8. Public liability bodies Flashcards
Anns v London Borough of Merton 1978 AC 728
• The case is not a specific test for determining whether to recognize a duty of care; rather it is an approach for analysing existing categories and recognizing new categories of negligence: 1. Whether, between the defendant and the plaintiff there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, careless on part of the defendant may be likely to cause damage to the plaintiff, in which case a prima facie duty of care arises. 2. If we could say yes, to the first question, it is necessary to consider whether there are any considerations which act to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. • The analysis of this case comes from Lord Wilberforce. • The test was overruled by HL in the Caparo test; because it was seen as creating a very broad concept of duty of care and negligence (and therefore growth in the scope of liability). Although Canadian judges are receptive to Wilberforce’s judgment.
Steele - Anns was superseded by the Caparo test. But the final element of the Anns test was demolished by Gorringe v Calderdale.
In this case
A. The statute conferred a power not a duty
B. On the hypothesis the authority had merely failed to inspect.
C. Applying the majority approach in East Suffolk, this is a case of mere failure to avoid harm. The harm was not caused by natural forces, but it was caused by a builder, and the local authority had merely failed to notice and prevent the defect.
Despite these features the HL held that a claim in negligence was arguable, whether there had been an inspection or not
Hill v Chief Const. West Yorkshire 1989 AC 53 (police investigations) HL
- Jacqueline Hill was the final victim of Peter Sutcliff. He had committed 13 murders and 8 attempted murders over a five-year period. Jacqueline’s mother made a claim against the Chief Constable on the grounds that the police had been negligent in their detection and detention of Sutcliffe. The defendant applied to have the claim struck out on the grounds that there was no cause of action since no duty of care was owed by the police in the detection of crime.
- Held
- No duty of care
- There was a problem with proximity because the daughter was one of many that could have had the accident, so there was no relationship between her and the offender. The case could have been decided simply on the basis of proximity.
- The police owe a general duty to supress crime and catch criminals, but not a duty of care owed to specific individuals. But there are special cases where the information is known.
- Osman v UK (Case 87/1997/871/1083) (Art 6) 1999 FLR 193, 29 EHRR 245 (crime investigation)
• According to Osman v UK, a positive obligation to prevent death arises for public authorities only where the authority knew, or ought to have known, of the existence of a real and immediate risk to life
• This is a leading and controversial case before the European Court of Human Rights on Human Rights law in the UK.
• The applicants were British citizens resident in London. The first applicant Mrs Osman, the widow of Mr Osman who was shot death by Paul Paget-Lewis.
• The second applicant, Mrs Osman’s son, Ahmet. He was a former pupil of Paget-Lewis. Ahmet Osman was wounded in the shooting incident which led to the death of his father.
• The applicant’s complaints are directed at the failure of the authorities to appreciate and act on what they claim was a series of clear warning signs that Paget-Lewis represented a serious threat to the physical safety of Ahmet Osman and his family. The applicants argued that the police had been given information which should have made it clear that the individual posed a danger.
• Held
• All the English courts agreed that the police owed no duty of care to the applicants, thus confirming Hill v Chief Constable of West Yorkshire Police where it was ruled that the police owed no duty of care to one of the victims of Yorkshire Ripper.
• European Court of Human Rights – the ruling was that such blanket immunity would be a breach of Article 6 of the European Convention of Human Rights, but there was no breach of Articles 2 and 8.
• So there was a breach of Article 6 on account of a disproportionate restriction of the applicant’s rights of access to a court guaranteed by this Article, but not of Articles 2 and 8.
♣ Blanket immunity – means completely protecting the witness from future prosecution for crimes related to his or her testimony.
♣ If you do not have a blanket immunity, then you still need a trial.
♣ So, basically breaching Article 6 does not really deny any civil liability to the claimant.
Articles
• Article 6 – In the determination of civil rights, everyone is entitled to a fair and public hearing
• Article 2 – Everyone’s right to life should be protected by law.
• Article 8 – Right to respect for private and family life.
- But now see Z v UK,
Van Colle & Anr v Chief Const of Herts Police; HL2008
• The appeal involved two separate cases: Van Colle and Smith.
• The Van Colle case was brought under the Human Rights Act 1988 based on Article 2 (Right to life) and did not raise the common law of negligence.
• The Smith case was based in negligence alone.
Van Colle
- Van Colle employed Mr Brougham as a technician at his optical practice. Three months into employment, the two had an argument resulting in physical confrontation, hence Mr Brougham never returned to work. The police later found belongings to the optical practice, along with other stolen items at Mr Brougham’s home. He was arrested and charged with theft. Mr Brougham then started to harass Mr Van Colle to pressure him into not giving evidence. The harassment included torching his car and making death threats. Mr Van Colle reported this to the police who arranged a meeting to take a statement with a view to arrest Brougham. The meeting never took place as Mr Brougham shot and killed Mr Van Colle on his way home from work. Mr Brougham was convicted of murder.
- Mr Van Colle’s parents brought an action against the police alleging violation of Article 2 and 8. The trial judge found for the claimant and awarded damages. The CA upheld that decision.
- Held
- Appeal to the HL allowed.
- According to Osman v UK, a positive obligation to prevent death arises for public authorities only where the authority knew, or ought to have known, of the existence of a real and immediate risk to life. Whilst Van Colle was a witness and therefore within the class of persons to whom a duty to protect might arise, the crime for which he was a witness was of a minor nature and Mr Brougham did not have a history of violence. The threats were intimidating but not sufficiently serious to suggest that Mr Van Colle’s life was endangered. Therefore, no obligation arose to take reasonable steps to prevent the killing and thereby no violation of Article 2.
Smith v Chief Const of Sussex Police. [2008] UKHL 50
- Smith lived with his lover Gareth Jeffrey. He then ended the relationship and Jeffrey assaulted him. Sometime later Smith moved away but maintained contact with Jeffrey. Jeffrey wanted to resume the relationship but Smith did not. Jeffrey then started to send abusive and threatening texts which included death threats. Smith contacted the police several times in relation to the threats and told them of the previous violence. Jeffrey eventually attacked Smith with a hammer causing him three fractures to the skull and brain damage. Smith brought an action against the police for their failure to provide adequate protection.
- The police applied to have the case struck out which was granted by the trial judge. The CA reversed the decision. The police appealed to the HL and its appeal was allowed.
- Held
- No duty of care was owed by the police. The case fell squarely within the principle established in Hill v CC Yorkshire. The common law of negligence should not be extended to comply with Convention rights. A separate cause of action exists and should be pleaded in appropriate cases.
** Michael v Chief Constable of South Wales Police [2015] UKSC 2 (see notes on BB to extract the relevant paragraph numbers)
- Ms Mitchell was murdered (threated before about it) by her former partner, her family sought damages from the police in negligence under the FAA 1976 and the Law Reform Misc Provisions Act 1934, and under Article 2 ECHR.
- She phoned and there was disputes about how they should deal with priority of the call/ so they got there an hour later/ if they had arrived earlier she would not have been killed.
- She lost her case.
- The respondent police sought to have the claims struck out by summary judgment (ie by arguing there was no duty owed, therefore no case to consider). By majority of 5:2, the claim in negligence failed, but the claim under Article 2 has been allowed to proceed to trial (ie the UKSC upheld the CA decision on this aspect of the case).
- ……
- The call was classified as G2 and not G1 in terms of importance – so when the police arrived she was dead.
- The alternative claim under Article 2, the court in S says that there should be a duty to protect the right to life.
- The test under Article 2 is a ‘real and immediate risk to life’. This test was not thrown out, but the SC said that this could have been applied if the person who received the call would have thought of it to be a real and immediate risk to life.
- A duty of care would also arise when there is an assumption of responsibility –
- So far as negligence is concerned, it will rely on the Hill case.
- There was no assumption of responsibility, because the person who received the call did not say when the police would arrive.
** X v Bedfordshire CC, M v Newham LBC 1995 3 All ER 353, 1995 3 WLR 152
• Appeal against the council by children who had suffered parental abuse or neglect
• Did the council have a common law duty to take care over these children?
• No duty
• Reasoning
• Where there is statutory discretion imparted upon the authority, this discretion is not actionable at common law.
• There were also arguments about justifiability,
• Facts
♣ The HL dealt with five appeals, all involving claims in negligence and some involving claims for breach of statutory duty. The first two appeals respectively concerned an allegation that a local authority had failed to take children into care despite evidence of neglect and abuse by their parents (X v Bedforshire); and that the local authority had carelessly taken a child away from her mother on the mistaken suspicion that the mother’s partner was abusing the child (M v Newham). These are referred to as the child abuse cases.
♣ In the remaining three appeals (E dorset; Chritsmans v Hampshire; Keating v Bromley), the local authorities had failed to diagnose learning difficulties on the part of the claimants, or failed to make adequate provisions for schooling. These are referred to as the education cases.
General three types of claims
• Lord Browne-Wilkinson broke down the claims in the five cases into three types. Not all the types of claim were present in every case but in most cases they were.
1. Claims for breach of statutory duty in both the child abuse cases and the education cases.
• In no case was a claim for breach of statutory duty successful. The statutory duties were not of the appropriate sort. They were social welfare duties for the benefit of the public as a whole, and they were not actionable by individuals at common law.
2. Claims for negligent breach of a direct duty of care on the part of the defendant local authority, in the exercise of their statutory functions.
• These claims also failed because in general the duties argued for would be inconsistent with the purposes of the statutes.
3. Claims that the local authority was vicariously liable for the breach of a duty of care by an individual employee.
a. In applying Caparo v Dickman, the abuse cases were struck out. It would not be fair, just and reasonable to impose a duty of care on the professional social workers and psychologists who made judgments as to the child’s welfare. However, this conclusion would be different following D v East Berkshire.
b. Applying the same criteria, the education cases had a chance of success, and would not be struck out. This is because the relationship between the professional and child in these cases was arguably similar to a ‘normal professional relationship’ carrying no potential conflict of interest.
The policy arguments in this passages remain influential, but Lord Browne-Wilkinson explains the rejection of the direct duty of care in the abuse cases.
Lord Browne-Wilkinson [749]
*Barrett v Enfield LBC 1999 3 WLR 79 (HL)
- Having been in the care of the local authority from age 10 months to 17 years, the plaintiff sued the authority for among other things negligently failing to protect him from physical, emotional, psychiatric or psychological injury. The judge struck out the claim as disclosing no reasonable cause of action and the CA upheld the judge’s decision, but in the HL the plaintiff won. The HL held that the matter should proceed trial. They distinguished X v Bedforshire: it might be fair, just and reasonable to impose a common law duty of care on a local authority as to its care for a child once it took a child into care, even if for policy reasons it was not fair just and reasonable to impose a duty of care on the authority when it was deciding that it was fair, just and reasonable to impose a duty of care, but refused to strike out the claim on the ground that that decision needed to be made on the basis of all the facts that would emerge at trial.
- The decision limits the effect of X v Bedfordshire, by insisting that the fact that careless acts causing harm are carried out within the exercise of a statutory discretion is not in itself a reason why no claim for negligence should be available.
**Z v UK (Case No 29392/95) (Art 3, 13) 2001 2 FLR 612, 2002 (34) EHRR 3 (child protection)
• Facts
♣ The plaintiffs in X v Bedforshire (their claims in negligence having been struck out) brought an action against the UK alleging violations of art 6 (right of access to a court), 3 (freedom from inhuman and degrading treatment), and 13 (right of compensation in the event of violation of one of the substantive rights). The court admitted that its interpretation in Osman v UK had been in error. There had been no violations of art 6 but there had been violations of articles 3 and 13. The absence of protection for the interests of the children in this case and the lack of a remedy in the form of compensation, had violated their convention rights.
• Four children who the local authority failed for a considerable time to protect against neglect and abuse at home.
• The European Court of Human Rights found that the UK had breached Article 3 of the Convention (protection against torture, inhuman or degrading treatment and punishment) and Article 13 (effective remedy before a national authority).
• By 12 votes to 5 the ECtHR concluded that the UK had not breached Article 6(1) of the Convention.
• JD v East Berkshire NHS Trust 2005 2 AC 373 (HL) (parents’ claim rejected)
• Three conjoined appeals raising similar issues.
1. JD – the claimant was wrongly accused of having Munchausens syndrome by proxy and making her child ill. The child in fact suffered from multiple several allergies.
2. RK – The claimant was wrongly accused of sexually abusing his daughter. The daughter had injured herself riding her bicycle and she had also had Schamberg’s disease which involves purple patches on the skin.
3. MK – The claimant suffered psychiatric injury following the allegations and it was held that no duty of care was owed in each claim. The CA upheld the decisions. The claimants appealed to the HL.
• Held
• The appeals were dismissed. Health care and social service professionals do not owe a duty of care to parents in their decision making with regards to matters affecting a child. To impose a duty of care would be an extension of situation in which a duty was owed. It would be impractical to impose a duty in relation to the suspected perpetrator of a crime and the duty would conflict with that of the victim.
• The paramount responsibility is the welfare of the child
• But to say that there is a duty of care owed to the parents may cause the professionals to hesitate and not do their job
** MAK v UK (2010) 51 EHRR 14 (App. Nos 45901/05 and 40146/06) (*noted MLR 2010, 73(6): 1026-1035)
• Issues
♣ Whether violation of right to respect for private and family life.
♣ Whether violation of right to effective domestic remedy.
♣ Whether applicants entitled to just satisfaction for non-pecuniary damage
• Facts
♣ MAK was RK’s father
♣ MAK and is wife took RK to hospital as they were concerned with some bruising their daughter had on her legs. Photographs of RK were taken without the parents’ consent and were refused access to see RK until the following day. Days later RK was diagnosed with Schamberg’s disease.
♣ After the claims were struck out in UK courts, the applicants complained to the ECtHR. The applicants said that:
• Their separation of RK in the hospital for a period of ten days violated their art 8 ECHR
• RK further contended that the decision to take a blood sample and photographs without consent constituted an unjustified and disproportionate interference with her physical and moral integrity
• MAK contended that his right to an effective remedy under art 13 was violated
• Held
♣ There had been a violation of art 8 of the Convention as regards to take blood sample and photographs without consent of the parents. [64-80]
• [64] ‘It is not disputed that the initial decision to prevent the first applicant from visiting the second applicant in hospital constituted an interference with both applicant’s right to respect for their family life.’
♣ MAK’s art 8 complaint was arguable. Adequate redress was not available to him at the time. Accordingly, there had been a violation of his art 13 rights. [87-89]
♣ MAK would be awarded 2,000 euros, and RK 4,500 in respect of non-pecuniary damages.
Phelps v Hillingdon 2000 3 WLR 776 (HL) (education)(vicarious liability)
• Issues
♣ Whether professionals owing a duty of care to pupils
♣ Whether authority directly or vicariously liable
♣ Whether failure to mitigate adverse consequences of congenital defect ‘personal injuries to a person’
• Facts
♣ 1.The plaintiff in the first case was referred by her school to the defendant local education authority’s school psychological service. An educational psychologist revealed that there were no specific weaknesses. When the plaintiff left the school she was privately diagnosed as dyslexic.
♣ She brought an action against the authority claiming that they were vicariously liable for the psychologist’s negligent assessment. The judge held that the psychologist had owed a duty of care to the plaintiff, that the adverse consequences of the plaintiff’s dyslexia could have been mitigated by early diagnosis and appropriate treatment or educational provisions.
♣ The CA allowed the appeal of the authority and the plaintiff appealed.
♣ 2. The applicant in the second case was privately diagnosed as being severely dyslexic. She contended that her speech and language problems had not been investigated adequately, therefore she developed psychological problems.
♣ The CA allowed the appeal by the authority, the plaintiff appealed.
♣ 3. The plaintiff in the third case suffered from muscular dystrophy. He was provided with a statement of special educational needs pursuant to the Education Act 1981.
♣ The plaintiff contended that negligently and in breach of duty the defendant local authority had failed to provide proper education for him, and in particular the computer technology to enable him to communicate and as a result he suffered a form of lack of educational progress, social deprivation and psychiatric injury consisting of clinical depression.
♣ The CA allowed the plaintiff’s appeal and the authority appealed.
♣ 4. In the fourth case, the plaintiff had learning difficulties and his special educational needs were assessed. An educational psychologist’s report did not refer to dyslexia. His mother felt that he should be placed in a unit specialising in dyslexia, but he was placed elsewhere.
♣ He issued negligence and breach of duty by both the authority and the educational psychology service.
♣ The CA allowed the appeal by the authority. The plaintiff appealed.
• Held
• The plaintiff’s appeals in the 1,2, and 4 cases were allowed; the local authority’s appeal in the 3 case was dismissed.
• The Local Authority was liable for breach of duty to the plaintiffs.
• 2. Failure to mitigate the adverse consequences of a congenital defect such as dyslexia was capable of constituting ‘personal injuries to a person’ within section 33(2) of the Supreme Court Act 1981.
• 3. That teachers owed a duty at common law to exercise the skill and care of reasonable teachers in providing education for their pupils in relation to their needs; that the local education authority might be vicariously liable for breach of such a duty and the plaintiff’s case in the 3 appeal should not be struck out.
• 4 the claim on vicarious liability similar to the 3rd appeal should not be struck out.
TP v UK (Case No 28945/95) (Art 8, 13) 2001 2 FLR 549, 2002 (34) EHRR 2 (child protection)
• Issues
♣ Whether taking a child into care and separating from mother constituted an interference with their right to respect for family life
♣ Whether interference in accordance with the law
♣ Whether interference pursuing an aim that was legitimate
♣ Whether interference necessary in a democratic society
• Facts
♣ The applicants were British nationals. The first applicant gave birth to the second applicant KM. BTW 1984 and 1987 the local authority suspected that KM was being sexually abused as a result of her behaviour and urinary infections.
♣ An interview was arranged in which the mother was not invited. KM disclosed that someone named X had abused her and the mother’s boyfriend who lived with them had the same first name. The mother was informed that KM had disclosed her boyfriend abusing her. The mother’s agitation showed no capability to look after the child, therefore KM was removed from her.
♣ In 1990 the applicants issued legal proceedings against the local authority, the social worker and Dr V who had failed to investigate the facts with proper care and thoroughness. The applicants claimed that as a result of their separation each of them had suffered a psychiatric disorder.
• HELD HL
♣ Held that the local authorities should not be held liable in negligence in respect of the exercise of their statutory duties safeguarding the welfare of children
ϖ The ECtHR
¬ The applicants contended that KM had been unjustifiably been removed from her mother’s care in violation to art 8. Further that they had been denied access to court in determination of their claims of negligence against the local authority in breach of art 6. And also that they had not been afforded any remedy under art 13.
¬ 1. The interference under art 8 must be regarded as necessary in a democratic society in accordance with art 8(2). However, it was. The local authority’s failure to submit the issue to the court for court for determination meant the mother was not adequately involved in the decision-making process concerning the care of her daughter. Therefore there had been a violation of art 8.
¬ 2. In general art 6(1) only applied to disputes under domestic law.
¬ 3. Appropriate award or compensation had not been sought, therefore art 13 had also been breached.
Stovin v Wise 1996 3 All ER 801 (HL) (road safety)
• Facts
♣ Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Nortfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed.
• Issues
♣ Whether breach of common law duty by highway authority to take reasonable care
♣ Whether breach by authority of statutory duty to maintain highway.
• Held
♣ The Council was not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a ‘cluster site’ under the Council’s policy for prioritising funding which required five accidents in three years.
♣ Where a public body had been given powers by a statute to act, a duty of care could only be regarded to have been imposed where two conditions were fulfilled: first, that there was in effect a public law duty to act and I would have been irrational not to have carried out that duty, and secondly, that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.
♣ Doing something was under the highway authority’s discretion and the authority was not under a public law duty to do any work, no duty could be imposed because the first condition for such imposition was not satisfied.
♣ Lord Hoffmann on imposing liability for omissions:
♣ ‘There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.’
Gorringe v Calderdale MBC 2004 1 WLR 1057 (HL)
• The case is about the extent to which an authority has a duty to road users to make the environment around the road safe through the Road Traffic Act 1998.
• At first instance, the legal point was whether following Gorringe v Calderadale, the local authority had any common law duty at all to a road user to make the environment around safe.
• Facts
♣ Mrs Gorringe drove her car into a bus due to restricted visibility. She argued that the authority should have used their statutory power and public law duty to take steps to promote road safety under section 39(2) of the Road Traffic Act 1998. But the HL rejected this argument.
• Held – the HL dismissed the appeal by Mrs Gorringe
• As a matter of policy, if road users used the road unsafely, then the claim should be against them rather than arising from public law duties against the local authority.
- Mitchell & anr v Glasgow City Council [2009] UKHL 11 (LA duty to protect tenant from acts of 3rd party?)
• Whether local authority owing duty of care to tenant to protect from act of third party
• Whether foreseeability of harm sufficient
• Whether foreseeability of harm sufficient to impose duty of care
• Whether violation of right to life
• Facts
♣ M and D were tenants of the defenders, the local housing authority. The local authority threatens D that it would repossess the house if conduct toward other residents would not change. Despite this D regularly threatened to kill M. The local authority followed proceedings to evict D who lost his temper and assaulted M who died of the injuries.
• Held
♣ 1. As a general rule, a duty to warn another person that he was at risk of loss, injury or damage as the result of the criminal act of a third party, would arise only where the person who said to be under that duty had by his words or conduct assumed responsibility for the safety of the person who was at risk.
♣ there was no basis for saying that the defenders ought to have known that, when D left the meeting, there was a real and immediate risk to M’s life. – BUT APPEAL ALLOWED – there was a failure to inform of the risk.
♣ [20] when these cases arise ‘from another’s deliberate wrongdoing cannot be founded simply upon the degree of foreseeability’. Therefore there should have been a duty to warn.
