Negligence in Public Policy Case Summaries

Public Bodies and Policy

According to the ILEx Part 2 syllabus, candidates need to be aware of the continuing trend to restrict liability particularly for public bodies eg X v Bedfordshire County Council and Stovin v Wise. Candidates are also to be aware of cases which appear to reverse this trend eg White v Jones and Spring v Guardian Assurance plc.

The various public authorities dealt with in this handout are as follows:

PROFESSIONAL SOCIETIES

Marc Rich v Bishop Rock Marine (1995) (HL)

Ship developed a crack in the hull while at sea. Surveyor acting for the vessel’s classification society recommended permanent repairs but the owners effected temporary repairs having persuaded the surveyor to change his recommendation. The vessel sank a week later.

The ship classification society did not owe a duty of care to cargo owners.

1. They were independent, non-profit making entities

2. Cost of insurance would be passed on to shipowners

3. Extra layer of insurance for litigation and arbitration

4. Society would adopt a more defensive role

Watson v British Boxing Board of Control (1999) (QBD)

During a professional boxing contest, the claimant suffered a sub-dural haemorrhage resulting in irreversible brain damage which left him with, among other things, a left-sided partial paralysis. Claimant contended that defendant owed him a duty of care to provide appropriate medical assistance at ringside.

The BBBC was liable for not providing a system of appropriate medical assistance at the ringside.

1. Boxers unlikely to have well informed concern about safety

2. Board had special knowledge and knew that boxers would rely on their advice

3. Standard response to sub-dural bleeding agreed since 1980 but not introduced by the Board

ADVOCATES

Arthur Hall v Simons (2000) (HL)

In three separate cases, clients brought claims for negligence against their former solicitors. The solicitors relied on the immunity of advocates from suits for negligence, and claims were struck out. The CA later held that the claims fell outside the scope of the immunity and that they should not have been struck out. The HL considered the immunity.

Advocates no longer enjoyed immunity from suit in respect of their conduct of civil and criminal proceedings. It was no longer in the public interest to maintain the immunity in favour of advocates.

1. Immunity not needed to deal with collateral attacks on criminal and civil decisions

2. Immunity not needed to ensure that advocates would respect their duty to the court

3. Benefits would be gained from ending the immunity

4. Abolition of the immunity would strengthen the legal system by exposing isolated acts of incompetence at the Bar

LOCAL AUTHORITIES

X v Bedfordshire CC

M v Newham LBC

E v Dorset CC (1995) (HL)

Abuse cases:

(a) Psychiatrist and social worker interviewed a child suspected of having been sexually abused and wrongly assumed from the name given by the child that the abuser was the mother’s current boyfriend, who had the same first name (rather than a cousin). The child was removed from the mother’s care.

(b) Local authority took no action for almost five years to place the plaintiff children on the Child Protection Register despite reports from relatives, neighbours, the police, the family’s GP, a head teacher, the NSPCC, a social worker and a health visitor that the children were at risk (including risk of sexual abuse) while living with their parents, that their living conditions were appalling and unfit and that the children were dirty and hungry.

Education cases:

(a) Plaintiff alleged that his local education authority had failed to ascertain that he suffered from a learning disorder which required special educational provision, that it had wrongly advised his parents and that even when pursuant to the Education Act 1981 it later acknowledged his special needs, it had wrongly decided that the school he was then attending was appropriate to meet his needs.

(b) Plaintiff alleged that the headmaster of the primary school which he attended had failed to refer him either to the local education authority for formal assessment of his learning difficulties, which were consistent with dyslexia, or to an educational psychologist for diagnosis, that the teachers’ advisory centre to which he was later referred had also failed to identify his difficulty and that such failure to assess his condition (which would have improved with appropriate treatment) had severely limited his educational attainment and prospects of employment.

(c) Plaintiff alleged that although he did not have any serious disability and was of at least average ability the local education authority had either placed him in special schools which were not appropriate to his educational needs or had failed to provide any schooling for him at all with the result that his personal and intellectual development had been impaired and he had been placed at a disadvantage in seeking employment

1. Categories of claims against public authorities for damages.

2. In actions for breach of statutory duty simpliciter a breach of statutory duty was not by itself sufficient to give rise to any private law cause of action. A private law cause of action only arose if it could be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.

3. The mere assertion of the careless exercise of a statutory power or duty was not sufficient in itself to give rise to a private law cause of action. The plaintiff also had to show that the circumstances were such as to raise a duty of care at common law. In determining whether such a duty of care was owed by a public authority, the manner in which a statutory discretion was or was not exercised (ie the decision whether or not to exercise the discretion) had to be distinguished from the manner in which the statutory duty was implemented in practice. Since it was for the authority, not for the courts, to exercise a statutory discretion conferred on it by Parliament, nothing the authority did within the ambit of the discretion could be actionable at common law, but if the decision was so unreasonable that it fell outside the ambit of the discretion conferred on the authority that could give rise to common law liability. Furthermore …

4. In the abuse cases, the claims based on breach of statutory duty had been rightly struck out. The purpose of child care legislation was to establish an administrative system designed to promote the social welfare of the community and within that system very difficult decisions had to be taken, often on the basis of inadequate and disputed facts, whether to split the family in order to protect the child. In that context and having regard to the fact that the discharge of the statutory duty depended on the subjective judgment of the local authority, the legislation was inconsistent with any parliamentary intention to create a private cause of action against those responsible for carrying out the difficult functions under the legislation if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties.

5. In the education cases, the claims based on breach of statutory duty had also rightly been struck out. A local education authority’s obligation under the Education Act 1944 to provide sufficient schools for pupils within its area could not give rise to a claim for breach of statutory duty based on a failure to provide any or any proper schooling since the Act did not impose any obligation on a local education authority to accept a child for education in one of its schools, and the fact that breaches of duties under the Education Acts might give rise to successful public law claims for a declaration or an injunction did not show that there was a corresponding private law right to damages for breach of statutory duty. In the case of children with special educational needs, although they were members of a limited class for whose protection the statutory provisions were enacted, there was nothing in the Acts which demonstrated a parliamentary intention to give that class a statutory right of action for damages. The duty imposed on a local education authority to ‘have regard’ to the need for securing special treatment for children in need of such treatment left too much to be decided by the authority to indicate that parliament intended to confer a private right of action and the involvement of parents at every stage of the decision-making process under the 1981 Act and their rights of appeal against the authority’s decisions showed that Parliament did not intend, in addition, to confer a right to sue for damages.

6. In respect of the claims for breach of duty of care in both the abuse and education cases, assuming that a local authority’s duty to take reasonable care in relation to the protection and education of children did not involve unjusticiable policy questions or decisions which were not within the ambit of the local authority’s statutory discretion, it would nevertheless not be just and reasonable to impose a common law duty of care on the authority in all the circumstances. Courts should be extremely reluctant to impose a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. In the abuse cases a common law duty of care would be contrary to the whole statutory system set up for the protection of children at risk, which required the joint involvement of many other agencies and persons connected with the child, as well as the local authority, and would impinge on the delicate nature of the decisions which had to be made in child abuse cases and, in the education cases, administrative failures were best dealt with by the statutory appeals procedure rather than by litigation.

7(a). A local authority was not vicariously liable for the actions of social workers and psychiatrists instructed by it to report on children who were suspected of being sexually abused because it would not be just and reasonable to impose a duty of care on the local authority or it would be contrary to public policy to do so. The social workers and psychiatrists themselves were retained by the local authority to advise the local authority, not the plaintiffs and by accepting the instructions of the local authority did not assume any general professional duty of care to the plaintiff children. Their duty was to advise the local authority in relation to the well-being of the plaintiffs but not to advise or treat the plaintiffs and, furthermore, it would not be just and reasonable to impose a common law duty of care on them.

(b). However, in the education cases a local authority was under a duty of care in respect of the service in the form of psychological advice which was offered to the public since, by offering such a service, it was under a duty of care to those using the service to exercise care in its conduct. Likewise, educational psychologists and other members of the staff of an education authority, including teachers, owed a duty to use reasonable professional skill and care in the assessment and determination of a child’s educational needs and the authority was vicariously liable for any breach of such duties by their employees.

8. It followed that the plaintiffs in the abuse cases had no private law claim in damages. Their appeals would therefore be dismissed. In the education cases the authorities were under no liability at common law for the negligent exercise of the statutory discretions conferred on them by the Education Acts but could be liable, both directly and vicariously, for negligent advice given by their professional employees. The education authorities’ appeals would therefore be allowed in part.

Stovin v Wise (Norfolk CC, third party) (1996) (HL)

Highway authority did not take any action to remove an earth bank on railway land which obstructed a motorcyclist’s view, leading to an accident

Public authority liable for a negligent omission to exercise a statutory power only if authority was under a public law duty to consider the exercise of the power and also under a private law duty to act, which gave rise to a compensation claim for failure to do so. On the facts, not irrational for the highway authority to decide not to take any action; the public law duty did not give rise to an action in damages.

It was impossible to discern a legislative intent that there should be a duty of care in respect of the use of the power giving rise to a liability to compensate persons injured by the failure to use it.

The distinction between policy and operations is an inadequate tool with which to discover whether it is appropriate to impose a duty of care or not, because (i) the distinction is often elusive; and (ii) even if the distinction is clear cut, it does not follow that there should be a common law duty of care.

H v Norfolk CC (1996) (CA)

Plaintiff had been sexually abused by his foster father

Council did not owe a duty of care to plaintiff

For the five public policy considerations enumerated by the trial judge:

1. the interdisciplinary nature of the system for protection of children at risk and the difficulties that might arise in disentangling the liability of the various agents concerned;

2. the very delicate nature of the task of the local authority in dealing with children at risk and their parents;

3. the risk of a more defensive and cautious approach by the local authority if a common duty of care were to exist;

4. the potential conflict between social worker and parents; and

5. the existence of alternative remedies under s76 of the Child Care Act 1980 and the powers of investigation of the local authority ombudsman.

Barrett v Enfield LBC (1999) (HL)

Plaintiff alleged negligent treatment while in local authority care

Plaintiff’s claim, struck out by the trial judge and CA, would be restored

While a decision to take a child into care pursuant to a statutory power was not justiciable, it did not follow that, having taken a child into care, a local authority could not be liable for what it or its employees did in relation to the child. The importance of this distinction required, except in the clearest cases, an investigation of the facts, and whether it was just and reasonable to impose liability for negligence had to be decided on the basis of what was proved.

W v Essex CC (2000) (HL)

Plaintiff parents sought the recovery of damages for alleged psychiatric illness suffered by them on discovering that their children had been sexually abused by a boy who had been placed with them by the council for fostering

Claim struck out by trial judge and CA, would be restored.

The parents could be primary victims or secondary victims. Nor was it unarguable that the local authority had owed a duty of care to the parents.

Phelps v Hillingdon LBC

Anderton v Clwyd CC

Gower v Bromley LBC

Jarvis v Hamshpire CC (2000) (HL)

A local authority could be vicariously liable for breaches by those whom it employed, including educational psychologists and teachers, of their duties of care towards pupils. Breaches could include failure to diagnose dyslexic pupils and to provide appropriate education for pupils with special educational needs.

1. It was well established that persons exercising a particular skill or profession might owe a duty of care in the performance to people who it could be foreseen would be injured if due skill and care were not exercised and if injury or damage could be shown to have been caused by the lack of care. An educational psychologist or psychiatrist or a teacher, including a special needs teacher, was such a person. So might be an education officer performing the authority’s functions with regard to children with special educational needs. There was no justification for a blanket immunity in their cases.

2. It was obviously important that those engaged in the provision of educational services under the Educational Acts should not be hampered by the imposition of such a vicarious liability. Lord Slynn did not, however, see that to recognise the existence of the duties necessarily led or was likely to lead to that result. The recognition of the duty of care did not of itself impose unreasonably high standards.

Bradford-Smart v West Sussex CC (2000)

School bullying

Local Education Authority not liable

Serious bullying was outside school grounds

POLICE

Knightley v Johns (1982) (CA)

The first defendant caused a road accident in a one-way tunnel, which had a sharp bend in the middle thus obscuring the exit. Police inspector ordered two police officers on motorcycles, in breach of regulations, to go back and close the tunnel; one injured by oncoming traffic

The police inspector in charge at the scene (and Chief Constable) was liable in negligence

The inspector was negligent in not closing the tunnel before he gave orders for that to be done and also in ordering or allowing his subordinates, including the plaintiff, to carry out the dangerous manoeuvre of riding back along the tunnel contrary to the standing orders for road accidents in the tunnel.

Marshall v Osmond (1983) (CA)

The plaintiff was a passenger in a stolen car being pursued by the police. The plaintiff tried to escape in order to avoid arrest. He was struck and injured when the police car hit the stolen car

The police officer was not liable.

Although a police officer was entitled to use such force in effecting a suspected criminal’s arrest as was reasonable in all the circumstances, the duty owed by the police officer to the suspect was in all other respects the standard duty of care to anyone else, namely to exercise such care and skill as was reasonable in all the circumstances. On the facts, the police officer had made an error of judgment, but the evidence did not show that he had been negligent.

Rigby v CC of Northamptonshire (1985) (QBD)

The plaintiff’s shop was burnt out when police fired a canister of CS gas into the building in an effort to flush out a dangerous psychopath who had broken into it. At the time there was no fire-fighting equipment to hand, as a fire engine which had been standing by had been called away. The plaintiff brought an action alleging, inter alia, negligence, and contending that the defendant ought to have purchased and had available a new CS gas device, rather than the CS gas canister, since the new device involved no fire risk

The plaintiff was entitled to damages only in negligence.

1. In deciding not to acquire the new CS gas device the defendant had made a policy decision pursuant to his discretion under the statutory powers relating to the purchase of police equipment and since that decision had been made bona fide it could not be impugned. Furthermore, on the evidence, there was no reason for the defendant to have had the new device in 1977, and he was not negligent in not having it at that date.

2. In regard to the action in negligence, since there was a real and substantial fire risk involved in firing the gas canister into the building and since that risk was only acceptable if there was equipment available to put out a potential fire at an early stage, the defendant had been negligent in firing the gas canister when no fire-fighting equipment was in attendance.

Hill v CC of West Yorkshire (1988) (HL)

Police failed to detect the ‘Yorkshire Ripper’ before he murdered the plaintiff’s daughter

The Chief Constable could not be liable in damages for negligence

1. In the absence of any special characteristic or ingredient over and above reasonable foreseeability of likely harm which would establish proximity of relationship between the victim of a crime and the police, the police did not owe a general duty of care to individual members of the public to identify and apprehend an unknown criminal, even though it was reasonably foreseeable that harm was likely to be caused to a member of the public if the criminal was not detected and apprehended.

2. Even if such a duty did exist public policy required that the police should not be liable in such circumstances. (see Waters v MPC (2000) below)

Osman v Ferguson (1993) (CA)

A schoolteacher harassed a pupil. The police were aware of this and the teacher told a police officer that the loss of his job was distressing and there was a danger that he would do something criminally insane. He rammed a vehicle in which the boy was a passenger. The police laid an information against the teacher for driving without due care and attention but it was not served. The teacher shot and severely injured the boy and killed his father.

Action against the Metropolitan Police Commissioner alleging negligence would be dismissed

As the second plaintiff and his family had been exposed to a risk from the teacher over and above that of the public there was an arguable case that there was a very close degree of proximity amounting to a special relationship between the plaintiffs’ family and the investigating police officers. However, the existence of a general duty on the police to suppress crime did not carry with it liability to individuals for damage caused to them by criminals whom the police had failed to apprehend when it was possible to do so. It would be against public policy to impose such a duty as it would not promote the observance of a higher standard of care by the police and would result in the significant diversion of police resources from the investigation and suppression of crime.

Ancell v McDermot (1993) (CA)

Diesel fuel spillage on motorway noticed by police patrolmen and reported to highways department. Car skidded on road and plaintiff’s wife killed and plaintiff and passengers injured

The police were under no duty of care to protect road users from, or to warn them of, hazards discovered by the police while going about their duties on the highway, and there was in the circumstances no special relationship between the plaintiffs and the police giving rise to an exceptional duty to prevent harm from dangers created by another.

The extreme width and scope of such a duty of care would impose on a police force potential liability of almost unlimited scope, and it would be against public policy because it would divert extensive police resources and manpower from, and hamper the performance of, ordinary police duties.

Alexandrou v Oxford (1993) (CA)

Police called out by burglar alarm at plaintiff’s shop, failed to inspect rear of shop where burglars were hiding, who then removed goods.

A plaintiff alleging that a defendant owed a duty to take reasonable care to prevent loss to him caused by the activities of another person had to prove not merely that it was foreseeable that loss would result if the defendant did not exercise reasonable care but also that he stood in a special relationship to the defendant from which the duty of care would arise. On the facts, there was no such special relationship between the plaintiff and the police because the communication with the police was by way of an emergency call which in no material way differed from such a call by an ordinary member of the public and if a duty of care owed to the plaintiff were to be imposed on the police that same duty would be owed to all members of the public who informed the police of a crime being committed or about to be committed against them or their property.

Furthermore, it would not be in the public interest to impose such a duty of care on the police as it would not promote the observance of a higher standard of care by the police, but would result in a significant diversion of resources from the suppression of crime.

Swinney v CC of Northumbria (1996) (CA)

Details of the plaintiff police informant were stolen from an unattended police vehicle, who was then threatened with violence and arson and suffered psychiatric damage

It was at least arguable that a special relationship existed between the police and an informant who passed on information in confidence implicating a person known to be violent which distinguished the information from the general public as being particularly at risk and gave rise to a duty of care on the police to keep such information secure. 

Moreover, while the police were generally immune from suit on grounds of public policy in relation to their activities in the investigation or suppression of crime, that immunity had to be weighed against other considerations of public policy, including the need to protect informers and to encourage them to come forward without undue fear of the risk that their identity would subsequently become known to the person implicated. On the facts as pleaded in the statement of claim, it was arguable that a special relationship existed which rendered the plaintiffs particularly at risk, that the police had in fact assumed a responsibility of confidentiality to the plaintiffs and, considering all relevant public policy factors in the round, that prosecution of the plaintiffs’ claim was not precluded by the principle of immunity.

Osman v UK (1998) (ECHR)

See Osman v Ferguson (1993) above

The application of the exclusionary rule formulated by the House of Lords in Hill v CC of West Yorkshire (1989) as a watertight defence to a civil action against the police, constituted a disproportionate restriction on their right of access to a court in breach of article 6.1 of the European Convention on Human Rights.

The aim of such a rule might be accepted as legitimate in terms of the Convention, as being directed to the maintenance of the effectiveness of the police service and hence to the prevention of disorder or crime, in turning to the issue of proportionality, the court must have particular regard to its scope and especially its application in the case at issue.

It appeared to the Court that in the instant case the Court of Appeal proceeded on the basis that the rule provided a watertight defence to the police. It further observed that the application of the rule in that manner without further inquiry into the existence of competing public interest considerations only served to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounted to an unjustifiable restriction on an applicant’s right to have a determination on the merits of his or her claim against the police in deserving cases.

In its view, it must be open to a domestic court to have regard to the presence of other public interest considerations which pull in the opposite direction to the application of the rule. Failing that, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case.

Costello v CC of Northumbria (1999) (CA)

Plaintiff police woman attacked by prisoner in a cell; police inspector standing nearby did not help

Appeal against judgment for the plaintiff dismissed

A police officer who assumed a responsibility to another police officer owed a duty of care to comply with his police duty where failure to do so would expose that other police officer to unnecessary risk of injury. In the instant case, the inspector had acknowledged his police duty to help the plaintiff and had assumed responsibility, yet he did not even try to do so. It followed that the inspector had been in breach of duty in law in not trying to help the plaintiff, and the chief constable, although not personally in breach, was vicariously liable therefore.

Gibson v CC of Strathclyde (1999) (Court of Session, Scotland)

A chief constable owed road users a duty of care where his officers had taken control of a hazardous road traffic situation, in this case a collapsed bridge, but later left the hazard unattended and without having put up cones, barriers or other signs.

Once a constable had taken charge of a road traffic situation which, without control by him, presented a grave and immediate risk of death or serious injury to road users likely to be affected by the particular hazard, it seemed consistent with the underlying principle of neighbourhood for the law to regard him as being in such a relationship with road users as to satisfy the requisite element of proximity.

In Hill the observations were made in the context of criminal investigation. There was no close analogy between the exercise by the police of their function of investigating and suppressing crime and the exercise by them of their function of performing tasks concerned with safety on the roads. It would be fair, just and reasonable to hold that a duty was owed.

Barrett v Enfield LBC (1999) (HL)

Obiter statement on Osman v UK, per Lord Browne-Wilkinson.

Reeves v Commissioner of Police (1999) (HL)

A person in police custody, a known suicide risk, committed suicide

The police owed a duty of care to the plaintiff and had admitted breach. However, the plaintiff’s deliberate and intentional act in causing injury to himself constituted ‘fault’ as defined in the Law Reform (Contributory Negligence) Act 1945. Damages would be reduced by 50 per cent

Where the law imposed a duty on a person to guard against loss by the deliberate and informed act of another, the occurrence of the very act which ought to have been prevented could not negative causation between the breach of duty and the loss. That was so not only where the deliberate act was that of a third party, but also when it