Professional Negligence and Liability
Chapter 22
PUBLIC AUTHORITIES
I. INTRODUCTION
22.1 Since the Second World War, public authorities have been made responsible for an increasing number of welfare and regulatory tasks. Numerous statutes impose duties on, and grant powers to, public authorities in the fields of education, housing, child protection, planning, land-use etc. The question then arises: can the public authority be the subject of a private law claim if it discharges these functions carelessly such that it causes, or fails to prevent, harm or should its “public” or statutory nature preclude it owing a duty of care? As will be made clear below, this raises complex issues both of legal principle and policy. 22.2 Tort liability of public authorities rests on the intersection between public and private law. It requires consideration to be given to the setting of boundaries between the competence of the courts and the executive, and between law and politics. It also requires the courts to grapple with the appropriate limits of compensation, whether, for example, the law should provide redress for “educational harm” or for a failure to protect children from abuse. The problems the courts have faced conceptualising the law and establishing clear and coherent principles to some extent reflect the difficulty of resolving these underlying questions. 22.3 The first part of this chapter examines the general principles relating to the liability of public authorities: justiciability, duty of care, direct and vicarious liability, liability for omissions, setting the standard of care and assessment of damages. It then examines specific areas of liability: education, social services, the police, rescue services, highways and other land usages. Other related kinds of liability, in particular breach of statutory duty and liability pursuant to the Human Rights Act 1998, are also considered. Finally, the chapter examines the approach taken by the courts in Australia, Canada and New Zealand to this area of law.II. LIABILITY FOR BREACH OF STATUTORY DUTY
1. Breach of statutory duty simpliciter
22.4 Claimants cannot bring a civil action purely on the basis that a breach of statutory duty, occurring without carelessness, caused them harm. A breach of a statutory duty will only give rise to a private law claim in damages if the statute in question expressly so provides,1 or if such a right of action can be implied into it.2 The factors which the courts have taken as indicators that a statute was intended to confer a private law remedy are that it was designed to protect a limited class of individuals,3 and that no other remedy is provided to secure the protection the statute was intended to confer.4 22.5 In relation to the performance of regulatory functions by public authorities, the courts have been reluctant to find that Parliament intended to create a cause of action for a breach of statutory duty.5 In X v. Bedfordshire County Council,6 Lord Browne-Wilkinson, with whom the rest of their Lordships agreed, held that “regulatory or welfare legislation…is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”7 A claimant will need to identify “exceptionally clear statutory language” to establish that Parliament intended to create liability for damages for breach of the statute.8 The House of Lords held that a breach of child protection legislation imposing duties upon public authorities does not give rise to a claim for breach of statutory duty.9 Similarly no claim for a breach of statutory duty can be brought for a failure to identify and respond to a child’s special educational needs.10 More recently, the House of Lords held that no private cause of action will arise in respect of a breach of a statutory duty where the relevant regulatory framework provides alternative means of enforcement of the duty: Morrison Sports Ltd v. Scottish Power.112. Careless performance of a statutory duty
22.6 Until the matter was settled by the House of Lords in X v. Bedfordshire CC 12 there was some ambiguity in the authorities as to whether the careless performance of a statutory duty could give rise to a claim in damages, absent a common law duty of care.13 Lord Browne-Wilkinson held in X v. Bedfordshire that a claim could not be brought unless a cause of action existed at common law.14 He held that the previous cases, which the claimants had suggested supported a more expansive imposition of liability, were authority for a narrower proposition. The cases established, according to Lord Browne-Wilkinson, that, because a defendant was acting pursuant to a statutory duty, does not constitute a defence to a common law claim.15 It does not necessarily mean, however, that a common law duty of care is owed, and such a duty will need to be established for a claimant to be able to obtain damages.III. LIABILITY AT COMMON LAW: DUTY OF CARE
1. Justiciability of the claim
22.7 Historically, in order to bring a claim against a public authority at common law it was necessary to establish that the matter was “justiciable”16 i.e. that it is suitable for judicial resolution. It is generally accepted that determining whether a public authority has been negligent may raise issues that are not justiciable. Parliament confers discretion on public authorities that may require the delicate balancing of competing interests, or the formulation of policy which will affect a broad section of society. Determining whether a public authority has exercised its discretion correctly may not be within the competence of the courts.17 The institutional framework of the courts, within which individuals present proof and reasoned argument in order to persuade an adjudicator of the rightness of their case, is most suitable to resolve disputes between a limited number of identifiable parties. It is less suitable where a decision will have implications for wider interests beyond those of the parties before the court. In such circumstances the public authority, which is democratically accountable, is better able than the courts to balance the competing claims to resources or predict the broader ramifications of making a decision one way or another.18 When such consideration is required, the court should not generally interfere with the public authority’s decision. 22.8 The courts have adopted different approaches to determine whether a particular case is, or is not, suitable for judicial resolution. Two key tests emerged from the older authorities. First, the court is to consider whether the decision was within the ambit of the discretion conferred by Parliament. Secondly it was to consider whether the decision was a policy or operational one. If the decision was within the ambit of the discretion or was one of policy, the claim was non-justiciable. More recently the courts have adopted a somewhat different approach. which is discussed further below(a) The old approach
I. DECISIONS WITHIN THE AMBIT OF THE DISCRETION CONFERRED BY PARLIAMENT
22.9 In Home Office v. Dorset Yacht Company,19 the yacht company brought a claim against the Home Office after employees of the latter had negligently failed to supervise Borstal boys in their care. As a result the boys escaped from custody and, during the course of their escape, damaged a yacht belonging to the company. The House of Lords held that the Home Office was liable for the damage caused. Their Lordships noted that the courts generally did not have the competence to judge the reasonableness of decisions made in the exercise of discretion conferred by Parliament.20 Where, however, the discretion was exercised so carelessly or unreasonably as to be effectively outside the power conferred by Parliament, it became a matter upon which the courts were competent to adjudicate.21 The supervision of the Borstal boys in the case fell outside the ambit of the discretion and was thus justiciable. 22.10 Home Office v. Dorset Yacht Company 22 was inconclusive on the question of whether the court was applying an administrative law vires test, which would include consideration of for example procedural impropriety, or whether it was concerned only with whether the authority acted unreasonably.23 22.11 The issue was considered by the House of Lords in X v. Bedfordshire,24 which involved two groups of cases. In one group, the “abuse cases”, the claimants alleged that local authorities had negligently failed to protect children from abuse by their parents or had negligently removed a child from her mother. X v. Bedfordshire itself was a claim brought by five siblings who suffered severe abuse and neglect at the hands of their parents. Despite coming to the attention of the local authority it took some five years for the children to be taken into care. 22.12 M v. Newham LBC, which the House of Lords considered at the same time, was effectively the reverse of the position in X v. Bedfordshire and involved an allegation that a decision to take a child into care was negligent. The claim was brought by a mother and daughter. The latter had been taken into care for a year and contact with her mother was severely restricted. This occurred after the local authority had erroneously concluded that the daughter had been sexually abused by her mother’s then boyfriend. 22.13 The “education cases” involved allegations that local authorities had been negligent in their diagnosis or response to the claimants’ special educational needs.25 For reasons which will be considered further below, the House of Lords struck out the “abuse cases” on the basis that there was no duty of care owed, but held that in the “education cases” a duty was arguably owed.26 In relation to justiciability Lord Browne-Wilkinson, with whom the rest of their Lordships agreed, indicated that he did not believe “that it is either helpful or necessary to introduce public law concepts as to the validity of the decision into the question of liability at common law for negligence.”27 Instead, he held that it was only if the impugned decision was so unreasonable that it fell outside the ambit of the discretion conferred by Parliament that it could be the subject of a common law negligence claim, and not if it was ultra vires for other reasons.28 22.14 Essentially, therefore, it is only if the decision is unlawful on the basis that it is Wednesbury 29 unreasonable, that it will be suitable for judicial consideration. Otherwise, if the local authority is acting within the ambit of discretion granted to it, it will be “doing what Parliament has authorised” and cannot be held liable for harm caused.30 22.15 The House of Lords took a similar approach in Stovin v. Wise and another.31 In Stovin, the claimant sought damages against Norfolk County Council on the basis that it had failed to use its statutory powers to compel a landowner to remove a bank of earth from the latter’s land, which in turn obscured visibility on the highway. The claimant alleged that this negligence contributed to his being involved in a motor-cycle accident. Lord Hoffmann, with whom Lord Goff and Lord Jauncey agreed, held that the local authority owed no duty of care. Lord Hoffmann held that a “minimum precondition” for the imposition of a duty of care was that “it would in the circumstances have been irrational [for the local authority] not to have exercised the power”.32 While he did not refer to X v. Bedfordshire on this point, the test he applied was a similar one to that articulated by Lord Browne-Wilkinson.II. DECISIONS ARE MATTERS OF POLICY
22.16 The House of Lords in Home Office v. Dorset Yacht Company,33 also drew a distinction between policy decisions taken by a public authority, and the manner in which such policy is implemented. The officers in the case had been instructed to supervise the Borstal boys, and had simply failed to do so, allowing them to escape and cause damage. The officers were careless in the implementation of a policy rather than in its formulation. Lord Diplock indicated that if the Home Office had made a deliberate decision to relax control over the boys in order to facilitate their rehabilitation, such a decision would be one of policy and would not be susceptible to judicial scrutiny even if it led to the boys escaping.34 22.17 This approach, apparent also in the Court of Appeal decision in Dorset Yacht, was developed further in Anns v. Merton London Borough Council, in which the House of Lords held that a local authority could be liable for failing to properly carry out a building inspection.35 Lord Wilberforce suggested that applying a dichotomy between operational and policy matters would determine, in the first instance, whether it was appropriate to preclude liability for negligence when a public authority exercises a statutory discretion. Under such a test, policy matters were inherently non-justiciable as they involved taking a wider view of resources and competing interests than was appropriate for judicial adjudication. Putting policies into “operation,” by contrast, could be scrutinised by the court and could give rise to a duty of care.36 22.18 The policy/operational dichotomy was the subject of criticism, both academic37 and judicial,38 over the years following Anns v. Merton. Some of these criticisms were repeated and endorsed in X v. Bedfordshire by Lord Browne-Wilkinson.39 Notwithstanding the criticism, the test articulated by Lord Browne-Wilkinson in X v. Bedfordshire, and supported by the other members of the House of Lords, continues to focus on whether the decision in question is one of policy. He held that matters of “policy” are inappropriate for adjudication by the courts.40 He gave examples of such matters as being those of “social policy, the allocation of finite financial resources between different calls made upon them or (as in the Dorset Yacht case) the balance between pursuing desirable social aims as against the risk to the public interest in so doing.”41 According to Lord Browne-Wilkinson, whether a decision fell inside the ambit of the statutory discretion or whether it was a matter of policy were distinct questions. Establishing either would mean that a claim was non-justiciable.42(b) The current approach
22.19 As with many aspects of the law on public authority negligence, the approach of the courts to justiciability has shifted since X v. Bedfordshire 43 and Stovin v. Wise 44 were determined. The House of Lords in Barrett v. Enfield London Borough Council 45 adopted a different approach to the question of justiciability, though without expressly disapproving of the earlier authorities. Barrett involved a claim by a child, in local authority care, who alleged that the authority had been negligent in failing to provide him with appropriate and properly monitored placements and had failed to arrange for his adoption or to facilitate a reconciliation with his mother. The House of Lords held that it was arguable that the claim that the local authority had been negligent was justiciable. It held in Barrett that whether a decision was outside the ambit of discretion granted to a public authority was not an element which the claimant had to establish, but was a factor which would be taken into account in determining whether a case was justiciable. A similar approach was taken to whether a decision was a matter of policy. 22.20 In relation to justiciability, Lord Hutton in Barrett, with whom Lords Steyn and Nolan agreed, reviewed the authorities. He found that claims generally would be excluded if they required the courts to consider matters of policy. Courts, he held, were ill-equipped to assess such matters and Parliament could not have intended them to substitute their views for those of ministers or officials.46 He held, however, that this did not mean that matters of policy or decisions within the ambit of a discretion could not, as a rule, form the basis of a claim in negligence.47 This was a markedly different approach to that adopted in X v. Bedfordshire and Stovin v. Wise. Similarly Lord Slynn, with whom Lords Steyn and Nolan also agreed, referred to the “two tests” of ambit of discretion and the policy/operational distinction as “guides”48 in deciding whether the particular issue is justiciable. The courts have considered whether a decision was outside the ambit of a public authority’s discretion and/or a decision of policy to determine whether it is justiciable in various cases, see for example A and B v. Essex County Council 49and Smith v. Secretary of State for Health.50 In the A and B case the Court of Appeal held that the initial decision by an adoption agency as to what information should be provided to adoptive parents was non-justiciable. However, once the agency decided which information ought to be passed to parents, it could be held liable if it carelessly failed to provide that information. In the Smith case, Morland J held that the decision of the Secretary of State to delay the issuing of a health warning was non-justiciable. 22.21 A claim can thus be justiciable even without it being shown that the authority acted in excess of its powers.51 In place of the approach of earlier authorities, the House of Lords in Barrett v. Enfield held that whether a claim is justiciable turns on more general considerations. A claim is non-justiciable, according to Lord Hutton, if “the [impugned] decision involves the weighing of competing public interests or is dictated by considerations which the courts are not fitted to assess”.52 22.22 A similar approach is evident in the subsequent House of Lords decision in Phelps v. Hillingdon London Borough Council.53 The case was brought by a number of claimants seeking to establish that local authorities owed them a duty of care in the manner in which their special educational needs were diagnosed and treated. Lord Clyde, with whom Lords Hutton, Millett and Nicholls agreed, held that:“a distinction may be suggested between on the one hand matters of policy or discretion and on the other hand matters of an operational or administrative character. But this kind of classification does not appear to provide any absolute test for determining whether the case is one which allows or excludes a duty of care. The classification may provide some guide towards identifying some kinds of case where a duty of care may be thought to be inappropriate.”54