Damages Liability of Public Authorities

Alba Lecture, 24 April 2018

Paul CraigDuncan Fairgrieve

Introduction• Damages & judicial review : two sides of same coin? JR and damages

liability = complementary means of holding public bodies to account. Former leads to invalidity, latter to compensation, providing incentives for compliance by public bodies.

• Historical legacy of Diceyan concept of equality in common law, in contrast to civil law jurisdictions. This has resulted in fact that ordinary principles of tort law apply to public bodies, with continuing debate about “public law hurdles.”

Introduction (contd.)• Controversial & unstable area of the law, with failed attempts of reform incl. Law

Commission project commenced in 2004, leading to report in 2010, Administrative Redress : Public Bodies and the Citizen, which was highly critical of status quo, describing current approach as “untenable”, and tort of negligence as applied to public authorities “uncertain and unprincipled.” Proposed reforms never implemented : “sent to the sea-bed by central government.” (Mohammed v Home Office 2011).

• Factors generating complexity : broad scope; interface b/w public & private law; impact of policy; sensitivity of issues; intersection b/w law & politics.

• Also reflected in numbers of decision of HL / UKSC in last 30 years : Anns v Merton London Borough Council (1978), Hill v Chief Constable of West Yorkshire (1989), Murphy v Brentwood BC (1991), X v Bedfordshire CC (1995), Stovin v Wise (1996), Barrett v Enfield LBC (2001), Phelps v Hillingdon (2001), Gorringe v Calderdale MBC (2004), D v East Berkshire (2005), Brooks v MPC (2005), Van Colle v Chief Constable

of Hertfordshire (2009), Jain v Trent SHA (2009), Smith v Ministry of Defence (2013), Michael v South Wales Police (2015), Robinson v West Yorkshire (2018).

Conceptual Basis• No general principle of fault liability as in other jurisdictions, though

negligence has a predominant role. Only restricted use of no-fault liability in tort law.

• No cause of action in damages merely because claimant can prove an unlawful act has caused loss.

• Same set of principles for public law and private law cases. Ordinary principles of tort law etc applied to PBs, albeit with some adaptations due to modifications for the fact that they are PBs.Compare civil law countries.

Patterns of liability over time• Prior to 1970s : private rules apply.• 1970s – 1980s : impact of public law dimension e.g. Dorset Yacht & Anns v

Merton – outside scope of discretion & policy /operational distinction.• 1990s : restrictive period of Hill, X v Bedfordshire, Stovin : public law

hurdles & centrality of J,F,R.• Early 2000s : more nuanced approach in Phelps, Barrett et al.

• Shift away from that more liberal approach: Gorringe v Calderdale MBC, Van Colle, et al. Michael v South Wales Police can be seen as part of that.

• Whither : Robinson?

Michael & Robinson on the Caparo test• Re-affirmation of the incremental approach to the existence of a duty of care

as found in Caparo.• Rejects the notion that the three-stage Caparo test should apply as a matter of

course in all cases : “The proposition that there is a Caparo test which applies to all claims in the modern law of negligence … is mistaken.” (Robinson, at [21.])

• Courts look to previous authority to determine whether the existence or nonexistence of a duty of care has been established.

• Only in limited circumstances, when courts is examining novel situation is J,F,R relevant.

The Impact of Robinson in the SCApplication to PBs: Latest word on the issue: Robinson in SC 2018: Majority judgment by L Reed: Reasoning: Stage 1: Existence of a duty of care: para 21: ‘The proposition that there is

a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken ... the whole point of Caparo, … was to repudiate the idea that there is a single test which can be applied in all cases in order to determine whether a duty of care exists, and instead to adopt an approach based, in the manner characteristic of the common law, on precedent, and on the

The Impact of Robinson in the SCdevelopment of the law incrementally and by analogy with established authorities’.

Stage 1: existence of a duty of care: Caparo might tell you whether a DC exists in a particular type of case, but when that issue is decided no need for further recourse to fair just and reasonable, and it does not provide the rationale for asserting that a DC exists when court has decided that no such DC exists: see para 26

‘Applying the approach adopted in Caparo, there are many situations in which it has been clearly established that a duty of care is or is not owed: for example, by motorists to other road users, by manufacturers to consumers, by employers to their employees, and by doctors to their patients’

‘Where the existence or non-existence of a duty of care has been established, a consideration of justice and reasonableness forms part of the basis on which the law has arrived at the relevant principles. It is therefore unnecessary and inappropriate to

The Impact of Robinson in the SCreconsider whether the existence of the duty is fair, just and reasonable (subject to the possibility that this court may be invited to depart from an established line of authority).’

Stage 1: existence of a duty of care: so, only use Caparo FJR test in novel situations and in deciding whether there should be a DC in such cases, take account of the fact that the law of negligence develops incrementally, para 27

‘It is normally only in a novel type of case, where established principles do not provide an answer, that the courts need to go beyond those principles in order to decide whether a duty of care should be recognised. Following Caparo, the characteristic approach of the common law in such situations is to develop incrementally and by analogy with established authority’.

The Impact of Robinson in the SCStage 2: application of negligence to PBs: prima facie same rules

applicable: paras 32, 33:‘At common law, public authorities are generally subject to the same liabilities in tort

as private individuals and bodies’.‘Accordingly, if conduct would be tortious if committed by a private person or body,

it is generally equally tortious if committed by a public authority: see, for example, Dorset Yacht Co Ltd v Home Office [1970] AC 1004, as explained in Gorringe, para 39. That general principle is subject to the possibility that the common law or statute may provide otherwise, for example by authorising the conduct in question: Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430. It follows that public authorities are generally under a duty of care to avoid causing actionable harm in situations where a duty of care would arise under ordinary principles of the law of negligence, unless the law provides otherwise’

The Impact of Robinson in the SCStage 3: limits to PB liability in negligence generally the same as for

private parties:Para 34: no liability for omissions: ‘public authorities, like private individuals and

bodies, are generally under no duty of care to prevent the occurrence of harm’Para 35: no duty to confer a benefit: ‘there are certain circumstances in which public

authorities, like private individuals and bodies, can come under a duty of care to prevent the occurrence of harm: see, for example, Barrett v Enfield London Borough Council and Phelps v Hillingdon London Borough Council [2001] 2 AC 619, as explained in Gorringe at paras 39-40. In the absence of such circumstances, however, public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body’

The Impact of Robinson in the SCPara 37: no duty to prevent harm caused by third party: ‘public authorities, like

private individuals and bodies, generally owe no duty of care towards individuals to prevent them from being harmed by the conduct of a third party: see, for example, Smith v Littlewoods Organisation Ltd and Mitchell v Glasgow City Council.

Stage 3: limits to PB liability in negligence generally the same as for private parties:

Para 39: no liability for failure to exercise statutory power, Stovin, Gorringe, unless the PB had created the source of danger, or ‘did acts or entered into relationships or undertook responsibilities giving rise to a duty of care on an orthodox common law foundation’

Stage 4: application of the preceding principles to the police:

The Impact of Robinson in the SCParas 45, 53: prima facie the police are liable for negligence causing

personal injury like anyone else. No general immunity of police from negligence, para 55, and Hill not authority for that proposition

Para 50: However, as shown by Hill and Michael, police not liable in negligence for way in which investigation into crimes carried out. This rationalized as application of general principle that PB under no duty to prevent harm, or confer a benefit:

Para 50: ‘the common law does not normally impose liability for omissions, or more particularly for a failure to prevent harm caused by the conduct of third parties. Public authorities are not, therefore, generally under a duty of care to provide a benefit to individuals through the performance of their public duties, in the absence of special circumstances such as an assumption of responsibility’

Part 2: Negligence6 Application to PBs: The Impact of Robinson in the SC Stage 5: underlying normative assumptions:Role of policy: para 69(2): ‘The courts are not policy-making bodies

in the sense in which that can be said of the Law Commission or government departments. But the exercise of judgement about the potential consequences of a decision has a part to play when the court is asked to decide whether a novel duty of care exists, together with a consideration of existing principles and of the need for the law to develop coherently and incrementally’

The Impact of Robinson in the SC

Stage 5: underlying normative assumptions:Application of existing principles: no duty to prevent occurrence of

harm: para 69(1):‘The absence of a duty towards victims of crime, for example, does not depend

merely on a policy devised by a recent generation of judges in relation to policing: it is based on the application of a general and long-established principle that the common law imposes no liability to protect persons against harm caused by third parties, in the absence of a recognised exception such as a voluntary assumption of responsibility’.

Stage 5: underlying normative assumptions:Application of existing principles: omissions/positive acts: para 69(4):

‘The distinction between careless acts causing personal injury, for which the law generally imposes liability, and careless omissions to prevent acts (by other agencies) causing personal injury, for which the common law generally imposes no

The Impact of Robinson in the SCliability, is not a mere alternative to policy-based reasoning, but is inherent in the nature of the tort of negligence. For the same reason, although the distinction, like any other distinction, can be difficult to draw in borderline cases, it is of fundamental importance. The central point is that the law of negligence generally imposes duties not to cause harm to other people or their property: it does not generally impose duties to provide them with benefits (including the prevention of harm caused by other agencies)’.

Stage 6: conclusion: D was liable because this was an ordinary case of negligence liability, where fault of D caused injury to P.

L Mance: para 84: Para 84: ‘The courts are not a Law Commission, but, in recognising the

existence of any generalised duty in particular circumstances they are making policy choices, in which considerations such as proximity and fairness, justice and reasonableness must inhere.’

The Impact of Robinson in the SC

Para 85: ‘The key to the application of the above principles is to ascertain whether or not a particular situation falls within an established category. Lord Reed treats physical loss resulting foreseeably from positive conduct as constituting axiomatically such a category, whatever the precise circumstances. I accept that principle as generally correct: see eg Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310, 396F-G, per LordKeith. But I am not persuaded that it is always a safe guide at the margins.’ L Mance: questions whether the assignment/explanation of previous authority by the majority was self-evident. See, eg,

Para 88: acts v omissions: ‘A similar difficulty arises in fitting other authorities which Lord Reed accepts as correctly decided into any absolutely fixed legal mould. The cases of Hill and Smith v Chief Constable of Sussex Police [2008] UKHL 50; [2009] AC 225 can, I agree, be rationalised as cases of omission, but that was not how they were reasoned. The case of Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 involved a claim by police officers for pursuing disciplinary

The Impact of Robinson in the SCproceedings with insufficient expedition, thereby, it was alleged, causing them physical loss, which was held to be unforeseeable, and economic loss of a kind, which is, in the absence of any assumption of responsibility, generally irrecoverable. But again Lord Bridge buttressed his conclusion with general statements about the need to shield the police from the pursuit of claims in relation to their investigative activity, without distinction between acts and omissions.’

L Mance: questions whether the assignment/explanation of previous authority by the majority was self-evident. See, eg

Para 94: policy choice v application of established principles: ‘What I think emerges from this examination of past authority is that it is not possible to state absolutely that policy considerations may not shape police or CPS liability in a context where the conduct of the police may perfectly well be analysed as positive, rather than simply as involving some form of omission.’

Para 95: policy choice v application of established principles: ‘I also think that there was open to the law a genuine policy choice whether or not to hold the police responsible on a generalised basis for direct physical intervention on the ground,

The Impact of Robinson in the SCcausing an innocent passer-by physical injury, in the performance of their duties to investigate, prevent and arrest for suspected offending by some third person(s). In my opinion, that policy choice should now be made unequivocally in the sense indicated by Lord Reed.’

Public law hurdles & Justiciability• Reinforcement of Diceyan approach of ordinary principles of tort law

applied to public bodies → signifying a shift away from public law hurdles. Lord Reed in Robinson, Anns “added to the confusion by importing public law concepts.” (at [38.])

• Problem – how does one calibrate relationship b/w public law remedies & damages? Can a decision generate liability in damages whilst not being unlawful in public law sense?

• Continuing role of justiciability? Recent illustrations in Smith v MoD (2013), Conor v Surrey CC (2011)

• Compare tort law / admin law with human rights law on this point.

Premise & ExceptionsOmissions rule : no liability for omissions: ‘public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm’ (Robinson, para 34 / Michael, various)No duty to confer a benefit: ‘public authorities generally owe no duty of care towards individuals to confer a benefit upon them by protecting them from harm, any more than would a private individual or body’, absent “certain circumstances” in which public authorities “can come under a duty of care to prevent the occurrence of harm.” (Robinson, para 35)

Exceptions : “Public authorities are not, therefore, generally under a duty of care to provide a benefit to individuals through the performance of their public duties, in the absence of special circumstances such as an assumption of responsibility.” (Robinson, para 50)

Categories of exception• Assumption of responsibility – examined in Michael, illustrated by

cases such as An Informer (2013) and Swinney (1996).• Control cases : when the Defendant was in a position of control over

the third party and should have foreseen the likelihood of that third party causing loss if the defendant failed to take reasonable care in the exercise of that control. (Michael, at [99.]) Examples : Dorset Yacht & Couch v AG.

• Creation of danger : “public authority has created a danger of harm which would not otherwise have existed.” (Robinson, at [37.])

• Miscellaneous : special relationship (eg Barrett / Phelps), doctors – patient.