Tort Law - Public Authorities Flashcards
What case Allowed action against local G, utilities, regulators and emergency services?
Mersey Docks and Harbour Board Trustees v Gibbs 1866
W v Home Office general
Liberian asylum-seeker
What sections of HRA require ‘just satisfaction’ compensation for breach of s.6
S.7 and s.8
No action as defensive/divergent resources points outweighed individualised justice
W v Home Office
Father, daughter, 10 days
MAK v UK
What does the Caparo story show
Removal of barriers to DoC, but factors likely still relevant to determine breach
X v Bedfordshire on vires
Lord B-W criticised Diplock’s reliance on ultra vires
What judge in what case criticised Ziplock’s reliance on UV test?
Lord B-W in X
If irrationality isn’t a substitute for ordinary negligence, how is it relevant?
May only apply for significant strategic discretion, otherwise same test as for negligence.
What is the sixth case in the Caparo story?
MAK v UK
What judge and in what case said existence of discretion is insufficient to preclude DoC
Lord Slynn in Barrett v London Borough of Enfield
What case starts the story on justiciability?
Dorset Yacht - Diplock’s UV test
Where does the story for Caparo start?
X
What is an example of a policy decision?
Budgetary priorities
What case used AR to create DoC outside of PEL
Phelps v Hillingdon LBC
Shrubs not trimmed
Yetkin v Mahmood
Name at least two cases which cover when it is not FJR to impose a duty?
W v Home Office, Jain v Trent Strategic Authority, Hill v Chief Constable of West Yorkshire and Desmond v Chief Constable of Nottinghamshire Policy
Caparo v Dickman for public authorities
Apply first two stages, but change third according to composition of body
What judge in Anns v Merton LBC said statutory scheme did not preclude DoC
Lord Wilberforce
W v Home Office judgment
No action as defensive/divergent resources points outweighed individualised justice
S.7 and s.8 HRA
‘Just satisfaction’ compensation for breach of s.6
Gorringe v Calderdale general
SLOW
Romeo v Conservative Commission
Australian judge found distinction unconvincing - private individuals don’t escape liability by arguing they should determine resource allocation
Who said there is a lack of empirical evidence to support Law Com reform suggestions?
Morgan
Phelps v Hillingdon LBC
Confirmed Barrett’s test of justiciability
Former partner, wrongly classified
Michael v Chief Constable of South Wales
Until when did public authorities have immunity from liability?
1947
What did X say on if there is overlap in policy/operational category?
Look to proportions to decide DoC
Why did Law Com Reform proposals fail?
Costings concerns and increase governmental liability
What in particular did Law Commission find unsustainable?
FJR
Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on
Desmond v Chief Constable of Nottinghamshire Police
Swinney v Chief Constable
Exception to Smith v Chief Constable for informant in potential danger (although no DoC on facts of fact)
Exception to Smith v Chief Constable for informant in potential danger
Swinney v Chief Constable
What was the standing of public authorities and liability prior to 1947?
Complete immunity as ‘the king can do no wrong’
Name the five tests of liability
Vires, discretion, irrationality, justiciability and policy/operational distinction
How many reasons were there for why no DoC in X?
Five
Barrett v Enfield LBC general
Adoption, psychiatric depressive illness
What was the minority position on justiciability in Smith v MoD?
worried about need to look at how MoD allocate their budget, assessing G decisions on how much to allocate etc
L&O on Bailey and Bowman on policy/operational distinction
Clearer to keep FJR separate, abandoning UV would let court focus on discretion for duty and justiciability at breach and justiciability would be desirable in duty stage to challenge existence and avoid full trial
Who expressed doubt about irrationality point of Hoffmann in Stovin v Wise, and in what case?
Steyn in Gorringe v Calderdale
What is an example of how factors removed as barriers to DoC could still be relevant?
Relevant for breach - delicate matter so someone else might have done the same
What Act removed immunity of public authorities completely?
Crown Proceedings Act 1947 section 2
Michael v Chief Constable of South Wales general
Former partner, wrongly classified
What judge in D v East Berkshire advocated tort developing in harmony with Convention?
Lord Bingham
Phelps v Hillingdon LBC judgment
Educational psychologist owed DoC as knew advice would be followed - relied on AR
What was the majority position on justiciability in Smith v MoD?
Unconcerned
What judge in what case doubted Lord Wilberforce in Anns v Merton LBC?
Lord Hoffmann in Stovin v Wise
External mechanism of redress
Public enquiries
HoL judgment in D v East Berkshire
Duty cannot be inconsistent with single-minded pursuit of statutory purpose
When is Caparo applied?
When C complains of practical manner in which act was performed, NOT in taking of discretion to do an act
Adoption, psychiatric depressive illness
Barrett v Enfield LBC
Third case in Caparo story?
W v Essex CC
How can one see influence of EU law on Law Com reforms?
Requirement of ‘serious fault’, like ‘sufficiently serious’ test
Cornford on Law Com reforms
Lack of clarity and coherence in key concepts, and objected to state excluding liability for ‘mere’ negligence
Van Colle v Chief Constable of Hertfordshire judgment
HoL affirmed possibility of positive obligation on police to protect Art.2 when there is a ‘real and immediate risk’ (Osman v UK)
Position of Lord Bingham in D v East Berkshire
Minority
TP v UK judgment
Violation of Article 8 NOT through taking child, but behaviour after
How did the Law Commission suggest reform of public bodies area?
Think of redress in terms of three mechanisms - internal, external and remedies by ombusman, so that redress by tort goes alongside these other mechanisms
Despite Hoffmann’s antipathy to policy/operational distinction, how did he treat it as relevant?
Said budgetary questions fell within unreviewable discretion
W v Essex CC general
Sexually abusive foster child
Anns v Merton LBC general
Soundness of foundations
Stovin v Wise on Caparo
When considering FJR, always have regard to statuary scheme and remedies therein, as well as statutory limitations and exclusions
What are the two separate claims that can exist side-by-side in actions against public authorities?
One at common law and one under ECHR
Hill v Chief Constable of West Yorkshire judgment
police immunity in investigations, but not for routine activities.
Lord Bingham in D v East Berkshire
Advocated tort developing in harmony with Convention
Why did Lord Hoffmann find policy/operational distinction inadequate?
Often elusive and even if clear it doesn’t necessarily mean there should be a DoC - needs to be ‘in effect a public law duty to act’, so that it is irrational to do anything BUT implement decision
Who applauded tone in Phelps for moving away from blanket immunity?
Fairgrieve
Restrictive approach to superimposing common law duties on a statutory framework
Stovin v Wise
Mersey Docks and Harbour Board Trustees v Gibbs
Allowed action against local G, utilities, regulators and emergency services
Fifth case in Caparo story?
D v East Berkshire Community Health NHS Trust
Who first articulated the policy/operational sphere distinction and in what case?
Lord Wilberforce in Anns v Merton LBC
X on careless performance of statutory duty
Does not in itself give rise to a cause of action
Why are the judgments of Z v UK and TP v UK important?
Not binding, but s.2 HRA makes courts regard to ECHR judgments when Convention right is involved
What judge and in what case relied on vires test of liability?
Lord Diplock in Dorset Yacht
Bailey on reform of public authority area
Ex gratia schemes are more satisfactory than expanding tort law, as lower costs and broader in scope
Smith v Chief Constable of Sussex Police on assumption of responsibility
No DoC of police to intervene to protect public at risk of criminal injury, even if threat is specific and imminent
Gorringe on creation of source of danger
Not in case but maybe on other facts, e.g. inducing careful motorist into path of danger
West v Buckinghamshire CC judgment
Policy/operational distinction used to find no DoC arose
Enough evidence of real and immediate risk for Art.2 - court unanimously agreed on pursuit of Art.2 claim
Michael v Chief Constable of South Wales
What is the conferral of benefits test suggested by Law Com?
Did statute intend to confer X benefit on C?
Soundness of foundations
Anns v Merton LBC
East Suffolk Rivers Catchment Board v Kent general
Sea wall HoL
Stovin v Wise on statutory duty, judgment approach
Restrictive approach to superimposing common law duties on a statutory framework
What did Anns v Merton LBC predate?
predated generalised liability for negligent conduct, accepted some years after conception in Donoghue
Costello v Chief Constable of Northumbria Police general
Officer attacked, other nearby to help
How did Lord Keith use the operational/policy distinction in Rowling v Takaro?
It filters out non-justiciable cases, and ‘suitability for judicial resolution’ is what underlies distinction
When considering FJR, always have regard to statuary scheme and remedies therein, as well as statutory limitations and exclusions
Stovin v Wise
Who called it a ‘troubling comment on the functioning of SP’ that G rejected Law Com Reforms?
Sedley LJ
CoA judgment in D v East Berkshire
X now wrong - s.6 HRA tips balance so that defensive/diversion of resources arguments no longer work as already liable under HRA
Sedley LJ on Law Com Reform rejection
‘troubling comment on the functioning of SP’ that G rejected Law Com Reforms
What did L&O argue in response to Morgan on Law Com reforms?
Argued empirical evidence surveys are few in number and generally inconclusive
What case showed DoC arise from AR, but no general duty as police officer?
Costello v Chief Constable of Northumbria Police
Crown Proceedings Act 1947 section 2
Removed immunity of public authorities completely
Anns v Merton LBC judgment
Statutory scheme did not preclude DoC, predated generalised liability for negligent conduct, accepted some years after conception in Donoghue
Informer v Chief Constable judgment
DoC owed, but AR limited to physical safety and wellbeing, not financial loss
What two cases cover creation of a source of danger giving AR?
Gorringe and Yetkin v Mahmood
Stovin v Wise general
Large pile of earth
Where is Wednesbury unreasonableness from?
Associated Provincial Picture Houses v Wednesbury Corp
X to ECHR
Z v UK
What test did Lord Reid rely on in Dorset Yacht?
Discretion test
Who doubted the utility of UV in public law?
Craig
Yetkin v Mahmood general
Shrubs not trimmed, central reservation
Who believes operational/policy distinction is underlined by suitability for judicial resolution?
Lord Keith; Rowling v Takaro Properties
Who found irrationality in Stovin v Wise by failing to implement decision to act?
Lord Nicholls (dissenting)
Successful claims for omission to carry out statutory responsibilities with affirmative duties if private individual would also have been liable
Welton v North Cornwall DC
Yetkin v Mahmood on creation of source of danger
CoA distinguished Gorringe as council ITSELF responsible for creating hazard
TP v UK general
Newham to ECHR
Old people home, neglect
Jain v Trent Strategic Authority
X v Bedfordshire CC on UV
HoL rejected Diplock’s UV test
Gorringe v Calderdale judgment on statutory framework imposing affirmative duties
No DoC - C’s fault
What year was Mersey Docks and Harbour Board Trustees v Gibbs?
1966
what is the political strand to justiciability?
Weighing up competing and incommensurate social interests
No DoC of police to intervene to protect public at risk of criminal injury, even if threat is specific and imminent
Smith v Chief Constable of Sussex Police
What are three considerations for why public bodies should only be subjected to a narrower kind of liability?
Activities are for benefit of society as a whole; payment of damage claims needs to come from tax payer; separation of powers as public bodies are created by statue and thus court should be reluctant to interfere
‘Real and immediate risk’ puts positive obligation on police to protect Art.2
Osman v UK
W v Essex CC judgment
Declined strike out claim against authority on child-welfare responsibilities
Newham to ECHR
TP v UK
What judge in D v East Berkshire said carelessness/damage does not necessarily mean duty, and no piggybacking?
Lord Rodger
What two judges in Gorringe v Calderdale struggled to think of a case where DoC can be found upon failure to provide a benefit there is a power to give?
Scott and Hoffmann
Who (generally) found policy/operational distinction unconvincing, in what case and what jurisdiction
Romeo v Conservative Commission Australian judge
What two more actions can be added to list given by Lord B-W in X?
‘Euro tort’ by breaching EU law and violation of s.6 HRA
West v Buckinghamshire CC general
Hazard, not double white
What judge in Dorset Yacht relied on discretion test for liability?
Lord Reid
Lord Reid in Dorset Yacht on test of liability
Errors in exercise of discretion conferred by P not intended to be actionable unless abusive, so it is no real exercise of discretion conferred at all
Michael v Chief Constable of South Wales judgment
Enough evidence of real and immediate risk for Art.2 - court unanimously agreed on pursuit of Art.2 claim
Hoffmann and Scott in Gorringe
Struggled to think of a case where DoC can be found upon failure to provide a benefit there is a power to give
Gorringe v Calderdale judgment
Steyn expressed doubt about irrationality point of Hoffmann in Stovin v Wise - Hoffmann said may have been a mistake to speculate. No DoC rose automatically from failing to exercise power
What does the judgment of Barrett v Enfield SUGGEST about court attitude?
Courts less ready to strike out claims after Osman v UK
Morgan on Law Com reforms
Lack of empirical evidence
M v Newham general
Mother’s boyfriend, cousin
Lord Wilberforce in Anns v Merton LBC
Policy is about discretion for body to make and operational about prescription of practical execution of policy decisions
Fourth case in Caparo story?
Phelps v Hillingdon LBC
What are the three strands to justiciability?
Pragmatic, political and constitutional
DoC owed, but AR limited to physical safety and wellbeing, not financial loss
Informer v Chief Constable
Welton v North Cornwall DC
Successful claims for omission to carry out statutory responsibilities with affirmative duties if private individual would also have been liable
LJ Laws in Connor v Surrey CC
Gave three strands to justiciability
Rowling v Takaro Properties
Lord Keith adopted Wilberforce’s policy/operational distinction to express justiciability
Second case in Caparo story?
Barrett v Enfield LBC
Five reasons for why no DoC in X
Delicate, might make authority over-cautious, would cause diversion of resources, multi-agency decision point and should only develop law incrementally/by analogy
Why did Lord B-W treat discretion separately in X, maybe?
To show separation of powers is relevant both at duty and breach stage
What does the case of Gorringe show in terms of policy issues?
Judicial fight-back against compensation culture
What arguments did judges in Phelps find weak?
Multi-agency decision point - all contributor should be liable - and floodgates
Lord Rodger in D v East Berkshire
Carlessness/damage does not necessarily mean duty and you cannot piggyback on a claim for DoC of someone else - e.g. parents saying owed a DoC as wanted assessment of child to be accurate
Internal mechanism of redress
Complaints procedure
Jain v Trent Strategic Authority general
Old people home
Article 3 ECHR
Positive obligation not to let children be subjected to degrading/inhumane/tortuous treatment
Smith v MoD general
Lack of protection, friendly fire
What different approach did Law Commission suggest for public bodies?
‘Truly public activities’ different approach, which more stringent justiciability test and replace DoC test with conferral of benefits test
What claim did the HoL cover in D v East Berkshire?
Parent claim
How could a DoC arise from failure to exercise statutory power, according to Stovin v Wise?
C would need to show D was irrational in omission, breaching public law obligations
What is the constitutional strand to justiciability?
Immunity for decisions on exercise of conferred powers by P/G
Who gave three strands to justiciability?
LJ Laws in Connor v Surrey CC
What is the pragmatic strand to justiciability?
Judge is only LEGALLy expert, not GENERALLY an expert, so insufficient knowledge
Barrett v Enfield LBC on justiciability test
Rejected discretion threshold from X and altered policy/operational test such that courts consider competing policy interests and if P intended to allow court to substitute their view
Barrett v Enfield LBC judgment
HoL distinguished from Newham as not delicate, no multi-agency process and little risk of defensive reaction
Rigby v Chief Constable of Northamptonshire judgment
Used distinction to rule out duty, rather than waiting for breach - no duty to use flammable, but maybe operational negligence if without fire equipment
Rigby v Chief Constable of Northamptonshire general
Flammable CS
What did Lord Hoffmann refuse to say in Stovin v Wise?
Statutory ‘may’ can never lead to DoC
Home Office v Dorset Yacht on justiciability
Not justiciable to determine G’s negligence in setting up such ‘holidays’ as involved G balancing various social interests
MAK v UK general
Father, daughter, 10 days
Who rejected the need for blanket immunity and highlighted artificiality of policy/operational distinction in Stovin v Wise?
Lord Nicholls (dissenting)
Sexually abusive foster child
W v Essex CC
Dyslexia, not properly assessed
Phelps v Hillingdon LBC
Who said G rejection of Law Com reforms show G’s control over P can frustrate any reform ‘however wise or necessary’?
Sedley LJ
Osman v UK
‘Real and immediate risk’
What case first diverted from public authorities having complete immunity, and what year?
Mersey Docks and Harbour Board Trustees v Gibbs 1866
Stovin v Wise judgment
Existence of statutory power doesn’t equal a DoC in negligence
Who found the policy/operational distinction inadequate and in what case?
Lord Hoffmann in Stovin v Wise
East Suffolk Rivers Catchment Board v Kent judgment
Statutory authority with mere power does not equal action for damage caused by failure to exercise
Costello v Chief Constable of Northumbria Police judgment
Arose from AR, no general duty as police officer
What case is the middle point of story on justiciability?
X - discretion and policy/operational
Flammable CS
Rigby v Chief Constable of Northamptonshire
What does the case of MAK v UK show?
Broader scope of claims under HRA than conventional tort law
What did Law Com suggest DoC test should be replaced with
Conferral of benefits test
Scott in Gorringe
If statute doesn’t give private right to sue, no DoC that wouldn’t have been there without statute
Jain v Trent Strategic Authority judgment
No DoC - focus on reinforcing existing statutory schemes, bringing in single-minded protection idea
Phelps v Hillingdon LBC general
Dyslexia, not properly assessed
How did the minority argue in Stovin v Wise (Lord Nicholls)?
Irrationality by failing to implement decision to act
Who dissented in Stovin v Wise?
Lord Nicholls
Is irrationality a substitute for ordinary negligence test?
NO
What did Law Commission find about majority of claims against public authorities?
Dealt with by three mechanisms given - internal, external and ombudsman
How did the court in W v Essex view X?
Self-evidently distinguishable so didn’t bother
Desmond v Chief Constable of Nottinghamshire Police general
Sexual offence, Criminal Records Bureau
X (Minors) v Bedfordshire CC on justiciability test
Two factors - within discretion and policy/operational matter
D v East Berkshire Community Health NHS Trust general
Erroneous abuse conclusions
Hill v Chief Constable of West Yorkshire general
Sutclifee
Z v UK general
X to ECHR
What did Law Com suggest before liability of public body?
‘Serious fault’ on part of D, more stringent than ordinary taking reasonable care test
Who named three causes of action which could be relied upon against a public body at the time, and in what case?
Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC
Z v UK judgment
Violation of Article 3
What case led to ECHR declaring misunderstanding in Osman?
Hill v Chief Constable of West Yorkshire
Desmond v Chief Constable of Nottinghamshire Police judgment
Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on
How did Hoffmann think C could show DoC from failure to exercise statutory power in Stovin v Wise?
C would need to show D was irrational in omission, breaching public law obligations
What judge in Rowling v Takaro used Wilberforce’s policy/operational distinction to express justiciability?
Lord Keith
how did Law Com suggest ‘truly public activities’ be treated differently?
More stringent justiciability test
Who was in the minority in Smith v MoD?
Lord Mance
Who said Ex gratia schemes are more satisfactory than expanding tort law, as lower costs and broader in scope
Bailey
Who argued it would be desirable to test justiciability at duty stage to avoid a full trial?
L&O
Barrett v London Borough of Enfield
Lord Slynn found existence of discretion is insufficient to preclude DoC
Fairgrieve on Phelps
Applauded change in judicial tone away from blanket immunity
L&O on Diplock’s test of vires
Goes too far by not considering FJR and doesn’t necessarily mean harm is actionable as no finding of fault
What judge in Gorringe said if statute doesn’t give private right to sue, no DoC that wouldn’t have been there without statute?
Scott
Smith v MoD judgment
Majority unconcerned with justiciability but minority were worried about need to look at how MoD allocate their budget, assessing G decisions on how much to allocate etc
Who said lack of clarity and coherence in key concepts of Law Com Reforms, and objected to state excluding liability for ‘mere’ negligence
Cornford
Craig on UV
Doubts its utility in public law
What three causes of action could be relied upon against a public body, according to Lord B-W in X?
Common law negligence, breach of statutory duty and misfeasance in public office
Who argued policy/operational distinction adds nothing to law of negligence and causes ‘unnecessary confusion’?
Bailey and Bowman
What case ends story on justiciability?
Barrett v Enfield LBC - reject discretion and altered policy/operational test to focus on P intent
Where did Lord B-W apply irrationality in X?
At second stage - when looking at discretion
Why might discretion be relevant at breach stage?
Partly-justiciable case, but reluctant due to nature of decision
MAK v UK judgment
Consistent with TP v UK - broader scope of claims under HRA than conventional tort law
Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on
Desmond v Chief Constable of Nottinghamshire Police
The more operational something is, according to Lord Wilberforce in Anns v Merton LBC, the more likely or unlikely a DoC?
Likely
HoL affirmed possibility of positive obligation on police to protect Art.2 when there is a ‘real and immediate risk’
Van Colle v Chief Constable of Hertfordshire
Van Colle v Chief Constable of Hertfordshire general
Prosecution witness, telephone threats
