Public Authorities and Employers Flashcards
Does a statutory power rise a common law duty?
A statutory power does not in itself give rise to a common law duty (e.g. in negligence).
But
The existence of a statutory power does not exclude a duty at common law.
What influence has the ECHR had?
· Has added a new dimension outside of tort law - damages available against a public body under HRA 1998.
Has also influenced tort law (attitudes, for example greater reluctance to strike claims out…)
What was the decision of Anns v Merton LBC 1978?
(1) It was held that the council may be liable in negligence, but in limited circumstances. The relevant legislative provisions with regard to inspection did not place a duty on the council to inspect the walls, but did allow it the power to, if it considered inspection necessary. Therefore, failing to inspect would not render the council liable unless it was considered that it had failed to properly exercise its discretion to inspect and that they had failed to ensure proper compliance with building regulations. If inspections were carried out, the council retained discretion as to the manner of the inspections. If this discretion was not genuinely exercised, the council may be liable in negligence. (2) The claim was not statute barred, the limitation period running from the date at which the dangerous state of the property became apparent.
What was the decision of Stovin v Wise 1996?
The House of Lords allowed the local authority’s appeal. It was acknowledged that the Highways Act 1980, s 79 did allow a local authority the power to remove obstructions. However, the statutory power did not give rise to a common law duty of care. It was considered that even if the work should have been carried out, a public law duty could not give rise to a common law claim for non-performance. If this was the case, an unacceptable burden would be placed on the local authority’s budget in respect of being permitted to exercise its discretion, especially since road users were already required to carry insurance. In other words, it was not fair, just or reasonable to impose a duty in these circumstances.
Relevance of Statutory Powers?
“their duty was to avoid causing damage, not either to prevent future damage due to causes for which they were not responsible or to shorten its incidence”
What did Stovin v Wise show about relevance of statutory powers?
Also: Stovin v Wise (recall last week on omissions) – Lord Goff – a statutory power does not create a common law duty to exercise it unless it would be irrational not to exercise the power… (eg Kane v New Forest)
What is the problem of Justiciability - Barrett v Enfield 1999?
A pure policy decision where Parliament has entrusted the decision to a public authority is not something which a court would normally be expected to review in a claim in negligence (not ‘justiciable’).
What did the case of Phelps v Hillingdon 2001?
· In the present case I am not persuaded that there are sufficient grounds to exclude these claims even on grounds of public policy alone.
· I am not persuaded that the recognition of a liability upon employees of the education authority for damages for negligence in education would lead to a flood of a claims or even vexatious claims, which would overwhelm the school authorities, nor that it would add burdens and distractions to the already intensive life of teachers.
Nor should it inspire some peculiarly defensive attitude in the performance of their professional responsibilities.
What is the view of Sherratt 2018?
· Generally, emergency services don’t owe a DOC to the general public (proximity and public policy reasons)
· However a DOC will be imposed if they are found to have assumed responsibility for an individual’s care
· Here – there was an assumption of responsibility by the defendant
AND
There had been ‘detrimental reliance’ on it
What was the X v Bedfordshire 1995?
Lord Browne-Wilkinson
· It would not be fair, just and reasonable to impose a duty of care –
· It would be inconsistent with the statutory system of protection
· To place liability on one agency would be manifestly unjust
It would cause untold problems re breach/causation
What is the implications of Relevance if Statutory Powers?
- Less enthusiasm for striking out
- Less broad brush policy reasoning; more confidence in the negligence action.
A simpler approach to justiciability
What did the case of Poole BC v GN & Anor (2019)?
· Claim struck out
· Statutory powers/duties do not automatically equate to common law duties of care
· But if local authority has created source of danger or assumed responsibility, common law duty may arise
Present case – council alleged to have failed to provide a benefit to claimants by protecting them from harm, but no assumption of responsibility, therefore no DOC
What is the duty of employers duty of care in negligence?
• The duty of care (our immediate focus)
– a personal, non-delegable duty
– the modern scope of the duty
– predominant duty – physical injury – duty is not an all-encompassing duty to protect
What were the four main duties of Wilsons and Clyde Coal Ltd v English 1938?
– to provide safe/adequate tools and equipment
– to provide a safe place of work
– to provide a safe system of work
– to provide competent fellow employees
What is duty one of Wilsons and Clyde?
safe/adequate tools and equipment
· Includes duty to take reasonable care to provide proper plant/appliances/equipment, and to maintain them in a proper condition
Duty also extends to adequate instruction in the use of the appliance
