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Public bodies

Previous: Negligent Omissions

Public bodies such as the emergency services or county councils have a wide range of responsibilities. Therefore they can also have significant liabilities. Therefore, it is said that there must be some control mechanism to prevent the entire local authority’s budget going to people claiming that they haven’t acted. Note that many claims against public authorities are negligent omissions cases. Initially, it was suggested that public authority cases should be dealt with in public law, however it is now accepted that public authority liability lies within common law principles. However it is submitted that the extensive use of ‘policy reasons’ and statutory excuses allows public authorities to avoid liability in many cases. This is shown by the cases of Stovin v Wise [1996] and X v Bedfordshire County Council [1995].

Public or private law?

In Stovin v Wise [1996], it was said that for a public authority to be sued on statutory grounds, there must be:

  • An irrational, non-exercise of power where there is a public law duty to act
  • Exceptional grounds for holding that compensation is payable

In X v Bedfordshire County Council [1995] it was said that where there is statutory discretion, the action in question is not within the ambit of discretion for a claim under common law. This was confirmed in Barret v Enfield London Borough Council [1999], where taking a child into care under statutory authority did not create a duty of care. Further, in Gorringe v Calderdale Metropolitan Borough Council [2004], the authority could not be held liable for failing to warn road users of a dangerous crest on a road, as it was not explicitly required by the statute in question.

Besides these exceptions, it was confirmed in Crimins v Stevedoring Industry Finance Company [1999, Australia] that public law liability is based on private law principles.

Policy issues

However, there are some policy issues, namely that of justiciability; reliance, control and assumption of responsibilities and consistency with common law contexts.

Justiciability

Many claims are not justiciable, as was put in Stovin v Wise [1996], in order to prioritise local authority budgets. Another example can be seen in Graham Barclay Oysters Pty v Ryan [2003, Australia], where flooding in New South Wales caused more than 400 cases of Hepatitis A as the lake of growth of the oysters was contaminated. The local authority was not liable. However, this does not exclude liability exclusively. On the contrary, professional people within public authorities does give way to justiciable claims; in Phelps v Hillingdon London Borough Council [2000], an education psychologist was liable to a child for not diagnosing dyslexia.

Reliance, control and assumption of responsibilities

Just as in private law, there is only a duty to act if reliance has been induced, however in public authority cases, there is duty to intervene just because the power to do so exists.

Take for instance, the case of Attorney General v Body Corp [2007, New Zealand] where poor building practices had caused leaking in over 10,000 homes. It was ruled that the industry should self regulate and that the building regulator owed no duty to prevent such practices. On the other hand, in Jain v Strategic Health Authority [2009], when a local authority destroyed a care home business based on false allegations, they were not liable as their statutory duty to protect the elderly was superior to their common law duties.

Compatibility with common law and statutory contexts

Once again, policy often allows exclusion from claims, as can be seen in a number of cases.

The police

In Hill v West Yorkshire Police [1989], the police had no duty to protect every woman in the county from the Yorkshire ripper; in Smith v Chief Constable of Sussex police [2008], there was no duty found to protect people who report threats and in Desmond v Chief Constable of Nottinghamshire Police [2011], there was no duty for the police to provide an incorrect criminal record on application. Further, there was no liability in causing a fire with CS gas in Rigby v Chief Constable of Northamptonshire Police [1985].

Local authority landlords

In Mitchell v Glasgow City Council it was ruled that a local authority landlord need not warm tenants of eviction orders on other tenants, namely a very dangerous tenant who, upon receiving his eviction order, killed the other tenant.

Highway authorities

In Goodes v East Sussex County Council [2000], the council were said to have no duty to salt roads. The cases of Gorringe v Calderdale Metropolitan Borough Council [2004] and Stovin v Wise [1996] also fit into this category of claim.

Health bodies

Duties appear easier to find where health bodies are concerned. We have already mentioned the case of Phelps v Hillingdon London Borough Council [2000], but Kent v Griffiths [2000] is an ideal representation. Here an asthma attack prompted an ambulance call. It was confirmed that they were on their way. The ambulance too far too long to arrive, resulting in the attack worsening. There was liability as the ambulance service had assumed responsibility for the situation.

Fire service

The fire service, it can be argued, it not paid out of public funds, therefore liability is again difficult to establish, unless they make the situation. The joint appeals in Capital and Counties Plc v Hampshire County Council illustrates this. Here a number of things were established:

  • There is no duty for the fire service to take care to attend an incident, even if they have confirmed response
  • There is no duty for the fire service to prevent damage to property when fighting a fire; despite the conflict with insurance
  • A duty is ONLY owed if the fire service makes the situation worse. In one of the appeals, the fire service turned off the sprinkler system with made the situate worse and so they were liable.

Furthermore, in Pyranees Shire Council v Day [1998, Australia], it was ruled that the fire service owed no duty to pursue a letter of warning for a faulty fire-place with a new owner.

Social workers

There are often conflicting duties when dealing with social incidents, just as there was in Jain v Strategic Health Authority [2009]. In D v East Berkshire Community NHS Trust, no duty was owed to parents who were falsely accused of child abuse as the prevailing duty was to protect the children. Conflicting interests needed to be balanced. However, in the case of Sullivan v Moody [2001, Australia], the council owed no duty in falsely investigating sexual abuse claims regarding children.

European (human rights) influences

The have been a number of cases which have overturned public authority immunities due to conflicts with human rights. Firstly, in Osman v UK [1998, ECtHR], it was ruled that the blanked immunity given to the police to not need to protect victims who reported threats to the police violated article 6 of the European Convention on Human Rights. Previously, in Z v UK [2002, ECtHR], the decision in X v Bedford [1995] was appealed; local authorities did have a duty to remove children from parental abuse and could not restrict access to courts. Though still no duty is owed to parents when there are attempts to protect children from abuse, as was shown in Lawrence v Pembrookshire CC [2007].

With regard to the police, the case of Van Colle v Chief Constable of Hertfordshire Police [2008], it was ruled that the police only need to protect a witness if there is a real and immediate risk to their life.

In Smith v Ministry of Defence [2013], it as said that Human Rights do apply to soldiers on active duty. Therefore, the MoD failed to adequately protect the article 2 rights of soldiers by not providing adequate equipment.

Conclusion

It appears, in my opinion, difficult to predict where liability can and cannot lief for public authorities. Generally, omissions cases fail, it seems; local authority budget priorities are more important; while the ambulance service is the only emergency service which has significant responsibilities and if you can get human rights on your side, you stand a better chance of succeeding in your claim.

Next: Negligent Misstatement

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