Lecture 5 - Pub Bodies - Omissions

8/10/2019 Lecture 5 - Pub Bodies - Omissions

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Case Studies II and III

Public Bodies and Omissions


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Questions to:

[email protected]

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Public bodies

Definition

Special position of public bodies

Immunities Human Rights Act 1998

Action in negligence: Justiciability

Action in negligence: Policy-based decisons

Child cases Crime victim cases

Business case

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Omissions

What is an omission?

Duty of care in omissions cases

Emergency services cases Control of third party cases

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Definition of public bodies

Public bodies are those institutions which are

emanations of the state.

Often they will have some statutory origin, butthis is not always true.

Often they will be funded by the tax-payer, but

this is not always true either.

Usually they will serve a public purpose rather

than merely private purposes.

Within this definition, we can count government

departments, councils, the police, NHS hospitals,

schools, etc.

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Special position of public bodies

where statute operates, courts must be careful toensure that tort obligations are consistent with itsterms;

one important statute that applies to public bodies isthe Human Rights Act 1998;

public bodies may be given quasi-legislative powers tomake decisions regarding large classes of people;

public bodies often perform regulatory or other

secondary functions, which means that they are notprimary wrong-doers;

public bodies serve public purposes, and there mustbe care to ensure that they are not disabled fromdoing so

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Immunities In the past, the state was a relatively small

phenomenon, intimately involved with theCrown.

English law had a maxim that the King can do nowrong and the King and other emanations of theCrown could not be sued in the Royal Courts.

However, the scope of government activity hasexpanded greatly over time (especially the last

150 years) and the law has recanted from theearlier immunity.

In Mersey Docks and Harbour Board Trustees vGibbs(1866), HoL held that the immunity wouldnot extend to all government bodies.

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Crown Proceedings Act 1947:

Section 1 removed actions against the Crown from the fiatof the King.

Section 2 provides: (1) Subject to the provisions of this Act, the Crown shall be

subject to all those liabilities in tort to which, if it were aprivate person of full age and capacity, it would be subject: (a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes tohis servants or agents at common law by reason of being theiremployer; and

(c) in respect of any breach of the duties attaching at common lawto the ownership, occupation, possession or control of property:

Provided that no proceedings shall lie against the Crown byvirtue of paragraph (a) of this sub-s in respect of any act oromission of a servant or agent of the Crown unless the act oromission would apart from the provisions of this Act have givenrise to a cause of action in tort against that servant or agent orhis estate.

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These provisions mean that there is very

little left of the old immunity.

The Crown is vicariously liable for the wrongs

of its servants.However, there might remain an issue of

justiciability to which we shall return

shortly.

And there are some aspects of public bodieswhich make them special (as we have seen)

and which reveal themselves in various policy

arguments.

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Human Rights Act 1998 HRA applies to public authorities and permits a remedy

for breaches of European Convention on Human Rights.

HRA provides (1) that, wherever possible, primary andsubordinate legislation must be interpreted in a way that

is compatible with Convention rights and (2) that it isunlawful for any public authority (including a court, butnot the legislature) to act in a way that is incompatiblewith a Convention right.

Convention rights are the fundamental rights andfreedoms set out in arts 2 to 12 and art 14 of theConvention, as well as arts 1 to 3 of the First Protocol(rights to property, education and free elections) andarts 1 and 2 of the Sixth Protocol (abolishing the deathpenalty).

Section 11 of HRA makes clear that Convention rightsexist in addition to, not in substitution of, rights andfreedoms already endorsed at common law.

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A question has arisen about the impact of the Act

upon tort, esp. as it applies to public bodies.

There has been little development of tort law to

accommodate the rights. Indeed, the attitude of

Supreme Court has been that, where a

Convention right exists, there may be no need

for tort to protect the substance of the right.

The key point is that the HRA creates a direct

cause of action against public authorities for thebreach of the Convention. The person affected

by a breach can bring an action for damages.

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In Smith v Chief Constable of Sussex, Lord Brownwas of opinion that to the extent that arts 2 and 3 ofthe Convention and ss 7 and 8 of the Human RightsAct already provide for claims to be brought in thesecases [before the HoL], it is quite simply unnecessary

now to develop the common law to provide a parallelcause of action

And to the extent that the proposed development ofthe common law would go further than theStrasbourg jurisprudence this would seem to meundesirable and to give insufficient weight to the

public policy consideration [against a DOC] which militate against the creation of civil liability in thesecases.

His Lordship was of the view that Convention claimshave very different objectives from civil actions.

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Nolan (2013)has given three reasons why one cannotexpect that negligence law will slavishly protectConvention rights: Although there is obvious overlap, negligence protects

different interests from the Convention. Negligence providesfor a set of norms applicable to all persons, while the HRA

applies only to public authorities; Convention rights cannot be seen to precede and to be more

fundamental than the rights protected by negligence. Tortremedies have existed for hundreds of years and, indeed,many public law concepts are built upon them; and

Seeking to alter tort law to slavishly protect Convention rightswould weaken the structural underpinnings of negligence and

cut across core principles. Convention jurisprudence reveals a greater preponderance of

positive obligations than exist in the common law of negligence and

While there is no requirement of damage under HRA, there is such arequirement in negligence.

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There are cases where negligence would not

provide a remedy, but where such might be

available under the HRA.

The most obvious example is the so-calledoperational duty that exists under

Convention article 2, concerned with the

right to life.

An illustration is given by Rabone v PennineCare NHS Foundation Trust.

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Rabone v Pennine Care NHS Foundation Trust. Held: breach of the operational duty under Convention art 2

(right to life).

There are 3 distinct obligations imposed upon the State underthe article: a negative duty to refrain from taking life save in the exceptional

circumstances described in art 2.2; a positive duty to conduct a proper and open investigation into

deaths for which the state might be responsible; and

a positive duty to protect life in certain circumstances. The latterpositive duty contains two distinct elements.

a general duty on the state to put in place a legislative andadministrative framework designed to provide effective

deterrence against threats to the right to life... the operational duty ... articulated ... in the Osmancase...

The court said that in well-defined circumstances the stateshould take appropriate steps to safeguard the lives of thosewithin its jurisdiction including a positive obligation to takepreventative operational measures to protect an individualwhose life is at risk from the criminal acts of another...

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Action in negligence: Justiciability Assuming that an action is brought in negligence

against a public body, a first issue will bewhether the finding of a duty of care would be

consistent with any statute empowering actionby the public body. If such an inconsistency wereto arise, then the court could not hold in favourof a duty on the basis of legislative supremacy.

Assuming that there is no such inconsistency, still

the court might find that it cannot hear a case innegligence because of a lack of justiciability.

Justiciability is a concept going to thejurisdiction or competence of the courts to heara matter.

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Reasons for which a court might find a case non-justiciable include: statute provides the public body with a quasi-

legislative power to determine policy and/or allocateresources, affecting broad classes of person, in such a

way that the imposition of DOC would be inconsistentwith that power (X v Bedfordshire CC; Phelps vHillingdon LBC). This kind of function is really onebelonging to executive and should not be interferedwith by the courts. However, a view has been takenthat such a matter might become justiciable if thepublic body acts in a way which is Wednesburyunreasonable: Phelps v Hillingdon LBC;A v Essex CC;

any remedy for wrong-doing is intended to be left topublic law, such as judicial review.

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It should be noted that, even if a public body has

exercised powers in a way that is Wednesbury

unreasonable, it does not follow that a remedy is

available in negligence.

See Stovin v Wise.

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Action in negligence: Policy-based decisions

Appellate courts have stressed a number of other

factors relevant to the question whether it would

befair, just and reasonableto impose a duty of

care on a public authority.

It is difficult to order these cases, so I will deal

with them by reference to subject matter:

children

crime victims and businesses

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Child cases

InX v Bedfordshire CC, HoL rejected the idea that aduty of care might be owed by the authorities to thechildren. Although it was conceded that foreseeabilityand proximity were present, there were policy reasons

for excluding a duty: a number of bodies were involved in protection of children and

councils could not be singled out for liability;

imposition of a duty of care could upset the delicate nature ofthe work done;

councils might adopt a defensive approach to their duties,

which might make them hesitant to remove at risk children; r/ship between social workers and parents is often conflicting,

meaning that this would be a fertile area for litigation;

there is a statutory complaints procedure for dealing withproblems

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TheXcase was subsequently appealed to the

ECtHR, which found that there had been a

breach of Convention art 3 by the United

Kingdom. This is the right to be free of torture

and inhuman or degrading treatment: see Z vUnited Kingdom.

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D v East Berkshire Community Health NHSTrust: In CA, it was held that welfareprofessionals did owe a duty of care to children,but owed no such duty to parents. About the

children, it was said [T]he recognition of a duty of care to the child on the

part of those involved should not have a significantlyadverse effect on the manner in which they performtheir duties. In the context of suspected child abuse,breach of a duty of care in negligence will frequentlyalso amount to a violation of [Convention] article 3 orarticle 8.

There was no appeal from this finding in relationto the children.

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Although many cases have involved the denial of a DOC, this isnot to say that Cs are never successful against public bodies.

In Phelps v Hillingdon LBC, qn arose whether a local educationauthority could be liable to a child with special education needsfor its failure to properly meet those needs

Although the case concerned vicarious liability of council for

negligence of the psychologist, HoL indicated its greaterreceptivity to such claims.

Lord Clyde rejected some of the traditional arguments againstpublic body liability: Nor should [liability] inspire some peculiarly defensive attitude in the

performance of their professional responsibilities. On the contrary, itmay have the effect of securing that high standards are sought and

secured... As regards the need for this remedy, even if there arealternative procedures by which some form of redress might beobtained, such as resort to judicial review... which might achievesome correction of the situation for the future, it may only be througha claim for damages at CL that compensation for the damage done tothe child may be secured for the past as well as the future...

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Crime victim cases

Hill v Chief Constable of West Yorkshire:

Cs claimed that D police were negligent in the

conduct of their investigations into the murders. If

they had not been negligent, their daughter wouldnot have been murdered. Held: no DOC was owed.

DOC might have skewed police activity, encouraging them

to undertake their tasks in a detrimentally defensive

manner.

DOC might require forensic analysis of police methods,which would be inappropriate.

Issues of liability would cause a diversion of police

resources into preparation for proceedings, attendance

at court etc.

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Smith v Chief Constable of Sussex Police: Held: no DOC owed; Hill v Chief Constable

followed.

Lord Brown agreed that the facts were stronger

than in Hill. But he was persuaded by two of thepolicy arguments in Hill, viz those concerning fact that the police would adopt defensive practices

in this kind of case, devoting their energy andresources to them at the expense of other types ofcase and

the desirability of safeguarding the police from legalproceedings which, meritorious or otherwise, wouldinvolve them in a great deal of time, trouble andexpense more usefully devoted to their principalfunction of combating crime.

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In dissent, Lord Bingham formulated what hecalled the appropriate liability principle: if a member of the public (A) furnishes a police

officer (B) with apparently credible evidence that athird party whose identity and whereabouts are

known presents a specific and imminent threat to hislife or physical safety, B owes A a duty to takereasonable steps to assess such threat and, ifappropriate, take reasonable steps to prevent it beingexecuted.

Despite the decisions in these cases, involving

failures in investigations, Lunney and Oliphantnote that there have been many cases in whichthe police have been held liable for theirpositive acts of negligence (as opposed toomissions to apprehend).

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Business case

InJain v Trent Strategic Health Authority, HRA hadnot been in force, although Lord Scott thought that Cs

would have succeeded under that Act claiming breach

of Convention First Protocol art 1 (peacefulenjoyment of possessions) and Convention art 6 (fair

and public hearing).

The qn arose whether they could sue D in negligence.

Held: no duty was owed.

Lord Scott noted that the making of an application forcancellation occurred pursuant to a statutory power.

The purpose of the power is the protection of the

residents of the home in question.

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What is an omission?

An omission involves an absence of action in the physicalworld. This much is clear. However, occasionally a questionhas arisen about how to classify a case where there is anabsence of action in circumstances of a larger activity.

In Kelly v Metropolitan Railway Co, it was held that thiswas not simply a case of omission. Rigby LJ stated: ... the attempt to dissect the act of Ds servant, and to treat

the mere omission to turn off steam as nonfeasance ...altogether fails. An engine-driver is in charge of the train, anda passenger is in that train... with the permission of Ds. Thatpassenger is injured in consequence of the train being

negligently brought into collision with the dead-end. Theproper description of what was done is that it was a negligentact in so managing the train as to allow it to come into contactwith the dead-end and so cause the accident. It is a case inwhich the company by their servant neglected a duty whichthey owed to C ...

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In Stovin v Wise, Lord Nicholls endorses the type ofanalysis we see in Kelly. He notes that sometimes thedistinction between act and omission is not clear. The categorisation may depend upon how broadly one

looks when deciding whether the omission is a pureomission or is part of a larger course of activity set inmotion by D. Failure to apply the handbrake whenparking a vehicle is the classic illustration of the latter.Then the omission is the element which makes theactivity negligent.

L&O put it in terms of a difference between D makingthings worse as opposed to failing to make thingsbetter. But even here it must be admitted that thedistinction is only one of degree, and that differentduties of affirmative action restrict liberty of actionto different extents.

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Duty of care in omissions cases

The duty to take active steps to assist another who isat risk is of limited scope. Some reasons for this areexplored in Stovin v Wise. Lord Hoffmann stated: There are sound reasons why omissions require different

treatment from positive conduct. It is one thing for thelaw to say that a person who undertakes some activityshall take reasonable care not to cause damage toothers. It is another thing for the law to require that aperson who is doing nothing in particular shall take stepsto prevent another from suffering harm from the acts ofthird parties... or natural causes. One can put the

matter in political, moral or economic terms. In political terms, it is less of an invasion of an

individuals freedom for the law to require him toconsider the safety of others in his actions than toimpose upon him a duty to rescue or protect.

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Stovin v Wise A moral version of this point may be called the why

pick on me? argument. A duty to prevent harm to othersor to render assistance to a person in danger or distressmay apply to a large and indeterminate class of peoplewho happen to be able to do something. Why should one

be held liable rather than another? In economic terms, the efficient allocation of resources

usually requires an activity should bear its own costs. Ifit benefits from being able to impose some of its costson other people (what economists call externalities)the market is distorted because the activity appears

cheaper than it really is, So liability to paycompensation for loss caused by negligent conduct actsas a deterrent against increasing the cost of the activityto the community and reduces externalities. But there isno similar justification for requiring a person who is notdoing anything to spend money on behalf of someoneelse.

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There must be special reasons for the

imposition of an affirmative duty. L&O point

to a number of general circumstances in

which they believe courts are more likely to

impose an affirmative duty these are:

Ds creation of a source of danger, even if

entirely without fault

Ds undertaking of responsibility for Cs welfare

Ds occupation of an office or position of

responsibility (eg, as a parent or employer, or as

the owner or occupier of land)

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Emergency service cases Courts have been wary about imposing affirmative duties.

Capital & Counties plc v Hampshire CCheld that a dutymight arise where (a) the rescue/protective service itself bynegligence creates the danger which caused Cs injury. Also,(b) as a general rule a sufficient relationship of proximity will

exist when someone possessed of special skill undertakes toapply that skill for the assistance of another person who reliesupon such skill and there is a direct and substantial reliance byC on Ds skill.

CA considered whether fire brigade owed a duty to propertyowners. Ordinarily, no assumption of responsibility because ofthe real possibility of conflicts of interest arising.

[T]he fire brigades duty is owed [to] the public at large to preventthe spread of fire and ... this may involve a conflict between theinterests of various owners of premises. It may be necessary toenter and cause damage to As premises in order to tackle a firewhich started in Bs.

However, a duty was recognised on facts where fire brigadehad ordered Cs to turn off their sprinkler system.

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Kent v Griffiths Involved the ambulance service.

Lord Woolf recognised that it would probably bewrong for a court to decide a case involving theallocation of competing resources.

He also said that, in a case where ambulance officersmade a mistake in prioritising the needs of a lessserious over a more serious case, there would be noaction in negligence.

However, this case was different. There were noalternative calls upon the ambulance in question.

It was held that the acceptance of the call in thiscase established the duty. In other words, this was acase of an assumption of responsibility for the patientin question.

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Control of third party cases

C claims that D owed it a duty of care for its

failure to ameliorate dangers posed by an

intermediate party.

In both of the cases to be considered, the

question was whether there was a duty to control

the actions of criminals.

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Home Office v Dorset Yacht Club

Held: A duty was owed with respect to property in the

vicinity of the escape. Among the majority, various

approaches were taken to reach this result.

Lord Pearson analysed the case according to thecriteria in Donoghue v Stevensonand stated that it

was foreseeable that that damage was likely to occur

unless care was taken and that proximity arose

between the parties, which was geographical in

nature. In the circumstances, there was a special relation.

The borstal boys were under the control of the Home

Office officers, and control imports responsibility.

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Home Office v Dorset Yacht Club Lord Diplock said that the question Am I my brothers

keeper?... may also receive a restricted reply.

The primary wrongdoer is the criminal the youngoffenders who attempted escape. Thus, D could only bemade responsible as a secondary party.

Nevertheless, Lord Diplock outlined why he thought that aduty of care was owed: What distinguishes a borstal trainee who has escaped from one

who has been duly released from custody, is his liability torecapture, and the distinctive added risk which is a reasonablyforeseeable consequence of a failure to exercise due care inpreventing him from escaping is the likelihood that in order to

elude pursuit immediately upon discovery of his absence theescaping trainee may steal or appropriate and damage propertywhich is situated in the vicinity of the place of detention fromwhich he has escaped...

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Home Office v Dorset Yacht Club

Lord Diplock continued:

[A]ny duty of a borstal officer to use reasonable

care to prevent a borstal trainee from escaping

from his custody was owed only to persons whom

he could reasonably foresee had property situate

in the vicinity of the place of detention of the

detainee which the detainee was likely to steal or

to appropriate and damage in the course ofeluding immediate pursuit and recapture.

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Note that in Hill v Chief Constable of West

Yorkshire, which we have already considered

today, the Dorset Yacht Cocase was

distinguished.

Lord Keith noted that

Sutcliffe was never in the custody of the police

force. Miss Hill was one of a vast number of the

female general public who might be at risk from

his activities but was at no special distinctive risk

in relation to them, unlike the owners of the

yachts moored off Brownsea Island...

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In Smith v Littlewoods Organisation Ltd, HoL heldthat no duty of care was owed.

Lord Goff stated that there is no general duty on a

householder that he should act as a watchdog, or that

his house should act as a bastion, to protect hisneighbours house... This followed from the idea that

one should not be held responsible for the deliberate

wrongdoing of others. He continued:

Any affirmative duty to prevent deliberate wrongdoing by

third parties, if recognised by English law, is likely to bestrictly limited... Liability should only be imposed...

where D has negligently caused or permitted the creation

of a source of danger on his land, and where it is

foreseeable that third parties may trespass on his land

and spark it off, thereby damaging C or his property...

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Smith v Littlewoods Organisation Ltd

Lord Goff continued:

There is another basis on which a D may be held liable

for damage to neighbouring property caused by a fire

started on his (Ds) property by the deliberatewrongdoing of a third party. This arises where he has

knowledge or means of knowledge that a third party

has created or is creating a risk of fire, or indeed has

started a fire, on his premises, and then fails to take

such steps as are reasonably open to him... to preventany such fire from damaging neighbouring property...

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Lecture 5 - Pub Bodies - Omissions