Omissions And Liability Of Public Authorities Theory Notes

Public Law Element:

• Lord Slynn – Barrett – discretion doesn’t immediately mean no duty of care. It is on sliding scale.

• Lord Wilberforce – Anns – policy sphere is where statute gives wide choices to PA whereas operational sphere is where statute gives powers to the PA to execute those other wider policy decisions. But yet still degree will come into it.

• Lord Browne-Wilkinson – X and Others – effectively said if acts are of policy type (allocation of budget etc.) then claim for negligence fails. Then we ask if acts were within the discretion of the PA, were they Wednesbury/Irrational? [Interesting as most cases just look at discretion enquiry and policy/operational type enquiry as interchangeable tests for whether justiciable].

• Lord Hoffmann – Stovin – Criticised policy/operational divide. Then applied Wednesbury differently – Lord BW applied to actual conduct (was what the PA did irrational?), while Hoffman applied it to the conduct the plaintiff alleged that the PA should have engaged in (would it be irrational to fail to do this?). Distinction clear on facts – irrational to overlook previous decision to move mound, yes –doesn’t follow that it is irrational to take any other course, i.e. doesn’t necessarily follow that it is irrational to fail to do what C claimed they should do.

Helllooooooooooooooooooo Adam

Policy Arguments for the Liability of Public Authorities in Negligence:

1. It could raise standards by deterring careless conduct (and by facilitating a public examination in court of what went wrong).

2. Without the possibility of private actions, public services are effectively rendered ‘voluntary’, since there may be no negative consequences if public authorities choose not to provide them.

3. If the point of public services is to prevent or remedy misfortunes that occur to people, financial compensation is one way of doing that i.e. it’s an alternative (albeit less desirable) to the service intended to be provided.

Policy Arguments against Liability of Public Authorities in Negligence:

1. Aim of providing public services is to socialise risk of event occurring, by pooling resources to create the emergency services. The point of this is to take action against harmful events, not to give money to those who suffer from them.

2. Often tortious liability will undermine the socialisation of risk:

a. Defensive practices could impair effectiveness of services,

b. Loss of resources through litigation and payouts,

c. Public authorities likely to be targeted by cynical claimants since the former will always be able to meet cost orders.,

3. There may be better alternatives to private action: Ombudsmen, complaints to government departments, political pressure etc.

Omissions.

Hart and Honore – problems of causation:

• Any conduct can be described in terms of an act or an omission.

• Sometimes it makes more sense or is more relevant to describe as an omission – e.g. where there is a legal duty to act and D hasn’t it will be more legally relevant to describe as such.

• Some writers have a problem with then linking such a description to setting in motion the events which cause damage and as such cannot see causation without us ourselves making movements.

• But there is no special difficulty here, no rational distinction can be made between the causal status of acts and omissions. [Me – if found that you should have acted, to not act is identical to acing where you shouldn’t have].

Nolan (2011):

• Two types of creating a source of danger. First is where you make a statement that induces detrimental reliance. Gorringe – “if highway authority creates a reasonable expectation about state of highway it will have duty to keep as such”. Also Kent explicable as such (but not in reasoning). Second where you actually create a physical danger – Dorset Yacht. (Also Griffiths possible explanation, danger created was that others would neglect to go to help in expectation that D would).

• Barrett...

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