Liability of the state and public authorities Flashcards
Is delictual liability part of JR?
No it is a separate course of actions
Differences between JR and delict?
JR looks at decisions being reexamined, delict wants damages.
Delictual causes of action
- assault
- deprivation of liberty
- harassment
- nuisance
- negligence
- breach of statutory duty
Endicott’s 4 basic principles of government liability?
1) public bodies are liable
2) statute may otherwise otherwise delictual action
3) unlawful action doesn’t always give rise to damages claim
4) Courts will not impose liability where they would need to answer a non judicial qu.
Where is the standard of liability to be found for breach of statutory duty?
In the statute
Do all statues give rise to action?
No
Major case for breach of statutory duty?
X (Minors) v Bedfordshire CC (1995)
What did judge in X (Minors) V Bedfordshire CC 1995 say?
- breach of S.D not itself ground for damages
What conditions did the judge in X (Minors) v Bedfordshire CC (1995)?
- Statue must be for protection of a limited class
- pARL MUST HAVE INTENDED IT TO CONFER RIGHTS of action
- if other remedies but not damages mentioned ins statute then should infer no damages
Basic elements of a claim based on negligence
duty of care (foreseeability + proximity +fair just and reasonable)
Leading case on duty of care
Caparo Industries plc v Dickman 1990
X (Minors) v Bedfordshire CC on negligence?
Careless exercise of statutory power not in itself actionable
What other than careless use of power must be shown?
Duty of care and causation
What is a condition thats stops acts being actionable?
Within scope of statutory discretion - can be v wide
Acts beyond scope of discretion (UV) are actionable- test?
Wednesday unreasonableness
Are questions of policy actionable?
No as non judicable
Why were courts reluctant to impose duty of care in X (minors) v Bedfordshire CC social work cases?
As unfair if it would hinder them doing their jobs, too scared to act.
- Education it was fair though.
Why did house of lord’s change stance on bound of liability?
Z v UK (2002)
(when X went to Europe)
said no remedy for treatment so breach of ECHR
Has to be Wednesday Unreasonableness in exercise of duty
Stovin v Wise (1996)
Facts of Stove v Wise (1996)?
Blind junction, visibility, said councils fault as responsible for road dafter. Said not reasonable to expect them to remove every danger from the road
Phelps v Hillingdon LBC 20001
- took away public law hurdle
- acting outside discretion not a pre- donation for liability
Mitchell V Glasgow 2005
- Scots law in line with English
D v East Berkshire Community Health NHS Trust 2005
- far just and reasonable part of test that usually trips them up
- pre trial, not sure what would have happened had they gone to court.
Hill v Chief Constable of West Yorkshire 1989
Did police owe duty of care to families of victims of jack the ripper?
No. Not fair just and reasonable to do so.
Brooks v Metropolitan Police Commisioner 2005
Stephen Lawrence’s parents.
Police need higher standard to impose a duty of care.
What case lays out the liability of the state in EU law?
Francovich 1991
- liability of MS for failure to enact directive
Authority for damages caused by policy decision of EU institutions or MS in their duties
Art 340 TFEU
Mulder v Council and Commission 1992 Facts
Cut back on subsidies
Farmers lost money and objected
Policy was unlawful
Managed to establish damages
Basic elements of EU institutions liability in EU law?
- unlawful conduct
- damage to claimant
Distinction between two types of action of EU institutions?
Higher standard for policy making than in cases of administration
Strict test for liability in policy making context?
Schoppenstedt formula
altered now : see next question
Current case for test?
Laboratories Pharmaceutiques Bergadem v Commission 2000
Laboratories Pharmaceutiques Bergadem v Commission 2000 test?
- law must intend to confer rights
- sufficiently serious breach
- direct causal link between breach and damages
- (seriousness of breach : clarity if the rule, measure of discretion,
- must their be a clearly defined group?
ECHR Art 41 says?
Must provide remedies for injured parties
- often = altered rule not damages
HRA S8 says?
Us policy on when and how much damages due.
- domestic courts can award damages but only in line with when ECHR would
Provisions in SA 1998 s100 on it
- dealing with Acts of Scottish Parl
- must be the victim to bring cases on convention
- easier to prove a violation has occurred
Liability for HR violations: Osman v UK (2000)
Under very high circumstances Art 2 (right to life) should be allowed.
-Teacher obsessed with pupil, shot father, police negligence
Liability for HR: Z v UK
Art 3 ( positive duty aspect) - in some cases state has a duty to act
Basic negligence claim may succeed on HR claim if you can establish HR breach
Z v UK
Van Colle v Chief Constable of Hertfordshire 2008
case unsuccessful but said HRA argument on negligence claim in principle okay to
Anufrijeva v Southward LBC 2004
Money given to asylum seekers not enough, continued degrading treatment.
Valid argument.
