Public Authority Liability

Question 1

Can the police have a duty to prevent crimes from taking place generally?

Answer 1

No protective duties generally, but if specific threat of harm / loss of life to an identifiable individual. (Van Colle, Hill v West Yorks, Osman etc)

Question 2

Policy reasons for excluding liability

Answer 2

Floodgates 
Might be other avenues for redress 
Public interest to impose
Proximity / FJ&R 
Don't want to create protective duties, defensive policing, goes against what their job tells them to do / who to protect

Question 3

What are we concerned with?

Answer 3

Many duties of public authorities set out in statute. If can show that harm suffered was a result of a breach of statutory duty, then pursuer will obtain reparation

Statutes may not specify if can obtain a legal remedy for breach of duty so need to go to court to ascertain

Not if specific mode of enforcement

Question 4

Who can you sue?

Answer 4

Local authority

govt depts

Other public bodies

Question 5

Can you sue someone who works for the council and does something outside their public authority role?

Answer 5

No, only while in office

Question 6

Exceptions to presumption that Parliament did not intend there to be additional sanction for breach of statuary duty

Answer 6

Statute passed for benefit of particular group of people

Statute creates public right & a member of the public suffers ‘particular, direct and substantial damage’

Question 7

Mental element

Answer 7

Bad faith in acting in this way

Targeted malice ie defendant acts with purpose of causing harm to claimant

Or aware that his act will cause damage of type suffered by claimant / consciously indifferent as to risk

Question 8

Why is the distinction between policy and operational decision making important?

Answer 8

• Sometimes difficult to distinguish
• policy level decisions less likely to be challengeable, reflecting judicial unease at prospect of interfering with important decisions of political bodies, esp with decisions that have far reaching consequences for the quantum and allocation of public expenditure

Question 9

Smith v Ministry of Defence

Answer 9

Servicemen.
1) killed in explosion by Land Rover, lack of suitable protective gear

2) killed & injured in friendly fire between 2 tanks. Should have ensured tanks fitted with devices which would have prevented such an accident.

Held: could no longer query whether state army had jurisdiction under ECHR. Adequacy of equipment, planning or training was not immune from scrutiny under procedural obligations. Immunity did not extend to earlier negligent acts, only to actual or imminent armed conflict.

Question 10

Van Colle v Chief Constable of Hertfordshire

Answer 10

Two cases, one where there was an evident imminent risk to safety for the victim. Police had failed in this one but not the other.
Authorities needed to have known or ought to have known at the time of a real and imminent risk to the life of an individual. Public policy plays a huge role - undesirable to introduce protective duties on part of the police. No relationship of proximity. Defensive policing. See Hill also

Question 11

Mitchell v Glasgow CC

Answer 11

M had alleged that Glasgow CC had acted compatibly with art 2. Man killed by next door neighbour, both tenants of local authority. Got evicted, got angry but calmed down. No reference made to his neighbour :. no knowledge of immediate risk. No duty to rescue

Question 12

JD v East Berkshire

Answer 12

Parents brought damages for psychiatric injury against doctors and social workers who had wrongly determined that parents had abused or harmed their children.

No proximity nor FJ&R. Not party they owed duty to. Defensive

Question 13

Jain v Trent

Answer 13

Pure economic loss. Nursing home shut down. No prior notice and by time they were able to appeal, business gone and so no opp to challenge. Again, not who the were intending to protect, conflict of interests

Question 14

Gorringe v Calderdale

Answer 14

G seriously injured in accident. SLOW sign rubbed off. Failure by them to reprint marking. Duty to promote & improve road safety - parallel duty to take care?
No, this wasn’t about repair. Not caused by a road defect, you had to take care and drive sensibly

Question 15

MacDonald v Aberdeenshire Council

Answer 15

Travelling on class C country road and crossed A road, colliding with van. Power given to local authority to paint lines did not imply duty to do so. No lines in middle of road should have told her that she had no right of way.
HAZARD - could be liable for failure to remove

Question 16

Watkins v SoS for Home Dept

Answer 16

Did wilful breach of prisoner’s constitutional right to receive unopened correspondence from his legal advisors amount to misfeasance in public office?

No identifiable damage!

Not constitutional right. No damage :. No claim here