Negligence & Public Authorities

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Public Authority Liability

• Lunney & Oliphant note public authorities are attractive targets for litigation because:

  • Deep pockets

  • Array of powers & duties opens them up to diverse negligence actions

However the policy reasons against expansion include:

• Depletion of public funds

• Defensive performance

• Interference with public administration

• Bailey & Bowman: non-justiciability & the courts’ reluctance to pry into public authorities’ sensitive balancing of priorities

Hill v Chief Constable of West Yorkshire (see ‘General Negligence’ doc)

HL pointed out the public policy arguments surrounding public authority liability in tort:

• Liability might encourage defensive policing

• Tort liability was not an effective tool for ensuring competence as the police may be expected to “apply their best endeavours” per Lord Keith

• Regulatory bodies & complaints procedures more appropriate than the courts to address failures

• Diversion of public resources

However Lord Keith also recognised that a higher standard of care may be applied to the police in circumstances permitting it

Human Rights & Public Authorities

HRA 1998 requires that ECHR is effective:

• Vertically HRA S.6

• Horizontally – as S.6 includes courts who must make decisions compatible with HR

• Lunney & Oliphant: inconsistent adaptation of negligence law to HRA – notes that Art 6 fair trial is not breached where a claim is struck out at the prelim hearing based on the third limb of the three stage test

Osman v UK

‘Blanket immunity’ of Hill was breach of Art 6 fair trial right

Held: violation found. Disproportionate restriction of Art 6 right as the immunity meant the substantive merits could not be explored. Found that the proximity limb would be sufficient to prevent floodgates

Established the operational obligation is the duty of the state to take preventative operational measures to protect the lives of individuals

Z v UK

X v Bedfordshire claimants

Held: violation found. Breach of Art 3 degrading treatment. This could not be outweighed by the difficult balancing act of the councils in weighing up respect for family life. HOWEVER it established that there was no Art 6 violation - counter to its findings of Osman – this was a misunderstanding of the court in that case –

Divergence of tort & HRA remedies:

• Du Bois: “The practical effect of this approach is to direct a significant class of cases away from the tort law route into the HRA route”

Education

X v Bedfordshire; M v Newham

Combined appeals from children who had been failed by local authorities – the Bedfordshire cases involved child abuse & the Newham cases involved educational authorities

Held: all child abuse cases failed with some vicarious liability found for the education cases. 4 types of claim:

• Breach of statutory duty: no claim successful – nothing in the statute evincing intention to be actionable in private law

• Breach of duty of care in exercise of statutory functions: one education claim succeeded as it was holding itself out as a service, however doubt was expressed extra judicially by the judge & the rest were struck out as this was inconsistent with the purpose of the statutes

• Vicarious liability for employees of the local authority:

  • Abuse cases: failed the third limb of the three-stage test & in the parental rights cases found that there would be a conflict of interest

  • Education cases: educator & child close to a normal professional relationship; no conflict of interest; in the case of a headmaster there is a voluntary assumption of responsibility (Henderson v Merrett)

• Lord Browne-Wilkinson threw out a 4^th argument of ‘negligent breach of statutory duty’ as no such thing exists

Phelps v Hillingdon LBC

Claiming negligent decisions about education made by local authority.

Held: liability found (in light of Osman no blanket immunity):

• Failure to provide appropriate special needs provisions will amount to direct breach of duty (contrary to X v Beds) as lack of express statutory provisions for damages does not negative a duty of care

• Failure to mitigate the damage caused by dyslexia can constitute a personal injury

• Vicarious liability for independent acts of agents

• Duty owed to both employer & client

Child Protection

X v Beds above for finding against duty of care

• Lord Bingham’s dissent in CA: acknowledges separate duty of care created through relationship with child; doubts strength of policy arguments about defensiveness; restricting liability can be done through proximity ground

Barrett v Enfield LBC

Claiming for failures during foster care re: adoption & reintroduction to birth parents

Held: a local authority is potentially liable for negligence; no immunity to the suit:

• Psychiatric harm is actionable

• General undesirability of striking out claims in an incremental area of liability was emphasised

• Here the assumption of responsibility meant the policy factors could be distinguished from X v Beds

Z v UK confirmed that there was no procedural violation in the ‘exclusionary rule’ however substantive grounds confirmed a violation

JD v East Berkshire NHS

False diagnoses of child abuse – parents of children claimed

Held: (HL) the extension of liability could not go to the...

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