Liability of public bodies in negligence vs liability of private bodies - should there be any difference? Flashcards
Intro
With the diminishing of the ‘policy approach’ in favour of the ‘Diceyan approach’ in Michael v Chief Constable of South Wales, it seems to be the case that the liabilities for negligent omissions of public authorities and private persons are mostly congruent. Notwithstanding, the established exceptions in common law – namely in cases involving an assumption of responsibility or an interference, creation of danger, or control – can be said to apply more to public bodies due to their respective lines of work. However, a closer look at negligent omissions cases involving public bodies yields the argument that the liabilities therein should in fact diverge from the general ‘no liability for omissions’ rule, given that the reasons for the general rule fail to apply to public bodies. Moreover, any potential ex ante concerns over all public authorities owing prima facie duties of care can arguably be addressed by the second limb of the ‘policy approach’. It is ultimately submitted, however, that regardless of the theoretical pulls of the ‘policy approach’, the ‘Diceyan approach’ is likely to continue as the favoured stance in practice, especially due to the existence of other statutory regimes such as the Human Rights Act 1998.
Para 1
First and foremost, a qualification should be made that with regards to negligent acts, as opposed to negligent omissions, the liabilities of public bodies and private parties are similar, as a negligent act that makes the other party worse off will be wrongful regardless of whether a private or public body committed it (of course, subject to the respective tests for the different types of losses). It is only due to the legal dilemma as to whether or not a lack of action, i.e. an omission, should be deemed wrongful in the eyes of the law that the present question regarding the liabilities of public and private bodies arises, given that public authorities, by virtue of their position, owe more responsibilities to the common man that any private party. Accordingly, this essay will only address the liabilities of public and private bodies with regard to negligent omissions (STEEL: Though note that the preliminary question of ‘justiciability’ is far more likely to arise in a public authority claim, even, potentially, in relation to acts. For a helpful analysis of justiciability in this context see per Laws LJ in Connor v Surrey CC.)
Para 2
It is this dilemma that engendered the key controversy between the ‘Diceyan approach’ on one hand and the ‘policy approach’ on the other, reflected in decades of conflicting case law. The ‘Diceyan approach’ is based on the works of Dicey on the rule of law, which postulates the notion that everyone should be equal in the eyes of the law, i.e. that a public body should be treated in the same as a private person. Conversely, the ‘policy approach’ holds that a public body will owe a duty of care unless some reason of public policy makes such a position undesirable. This notion subsequently gained traction in the courts and is aptly borne out by Bingham MR (as he then was) in X v Bedfordshire CC when he held that ‘very potent considerations of public policy’ would be required to override the general rule that a public body owes a duty to the claimant. However, this ideological clash seemed to have come to a definitive end in Michael, wherein the Supreme Court held in favour of the ‘Diceyan approach’ to rule that police did not owe a duty of care to a woman who made an emergency call but was murdered before police arrived at her house, even though the police’s delay was a result of its negligence. With the final triumph of the Diceyan approach, it is easy to conclude that the liability of public bodies and private parties in negligence are no longer divergent but are in fact one and the same.
Para 3
Nevertheless, a more thorough analysis into the tort of negligent omissions shows that this congruence is more apparent than real, given that the established common law exceptions to the general ‘no liability’ rule apply more frequently to public bodies due to their respective lines of work. For instance, assumption of responsibility cases would frequently apply to public bodies dealing with children, or the police, fire brigade and ambulance services. So in Barrett v Enfield LBC, a local authority was held liable for neglecting a child who had been taken into the authority’s care, on the basis that they had assumed responsibility and therefore had a positive obligation to take care of the child properly. Similarly, in Michael, it was reasoned by the Supreme Court that an assumption of responsibility would hypothetically have existed if the police operator had given the victim a promise as to the speed of the police’s response. Actions by public authorities in cases concerning emergency services (police, fire brigade and ambulance services), such as in the hypothetical situation raised by the Supreme Court in Michael, might even amount to interference, whereby the negligence of the public body interferes with the claimant or a third party resorting to other more effective means, as was the case of the late ambulance in Kent v Griffiths. Furthermore, in creation of danger cases, it would be logical to assume that liability could easily be established for public authorities when a negligently administrated land or property leads to injury, such as in Yetkin v London Borough of Newham. Again, in control cases, public bodies looking after children, such as a school in the case of Carmarthenshire CC v Lewis, will easily be held liable for negligent omissions. Evidently, while the general starting point of no liability is the same for public bodies and private parties, it is more often the case that the common law exceptions apply to public bodies to hold that they do indeed owe duties of care to the respective claimants.
Para 4
That being said, the fact that police in Michael were held to not be liable for the victim’s death even though she would have survived if not for its negligence begs the question of why the ‘Diceyan approach’ should even succeed in the first place. In the same vein, an argument can be put forth that public authorities, in particular emergency services, are impliedly relied upon by the public so much so that in many cases, a person’s life hangs in the balance – given this, should public bodies not then implicitly owe a duty of care not to be negligent in performing its duties? The main reasons provided for the general ‘no liability’ rule are, inter alia, the respect of individual autonomy as opposed to intrusions by the law (per Stovin v Wise), moral crowding out, to avoid deterring rescue, and the ‘why pick on me?’ argument observed by Lord Hoffmann in Stovin v Wise. It is submitted that all these reasons fail to apply to public authorities since it is already their job to act in such a manner. While it may be argued that holding all public bodies prima facie liable may contravene into issues of executive administration beyond the courts’ jurisdiction, this consideration is adequately reflected in the ‘policy approach’, whereby public authorities would not be held to have owed a duty in the face of compelling policy reasons to the contrary. So in Smith/Van Colle v CC of Hertfordshire, the court, in adopting the policy approach, held that there was no duty of care given that doing so would unduly bias police towards prioritising certain cases over others. Based on this line of argument, it would seem to be the case that the ‘policy approach’ theoretically triumphs as the legal test to be used since it adequately strikes a balance between upholding ex post justice and ex ante policy considerations.
Para 5
It is ultimately submitted, however, that regardless of the theoretical pulls of the ‘policy approach’, the ‘Diceyan approach’ is likely to continue as the favoured stance in practice for several reasons. First, tort law as a civil law is concerned mostly with remedies (most often in compensatory and not punitive damages), not with finding fault. While wrongdoing is an essential consideration, it is often merely a means to an end to determine the extent of liability and subsequently, quantum of compensatory damages. Therefore, any argument regarding the amount of liability to impose on public bodies should be couched as a question asking how much a public body should pay for the harm caused to the claimant. But in cases involving negligent omissions, the acts of the public bodies do not make the claimant any worse off; in fact, it is likely to be a third party who has inflicted injury on the claimant. Barring the common law exception of interference, this means that the claimant would have suffered harm (and the third party would have been liable for the full amount of her injuries) even if the public body had not existed – it would therefore seem unjust for the guilty third party to be excused from paying the full amount of damages just because of the odd chance that, for instance, emergency services were negligent in arrival. This is secondly buttressed by the fact that punitive measures do and should continue to apply alongside tort law, under the ambit of criminal law and other statutory regimes, such as the European Convention of Human Rights (given effect in domestic courts through the Human Rights Act 1998) and any internal codes of conduct or regulations within the public bodies. As such, it is not the place of tort law to impose liability for wrongdoing when such wrongdoing accrues with it punitive and not compensatory remedies. Ultimately, given that public authorities will be held liable elsewhere and punished without having to excuse the original wrongdoer from liability and secondly pay undue amounts of compensation, it is submitted that the courts have indeed been right in adopting the practical ‘Diceyan approach’ despite its theoretical shortcomings. The additional standards of care to be upheld by public bodies should and will be adequately borne by the established common law exceptions, achieving justice on one hand and fairness on the other.
