7: Part III Special Cases cntd. Flashcards
The Delictual Libaility of Public Bodies - What is a Public Body?
- Government department
- A Government agency (e.g., the NHS, the police service, the fire service)
- Local authority
Can a public body be found liable for negligence?
Yes, in the right circumstances
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
- “Unless such a duty [of care] would be inconsistent with, and is therefore excluded by, the legislation from which their powers or duties are derived”
- “public bodies do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory powers, they could prevent a person from suffering harm”.GN v Poole BC [2019] UKSC 25 per Lord Reed
What is the general presumption where a statute provides a penalty for breach of statutory duty
That Parliament did not intend that there should be additional sanction of delictual liability for breach of statutory duty
Morrison Sports Ltd v Scottish Power [2010] UKSC 37
In what situation can there be a common law remedy/ sanction of delictual liability if the statute includes a penalty for a breach
If it is apparent that the statutory obligations were passed for the protection of a particular class of individuals, then a delictual action for breach of statutory duty may lie, if pursuer belongs to that class and has suffered injury or loss.
- However this may be hard to prove
What is the presumption if there is an alternative private law remedy
No delictual remedy
- Allowing a delictual remedy in addition to an alternative private remedy could lead to double recovery for the claimant, where they are compensated twice for the same harm.
- This outcome not only goes against principles of fairness but also risks imposing excessive liability on defendants, potentially discouraging economic activity and innovation.
What is the presumption if the statute does not provide a method of enforcement
Parliament must have intended that a remedy should be available at common law
- Dawson v Bingley Urban District Council [1911] 2 KB 149
Other approach:
Osman v UK [1999] 1 FLR 193
- Article 6 of the European Convention on Human Rights
- ECtHR ruled that Article 6 of the ECHR includes not only the right to a fair trial but also the right of access to court to seek redress for violations of other Convention rights, such as the right to life under Article 2. Therefore, the lack of an effective remedy in domestic law for alleged breaches of the right to life could constitute a violation of Article 6.
Illustrate the delictual liability of public bodies in reference to the Fire (Scotland) Act 2005
Fire (Scotland) Act 2005
- s8(1) Scottish Fire and Rescue Service must make provision for the purpose of promoting fire safety in its area
- s9(1)(a) Scottish Fire and Rescue Service must make provision for the purpose of extinguishing fires in its area
Scottish Fire and Rescue Service must make provision for the purpose of extinguishing fires in its area
- Would the fire service have to direct their hoses at a smoker?
- What about a chip pan fire in a tenement?What if, when the chip pan fire broke out, there was a factory ablaze on the other side of town and all of the fire engines were at the factory?
- What if, when the chip pan fire broke out, the firefighters were in their firestations watching TV?
Is there liability in delict for ommissions
Generally, no
What are the 4 circumstances in which duties arise in respect of sources of danger not created by the defender
- A has assumed responsibility for B / assumed responsibility to protect B from the danger – Hedley Byrne v Heller and Partners [1964] AC 465
- A has done something that prevents C from protecting B from the danger – Chief Constable of Essex v Transport Arendonk BvBA [2020] WLUK 192
- A has a special level of control over the danger – Dorset Yacht Co v Home Office [1970] AC 1004
- A’s status creates an obligation to protect B from the danger – e.g. A is B’s employer
Summarise PART 1 of the delictual liability of public bodies
- Public bodies have responsibilities and are created by or derive at least some power fromstatute.
- Where a public body acts carelessly or fails to act a remedy might be found in statute or, failing that, a remedy might be available in delict
A court must ask several questions when deciding if the remedy is available, including:-
- Is the conduct complained of within the power of the public body?
- Did the public body exercise their power unreasonably or fail to exercise it without due cause?
- Is the mischief complained of justiciable?
- In the case of omissions, can it be said that there is a factor that displaces the general rule that there is no liability for omissions?
If A (a public body) causes harm to B, in what circumstances will A be liable in delict to B?
- The courts will not intervene in every case
- They will be unlikely to intervene in matters of policy but can bepersuaded to intervene in operational decisions.
- Not every public body is treated in the same way
If A commits a crime are there circumstances in which C might be liable to B where B suffers harm as a result of A’s crime?
- Negligent Supervision or Control: If C had a duty to supervise or control A and failed to do so, knowing or reasonably foreseeing that A might commit a crime that could harm B, C could be held liable for negligence. For example, if C is the employer of A and fails to properly train or monitor A, resulting in harm to B caused by A’s criminal actions, C might be liable for negligence.
- Vicarious Liability: In certain circumstances, C might be vicariously liable for the actions of A if A was acting within the scope of their employment or agency relationship with C when committing the crime.
- Failure to Warn or Protect: If C knew or had reason to know that A posed a danger to B and failed to warn or protect B from that danger, C could be held liable for any harm suffered by B as a result of A’s criminal actions.
If it is A who has caused the harm, why might B not just decide to sue A?
The decision of whether to sue A, C, or both parties will depend on various factors, including the specifics of the case, the parties’ financial situations, and the availability of insurance coverage or other sources of compensation. B may strategically choose the party or parties against whom to pursue legal action based on the likelihood of obtaining meaningful compensation for the harm suffered.
Liability to the Public
Under The Police and Fire Reform (Scotland) Act 2012, are the public entitled to the police’s protection? Refer to Hill v Cheif Constable of West Yorkshire
Hill v Chief Constable of West Yorkshire [1989] AC 53 (yorkshire ripper)
- Had claimed that police operation had taken too long which allowed him to murder her son
- “It is plain that vital characteristics which were present inthe Dorset Yacht case and which led to the imposition of liability are here lacking. Sutcliffe was never in the custodyof 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” per Lord Keith
Explain the human rights aspect of liability for harm caused by the criminal acts of third parties - the police.
Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50
- Know or ought to know of a real and immediate threat to an identified individual by the criminal act of a third party
