Public Authority Liability

‘Exceptional’ duty of care scenarios

Public Authority Liability

X and others (minors) v Bedfordshire County Council (1995)

deals with 5 separate cases involving children in the care system

introduced two ways to approach the liability of D

1. The social worker in-charge of the C’s file - the CC is vicariously liable

2. The County Council directly (direct liability)
   - the council themselves, through a policy or official advise, which results in the harm being occasioned by our claimant/victim

“It is just and reasonable to superimpose a common law duty of care on the local authority in relation to the performance of its statutory duties to protect children? In my judgement it is not. Sir Thomas Bingham M.R took the view, with which I agree, that the public policy consideration which has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy…However, in my judgement there are such considerations in this case”

Went to ECHR in Strasbourg and won.

Combining public and tort based reasoning

1. Is the matter justiciable by the courts? Was the LA exercising its statutory discretion?

2. Was the harm claimed within the ambit of the LA’s conferred duty(is), such that a common-law duty could follow?

3. Caparo ‘test’
   - Foreseeability
   - Proximity
   - Fair, just and reasonable

JD v East Berkshire Community Health NHS [2005] UKHL 23

“It was accepted in Strasbourg that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment and a violation of article 3 of the European Convention was found, arising from the failure of the system to protect the child applicants from serious, long-term neglect and abuse. The Court awarded compensation amounting to £320,000... Yet the local authority’s failure to intervene, which had permitted the abuse and neglect to continue, was held by the Court of Appeal and the House of Lords to afford the children no tortious remedy in negligence against the local authority in English law.” - Lord Bingham,

Poole Borough Council v GN [2019] UKSC 25

Addresses the exception for children that came from JD

In order to overcome omissions and third party defences, we have to find a really close relationship where the council had assumed responsibility for the family, and that the family relied upon this.

‘In the present case, on the other hard, 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. It may have been reasonably foreseeable that their mother would be anxious that the council should act so as to protect the family from their neighbours, in particular by re-housing them, but anxiety does not amount to reliance. Nor could it be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare’. - Lord Reed (2019)

‘In Phelps v Hillingdon, the duty of care of the educational psychologist towards the child was again based on the fact that it was reasonably foreseeable that the child’s parents would rely on the advice provided. Those were all cases where the duty of care arose on the basis of the Hedley Byrne principle. In the present case, on the other hand, there is no suggestion that the social workers provided advice on which the claimant’s mother would foreseeably rely…As has been explained, however, the concept of an assumption of responsibility is not confined to the provision of information or advice. It can also apply where, as Lord Goff put it in Spring v Guardian Assurance plc, the claimant entrusts the defendant with the conduct of his affairs, in general or in particular. Such an undertaking may be express, but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. In the present case, however, there is nothing in the particulars of claim to suggest that a situation of that kind came into being’ - Lord Reed

Hill v Chief Constable of West Yorkshire (1989)

The mother of the final victim of the Yorkshire ripper brought a claim against the police given the murder was committed when he was on bail for a driving offence.

‘The general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function in the investigation and suppression of crime. From time to time they make mistakes in the exercise of that function, but it is not to be doubted that they apply their best endeavors to the performance of it. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. The possibility of this happening in relation to the investigative operations of the police cannot be excluded. In some instances the imposition of liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind. - Lord Keith

Smith v Chief Constable of Sussex Police [2008]

Case of an absive ex sending multiple threats which the victim reported to the police who did nothing. The thought is because this was a homosexual relationship.

“I would hold that if a member of the public (A) furnishes a police officer (B) with apparently credible evidence that a third party whose identity and whereabouts are known presents a specific and imminent threat to his life or physical safety, B owes A a duty to take reasonable steps to assess such threat and, if appropriate, take reasonable steps to prevent it being executed. I shall for convenience of reference call this “the liability principle”… It is not… easy to see how acceptance of the liability principle could induce a detrimentally defensive frame of mind. All that would be called for in the first instance would be a reasonable assessment of the threat posed to an identified potential victim by an identified person.” - Dissenting Lord Bingham, suggested the liability principle

“Police work elsewhere may be impeded if the police were required to treat every report from a member of the public that he or she is being threatened with violence as giving rise to a duty of care to take reasonable steps to prevent the alleged threat from being executed. Some cases will require more immediate action than others. The judgment as to whether any given case is of that character must be left to the police.” - Lord Hope (majority)

Micheal v Chief Constable of South Wales (discussion of public authority liability)

“It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of the individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.” - Per Lord Toulson

Lord Kerr dissented “Proximity in this context means… a closeness of association. In the case of the police it must transcend the ordinary contact that a member of the public has with the police force in general. But the notion that it can only arise where there has been an express assumption of responsibility by unambiguous undertakings on the part of the police and explicit reliance on those by the claimant or victim is not only arbritrary, it fails to reflect the practical realities of life.”

Woodcock v Chief Constable of Northamptonshire [2023]

Victim had a restraining order on her abusive ex, police fail to tell her he has been spotted near her house, the ex attacked and stabbed her seven times.