Week 6- Negligence for liability for omissions, public authorities & duty of care Flashcards
What are statutory duties?
2) Statutory duties: Either duties which are clear and for the benefit of a particular group, actionable at common law eg for workers who suffer negligence (factory acts or mining acts), OR it could be statutory duties which aren’t actionable at common law, those which are very general or one not designed to benefit a particular group of people (including the claimant). An example of the latter type would be the general statutory duty to re-home homeless people; it was not designed to benefit a specific group of people and was too general to constitute an actionable claim by homeless people who were not rehoused. They could not bring actions in negligence for the failure to discharge these very general duties (making them more similar to statutory powers instead)
What are statutory powers and why do they differ to statutory duties?
Unlike a duty, a power confers permission: it specifies that the recipient of the power may do something, not that they must. Formally, statutory powers allow the recipient to decide what to do, and whether to do it. They generally confer discretion. Public law provides remedies if discretion is improperly exercised, or if there is an improper failure to exercise a power. Generally speaking, damages are not readily available in an action at public law.
What is the duty to respect convention rights?
Under the HRA, section 6, all ‘public authorities’ are under a duty to act compatibly with Convention rights (those rights of the European Convention on Human Rights (ECHR) which are listed in the Appendix to the HRA: see Chapter 1). An action against a public authority for failure to do so is created by the HRA, sections 7–8. These duties are separate from common law duties, though they may arise on similar facts and be argued alongside a claim in tort
Dorset Yacht CO Ltd v Home office 1970 facts and significance?
Facts- the Home office had employed 3 officers to oversee the activities of 10 Borstal detained youths working in a harbour. After the 3 officers had gone to sleep, 7 escaped and stole a yacht, which they crashed into the claimants Yacht, causing physical damage.
Significance- the appeal to the House of Lords by the Home office failed and the claim in negligence succeeded.
- Applying Atkins comments in D v S and the proximity/ neighbourhood principle, it was held that the Home office were liable for a breach of duty of care because they were in a position of control over the third party (the detainees), and it was foreseeable that the damage would result from their omission.
-Important quote from Lord Reid:
“…the well-known passage in Lord Atkin’s speech should I think be regarded as a statement of principle. It is not to be treated as if it were a statutory definition. It will require qualification in new circumstances. But I think that the time has come when we can and should say that it ought to apply unless there is some justification or valid explanation for its exclusion.”
-The supervisors of these people were not immune from litigation against them under any arguments of public policy, as they were supervising these Borstal inhabitants.
Facts and significance of Barrett v Enfield LBC 2001 regarding the duty of public authorities to members of the public exercising STATUTORY POWERS?
What STATUTORY DUTY was ELBC under with regards to the child?
Facts- “A local authority who places a child in care is under a duty of care to make arrangements for the child’s future and can be sued for negligence if that duty is breached. B spent most of his childhood in the care of the local authority and suffered personal psychiatric harm which he alleged was due to the failure of ELBC to place him for adoption, locate suitable foster homes, and oversee his reintroduction to his birth mother. B pursued a negligence action, alleging that ELBC had breached their duty of care to him which had resulted in his psychiatric injury. The action was struck out as being non-actionable and disclosing no reasonable cause of action. B’s appeal against that decision was dismissed and B appealed one more time.”
Significance- It could not be struck out that a public authority, in this case a local authority looking after a child in care, could be sued for a breach of duty and negligence for a failure to exercise statutory powers.
- Held, allowing the appeal, that a local authority owed a duty of care to a child, for whom it was responsible and, in the instant case, it was impossible to say that the action was non justiciable and should be struck out without a proper investigation into the facts, X (Minors) v Bedfordshire CC [1995] 2 A.C. 633, [1995] 6 WLUK 382 distinguished on the basis that B had already been in care and ELBC could be liable for subsequent actions affecting him. The relevant test for establishing liability was that outlined in Caparo Industries Plc v Dickman [1990] 2 A.C. 605, [1990] 2 WLUK 128, which required the demonstration that a duty of care was owed and had been breached. Mere inefficiency or errors of judgment were, therefore, not sufficient to establish liability. The Caparo test applied to assess the relationship between the plaintiff and defendant, alongside policy reasons and foresight of reliance.
-ELBC was under a statutory duty to take a child into care and make arrangements for that child’s future, employing trained professionals to take decisions to that end. ELBC should not be absolved from liability if a failure to take reasonable care could be proved, as a duty of care had to exist in order to protect the interests of the child.
What test is currently applied for medical professionals and social workers/ psychologists?
The Bolam test
What do the two cases of Stovin and Wise, and Gorringe v Calderdale represent regarding liability for omitting to fulfil a general statutory duty AKA a statutory power?
How does this relate to general common law negligence duty?
The two cases of Stovin and Wise, and Gorringe v Calderdale, are two cases of pure omission where there is a very general statutory duty, which cannot be the sole basis for imposing liability for a failure to act. There needs to be some independent reason for holding that there is a positive duty to act at common law. The outcome is (simply) that existence of a power or a purely ‘public law’ style duty does not provide a short cut to finding a duty at common law. The usual principles on positive duties at common law will apply.
Facts and significance of Stovin v Wise 1996 regarding omissions and statutory powers? WHAT DOES IT SHOW ABOUT THE DISTINCTION BETWEEN STATUTORY POWERS AND STATUTORY DUTIES?
Facts- The plaintiff was injured in a motorcycle accident by the defendant, when D pulled out on P at a junction. When P brought the claim, Ds insurer joined proceedings as a co-defendant, arguing that the junction was a known danger where adjoining land reduced the visibility of those coming out of the junction. There had been at least 3 previous accidents, and the council sent a letter to the land-owner enquiring about the removal of the land, but got no reply, and therefore did nothing.
Significance- The house of Lords held that the council owed no duty, either under common law or in public law to take positive steps to remove the bank.
-The dissenting judgement given by Lord Nicholls suggested that the council was more than ‘a bystander’ and the proposition given in East Suffolk rivers v Kent, that a council could not be liable for simply failing to act, was apparently reversed in Anns v Merton LBC.
-The true understanding of the majority judgement in Stovin v Wise is the opposite of Lord Nicholls proposition; namely that the existence of a statutory power does not itself give rise to a common law duty to act. It is a permission to act, not a duty to act. Whilst it was accepted that the council were more than a mere bystander, they were no more than a ‘peripheral party’. Lord Hoffmann, in giving this judgement, said that more was required than foreseeability of harm from failing to act, was required to impose liability (which equally applies to acts).
statutory power alone.”
In what situation might a public authority be liable for a failure to exercise a statutory power?
(relating to common law duties of care)
“Despite the conclusion in Stovin that the existence of a statutory power does not in itself give rise to a duty to act, the possibility was conceded that in some circumstances—primarily in cases of general or specific reliance—a positive duty to act may exist (this is the arguments made in Hedley Byrne and Caparo). This is very important. The duty in such cases arises from proximity and reliance, subject to policy considerations. It does not arise from merely the statutory power alone.”
-This is seemingly how Kent v Griffiths (No 2) can be justified, due to the nature of the relationship between ambulance operator and plaintiff, in addition to the facts of the case.
Facts and significance of Gorringe v Calderdale MBC 2004 UKHL 15?
How does it relate to the assumption of responsibility found in Hedley Byrne?
Facts- The claimant drove too fast up a hill, and upon seeing a bus (on the other side of the road) at the top of the hill, panicked and crashed. She brought claims against the council for omitting to repaint the word ‘slow’ at the top of the hill. The local authority didn’t have merely a statutory power but an actual statutory duty, but this was too general to give rise to an action in private law (one of the more common statutory duties which was not specific enough). Therefore, it was treated as a discretionary statutory power rather than a duty.
Significance- The duty to ‘maintain the highway’ was too general to give rise to a specific duty in public law, and therefore the plaintiffs failed.
Lord Hoffmann explained:
(a) that the approach in Stovin v Wise was limited to cases of pure omission (‘doing nothing at all’) in which the only basis for suggesting there is a duty to act is the existence of a statutory power (or, now, broad public law duty); Unlike Caparo, Gorringe re-introduces the difference between acts and omissions, rather than just categorising damage, as was the case in Caparo.
(b) that there probably would be no exceptional cases meeting his criteria of actionability after all. This being the case, there was no need to discuss the concept of ‘irrationality’ at public law in Stovin v Wise. It was probably a mistake to have made any remarks on this subject.
Lord Hoffmann: to infer a private duty of care from a statutory duty the public authority must have ‘assumed responsibility’ for the subject in question and there must be universal reliance, in the absence of any special and specific statutory duty of care (THE GENERAL/ NON-SPECIFIC DUTY BEING THE ONE THAT HOFFMANN IS REFFERING TO HERE)
IN summary what does stovin v wise and Gorringe v Calderdale say about omissions liability?
“The theme of Stovin and Gorringe is that the existence of a statutory power or broad statutory duty does not provide a justification for a positive duty to act at common law. If that duty is to arise, it must arise through the criteria of the Caparo test, in the more demanding form required by omissions liability. We have also noted that even outside the realm of Stovin and Gorringe, common law courts will often be reluctant to recognize a duty of care in negligence where it may conflict with or ‘cut across’ a ‘statutory scheme’
Facts and significance of Kent v Griffiths 2001 (No2) regarding liability of public authorities?
Facts- The plaintiffs brought action against the defendant for a failure to discharge an ambulance quickly enough when she was suffering a severe asthma attack; the doctor advised that she would’ve told the plaintiff’s husband to drive her to the hospital, clearly foreseeing the risk of further injury in the absence of the original ambulance arriving, which was only 6 miles away, and yet it took 45 minutes to arrive.
Significance- Kent won the case, and the appeal by the London ambulance service (LAS) was dismissed for the following reasons:
(1) Unlike the police and the fire brigade, the ambulance service is part of the healthcare service where a duty of care to patients normally exists. (more specific than that between police and any individual of the general public, without further facts or relation EG A.O.R)
(2) Public policy grounds do not preclude the existence of duty of care to the patients on behalf of the ambulance service.
(3) The ambulance had been called for the patient alone, there were no other circumstances justifying its delay and it was foreseeable that the claimant would suffer further injuries if the arrival of the ambulance was delayed. Therefore, there was no reason why there should be no liability.
Lord Woolf MR- “The fact that it was a person who foreseeably would suffer further injuries by a delay in providing an ambulance, when there was no reason why it should not be provided, is important in establishing the necessary proximity and thus duty of care in this case. In other words, as there were no circumstances which made it unfair or unreasonable or unjust that liability should exist (Caparo limb 3), there is no reason why there should not be liability if the arrival of the ambulance was delayed for no good reason. The acceptance of the call in this case established the duty of care. On the findings of the judge it was delay which caused the further injuries…” (providing a chain of causation between Ds breach and Ps injury)
- Comments were added that there was no breach of a duty of care under common law negligence, when failing to response to 999 call, but instead there could be breach of a statutory duty, subject to foreseeability, causation and proximity (proximity is usually established quite easily, as upon answering the 999 call, the two parties are in direct communication).
- In this case, a statutory power had been somewhat transformed into a specific statutory duty which would impose liability if they failed to exercise the statutory duty with care, as a result of the accepted relationship between patient and doctor.
What is the common law-related exception to the rule that omitting to exercise a statutory power or act will not impose liability in tort?
What 3 examples are given by Lord Hope and Lord Brown where liability may be imposed for the omission of a public authority (where harm is caused to the plaintiff BY A THIRD PARTY)?
Where an assumption of responsibility is provided, there is a duty to act and make things better, or do what they ought reasonably be expected to do to make things better. If they have taken on the task of protecting a party, they have a positive obligation to act, but other than the examples given below, there is a general rule against the imposition of liability for pure omission.
-It is a failure to confer a benefit which sets a non-liability-imposing pure omission apart from anything else, for instance, making things worse through an act. In the absence of a specific statutory duty, statutory powers cannot impose liability on D when he fails to exercise said power, unless 1 or more of the 3 points below are present.
Lords Hope and Brown set out a range of cases where a defendant (in this instance a public authority) may owe a duty of care to an individual, to protect them from harm done by a third party. These are situations where:
(i) the defendant created the risk or danger that the third party may cause harm;
(ii) the third party is under the control or supervision of the defendant, as in Dorset Yacht v Home Office ([1970] AC 1004) (implied assumption of responsibility; or
(iii) the defendant assumed responsibility towards the claimant
Facts and significance of Mitchell v Glasgow city council 2009 UKHL?
Facts- the defendant killed his neighbour, J, after a long series of violence and threats towards J. D was already facing the prospect of eviction by the council as a result of previous threats made towards J. The plaintiffs, Js wife and daughter, claimed that the council were liable for Js death in negligence for not informing J of Ds violent conduct at the meeting regarding his potential eviction.
Significance- The house of Lords found that Glasgow CC was not liable in negligence for the death of J, and there was no general duty to warn J of the meeting. There were no exceptional circumstances which constituted evidence of the CC making themselves responsible for the welfare of J, ie creating a voluntary assumption of responsibility whereby liability could be attached.
- Had the Anns test been applied, it may have imposed liability onto the CC due to the high degree of foresight which the CC had with regards to the risk of harm to J.
- A pure omission on the part of the council for failing to warn a tenant of the imminent threat of violence towards the tenant was subject to the Caparo test, including the third limb of “fairness, just, and reasonableness” and was held not to apply here. It was a pure omission for which public authorities are not liable for without more (eg the 3 criteria given; 1) Dorset yacht control case, 2) A.O.R 3) The public authority created the risk of harm.
- Whilst it was fatal, it was a failure to confer a benefit in the absence of any AOR which prevents liability being imposed onto the CC.
Facts and outcome of Hill v Chief constable of South Yorkshire Police?
Facts- “The plaintiff’s daughter was the final victim of a serial killer, Peter Sutcliffe, who had been preying on young single women in the area. The plaintiff argued that the police owed a duty to her daughter to conduct their investigation into the murders with reasonable care, that they had breached this duty, and that this had led to the death of her daughter. The House of Lords agreed with the first instance judge and with the Court of Appeal that no duty of care was owed, and the action was struck out.”
Significance- The court held that no duty of care was owed on the basis that they could not establish sufficient proximity between the two parties, and no assumption of responsibility had been made out.
- As Lord Keith recognises, there is no duty on the police owed to members of the public to prevent the escape of a known criminal, or to recapture him, and therefore, as in this case, there cannot be a duty to capture an unknown criminal to the police.
- “Where the class of potential victims of a particular habitual criminal is a large one the precise size of it cannot in principle affect the issue. All householders are potential victims of a habitual burglar, and all females those of an habitual rapist. The conclusion must be that although there existed reasonable foreseeability of likely harm to such as Miss Hill if Sutcliffe were not identified and apprehended, there is absent from the case any such ingredient or characteristic as led to the liability of the Home Office in the Dorset Yacht case. Nor is there present any additional characteristic such as might make up the deficiency. The circumstances of the case are therefore not capable of establishing a duty of care owed towards Miss Hill by the West Yorkshire Police.”
- The stance in Hill v Chief Constable of West Yorkshire Police, that the police can be liable in tort to those injured as a direct result of acts or omissions by the police, which includes actions or omissions during operational conduct, is the correct interpretation.
