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