Negligence - public bodies

In relation to public bodies, what is easy for a claimant to recover and what is harder?

For a claimant, it is usually very easy for them to recover against directly personal injury and property damage.

It is much more difficult to argue that a duty of care should exist where the actions of the public body are not direct, do not cause these ‘easily recognised’ harms or do not make an existing situation worse.

Explain the distinction between powers and duties

East Suffolk Rivers Catchment Board v Kent [1941] considered whether public bodies owe a common law duty of care to individuals harmed by their negligent actions where they have a public law power to act, but not a public law duty to do so.

What did the House of Lords determine in East Suffolk?

They determined that no duty would be owed to the claimant in respect of the negligent exercise of power, unless that action made the claimant worse off than they were before.

What can we say about the justiciability of this?

Under statutes, public bodies are authorised to take decisions on particular matters (i.e. they have the power to do so), but how and when they exercise these powers is a matter for their discretion, coming down to many factors such as resource-allocation, prioritisation of resources or services and so on.

So when will public bodies owe a duty of care?

Public bodies will be liable where the negligent exercise of their powers make a situation worse than it already was (East Suffolk; Capital & Counties) or causes direct physical harm to person or property.

If neither of these occur, establishing duty is more difficult, particularly where the harm is caused via an omission and/or the actions of a third party.

What is the leading case for public body liability?

Poole Borough Council v GN and another [2019] - No duty of care existed. A public authority (e.g. local council) is generally NOT liable in negligence for failing to protect individuals from harm caused by third parties, unless a recognised exception applies.

The council’s investigating and monitoring the claimant’s position did not involve the provision of a service to them on which they or their mother could be expected to rely on.

Why did the SC overturn the decision of the Court of Appeal in this case?

Even where there is a clear evidence that a local authority has failed to carry out both what it had resolved to do and what it would consider its own procedures would require, this will not amount to assumptions of responsibilities.

The assumption of responsibility test is a difficult one to establish.

What is an alternative way to claim?

Some claimants attempted to pursue human rights claims rather than claiming in negligence.

What was the ratio of the police case?

The ratio of Michael v Chief Constable of South Wales Police [2015] is that the police do not owe a duty of care for failing to recognise to an emergency call (an omission), even if the harm is foreseeable, unless a recognised exception applies.

What was the first European case to impact on domestic law interpretations?

It was Osman v UK [1999], stemming from Hill v Chief Constable of West Yorkshire [1989] and Osman v Ferguson [1993]. These are cases about police’s potential liability for negligence.

What did the House of Lords rule in the Yorkshire Ripper case?

The HoL held that although it was foreseeable that if the police failed to apprehend the killer he would go on to kill young women in the area, there was no proximity existing between the police and the victim as the police could have no idea exactly who or where any victim was likely to be.

What was the outcome when Osman took the case to the ECtHR?

They saw no violation of Article 2 because there was never a ‘real and immediate risk to life of an identified individual or individuals from the criminal acts of a third part'y’. Had there been, the question would have been whether the police had taken the appropriate measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

What did the UK Government say about the ruling in Hill?

They said that the ruling in Hill does not amount to blanket immunity for the police - that negligence suits against the police in relation to criminal investigations and the suppression of crime would not inevitably fail.

What was the ratio in Z and Others?

The case is Z and Others v United Kingdom and the ratio was that a failure by public authorities to act in the fae of known or foreseeable serious abuse can amount to a breach of Article 3.

What was the ratio in TP?

The case is TP and KM v United Kingdom and the ratio was unjustified or procedurally unfair interference by public authorities in family life can breach Article 8 ECHR.

What is the important thing to remember in terms of the different categories of public body claims?

Operational decisions are more likely to attract a duty than those that are discretionary (where the defendant merely has a power to act) and that the general rules about duties of care apply, i.e. that public bodies will owe a duty of care to an individual in the same circumstances and following the same principles established for private individuals.

What are the specific principles that will be followed as for private individuals?

• In operational matters, where injury is caused by a direct, positive act, a duty of care will be owed (Robinson)

• In exercising their powers, public bodies have an obligation not to make situations worse by their actions (East Suffolk)

• Outside this, public bodies will only owe a duty of care if there is an assumption of responsibility in respect of the harm that befell the claim (Robinson [2018], Poole [2019]).

What is the first rule of the fire service that is similar to that of the police?

Relying on Alexandrou v Oxford [1993], where it was found that the police owed nod duty to a member of the public tor respond to an activated burglar alarm, the court found similarly that the fire service had no duty to respond to an emergency call or to attempt to fight a fire.

What is the rule in relation to if a fire service did respond to an emergency call?

Though the emergency services have a duty (once they have responded) not to act positively to make the situation worse, there is usually no duty in relation to mere omissions - that is, if the situation worsens (or is not made better) because they fail to do something.

What is the policy reasoning behind such decisions?

As professionals, firefighters would know how best to proceed, and this should not be dictated by whether a duty is owed to a potential claimant. If other building owners were to be included within the duty, this too would cause problems.

Give another reason for why there wasn’t a finding in Capital & Counties plc v Hampshire County Council and other cases [1997] that the fire service owe individuals a duty of care?

It would be irrational to impose a duty about how a fire was fought when it had already been decided that there was no duty to turn up and fight the fire in the first place .

How does the situation stand in the Capital case?

There is no obligation to respond and no obligation to take care having done so, unless there is a negligent positive act on the part of the fire service which makes the situation worse than it would have been if the fire service failed to respond at all.

What does the Capital case tell us?

It tells us that the fire service owes a general duty to all property owners and that owing a duty of care to individuals would cut across this. As a result, a duty is owed to individuals only where the situation is worsened, as this establishes the necessary proximity between the parties.

What is the position of the duty of care in relation to the ambulance services?

The ambulance services owe a duty of care to individuals in certain circumstances. The ambulance services have a duty to respond to an emergency call (Kent v Griffiths [2001] - once the ambulance service accepts a call to a named individual, it must be seen as providing a service to that individual.

What was the distinction that the court drew between operational or procedural matters and those involving policy or the exercise of discretion?

If a delay was caused by a lack of resources or a decision to deploy resources in a particular way rather than because of operational or procedural negligence, it is far less likely - as in other types of case against public bodies where policy/operational distinctions are used - that a duty would arise.

What is the liability arising for police?

A duty is owed when the police, by direct and positive negligent actions, cause property damages or personal injury (confirmed in Robinson v Chief Constable of West Yorkshire Police [2018]).

What distinction is made between two things regarding the police?

A duty is owed when the police, by direct and positive negligent action, causes property damage or personal injury (confirmed in Robinson v Chief Constable of West Yorkshire Police [2018]).

What is the distinction made between operational negligence and policy matters?

Between operational negligence (regarding the way in which they do their job) for which the police can be held liable, and policy matters (decisions about resource allocation, prioritisation of cases or investigations and so on) for which they generally cannot.

This distinction is illustrated in Rigby v Chief Constable of Northampton [1985].

What about causing direct personal injury?

The police are subject to liability for directly causing personal injury.

What about a general duty to society?

Like the fire service, the police owe a general duty to society; cases show that a private law duty is not owed to individuals, seemingly no matter how closely connected they are to the police’s negligence (proximity) and how likely it is that they may be affected by it (foreseeability).

What was reiterated in Brooks v Commissioner of Police for the Metropolis [2005] about the polices primary duty?

The police’s primary duty (to the public) is to investigate and suppress crime, and while acknowledging the desirability of victims and witnesses of crime being treated seriously and with respect, the law lords found that this was not the same as saying that they have a duty to do so.

Which case upheld these entrenched assumptions, even when the claimant was clearly a victim of the crime?

Smith v Chief Constable of Sussex Police [2008] - the police do not owe a duty of care in negligence for failing to protect an individual from a known threat by a third party, even where the risk is specific and foreseeable.

The lack of a duty of care owed by the police extends to cases on the very edge of police activity, beyond investigations of crime. Seen in Tindall v Chief Constable of the Thames Valley [2024].

When do the police ‘assume responsibility’?

The few instances where the police do owe a duty of care to the individual, in a non-operational matter, can be explained by ‘assumption of responsibility’.

What case is this seen in?

Swinney v Chief Constable of Northumbria Police [1997] - the police may owe a duty of care where they have assumed responsibility to protect an informant and then negligently expose them to risk, causing foreseeable harm. However later, the police were found not to be in breach of the duty that they owed.

Only when a known risk of this happening exists will a duty be owed (Orange v Chief Constable of West Yorkshire Police [2001]).

What is the liability for armed forces?

Cases suggest that a duty of care will only be owed to individuals where a highly proximate relationship arising from an ‘assumption of responsibility’ exists (e.g. in Barrett v Ministry of Defence [1995]).

Where is the assumption of responsibility more problematic?

It is more problematic in active services - in Mulcahy v Ministry of Defence [1996] it was found that ‘common sense’ and policy reasons (including the ‘defensive practices’ argument) meant that the army should not owe a duty of care to soldiers in battle conditions, even though the claimant was injured by friendly fire from his own sergeant.

What is the ratio in Smith v Ministry of Defence [2013]

The Ministry of Defence can owe a duty of care in negligence to soldiers in combat, and claims are not automatically barred by ‘combat immunity’, except where they relate to decisions made in the heat of battle.

What about for the coastguard?

Stated in OLL Ltd v Secretary of State for Transport [1997] - the court held that the coastguard owes no duty to respond to calls from people in trouble at sea, only a duty not to make the situation worse when they do.

What about other types of public bodies?

Other public bodies include local and district councils and authorities (e.g. health, child services or highway authorities) and the various agencies within these. Even where there is a high degree of foreseeability that these bodies’ negligent actions (or inactions) would cause harm or where, because of the claimant’s relationship with the public concerned, there exists a high degree of proximity, the courts have tended to deny that a duty should be owed.

What is one reason for the reluctance of imposing a duty of care on other public bodies?

Courts are disinclined to spend money on compensation, particularly when that might mean diverting it from other sources and/or eventually leading to increased taxes. Also making them pay compensation diverts the focus of employees of such organisations to litigation-avoidance and therefore instilling defensive workplace practices.

What is a case that demonstrates this?

Stovin v Wise [1996] where it was held that the presence of a statutory power was not enough, in itself, to create a positive duty to act, the law lords stopped short of saying that individuals harmed by the negligent exercise of (or failure to exercise) that power would never have a right to compensation. For this to be the case, there must be two requirements fulfilled.

What are the two requirements that need to be fulfilled?

1. The non-exercise/negligent exercise of the power must have been irrational

2. There must be ‘exceptional grounds’ for creating the obligation to compensate.

Can include situations where there is a general reliance on the correct exercise of power under consideration.

What is something that a claimant can’t establish in relation to reliance?

A claimant could not establish reliance purely by the fact that he relied upon it himself. This reliance must be shared more widely among the general public.

What was the ruling for education-based claims in Phelps v Hillingdon London Borough Council and other cases [2001]

An authority owes a duty of care in respect of the provision of an education appropriate to a child’s needs and that where this fails to materialise due to the negligence of a teacher or other employee of the authority, such as an educational psychologist, the authority would be vicariously liable.

What is the notable case for social claims?

Barrett v Enfield London Borough Council [2001] - a local authority can owe a duty of care in negligence in the exercise of its child care functions, and such claims should not be stuck out as unarguable simply because they involve discretionary decisions.

This was reinforced in S v Gloucestershire County Council [2000], where it was reiterated that no blanket immunity should be thought to exist regarding claims made against local authorities in relation to child abuse.

How has this become stricter?

In the case of X & Y v London Borough of Hounslow [2009], where the defendant authority owed the claimant no duty partly due to the nature of the claim involving both an omission and the actions of third parties.