Liability of Public Authority

Question 1

General

Answer 1

It does not necessarily have anything to do with breach of HR, and judicial review of action. But more a breach of a statutory duty, and breach of duty of care.

Question 2

Why does it matter if Public Authority liable?

Answer 2

1) Inappropriate use of funds - Compensation yet money comes from the public, could be going to just one individual. Combat with National Insurance, NHS can be liable but only sometimes
2) Distraction from fulfilling public responsibility - Hill v Chief Constable of South Yorkshire (Murder, defensive rather than general protection) Capital and Counties plc v Hampshire County Council - Fire service to limit spread of fire. Kent v Griffths - Ambulance service owe duty of care
3) Arrogation of responsibility delegated by Parliament - Public authorise can make decisions, as are courts which can’t change decision of other PA’s issue in Anns delate with in Public law way. Do they have statutory duty or power? Is it intra vires or ultra vires? Policy or operational decision? Reasonable or unreasonable decision?

Question 3

X v Bedfordshire County Council

Answer 3

Removing children from abusive homes, and child psychologists not diagnosing them. Found there can be direct and indirect liability, both of which relate to Caparo test.

Direct Liability - Authority themselves are negligent, Is it reasonably foreseeable and would it be fair, just and reasonable to impose it? Look at statue, parents get litigious

Indirect Liability - Worker is negligent and so employer becomes liable. Hard to distinguish from professional negligence. D v East Berkshire Community Health NHS Trust - Doctor held liable, child abuse

Question 4

Lord Browne-Wilkinson’s approach

Answer 4

Advantages - Clear public/private law distinction, Caparo test used
Disadvantages - Constitutional difficulty obscured, Vicarious liability more likely to succeed

Question 5

Stovin v Wise

Answer 5

Just because council has a power to deal with a problem does not mean they are obligated to deal with it. It isn’t fair, just and reasonable to expect council to act on all powers

Question 6

Barrett v Enfield Borough Council

Answer 6

Children taken into care abused. Authority can’t be liable for whatemployer does to that child. Can they actually look into case? Duty of Care, Caparo test

Question 7

Phelps v Hillingdon London Borough Council

Answer 7

Failed to diagnose dyslexia, compensation under vicarious liability. 1) Should they owe duty of care 2) If broken then should the employer be liable

Question 8

Human Rights 1998 Difference

Answer 8

Unlawful for public authority to act contrary to S6,7 and 8 of Convention.
D v Commissioner of Police of the Metropolis - Failure to catch rapist, breach of Art 3 ‘inhumane and degrading treatment’
Art 6 includes courts and tribunals
Smith v Chief Constable of Sussex Police - Sued under negligence, didn’t get as murdered by ex partner
Van Colle v Chief Constable of Hertfordshire Police - Art 2 breach but there was no immediate threat
Mitchell v Glasgow City Council - Case failed under HR and negligence