Negligence: Duty of Care ‘Special Scenarios’ (III) – Public Authorities

Question 1

Carty v Croydon LBC (2005)

Answer 1

Decisions regarding public authorities are likely to be non-justiciable; e.g. policy decisions are not something the Courts can interfere with (Lord Dyson).

Question 2

Phelps v Hillingdon LBC (2000)

Answer 2

“Since the public authority can only act through its employees or agents, and if they are negligent, vicarious liability will arise, it may rarely be necessary to invoke a claim for direct liability” (Lord Slynn).

Question 3

Gorringe v Calderdale (2004)

Answer 3

“A subject of great complexity and very much an evolving area of law. No single decision is capable of providing a comprehensive analysis” (Lord Steyn).

G was driving over the crest of a hill within the speed limit of 50mph, as she approached the crest she saw an oncoming bus, she attempted to swerve to avoid it. Her wheels locked and she skidded into the side of the bus suffering serious brain damage. There were no warning signs on the hill about the blind summit. HELD: No duty of care.

Question 4

Robinson v West Yorkshire Police (2018) [also seen in the Formulation of Duty and Omissions decks]

Answer 4

Liability for direct acts of public authorities.

“At common law, public authorities are generally subject to the same liability in tort as private individuals and bodies” - Lord Reed

“The ultimate reason why there is no duty of care towards victims or suspects or witnesses imposed on police officers engaged in investigation and prevention of crime lies in the policy considerations examined above” - Lord Hughes

Question 5

Michael v CC of South Wales Police (2015) [also seen in the Formulation of Duty and Omissions decks]

Answer 5

No liability for omissions by public authorities.

Question 6

East Suffolk Rivers Catchment Board v Kent (1941)

Answer 6

A duty of care cannot arise automatically out of a statutory duty or power that the public authority exercised, or failed to exercise, for C’s benefit: known as the ‘East Suffolk Principle’

Breaches to the sea wall were not repaired efficiently and the flooding continued for several months, causing significant damage to C’s pasture land. HELD: No duty of care.

Question 7

Stovin v Wise (1996) [also seen in the Omissions deck]

Answer 7

Car and motorbike crash as the result of poor visibility of oncoming traffic. This was due to an earth bank that Norfolk County Council had indicated required removal, but had nevertheless neglected to remove.

HELD: No duty of care

Lord Hoffman: ‘a statutory may’ cannot automatically give rise to a ‘common law ought’.

Question 8

Jain v Trent Strategic HA (2009)

Answer 8

D applied statutory powers incorrectly; however, it was held that there was no duty of care.

Question 9

Neil Martin v HMRC (2007)

Answer 9

HMRC failed to issue a requested certificate, which led to a loss of money. It was held that a statutory duty does “not, of itself, give rise to a common law duty owed to the application to process the application with reasonable expedition.”

Question 10

X v Bedfordshire CC (1995)

Answer 10

Five children from the same family had been the victim of appalling maltreatment and neglect. It was brought to the attention of the council by various professionals but they did not put the children on the Child Protection Register.

HELD: No duty of care.

Part of 5 conjoined appeals: 2 child abuse cases; and 3 education assessment cases.

Lord Browne-Wilkinson: C has to show that the circumstances were as such to show a duty of care at common law (i.e. the onus is on C).

In his dissenting opinion, Lord Bingham [which Emily likes!] believes that there should be a shift in emphasis from consideration of duty to consideration of breach - adding that the “concept of duty has proved itself a somewhat blunt instrument for dividing claims which ought reasonably to lead to recovery from claims which ought not” [49].

Moreover, he writes: “I see very considerable force in some of these points but they do not in the end persuade me that it would be just and reasonable on these grounds to deny a right of action to a child foreseeably injured by an act or omission of a doctor in circumstances such as the present if it was an act or omission of which no ordinarily careful and competent member of the medical profession could have been guilty.”

Question 11

Furnell v Flaherty (2013) (High Court)

Answer 11

“It should now be taken as settled law that no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty or to exercise a statutory power, however irrational such a failure may turn out to have been” (Turner J).

Question 12

Hill v CC of West Yorkshire (1989) [also seen in the Formulation of Duty deck]

Answer 12

Mother of the final victim of the Yorkshire Ripper on grounds that the police had been negligent in their detection and arrest of Peter Sutcliffe.

HELD: No duty of care.

Question 13

Brook v Commissioner of Police of the Metropolis

Answer 13

Psychiatric harm resulting from the conduct of the police in relation to the investigation of the Steven Lawrence murder.

HELD: No duty of care.

Question 14

Van Colle v CC of Hertfordshire Police (2008) [also seen in the Omissions deck]

joined with: Smith v CC of Sussex Police (2008)

Answer 14

Prosecution witness murdered prior to the trial of TP.

HELD: No duty of care.

For Smith: C attacked by a former lover, despite having frequently warned police that threats had been made against him.

HELD: No duty of care

Question 15

Capital & Counties v Hampshire County Council (1997) [also seen in the Omissions deck]

Answer 15

Public authority created a new danger or positively increased the danger (turning off sprinklers) - must thus be liable.

Also, a case that exemplifies how liability occurs when a public authority assumes responsibility.

Question 16

Yetkin v London Borough of Newham (2010) [also seen in the Omissions deck[

Answer 16

Public authority created a new danger or positively increased the danger (shrubberies obstructed visibility) - must thus be liable.

Question 17

Kent v Griffiths (2000) [also seen in the Omissions deck[

Answer 17

The claimant brought two simultaneous claims in negligence. The first, which was quickly dismissed, against her doctor, and the second, much more significant case against the London Ambulance Service after an ambulance, ordered by the doctor through a 999 call, took forty minutes to arrive at her house, where she was suffering a severe asthma attack, resulting in the claimant suffering respiratory arrest. In negligence cases, the claimant must prove that the defendant owed them a duty of care, that this duty was breached and that the injuries for which the claimant is seeking damages were a consequence of this breach. The issue before the court was whether an ambulance service (following the cases of Alexandrou v. Oxford, Oll v Secretary of State for Transport and Capital and Counties plc v. Hampshire County Council, which held that the police, Her Majesty’s Coastguard and firefighters respectively did not) owe a duty of care to those relying on its services.

The claimant won in the first instance and the LAS appealed, whereupon the Court of Appeal held:

It was ‘reasonably foreseeable’ that the claimant would suffer further illness if an ambulance did not arrive promptly.

The claimant and defendant were ‘sufficiently proximate’ once the LAS accepted the call and dispatched an ambulance, and a specific duty of care was established; there is no good reason for it failing to arrive within a reasonable time - this duty was breached.

It was ‘fair, just and reasonable’ to allow a duty of care to exist between an ambulance service and its patients with regards to the promptness of pickup (and presumably, return to the hospital) where no good reason for the delay is offered.

The ambulance service would not owe a duty of care under negligence for refusing to respond to a 999 call (though they may be in breach of statutory duty). Also, the burden upon the claimant of showing a causative want of proper care (considering the particular conditions of an emergency) would ordinarily provide ambulance services with what he called the ‘necessary protection’ against liability, except where their conduct was manifestly deficient.

While the general rule has remained that the emergency services are not liable in negligence for an inadequate response, this case has made the exception that, where that inadequate response made the situation worse, a duty of care could exist under certain specific circumstances. However, it now seems that the statutory power granted to the ambulance service to answer an emergency call has crystallised into a specific duty to respond to a particular 999 call which was owed to C as a particular individual.

Would there be a duty of care if decided after Michael?

Question 18

M v Newham (1995)

Answer 18

Failure to properly assess child abuse by a local authority psychiatrist led to the identification of the wrong perpetrator and the wrongful the separation of mother and child.

HELD: No duty of care.

Question 19

Barrett v Enfield LBC (1999)

Answer 19

B removed from mother at 10 months after incurring serious injuries. In the care of Council, he was placed in 10 different foster homes, had sporadic contact with mother and separated from a half-sister. Suffered physical and psychiatric disorders.

Duty to act in loco parentis; Bedfordshire distinguished and confined to facts.

THEREFORE HELD: Duty of care established. Act of taking the child into care creates a duty of care, even though the only reason the local authority could have done this was due to a statutory power.

Reasoning -
Distinguished from Bedfordshire because C was already in care.
Denial of permission for children to sue parents for failure of care did not apply here.
No interdisciplinary system set up by statute.
Issue not so delicate.
Defensive practices were not an issue.
Statutory procedure for complaints did not precede tort claim for damages.
C not part of a wider class of children.

Here, the HoL speaks directly to the ECHR that this is not a matter of blanket immunity (as stated in Osman v UK), due to policy considerations, etc.

Question 20

JD v East Berkshire (2005)

Answer 20

Three conjoint appeals about mistaken allegations of child abuse:

1) D v East Berkshire
2) RK and MAK v Dewsbury Healthcare
3) MK v Oldham

HELD: Duty of care established (MAK). The CoA seems to ignore the HoL in Bedfordshire, despite the similar facts here - how so? Following Lord Bingham’s dissent in Bedfordshire, Lord Phillips MR states that “It will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings. It is possible that there will be factual situations where it is not fair, just or reasonable to impose a duty of care but each case will fall to be determined on its individual facts.”

Reasoning:
Only very serious acts/omissions would justify a breach; therefore no risk of floodgates.
Unlikely to encourage defensive practices.
Cases must be judged on individual facts.
Fear of sleeper actions not relevant - Parliament’s intention to allow children to make claims in adulthood.
Wrongs should be remedied, and no strong policy grounds can currently be made against it.
No other redress for compensation (despite ECHR background).

Question 21

NXS v Camden LBC (2009)

Answer 21

It is “well established that a local authority which carries out investigations into suspected child abuse owes a duty of care to a child who is potentially at risk…[including] a duty to take reasonable steps to avoid or prevent her from suffering personal harm.” Thus seems to agree with East Berkshire.

Question 22

X v Hounslow LBC (2009)

Answer 22

Local youths moved into the flat of X and Y. These individuals had child-like mental capacities and autism. Subjected to degrading sexual and physical assaults.

HELD: The Council had no duty of care.

Emergence of a more principled approach…

• Legal tenancy did not create sufficient proximity.
• D did not assume responsibility.
• D did not create the danger.
• Difference between children and vulnerable adults (Children Act 1989).

Question 23

CN & GN v Poole Borough Council (2018) (currently on appeal to UKSC)

Answer 23

Local authority placed mother and 2 children in accommodation in a housing estate where they were subject to abuse by neighbours.

HELD: The Council had no duty of care. CoA reasoning -

• Too complicated, difficult decision-making area (defensive practices).
• No liability for wrongdoing of 3rd parties.
• Mitchell v Glasgow CC applies here (angry neighbour case).
• Judged that the claim being brought forth by the children is a ‘disguised’ re-housing claim (which got rejected earlier).
• Suggestion by CoA that D v East Berkshire will now be incompatible with the subsequent (higher authority) decisions of the SC and that Michael should be followed.

Could it be argued that (to get around Robinson orthodoxy):

• A danger was created? Very limited summary of the facts in CoA decision - we simply do not know enough.
• The local authority assumes responsibility? When there are children involved this is more likely; this seems to have been previously indicated by the Council itself - an ongoing relationship.
• ECHR jurisprudence?

Question 24

The European Convention on Human Rights 1950, effective 1953

Answer 24

Article 3: Freedom from Torture (Z v UK (2002))

Article 6: Fair Trial (Osman v UK (1998) [blanket immunity assertion]; In Barrett v Enfield the HoL speaks directly to the ECHR that they do not impose blanket immunity for police negligence; policy concerns, etc. are considered; in Z v UK - and on the basis of clarification - the ECHR ‘ate its words’)

Article 8: Private Life (TP & KM v UK (2001); RK & AK v UK (2005))

Article 13: Effective Remedy

Question 25

Home Office v Mohammed (2011)

Answer 25

[Regarding the attempted reform concerning public body liability that was ‘put to sea’ by the central government]

“[This is a] troubling comment on the functioning of the separation of powers that the state’s independent law reform advisory body has had to abandon a project affecting the liability of government… principally because the control exercised by the government over Parliament would frustrate any reform, however wise or necessary, which would make government’s life more difficult” (Sedley LJ).