Public Bodies: Duty of Care

Question 1

s.1 Crown Proceedings Act 1947

Answer 1

This introduced the right for individuals to sue the crown for negligence

Question 2

s.2 Crown Proceedings Act 1947

Answer 2

This provides that ‘the crown’ includes any agents of the crown

Question 3

Connor v Surrey County Council

Answer 3

Laws LJ argued that there are 3 elements why public bodies generally should not be liable for policy decisions:

1) Pragmatic - judges weighing up factors vs. specialist govt. experts doing so
2) Political - competing interests
3) Constitutional - should govt. powers be subject to claims in tort?

Question 4

X and Others v Bedfordshire CC

Answer 4

HL developed the policy/operational distinction introduced in Anns v Merton LBC. Generally, policy decisions (allocating resources e.g.) are NOT justiciable, whereas operational decisions (about how to carry out those policies) ARE justiciable

Question 5

Barrett v Enfield LBC

Answer 5

HL modified the policy/operational distinction slightly and held that instead, the focus should be on whether the public body’s decision looked at competing policy factors - if it did, then this suggests that it is not justiciable

Question 6

General Structure for Public Bodies PQs

Answer 6

1) Is it justiciable?
- Start with policy/operational distinction (X v Bedfordshire CC and Barrett v Enfield LBC
- Then, go into public law concepts
- -> irrationality
- -> ultra vires
- -> discretion

2) Is it fair, just and reasonable to impose a duty of care? Look specifically about how it affects performance/incentives of the public body

Question 7

Stovin v Wise - Irrationality

Answer 7

Dicta from the case suggests that C must meet the threshold of wednesbury unreasonableness (set out in Associated Provincial Picture House v Wednesbury Corporation) for the public body to be liable for failure to exercise statutory power

Question 8

Gorringe v Calderdale BC - Irrationality

Answer 8

Statutory duties to maintain roads (e.g.) do NOT create additional duties in negligence - like Stovin, C must show that D acted irrationally in failing to exercise their statutory power

Question 9

Home Office v Dorset Yacht - Discretion

Answer 9

Lord Reid stated that if statutory discretion is exercised so carelessly by the public body that it has not been properly exercising the discretion conferred upon it by Parliament, then a duty of care may be imposed (i.e. justiciable)

Links to irrationality - high threshold for public body using discretion very differently to statutory intention

Question 10

Caparo Industries v Dickman (Public Bodies)

Answer 10

After determining whether the issue is justiciable, apply the 3 stage Caparo test. Requirements are the same as usual, but the FJR element is used differently here - court focuses strongly on the duties that the public bodies owes to the public as well as C, and how imposing the duty would affect the public body’s resource allocation, performance, incentives etc.

Question 11

M v Newham

Answer 11

HL held that it was not FJR to impose a duty here because it would make local authorities unduly cautious in intervening in child abuse cases - authority owes the duty to other children at risk, not just C, so not FJR. Also, this would result in diverting resources from stopping child sex abuse towards litigation etc.

Question 12

Barrett v Enfield LBC

Answer 12

Sensitivity of the decision taken is a relevant factor in FJR assessment - if the decision is less sensitive, then it is more likely that a duty may be imposed. Also, where it is a single agency decision, it is more likely that a duty will be imposed (cf. to multi-agency decision in M v Newham)

Question 13

JD v East Berkshire Community NHS Trust

Answer 13

Healthcare and social service workers do NOT owe a duty of care to parents when making decisions about their children, as these are special duties and courts need to not distort these as they serve such an important social function

Question 14

Jain v Trent Strategic Health Authority

Answer 14

Where there is a conflict between the duty owed to a business and the duty owed to vulnerable people, it will not be FJR to impose a duty on the public body towards the business (retirement home case)

Question 15

Carty v Croydon LBC

Answer 15

Dyson LJ set out the current approach for negligence claims against public bodies. Two elements:

1) Is the decision justiciable?
2) Apply Caparo Industries v Dickman - first two stages (foreseeability and proximity) apply as usual. For the FJR assessment, however, the courts apply a different standard than usual - need to consider the other duties owed by public bodies and how imposing a duty would affect them fulfilling these duties too.