1.7 Public Authority Liability in Negligence PDF

Preview

Summary

Tort Law Lecture Notes...

Description

TORT LAW Lecture 7: Public Authority Liability in Negligence Prescribed reading: Lunney & Oliphant, Tort Law: Text and Materials (5 edn, OUP, 2013), ch 10, or th Witting, Street on Torts (14 edn, OUP, 2015), ch 4

INTRODUCTION What do we mean by public authority? 

The type of D in this scenario: public authorities which are established by statutory instrument (including under delegated legislation), and which have responsibility for exercising a statutory duty or a statutory power which has, as its aim, the provision of some service to, or protection of, the public.

Statutory duties applies where statutory scheme requires the public authority to take a particular action in some problems of activity. Statutory power: on the other hand is a statutory scheme that empowers a public authority to take action at its discretion. I.e. Police, the home office (i.e. Hill, and Borstal boy)



Direct or vicarious liability may arise (both may could arise together, PA could be sued in these two ways, on the facts: Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1 WLR 2312, albeit with the caveat in Phelps v Hillingdon LBC [2001] 2 AC 619 (HL) said that most cases public authorities are sued vicariously.



ancillary causes of action frequently brought, together with an action in negligence — as evidenced, e.g., in: McCreaner v MOJ [2014] EWHC 569 (QB) (7 Mar 2014) ( no need to know, other causes such as, breach of statutory duty)



Law reform attention: EWLC, Administrative Redress: Public Bodies and the Citizen (CP, 2008), and (Rep 322, 2010) they thought that the law of public authority is a bit muddled, the commission suggested: (this paper has not been adopted by parliament. PREREQUISITE LEGAL ISSUES ARISING IN THIS AREA OF NEGLIGENCE

Re the East Suffolk principle: East Suffolk Rivers Catchment Board v Kent [1941] 1 AC 74 

A duty of care cannot be owed to a claimant by a public authority automatically just because a public authority exercises its statutory duties or statutory power negligently or not at all. Something more is required to trigger a duty of care.

Facts: o

o

This high tide breached the sea wall in a number of places along the Suffolk coast, salt that came over remained on the claimant’s marsh (he owed about 50 achers of marsh land). This was the east Suffolk board, this public authority had the statutory power to repair the wall and drained the land. The evidence was that had it been done efficiently, it would’ve been done in about two weeks, but Unfortionely it was done so inefficiently, the salt remained on the claimants land for several months (i.e. 6month).the claimant sued the public authority the East Suffolk board in negligence. It went to the house of Lord and it was held that this public authority was not liable in negligence and did not owe a duty of care. It was accepted that the way in which this work was done was so flawed and inefficient that no other public bodies would’ve acted in the same way but that was not enough. There was no duty of care owed just because it took those six months to do the work.

Uncertainty about the principle:  

Resiled from in: Anns v Merton LBC [1978] AC 728 (HL)-> that it was sufficient if a public authority did not do a statutory duty or power that a duty of care could arise But the principle was re-established in reaffirmed in: X v Bedfordshire CC [1995] UKHL 9, [1995] 2 AC 633 That the East Suffolk principle remained good law.

Reiterated the principle in two ‘highway cases’ that have saved the public body for negligence suits: Stovin v Wise [1996] AC 923 (HL); and

TORT LAW Lecture 7: Public Authority Liability in Negligence Gorringe v Calderdale MBC [2004] 1 WLR 1057 (HL) o

o

Mr Gorringe was our claimant and a very simple car accident. She was driving up to a crest of a hill then she saw the roof of a bus approaching in the other direction ( the speed limit was 50 MPH) so she braked and then skidded across the road and collided with the bus and as a result she suffered serious brain injuries. According to traffic engineers she would have had no view of an approaching vehicle until she was at the crest and also according to the engineers the road narrowed at the crest of the hill, which created certain dangers, they added that some cars going 50mph at the crest would become airborne. The only sign on this road was that it stated uneven road which was erected by the highway authority. Mrs Gorringe sued the council for failing to put either signage or road markings which would have warned her of the dangers. Was a duty of care owed to her? It was held by the house of Lord that there was no duty of care owed by the Highway authority, the reason for it was the East Suffolk principle, they may have been negligence by putting more signage but that of itself does not trigger a duty of care something more is required.

(previous position) Re the public law-derived ‘Wednesbury test’ (per Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (HL) 

 

The previous law was that if a public authority acted so irrationally that no public authority would have behaved similarly, that showed what we call a ‘Wednesbury degree of unreasonableness’ which could trigger a common law duty of care.

The relevance and application of the test has drawn judicial support, e.g.: Stovin v Wise (1996, above), and in Barrett v Enfield LBC [2001] 2 AC 550 (HL) but now discounted, e.g., in Gorringe v Calderdale MBC, and followed since: Furnell v Flaherty (t/as

Godstone Farm) [2013] EWHC 377 (QB) o

o

This was a farm in surrey that family could come and play with the animals. As a result there is a high risk of ecolia infection. This farm in 2009 became the location of a serious eclolia outbreak. The claimants were two twins, contracted this virus and became ill. Those twins sued the owners of the farm and what interest us is that those owners drew into the litigation two public authorities. First the health protection agency of England and wales and also the district council in the area in which the farm was situated. What the owners of the farm alleged was that these public authorise knew that Godstone farm was the source of the ecolia outbreak before the owners did and should have told the owners more quickly. If they had known they could have taken better steps more quickly. The question was whether these public authorities could be sued, did they owe a duty of care to the twins. It was held that neither of these public authorities owed a duty of care to these claimants (i.e. the twins). It was consider that even if the conduct of these public authorities was so irrational that is not telling the owner more quickly, (Wednesbury sense) it did not trigger a duty of care in of itself, more had to be found. 

Even a Wednesbury unreasonableness (that it’s so irrational that no public authority in a similar boat would do the same. That of in itself does not trigger a duty of care in English law any longer per Gorringe [2004] (authority)

Re the policy and operational distinction: Ann’s v Merton LBC [1978] AC 728 (HL) 



Where a public authority exercises its statutory power in its discretion and the decision is pure policy (policy decision) in nature, then that is regarded in English tort law as being non-justiciable- i.e. not capable of giving rise to a duty of care. Contrast that if a decision by a local authority is operational in nature that is implementing the policy which is being decided, then that operational decision is capable of giving rise to a duty of care.

The reasoning justifying the distinction, and a caveat on applying the distinction; Subsequent judicial endorsement, e.g.: Phelps, above; Carty, above; Barrett (Lord Slim in this case said that, most decision of public authorities contain a mix of policy and operational decisions, above

TORT LAW Lecture 7: Public Authority Liability in Negligence

Examples of the distinction: Dorset Yacht Co Ltd v Home Office [1970] AC 1004; o

This was the case about the borstal boys that broke out of their accommodation and hijacked a boat, which lead to them trashing it. In that case it was said that the decision of the home office to pursue the borstal boys program of which contained the rehabilitation and re-integration of young offenders was policy. But the way the 7 boys were supervised that night was operational and thus the home office could be sued.

Connor v Surrey CC [2010] EWCA Civ 286, [2011] QB 429 Re liability for ‘pure omissions’: applies the same to Public Authorities as it does to individual’s omissions 



 

The reluctance in English law to attach a duty of care to pure omissions applies just as much to public authorities as it does to individuals (i.e. the bad Samaritan who watches someone walk over a Clift to their death). Public authorities cannot be sued for pure omissions, authority Stovin v wise and Gorringe  look back at the 7 reasons why English law does not attach a duty of care for pure omissions, i.e. policy ( first few lecture in the first semester) The why pick on me argument does not apply to public authorities as they are the only one that can be held liable in most cases.-> Lord Hoffman in Stovin and wise, that the other policy reason against pure omission continue to apply to public authorities.

key illustration from the ‘highway cases’: Stovin v Wise [1996] AC 923 (HL) similar exceptions to the general rule apply (previously considered under ‘Duty of Care’ — e.g., Dorset Yacht Co Ltd v Home Office, Haynes v Harwood, Goldman v Hargrave, Smith v Littlewoods;

As stated in Gorringe, there are exceptions to the pure omission case and we discussed those in the first semester: one of the exception is where the defendant creates the danger on or near a roadway (i.e. duty of care arises) remember Hynes v Hayward the delivery man left the horse untethered and the children through sticks and stones at it and the horse bolted and the police had to save the mother and the children from the horse. This was classed as a pure omission for not tethering the horse, nevertheless it gave rise to a duty of care. The court in Gorringe stated that Mrs Gorringe could not rely on Hynes as the public authority did not create the danger on the road. That was not a Hynes and Hayward case. Note: that’s why when you’re suing a public authority you need to establish some sort of positive act or an omission that is in the course of conduct. You need to establish that what the public authority did was either a positive act or if it wasn’t, then it was an omission that was all part of the course of conduct. (I.e. driving along mile end road you attention is distracted and you don’t brake which result in running into the person in front. That really an omission (i.e. failure to brake) but it’s still part of the course of conduct (i.e. driving). When you have an omission try to frame it as part of course of conduct then you will be fine, as a duty of care can attach to an omission in the course of conduct. 

Pre-requisite: with respect to public authorities, just because the public authority does not act at all or does something really silly or a bit negligent does not trigger a duty of care (that’s the east Suffolk principle). Remember just because a public authority acts irrationally (i.e. Wednesbury unreasonableness that does not trigger a duty of care says Gorringe. Remember the policy and operational distinction you have to establish something that the public authority did that was operational in nature or even a mix of policy and operational decision making. You have to establish this to make it justiciable matter. The last thing is that pure omission is going to be a problem just like it is for anybody else and unless you can establish one of the exception. Try to establish that what the public did was either a positive act or a course of conduct in which there was acts and omission acting side by side, then you will have a better chance in suing the public authority.

Need to overcome the East Suffolk principle- put something more than mere failure to act or the exercise of a statutory duty and power in a very careless manner, you got to establish something more: 4 ways (PA created the danger) stated below in the pink box…..

TORT LAW Lecture 7: Public Authority Liability in Negligence

THE CAUSE OF ACTION Duty of care 

To overcome the East Suffolk principle, and establish a duty of care, something more is required than a mere failure to exercise a statutory power or a statutory duty at all, or an exercise of that power or duty in an improper or careless manner. 



Remember Hill and chief constable, Jackeline the last murder victim of peter sutclift, her estate tried to argue that the police owed Jackeline hill a duty of care. She was in the third category, she was trying to establish that a duty of care was owed to her by the police under the Caparo framework (but she failed)

Establishing that ‘something more’: how do you sue a public authority and establish causation:

There has to be something more than simply a negligent exercise or a failure to exercise a statutory duty/power. There must be either the public authority made the situation worse, the public authority assumed responsibility, the Caparo test is met or there is some ancillary function that the public authority has performed negligently. The something more are stated in that diagram.

(1) Making the situation worse: 

Principle: A public authority will owe a duty of care to the claimant if the public authority (does some act) that put the claimant in a worse position than if the public authority had done nothing at all. The authority is per Lord Romer in East Suffolk, above

‘’ the only duty that a public authority owes to any member of the public is not to add to the damages being suffered had the public authority done nothing’’ 

How it is proven: if the public authority introduces a new hazard or danger for the claimant that is what you’re really looking for (i.e. has the public authority introduced a new hazard or a new danger for the claimant which was not there previously before they did what they did).

Compare Harm X and Harm Y: what would have happened if the public authority had done nothing that’s harm X and what would have happened if the PA has done something that’s harm Y and that’s Y must be greater than X. If the public authority has done something to make the situation worse than that would trigger a duty of care.



Successful application:

TORT LAW Lecture 7: Public Authority Liability in Negligence Capital & Counties plc v Hampshire CC [1997] QB 1004 (CA) o

Capital and counties run a computer business in a modern building fitted out with fire sprinklers ect…but Unfortionely fire did break out somewhere in the building and the fire brigade were called. The senior fire brigade officer inspected the fire and then gave instructions to turn off the sprinkles (20 minute after arrival). According to the evidence the golden rule in fire fighting is do not turn the sprinkles off until the seat of the fire has been determined. Unfortionely in this instance the fire had not been extinguished and with the sprinkles off it spread rapidly, it destroyed the sprinkler system and the entire building was damaged beyond repair. The bill was 16 million. Capital and counties sued the firebrigde in negligence and that’s how it got to the court of appeal. It went to the court of appeal and it was held that the firebrigade (which was run by the Hampshire council) did owe Capital and counties (i.e. the property owner) a duty of care. The key reason given by the court of appeal was that by turning of the sprinklers system off, the firebrigade had made the situation much worse as if they had not turned up. By giving the instruction to turn of the sprinkles made the situation worse as if they had not turned up at all.



Unsuccessful applications

: East Suffolk, Furnell v Flaherty (t/as Godstone Farm), Gorringe: o

Remember Mrs Gorringe who drove up the crest of a hill see a bus coming the other way and she becomes airborne, she brakes and skids and hit the bus, she becomes brain damage as a result of the accident. Her lawyers sought to argue that the making it worse principle was operational. The house of Lord held that by failing to install better signage or road markings that did not make the situation worse than doing nothing at all, it did not fit in making it worse principle. The allegation here was an omission the failing to install road signs did not make the situation worse (i.e. did not fit in the principle). Very hard when it’s an omission. You got to point to a positive thing that the public authority did to make the situation worse. (establishing a duty here is quite unusual)

(2) Assuming responsibility for C, rather than for ‘the common good’ ( Assuming responsibility for that claimant over and above the general public or acting for the common good, if the claimant can prove that would be a convenient way to prove a duty of care. 



Principle: What you have to prove is that the public authority, the defendant assumed a responsibility for the safety and welfare of the claimant as an individual as distinction form the rest of the general public. This would be something more that would trigger a duty of care owed by the public authority to the claimant. The authority for this: per Lords Hoffmann and Brown in Gorringe, above

Where this is most relevant is the emergency services. First of all the fire brigade, what if a party makes a 999 call to the Firebrigde that his building is burning down, can one establish an assumption of responsibility test. It is held in English law (this courtesy Capital and counties) that the firebrigde does not assume a responsibility to a 999 caller over and above their duty owed to the general public. Capital counties was different as the fire brigade made the situation worse, but if the fire brigade had not made it worse, then no duty of care would’ve been owed. This point was also conferred in Kent v Griffiths (CA), It was an ambulance case, it was also said that one of the key reasons the fire brigade does not assume a responsibility to a 999 caller is because of the danger of fire spreading means that the fire brigade owes a duty to all that could be at risk from that fire.

Has been considered (but not always upheld) in a number of scenarios to date — for example: 

The position of the fire brigade which is summonsed to respond to an emergency  Kent v Griffiths [2001] QB 36 (CA), obiter  Capital and Counties, above (re the second and third appeals)- the second appeal case in capital and counties and it’s called:

The London firebrigde case:

TORT LAW Lecture 7: Public Authority Liability in Negligence o

It arose out of a firm that did stunt work in films, who were carrying out controlled explosions, sparks fell onto the claimant’s industrial premises and some combustible material caught fire. The fire brigade was called urgently and there was spot fires all around were the stunt had taken place. The spot fires were put out, but the claimants property were not adequately inspected, so the fire brigade left and a serious fire broke out that night and serious damage occurred on the claimant property. The court of appeal had to consider this case and it was held that no duty of care was owed by the fire brigade to that claimant, that no duty of care could be owed. The reason is exactly as mentioned before that there is a duty owed to the general public but not to the particular c...