extend the duty to protecting a child from bullying outside school. 

36 of 45

KENT V GRIFFITHS [2000]

The Court of Appeal held that the policy arguments applicable to the police and no liability unless the claimant's position is made worse by failure to attend does not apply to the ambulance service. 

The claimant suffered an asthma attack and the ambulance took 40 minutes to arrive, and she died whilst waiting. Acceptance of the 999 call was establishing a duty of care. Cases could arise where a duty is excluded, such as exercising discretion and attending other emergencies, or where decisions had to made about an allocation of resources, but in this case they were hed liable. 

The courts are unwilling to deny a duty of care where this would create a divide between the standards expected in private sector than public sector service. Had Mrs Kent had private healthcare, she would have been able to sue in contract. It would be socially unacceptable if people were placed in a worse psoition due to reliance on the NHS. 

These arguments DO NOT EXIST for the police and fire services as these services are not commonly contracted privately. 

37 of 45

KENT V GRIFFITHS [2000]

The Court of Appeal held that the policy arguments applicable to the police and no liability unless the claimant's position is made worse by failure to attend does not apply to the ambulance service. 

The claimant suffered an asthma attack and the ambulance took 40 minutes to arrive, and she died whilst waiting. Acceptance of the 999 call was establishing a duty of care. Cases could arise where a duty is excluded, such as exercising discretion and attending other emergencies, or where decisions had to made about an allocation of resources, but in this case they were hed liable. 

The courts are unwilling to deny a duty of care where this would create a divide between the standards expected in private sector than public sector service. Had Mrs Kent had private healthcare, she would have been able to sue in contract. It would be socially unacceptable if people were placed in a worse psoition due to reliance on the NHS. 

These arguments DO NOT EXIST for the police and fire services as these services are not commonly contracted privately. 

38 of 45

CAPITAL AND COUNTIES PLC V HAMPSHIRE CC [1997]

This case examined the idea that the fire brigade should be immune from liability on the grounds of public policy.

There were three cases of negligently tackling fires. In one, the negligence had consisted of turning off a sprinkler system which had been at the fire, in another it was alleged that after fighting a fire on adjacent premises the fire brigade left without ensuring the fire was properly extinguished, where the fire reignited and damaged the plaintiff's premises, and in the third, it was alleged that the fire brigade negligently failed to take proper steps to ensure that an adequate water supply was available at the scene. 

The last two faced policy objections similar to Hill; that this would create defensive practice and diverting resources. 

It was held that the fire brigade's attendance to the scene of a fire did not give the requisite degree of proximity as THE FIRE BRIGADE IS UNDER NO DUTY TO ATTEND THE FIRE IN THE FIRST PLACE. IF THE FAIL TO TURN UP, OR ARE LATE, OR GET LOST, THEY ARE NOT LIABLE. 

The fire brigade will only be liable if they INTERVENE AND THEIR ACTIONS MADE THE CLAIMANT'S POSITION WORSE.This meant that the first case succeeded because turning off the spinklers created a fresh source of danger and made the claimant's position worse. The claim succeeded. 

39 of 45

O.L.L V SECRETARY OF STATE FOR THE HOME DEPARTMENT

It was alleged that the coastguard by misdirecting a rescue operation had substantially increased the risk of injury to those in peril and so it should be liable. However it was held that the coastguard had not directly inflicted physical injury one those who were at sea. There was an arbitrary distinction between situations where the coastguard had misdirected itself or it had misdirected another organisation such as the Royal Navy.

40 of 45

BARRET V ENFIELD LBC (2001)

Social workers are a difficult problem for the courts. Their actions can hamr people but they are meant to protect. They must make decisions about taking children into care, but there are conflicting duties that must be considered. 

Barrett was taken into care at 10 months old until he was 17 and alleged the council had treated him negligently, moving him between 6 foster homes which resulted in mental injury. It was held that there was no common duty for the council to take care when taking a child into care.

41 of 45

D V EAST BERKSHIRE COMMUNITY NHS TRUST [2005]

A social worker owed a duty to protect a child from abuse, but what about a duty to the parents?

Children were wrongfully taken into care because of negligent social worker and doctor decisions, who believed the children to be abused when they were not. It was held that the CHILDREN were owed a duty for the damage inflicted on them by being away from their parents, but there was NO DUTY OWED TO THE PARENTS as this would create CONFLICTING DUTIES. 

42 of 45

HALL V SIMONS [2002]

LAWYERS. 

Generally, judges and arbitrators cannot be sued in respect of their activities during a case. Prior to this decision, barristers and solicitors enjoyed a similar immunity, and could not be sued for negligently conducting a case in court, or for matters in relation to conduct in court. 

To sue successfully, the claimant must show that the advocate's negligence has caused him to lose the case, meaning that a court would effectively have to rehear the case. 

The House of Lords considered appeals where it was alleged that a solicitor had been negligent in reaching settlements subsequently approved by the court. It was unanimously ruled that immunity could no longer stand. 

If a claimant feels he has been victim of incompetent advocacy, it is still difficult for him to succeed in a claim in negligence. 

The advocate must be in breach of a duty of care and that his negligence caused the loss suffered which can be difficult to establish

43 of 45

Z V UNITED KINGDOM (2002)

There are some cases where the claimant is denied a remedy in negligence but might instead have a remedy for breach of human rights. Should human rights law be accommodated within negligence by expanding the duty of care, or should the two legal regimes be kept separate? Although some case law has indicated a partial convergence of the two areas of law, recent decisions suggest that negligence will NOT generally be modified to accommodate human rights law. The current view is that claims in tort and breach of human rights may arise on the same facts but with separate spheres of operation. 

The claimants in Z were four siblings who had been abused by their mother and the local authority repeatedly declined to appoint a social worker. The ECtHR was prepared to award compensation because the UK government had breached obligations under the Convention but the remedy did not have to be given in negligence. 

Claimants can therefore show a breach of the HRA and be granted a remedy, but policy reasons still preclude a duty of care in negligence.

44 of 45

RABONE V PENINE CARE NHS FOUNDATION TRUST [2012]

There is now a tendency to view negligence and human rights liability as seprarte entities, each requiring separate consideration. 

The NHS allowed a 24 year old patient admitted into hospital following a suicide attempt to elave two days later against the wishes of her parents. She then committed suicide. A negligence claim had been setlled but her parents brought a claim under the HRA. Even though the claim was not successful in negligence it was compensated under the Act.

The law of tort and human rights law were therefore applied side-by-side. 

45 of 45

Comments

No comments have yet been made

Similar Law resources:

See all Law resources »See all Tort A resources »