Week 21: Liability of Public Bodies Flashcards
What is a public body in negligence law?
A public body includes government departments, government agencies (like the NHS, police, fire service), and local authorities.
When can a public body be liable for negligence?
A public body can be liable for negligence in the right circumstances, as seen in X (Minors) v Bedfordshire CC [1995].
Does having statutory powers automatically mean a public body owes a duty of care?
No, in GN v Poole BC [2019], Lord Reed confirmed public bodies do not owe a duty of care merely because they have statutory powers, unless the statute suggests otherwise.
What did GN v Poole BC clarify about statutory duties and common law liability?
The case held that a duty of care is excluded if it would be inconsistent with the public body’s statutory duties.
When is there no common law remedy for breach of a statute?
If the statute includes a penalty for breach, there’s generally no common law remedy unless the statute protects a specific class of persons (Morrison Sports Ltd v Scottish Power).
What happens if a statute offers a private law remedy?
If an alternative private law remedy exists, then a delictual (common law) remedy is usually not available.
What if a statute provides no enforcement mechanism?
If there’s no enforcement method in the statute, courts may infer that Parliament intended a common law remedy (Dawson v Bingley UDC).
How does Osman v UK [1999] affect negligence claims against public bodies?
Osman v UK emphasized that blanket immunity for public bodies may breach Article 6 of the ECHR (right to a fair trial), suggesting limits on denying claimants access to court.
What was the key issue in Stovin v Wise [1996] regarding public body liability?
Stovin v Wise asked whether the conduct or omission complained of was something the public body had the power to address.
In Stovin v Wise, what must be shown after establishing the public body had power?
It must be shown that the public body had a duty to act under that power.
What factors determine liability if a public body had the power and duty to act (Stovin v Wise)?
A public body may be liable if it either (1) failed to exercise its power without due cause, or (2) exercised its power unreasonably.
What duty is placed on the Scottish Fire and Rescue Service under s8(1) of the Fire (Scotland) Act 2005?
Under s8(1) of the Fire (Scotland) Act 2005, the Scottish Fire and Rescue Service must make provision for promoting fire safety in its area.
What duty is placed on the Scottish Fire and Rescue Service under s9(1)(a) of the Fire (Scotland) Act 2005?
Under s9(1)(a), the Scottish Fire and Rescue Service must make provision for extinguishing fires in its area.
Under the Fire (Scotland) Act 2005, would the fire service have to direct their hoses at a smoker?
No, the duty to extinguish fires under s9(1)(a) wouldn’t typically require action against a smoker unless their smoking actually caused a fire.
Under the Fire (Scotland) Act 2005, what about a chip pan fire in a tenement—does the fire service have a duty to respond?
Yes, a chip pan fire in a tenement would fall under the duty in s9(1)(a) to make provision for extinguishing fires.
Under the Fire (Scotland) Act 2005, what if firefighters just stayed in the station watching TV during a fire—would that breach their duty?
Yes, if firefighters knowingly stayed in the station during an active fire, it would likely breach the duty to make provision for extinguishing fires under s9(1)(a).
In Justiciability, what does the question ‘Could the cure be worse than the disease?’ refer to?
In Justiciability, ‘Could the cure be worse than the disease?’ refers to a concern raised in Rowling v Takaro Properties Ltd [1983] AC 473, questioning whether judicial intervention might cause more harm than the original issue.
In Justiciability, is the act or omission complained of a matter of policy or an operational matter?
In Justiciability, courts assess whether the issue is one of policy or operational nature, as shown in Santander UK plc v Keeper of the Registers of Scotland 2013 SLT 362 OH, since courts typically won’t interfere with policy decisions.
In Justiciability, why might an examination of the facts be necessary?
In Justiciability, an examination of the facts might be necessary to determine whether a matter is justiciable, as illustrated in Barrett v Enfield London Borough Council [2011] 2 AC 550, where factual analysis helped decide if the claim was suitable for judicial review.
Is there generally liability in delict for omissions?
No, there is generally no liability in delict for omissions, as explained in Stovin v Wise, where Lord Hoffman stated it’s less invasive to require care in actions than to impose a duty to rescue or protect.
When can liability arise in delict for an omission, according to Robinson v Chief Constable of West Yorkshire [2018]?
Liability for an omission can arise when certain conditions are met, as outlined in Robinson v Chief Constable of West Yorkshire [2018].
Can liability arise where the defender has assumed responsibility for the pursuer?
Yes, liability for omission can arise if the defender has assumed responsibility for the pursuer, as in Hedley Byrne v Heller and Partners.
Can liability arise if the defender prevents someone else from protecting the pursuer from danger?
Yes, liability may arise if the defender prevents another from protecting the pursuer from danger, known as the interference principle, as in Chief Constable of Essex v Transport Arendonk BvBA [2020].
Does a special level of control over the danger create liability for omissions?
Yes, if the defender has special control over the danger, liability may arise, as established in Dorset Yacht Co v Home Office [1970].
Can a person’s status, like being an employer, create liability for omissions?
Yes, if the defender’s status, such as being the pursuer’s employer, gives rise to a duty to protect, liability for omission can apply.
When is a remedy in delict available against a public body?
A remedy in delict may be available against a public body where the body acts carelessly or fails to act and no statutory remedy exists.
What powers do public bodies rely on to act?
Public bodies derive their powers from statute, meaning their responsibilities and authority are often legally defined.
What must a court consider when assessing liability of a public body?
A court must ask: (1) Is the conduct within the public body’s powers? (2) Is the issue justiciable? (3) Does an omission fall within an exception to the general rule?
What does it mean for conduct to be ‘justiciable’?
For conduct to be justiciable, the courts must be able to rule on it—policy decisions may not be, while operational matters usually are.
Are public bodies liable for omissions?
Generally, no—there is no liability for omissions unless a special factor displaces the rule, such as assumption of responsibility or control over a danger.
What does the Tindall case [2024] UKSC 33 say about the duty of care?
Tindall confirms that “taking steps which are ineffectual” does not give rise to a duty of care, even if the steps are inadequate or not persisted in.
What legal principle did the Tindall case reaffirm?
Tindall reaffirmed that the law on public body liability was settled by earlier decisions, especially Michael and Robinson.
What does Tindall say about assuming responsibility?
Tindall confirms that a duty of care may arise if the defender has expressly or impliedly undertaken to protect the pursuer from harm.
What is the significance of Chief Constable of Northamptonshire Police v Woodcock [2025]?
Woodcock continues the development of these principles, applying Tindall’s reaffirmation of the limits of duty of care for public bodies.
