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Public authority liability in negligence: the continued search for coherence

  • Stephen Bailey (a1)

The liability of public authorities in negligence continues to be a problematic area of the law. Some of the difficulties have been caused by the adoption by the courts of unnecessary and unworkable tests, in addition to the ordinary principles of the law of negligence. This is normally done to restrict liability, as with the policy–operational dichotomy, and the propositions that no liability can arise in respect of an act that ‘falls within the ambit of a statutory discretion’ or where the matter is non-justiciable. Sometimes the intention seems to be to extend liability, as with the suggestion that, generally, a duty of care may arise where there is an irrational failure to exercise a statutory power. Recent cases have helpfully continued the process of removing these special rules, leaving matters to be dealt with by the ordinary principles of negligence. Those principles enable proper account to be taken of the particular functions and responsibilities of public authorities. However, the cases remain difficult and the outcomes can still give rise to debate and disagreement. Insofar as there is a good case for extending the range of situations in which compensation is available in respect of the careless or unlawful acts of public authorities, it would be better to develop ex gratia schemes and the provision of remedies through ombudsmen than to extend the law of tort.

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1. More recent studies include Markesinis, B et al Tortious Liability of Statutory Bodies, A Comparative Analysis of Five English Cases (Oxford: Hart, 1999). An excellent account with a Commonwealth perspective is given in ch 6.6. The Law Commission has expressed an interest in looking at this area: Monetary Remedies in Public Law: A Discussion Paper (11 October 2004) and is to conduct a ‘scoping study’ (available at For a critique of the discussion paper, see .

2. The leading cases include Home Office v Dorset Yacht Co [1970] AC 1004; Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175; Takaro Properties Ltd v Rowling [1988] AC 473; Hill v Chief Constable of West Yorkshire [1989] AC 53; Murphy v Brentwood District Council [1991] 1 AC 398; Anns v Merton London Borough Council [1978] AC 728; X (Minors) v Bedfordshire County Council [1995] 2 AC 633; Stovin v Wise [1996] AC 923; Barrett v Enfield London Borough Council [2001] 2 AC 550; Phelps v Hillingdon London Borough Council [2001] 2 AC 619; Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, [2004] 1 WLR 1057; D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373; Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 2 All ER 489.

3. For example, the failure to see that carelessness by a local authority in exercising statutory powers to enforce building regulations normally involves liability for an omission (the failure to confer the benefit of protection on the ultimate purchaser of the building from the negligence or other inadequacy of the builder): compare Anns and Stovin, above n 2; the failure to see that the essence of the complaint of the plaintiffs (as they then were) in such cases was one of pure economic loss, notwithstanding the presence of ‘cracks’ in the building: compare Anns and Murphy, ibid.

4. For example, the policy–operational dichotomy (compare Anns with Stovin and Barrett, ibid); the proposition that an irrational failure to exercise power may be a sufficient basis for imposing negligence liability for an omission (compare Lord Hoffmann in Stovin with Lord Hoffmann in Gorringe, ibid); the proposition that certain areas of public authority activity do not give rise to claims in negligence that are justiciable needs to be read narrowly if it is not to give rise to similar problems: see further below.

5. For example, the question whether a finding that an act or omission is ultra vires is ever a precondition to liability.

6. As argued, for example, by Bailey and Bowman: MJ Bowman and SH Bailey ‘Negligence in the realm of public law – a positive obligation to rescue’ [1984] PL 277; SH Bailey and MJ Bowman ‘The policy/operational dichotomy – a cuckoo in the nest’ [1986] CLJ 430 and ‘Public authority negligence revisited’ [2000] CLJ 85.

7. See below. Causation principles may also come further into play in some situations, particularly where there is a multiplicity of parties (as will normally be the case where it is sought to hold a public authority liable for an omission). Cf Knightley v Johns [1982] 1 WLR 349.

8. See the discussions of the nature of the damage in cases of undiagnosed dyslexia: Phelps, above n 2; Robinson v St Helens Metropolitan Borough Council [2002] EWCA Civ 1099, [2002] ELR 681; Adams v Bracknell Forest Borough Council [2004] UKHL 29, [2004] 3 WLR 89.

9. On the extent to which liability in trespass to the person or to land requires proof of intention, see Rogers, Wvh Winfield and Jolowicz on Tort (London: Sweet & Maxwell, 16th edn, 2002) pp 9497 and 487–488.

10. Albeit without success. The Three Rivers litigation involving the Bank of England collapsed and the action brought by Railtrack shareholders in respect of the alleged targeted malice of a minister was dismissed (Weir v Secretary of State for Transport and the Department of Transport [2005] EWHC 2192 (Ch)).

11. See, eg, Elliott v Chief Constable of Wiltshire (1996) The Times, December 5 (refusal to strike out misfeasance claim by a journalist who had investigated alleged misconduct by a senior police officer against a police officer who, it was claimed, deliberately and falsely supplied details of convictions to the press); L (A Child) v Reading Borough Council [2001] 1 WLR 1575.

12. Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at 191–196 per Lord Steyn. At 246 (paras [41]–[46] of an adjourned hearing by the House), Lord Hope of Craighead summarised the elements as follows: ‘First, there must be an unlawful act or omission done or made in the exercise of power by the public officer. Second, as the essence of the tort is the abuse of power the act or omission must have been done or made with the required mental element. Third, for the same reason, the act or omission must have been done or made in bad faith. Fourth, as to standing, the claimant must demonstrate that they have a sufficient interest to sue the defendant. Fifth, as causation is an essential element of the cause of action, the act or omission must have caused the claimants’ loss’. This is in slightly different terms to the formulations at the earlier stage but it does not seem to be intended to reflect any substantive difference in content. It is a sufficient pleading where the consequence of the alleged misfeasance is death or personal injury that the harm in contemplation was either to a known victim or victims or to one or more victims who would be unknown unless and until the expected harm eventuated (Akenzua v Secretary of State for the Home Department [2002] EWCA Civ 1470, [2003] 1 All ER 35). For a discussion of the Commonwealth authorities, see Todd, above n 1, ch 20.

13. Three Rivers, above n 12, per Lord Steyn. See also Lord Hope of Craighead’s formulation at para [44]. Reckless untargeted malice may include situations where the defendant exercises power for an improper motive other than that of causing injury to the claimant: Clayton, R and Tomlinson, H Civil Actions Against the Police (London: Sweet & Maxwell, 3rd edn, 2004) paras 11-020–11-022.

14. Three Rivers, above n 12, per Lord Steyn. The claimant must have suffered special damage (per Lord Hobhouse of Woodborough, ibid, at 231), which may include financial damage, personal injury, loss of liberty or damage to reputation: Clayton and Tomlinson, above n 13, para 11-024. Special damage need not, however, be established in respect of interference with a constitutional right such as the right to vote and the right of access to the courts: Watkins v Secretary of State for the Home Department [2004] EWCA Civ 966, [2004] 4 All ER 1158.

15. Racz v Home Office [1994] 2 AC 45.

16. Kuddus v Chief Constable of Leicestershire [2001] UKHL 29, [2002] 2 AC 122.

17. For example, the extent to which an omission may give rise to liability. In addition, some commentators would prefer liability to extend to all foreseeable losses (Clayton and Tomlinson, above n 13, para 11-025) but this has now been foreclosed by the decision in Three Rivers, and the position of the House of Lords on this point does not seriously undermine the usefulness of the tort.

18. The tort is not confined to such cases: Elliott, above n 11; followed in Cornelius v Hackney London Borough Council [2002] EWCA Civ 1073, [2003] BLGR 178 (these cases concerned the release of information about the claimant to the press and in Cornelius, to councillors).

19. For a different view, see Clayton and Tomlinson, above n 13, para 11-017.

20. See R v Lewisham London Borough Council, ex p Shell UK Ltd [1988] 1 All ER 938.

21. There are many uncontroversial examples; see SH Bailey Cross on Local Government Law (London: Sweet & Maxwell) paras 8-85–8-87.

22. See Rogers, above n 9, pp 512–513.

23. [1967] 1 AC 645.

24. Page Motors Ltd v Epsom and Ewell Borough Council (1982) 80 LGR 337. Here, the council was held liable for failure to remove from its land gypsies illegally camped there who had caused a nuisance over a period of time.

25. Marcic v Thames Water Utilities Ltd [2003] UKHL 66, [2004] 2 AC 42.

26. See Ocean Leisure Ltd v Westminster City Council [2004] EWCA Civ 970, [2005] 1 P&CR 450 (council liable to pay compensation under s 10 of the Compulsory Purchase Act 1965 as, apart from the Act, it would have been liable in public nuisance in respect of the diminution in value of the claimant’s shop following the enclosure of the highway outside by hoardings during the construction of two footbridges across the Thames; the extent and period of enclosure exceeded what was reasonable, and there was no special rule that the erection of hoardings on a public highway for no longer than, nor in greater extent than, was necessary to protect that highway from continuous building work does not amount to unlawful obstruction of the highway). Cf Wandsworth London Borough Council v Railtrack plc [2001] BLGR 544.

27. See, generally, Bailey, above n 21, paras 8-14–8-21; Rogers, above n 9, pp 537–539; Craig, P Administrative Law (London: Sweet & Maxwell, 5th edn, 2003) pp 914919 .

28. (1878) 4 QBD 433; (1881) 6 AppCas 193. In the House of Lords, the question of law as to the availability of the defence of statutory authority was heard first, although labelled the Appeal No 2.

29. The position might have been different had there been a specific statutory power to erect a smallpox hospital on this specific site: cf Allen v Gulf Oil Refining Ltd [1981] AC 1001; see Lord Diplock at 1014.

30. Managers of the Metropolitan Asylum District v Hill (Appeal No 1) (1882) 47 LT 29. The case was subsequently settled.

31. See, for example, R v East Berkshire Health Authority, ex p Walsh [1985] QB 152 (breach of contract of employment not a matter of ‘public law’ and gave rise to no administrative law remedies).

32. See Lord Wilberforce in Allen, above n 29, at 1011, approved by the House of Lords in Department of Transport v North West Water Authority [1984] AC 336 at 359–360.

33. See Capital & Counties plc v Hampshire County Council [1997] QB 1004 at 1044–1047 per Stuart-Smith LJ (s 30 of the Fire Services Act 1947 confers no immunity in respect of negligence actions against the fire service).

34. An example where civil liability was, in effect, expressly imposed exists in respect of the duty of the highway authority under what is now s 41 of the Highways Act 1980 to maintain the highway, with the abrogation of the rule of law exempting persons from liability for non-repair of highways by s 1 of the Highways (Miscellaneous Provisions) Act 1961.

35. See, eg, cases on statutory duties in the context of special educational needs and the protection of children from abuse (X (Minors), above n 2); nurseries and childminders (T v Surrey County Council [1994] 4 All ER 577); the payment of housing benefit (Haringey London Borough Council v Cotter (1996) 29 HLR 682); the fire service (Church of Jesus Christ of Latter Day Saints (Great Britain) v West Yorkshire Fire and Civil Defence Authority [1997] QB 1004); the homeless (O’Rourke v Camden London Borough Council [1998] AC 188); and the regulatory code established by the Water Industry Act 1991 and the Water Resources Act 1991 (Bowden v South West Water Services [1998] Env LR 445).

36. This is the reverse of the position recommended by the Law Commissions in The Interpretation of Statutes Law Com No 21; Scot Law Com No 11 (HMSO, 1969). If such a change were retrospective there would need to be exceptions for particular classes of legislation such as that designed to protect health and safety, and there would be some difficulties in defining these classes. A change with prospective effect only would be better than nothing, but would take time in stemming this particular flow of pointless litigation.

37. Case C-6/90 Francovich v Italian Republic [1991] ECR I-5357; Joined Cases C46 and 48/93 Brasserie du Pecheur SA v Germany; R v Secretary of State for Transport, ex p Factortame Ltd (No 4) [1996] ECR I-1029; R v Secretary of State for Transport, ex p Factortame Ltd (No 5) [2000] 1 AC 524 at 538.

38. Sections 7 and 8.

39. The main public sector ombudsmen in England and Wales are now the Parliamentary Commissioner for Administration, the Local Government Ombudsmen in England, the Health Service Commissioner for England and the Welsh Public Services Ombudsman (established by the Welsh Public Services Ombudsman Act 2004). See the discussion in the Law Commission Discussion Paper, Monetary Remedies in Public Law, above n 1, pp 24–28; M Amos ‘The Parliamentary Commissioner for Administration, redress and damages for wrongful administrative action’[2000] PL 21; Harlow, above n 1, pp 105–109 and Seneviratne, M Ombudsmen: Public Services and Administrative Justice (London: Butterworths, 2002) pp 132136 .

40. Available at, para 18.7.

41. Ibid, paras 18.7.5 and 18.7.24.

42. Ibid, paras 18.7.17 and 18.7.23.

43. See, eg, the Department for Work and Pensions website available at

44. Aided by extensive media advertising. The author recalls a stay in hospital where daytime bedside television seemed to be a combination of episodes of Chicago Hope (where one of the characters was the in-house lawyer) and advertisements by claims handling companies touting for business.

45. See Rogers, above n 9, pp 23–24, noting the Pearson Commission’s overall estimate of 6.5%, with considerable variations from one class of accident to another, and that the figure has probably risen now because of greater claims consciousness.

46. Note the comments by the Court of Appeal in Anufrijeva v Southward London Borough Council [2003] EWCA Civ 1406, [2004] 2 WLR 603 that the courts should look critically at any attempt to recover Human Rights Act 1998 damages for maladministration by any procedure other than judicial review, and that the judge at the permission stage should require the claimant to explain why an internal complaints mechanism or a complaint to an ombudsman is not more appropriate: per Lord Woolf CJ at paras [79]–[81].

47. On which see Bailey, Sh et al Smith, Bailey & Gunn on the Modern English Legal System (London: Sweet & Maxwell, 4th edn, 2002) pp 13361339 ; Criminal Justice Act 1988, s 133; International Covenant on Civil and Political Rights 1966, Art 14(6). There are many other specific schemes, some permanent such as the Criminal Injuries Compensation Scheme and the Vaccine Damage Payments Scheme and others being the ad hoc response to particular events: see further Harlow, above n 1, ch 3 and .

48. Examples include the compulsory purchase of land (Compulsory Purchase Act 1965, Land Compensation Acts 1961 and 1973, Planning and Compulsory Purchase Act 2004, Pt 8), and the service by local authority officers of notices of various kinds (that subsequently turn out to be unjustified) in the enforcement of regulatory legislation in such contexts as food hygiene and product safety (see Food Safety Act 1990, s 9 and General Product Safety Regulations 2005, SI 2005/1803, reg 26).

49. Essentially death, personal injury, damage to property, psychiatric harm and economic loss (including, in ways yet to be conclusively settled, the consequences of a failure to diagnose conditions such as dyslexia); there is much controversy in particular as to whether the current negligence law as it applies to economic loss and psychiatric harm is clear, coherent or satisfactory.

50. See particularly Crown Proceedings Act 1947, ss 2(5) and 10.

51. See Craig, above n 27, pp 919–921, and the removal of some procedural restrictions in respect of litigation against the Crown effected by the Civil Procedure (Modification of Crown Proceedings Act 1947) Order 2005, SI 2005/2712.

52. The utility of the object to be achieved may (to a limited extent) be factored into the question whether if there is a breach of duty it is not suggested that only the public sector can benefit from this principle. The suggestion by Witting, C in ‘National Health Service rationing: implications for the standard of care in negligence’(2001) 21 OJLS 443 , criticising the approach of the Court of Appeal in Bull v Devon Area Health Authority (1989) 22 BMLR 79, that the reality of NHS under-funding should be recognised by the courts in negligence litigation against NHS defendants, has not been tested in the courts.

53. Anns, above n 2, expanded liability by recognising a duty of care in respect of a local authority’s supervision of building work, but restricted it by emphasising the distinction between policy and operational decisions, a duty of care not normally arising in the case of the former.

54. Ibid.

55. See Stovin, above n 2, per Lord Hoffmann (for the majority) at 955–956 and Lord Nicholls of Birkenhead (for the minority) at 938; cf Barrett, above n 2, per Lord Slynn of Hadley at 571 and 573 and Lord Hutton at 577–587. An immunity in respect of ‘policy’ decisions is still recognised in Canada: Cooper v Hobart [2001] 3 SCR 537 (Supreme Court of Canada).

56. Per Lord Browne-Wilkinson in X (Minors), above n 2, at 736.

57. [1970] AC 1004 at 1031 per Lord Reid and 1037 per Lord Morris of Borth-y-Gest.

58. [1978] AC 728 at 755 per Lord Wilberforce.

59. [1970] AC 1004 at 1067–1068.

60. [1995] 2 AC 633 at 736–737. This position was endorsed by Lord Slynn of Hadley in Barrett, above n 2, at 571 and 572.

61. By virtue of the (subsequently discredited) principle, also largely the invention of Lord Diplock, of O’Reilly v Mackman [1983] 2 AC 237.

62. And potentially more broadly than that for its application to professionals employed by public authorities; see, eg, Lord Slynn of Hadley in Phelps, above n 2, at 519.

63. See the excellent analysis by T Hickman ‘The reasonableness principle: reassessing its place in the public sphere’ [2004] CLJ 166 at 176–195. The suggestion in the Law Commission’s Discussion Paper, above n 1, paras 2.66–2.68, that it is not easy to accommodate all the various factors used in cases arising out of actions taken by public bodies within the traditional tort standard of care calculus, is, with respect, unconvincing. It seems to suggest that public authorities will need (or feel the need) to guarantee that there will be no harm arising from discretionary decisions, and that it will be difficult for a public authority to prove that the course it adopted was the ‘least bad’ option, given that the consequences of taking difficult decisions cannot be known in advance with certainty. Both arguments put the matter too high and fail to attach sufficient weight to the points that the onus of proof is on the claimant and that matters are not judged with hindsight.

64. Using the term to mean the converse of the (impermissible) mere substitution of a judicial view.

65. Above n 63, p 176.

66. Cf the discussion by Hobhouse LJ in Credit Suisse v Allerdale Borough Council [1997] QB 306 at 350–357.

67. Of course the rules in one branch of the law may expressly incorporate the rules of another, with the consequence that the outcome is the same in both. For example, a private law cause of action against a police officer for wrongful arrest will succeed if the arresting officer’s action is unlawful as a matter of public law: Holgate-Mohammed v Duke [1984] AC 437. Or technically distinct rules may have the same content: see Credit Suisse, above n 66, where the Court of Appeal held that an authority that acted ultra vires in public law in entering a contract lacked capacity to enter the contract as a matter of private law; see Hobhouse LJ at 359–362; cf Neill LJ at 344.

68. Credit Suisse, ibid.

69. See, eg, Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd [1972] 1 WLR 190, where an order was held to be ultra vires in respect only of mushroom growers who had not been consulted. Compare private law cases where the same act can be outside the course of employment as regards one claimant and inside as regards another; see Lord Greene MR in Twine v Bean’s Express Ltd (1946) 62 TLR 458 at 459.

70. Lord Browne-Wilkinson cannot have held the view that any act that is unreasonable as a matter of private law falls outside the ambit of the statute. If the test of unreasonableness were in truth identical in public and private law the ‘ambit principle’ would be obviously redundant.

71. Albeit in a ‘special sense’; see, eg, Manchester Corp v Farnworth [1930] AC 171; Webster J in Department of Transport, above n 32, approved by the House of Lords at 359–360.

72. This is clearly necessary in the case of local authorities, which although corporate bodies do not have the powers of a natural person; even in the case of the Crown, which does, it is accepted that it may only take action that interferes with private rights where such power is conferred by the royal prerogative or statute.

73. Subject to possible difficulties by virtue of the Human Rights Act 1998.

74. Such an extension seems now, in any event, foreclosed by the decision of the House of Lords in Gorringe, above n 2.

75. [2001] 2 AC 550 at 570. See also his Lordship’s opinion in Phelps, above n 2, at 517.

76. Considered below.

77. (2001) 3 LGLR 31.

78. [2003] EWCA Civ 1848, [2004] 1 WLR 1881 at [38] and [59] per Hale LJ.

79. See Hale LJ at paras [52]–[56].

80. See, eg, Tesco Stores Ltd v Wards Construction (Investment) Ltd (1995) 76 BLR 94 (no duty of care in exercising building control powers to avoid causing loss or damage to property as the statute was designed to protect the health, safety and welfare of persons); Payne v Barnet London Borough Council (1997) 30 HLR 295; Reeman v Department of Transport [1997] 2 Lloyd’s Rep 648; Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (inconsistent with the scheme and policy of the New Zealand Adoption Act to allow individual claims in respect of particular acts and omissions of social workers in making reports that form the background to an adoption order made by the court).

81. [2005] EWCA Civ 19, [2005] 1 WLR 2312.

82. At paras [20]–[35]. Mummery LJ (at paras [80]–[87]) adopted a similar approach. Dame Elizabeth Butler-Sloss simply stated (at para [88]) that she agreed the appeal should be dismissed without indicating any agreement or disagreement with her colleagues.

83. At para [25], citing Lord Slynn of Hadley in Barrett, above n 2, at, 571.

84. Above n 2.

85. [2005] EWCA Civ 19, [2005] 1 WLR 2312 at [26].

86. At para [28].

87. Above n 2, at 571. See also Lord Hutton at 583.

88. Per Lord Keith of Kinkel in Rowling v Takaro Properties Ltd[1988] AC 473 at 501, citing Craig, P Administrative Law (London: Sweet & Maxwell, 1983) pp 534538 . Lord Keith’s dictum was cited by Lord Slynn of Hadley in Barrett, above n 2, at 572.

89. Fairgrieve, above n 1, p 62, states that the notion of justiciability ‘has been used successfully by the judiciary in many cases’. However, most of the cases cited involve the application of the former principle, no longer the law, that no duty of care could arise in respect of a policy decision unless it was ultra vires or made in bad faith (DHSS v Kinnear (1984) The Times, July 7; Ross v Secretary of State for Scotland 1990 SLT 13; Lonrho plc v Tebbit [1991] 4 All ER 973; Danns v Department of Health (1995) 25 BMLR 121, the Court of Appeal dismissing an appeal on a variety of grounds including this ground, proximity and fairness, justice and reasonableness: unreported, 5 March 1997). In S v Gloucestershire County Council; L v Tower Hamlets London Borough Council [2001] Fam 313, S’s claim was not struck out and L’s claim was struck out not because it was non-justiciable but because it had no real prospect of success. In Smith v Secretary of State for Health [2002] EWHC 200 (QB), 67 BMLR 34, Morland J held that discretionary decisions as to how and when there should be a public warning as to the dangers to children of aspirin were non-justiciable, but did not provide a detailed consideration of the law as he had found there to be no fault on the facts (see para [87]).

90. [2005] 1 WLR 2312 at [21].

91. Ibid, at para [25]. It is, however, difficult to see how this might cause harm of a kind recognised by the tort of negligence.

92. See Cane, P Suing public authorities in tort’(1996) 112 LQR 13 at 17–18 and Council of Civil Service Unions v Minister for the Civil Service[1985] AC 374 indicating a number of non-justiciable areas of the royal prerogative; the list has been reduced through subsequent case-law; see . For the (attractive) argument that the concept has no place in public law either, see C Finn ‘The justiciability of administrative decisions: a redundant concept?’[2002] Fed L Rev 9.

93. Under CPR r 3.4, the court may strike out a statement of case (or part of such a statement), inter alia, if there are no reasonable grounds for bringing or defending the claim. Under CPR r 24, the court may give summary judgment on the whole of the claim or on a particular issue if (a) it considers that the claimant has no real prospect of succeeding on the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial. By comparison with the position applicable at the time that X (Minors) was heard, it is now possible for summary judgment to be given against a claimant and the grounds for summary judgment are broader. See the White Book (London: Butterworths, 2005) paras 24.2.1–24.2.5. A case must be better than merely arguable to have a real prospect of success: E D & F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 (unreported).

94. It is submitted that the attempt of the High Court of Australia to identify ‘core areas’ of policy making in which it is not appropriate to impose a duty of care is open to similar objection; see Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1, noted by Bowman, Mj and Bailey, Sh Public authority negligence on the waterfront’(2001) 9 Tort L Rev 7 . A limited principle that there cannot be a claim that there has been a negligent failure to legislate can, however, be supported on separation of powers grounds; see ibid, at 11. Asking whether recognising a duty of care would involve the courts making a ‘political’ decision is equally unpromising, but has the support of the High Court of Australia: Graham Barclay Oysters Pty Ltd v Ryan (2003) AJLR 77, discussed by Todd, above n 1, pp 267 and 269.

95. See n 89 above and, eg, X (Minors), above n 2, per Lord Browne-Wilkinson at 748–751; A v Essex County Council [2003] 1 FLR 615 (defendant did not come near showing that alleged negligence in the provision to prospective adopters of information on children being considered for adoption was non-justiciable; on appeal the Court of Appeal held that it was fair, just and reasonable for a duty of care to be owed only in ensuring that the information the agency decided to transmit was indeed given and received: [2004] 1 WLR 1881).

96. It is generally accepted that if this is to be done at all it should be done incrementally.

97. [2000] 1 WLR 1356.

98. [1978] QB 343, Lord Denning MR dissenting on the interpretation of the Act.

99. Sandhar v Department of the Environment, Transport and the Regions [2004] EWCA Civ 1440, [2005] RTR 119.

100. See especially Yuen Kun Yeu, above n 2; Caparo Industries plc v Dickman [1990] 2 AC 605.

101. Murphy, above n 2.

102. [1996] AC 923.

103. Lords Goff of Chieveley, Jauncey of Tullichettle and Hoffmann; Lords Slynn of Hadley and Nicholls of Birkenhead dissenting. The main opinions were delivered by Lords Hoffmann and Nicholls of Birkenhead.

104. [1996] AC 923 at 943–944 and 953–955.

105. Ibid, at 953.

106. Road Traffic Act 1988, s 39.

107. Unreported.

108. [2002] EWCA Civ 595, [2002] RTR 446, May LJ and Sir Murray Stuart-Smith; Potter LJ dissenting on this point.

109. [2004] UKHL 15, [2004] 1 WLR 1057. See D Howarth ‘Public authority non-liability: spiralling out of control’ [2004] CLJ 546.

110. At paras [29] and [30].

111. [1996] AC 923 at 952–953.

112. Per Lord Hoffmann at para [31].

113. This was the unanimous view of the House; see Lord Steyn at para [1], Lord Scott of Foscote at paras [72]–[75], Lord Rodger of Earlsferry at paras [89]–[92], Lord Brown of Eaton-under-Heywood at para [103].

114. At para [32]. His Lordship gave as an example the majority reasoning in Capital & Counties plc v Hampshire County Council [1997] QB 1004 against a general affirmative duty of care applicable to the fire service. All the other members of the House agreed with Lord Hoffmann’s reasons.

115. At para [71]. All the other members of the House expressly agreed with Lord Scott of Foscote’s reasons.

116. Per Lord Hoffmann at para [38].

117. Ibid.

118. Barrett, above n 2.

119. Phelps, ibid.

120. Per Lord Hoffmann at para [43]. See also Lord Scott of Foscote at paras [65] and [66]. The highway authority clearly can owe a duty of care where it creates the danger; see Great North Eastern Ry Ltd v Hart [2003] EWHC 2450 (QB) (unreported).

121. Compare the majority and minority judgments in the Court of Appeal in Gorringe, above n 2, wrestling with this distinction.

122. Although criticised by some; see Howarth, above n 109.

123. See, eg, Kent v Griffiths [2001] QB 36, cited by Howarth (where curiously there was detrimental reliance on the facts). See also below n 146.

124. For a full analysis of the possibilities, see the Law Commission Discussion Paper, above n 1, pts 5 and 7–9, and on the case for the provision of a remedy through public law, see M Fordham ‘Reparation for maladministration: public law’s final frontier’ [2003] JR 104.

125. See Schiemann J in R v Knowsley Metropolitan Borough Council, ex p Maguire (1992) 90 LGR 653, rejecting a series of ‘ingenious arguments which attempted to remedy the absence of a general right to damages for a breach of administrative law’, based on breach of statutory duty, negligence, breach of contract and estoppel by convention in support of a claim for losses caused by refusals of hackney carriage licences that were subsequently quashed. There had been no negligence on the facts and no need to consider whether there was a duty of care.

126. It is well established, for example, that public authorities may be vicariously liable under the Hedley Byrne principle; see, eg, Coats Patons (Retail) Ltd v Birmingham Corp (1971) 69 LGR 356 (conveyancing searches); Phelps, above n 2 (failure of educational psychologist to diagnose dyslexia).

127. The fact that the floodgates argument has been treated as the equivalent to repeated cries of ‘Wolf!’ does not mean that it can never be valid in any context, just as there are probably some developments that are clearly and objectively not suitable for one’s own back yard, and wolves do sometimes turn up.

128. The first instance decision in Marcic v Thames Water Utilities Ltd [2001] EWHC 421 (TCC), [2002] QB 929, holding the sewerage undertaker liable in nuisance, where the sewerage system had become inadequate over time, paid scant attention to the enormous implications for public expenditure arising in consequence. This was indeed upheld by the Court of Appeal ([2002] QB 929) but reversed by the House of Lords ([2003] UKHL 66, [2004] 2 AC 42).

129. [1932] AC 562.

130. See the Law Commission Discussion Paper, above n 1, pp 55–59, noting criticisms of a general remedy in respect of unlawful action expressed by Craig and Harlow.

131. It is submitted that the points that the state has legitimate powers of coercion not possessed by the ordinary citizen and that paying damages ‘may be seen as necessary in order to maintain the legitimacy of government’ ( Cane, P Damages in public law’(1999) 9 Otago LR 489 at 490 and 498) are not compelling; coercive actions by any defendant are likely anyway to be tortious unless lawful and public law remedies will normally be available to demonstrate illegitimacy.

132. Cf turkeys and Christmas.

133. Other cases of particular interest include Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495 (denying general duties of care on the police towards victims and witnesses); Carty, above n 81 (holding that an education officer can owe a duty of care to a pupil).

134. [2001] 2 FLR 612.

135. [2003] EWCA Civ 1151, [2004] QB 558; [2005] UKHL 23, [2005] 2 AC 373. See I Steele ‘Public authority liability – a common law solution’ [2005] CLJ 543.

136. Per Lord Phillips of Worth Matravers MR at para [49].

137. At paras [70]–[83].

138. At para [83].

139. At para [84].

140. At para [85].

141. The trial judge had allowed the child’s claim for clinical negligence against a doctor and his employing NHS trust, but dismissed her claim against Kirklees Metropolitan Borough Council in respect of alleged negligence by social services in investigating the matter. The latter claim was reinstated by the Court of Appeal: [2004] QB 558 at [109].

142. At paras [89]–[99].

143. See paras [122]–[124].

144. See the criticisms of that case expressed by Bailey and Bowman: ‘Public authority negligence revisited’, above n 6, at 94–97.

145. See R (on the application of IH) v Secretary of State for the Home Department [2002] EWCA Civ 646, [2003] QB 320 and [2003] UKHL 59, [2004] 2 AC 253.

146. As argued by Wright, J Human rights’ immunity no more: child abuse cases and public authority liability in negligence after D v East Berkshire Community Health Nhs Trust’(2004) 20 PN 58 at 63.

147. Ibid, at 63–64. Wright’s argument was raised by counsel for the hospital authorities and noted by Lord Bingham of Cornhill in D v East Berkshire Community Health NHS Trust, above n 2, at 380 and para [21], but was not the subject of substantive comment in the House.

148. If a duty is recognised in cases of failures to protect, it will be necessary to distinguish the position from cases that hold that public bodies are generally not under a duty of care to protect people from harm caused by third parties or other external factors; see, eg, Capital & Counties plc, above n 33; Gorringe, above n 2. X (Minors) itself concerned both kinds of case.

149. Lords Nicholls of Birkenhead, Steyn, Rodger of Earlsferry and Brown of Eaton-Under-Heywood; Lord Bingham of Cornhill dissenting. All in the majority agreed with each of the extended opinions delivered by Lords Nicholls of Birkenhead, Rodger of Earlsferry and Brown of Eaton-Under-Heywood.

150. At para [30]. Cf Lord Nicholls of Birkenhead’s comment at para [82] that cases since X (Minors) have shown that ‘local authorities may owe common law duties to children in the exercise of their child protection duties’.

151. At para [110].

152. See Lord Bingham of Cornhill at para [37].

153. At para [85].

154. At para [86]. For Lord Rodger of Earlsferry, a duty to the parent would ‘cut across the duty of care to the children’ (paras [110]–[111]). Lord Brown of Eaton-Under-Heywood found it ‘impossible to see how such a duty could fail to impact upon the doctor’s approach to his task and create a conflict of interest’ (paras [129]–[132]), having an ‘insidious effect on his mind and conduct’ (para [137]).

155. See Lord Nicholls of Birkenhead at paras [77]–[78], citing Calveley v Chief Constable of the Merseyside Police [1989] AC 1228, and Lord Brown of Eaton-Under-Heywood at para [136], citing Calveley, Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 and Kumar v Commissioner of Police of the Metropolis (unreported) 31 January 1995 and noting that in such circumstances bad faith must be shown to defeat a claim of qualified privilege in defamation or to establish the torts of malicious prosecution or misfeasance in public office. The importance of this point is stressed by Todd, above n 1, p 280.

156. Lord Rodger of Earlsferry at paras [107] and [108].

157. Lord Rodger of Earlsferry at paras [100]–[105].

158. Lord Rodger of Earlsferry at para [108].

159. Lord Rodger of Earlsferry at para [117].

160. Sullivan v Moody (2001) 207 CLR 562; B v Attorney-Geneneral of New Zealand [2003] UKPC 61, [2003] 4 All ER 833.

161. See Lord Nicholls of Birkenhead at paras [92]–[94] (this would introduce uncertainty) and Lord Brown of Eaton-Under-Heywood at para [137] (this would still have an ‘insidious effect’ and raise a risk of vexatious litigation). Lord Brown of Eaton-Under-Heywood referred to ‘manifest unreasonableness’ and Lord Nicholls of Birkenhead to the ‘modulation’ of the standard of care, referring to Fairgrieve in D Fairgrieve et al, above n 1, p 485.

162. At para [118].

163. At paras [36] and [50].

164. At paras [31]–[36].

165. At paras [38] and [39].

166. At para [39].

167. At paras [41]–[47].

168. By P Craig and D Fairgrieve ‘Barrett, negligence and discretionary powers’ [1999] PL 626; D Fairgrieve, above n 1, p 84.

169. Where recovery depends on showing gross fault.

170. Largely based on statements by two experts in the field, Professor Sir Alan Craft of the University of Newcastle and Mary Marsh of the NSPCC.

171. See Lord Bingham of Cornhill at para [39].

172. A somewhat curious position as the claimants’ pre-commencement position under the Convention, as distinct from the post-commencement rights of other suspected parents under the Human Rights Act 1998, should at least have some influence on the courts in determining the scope of the tort of negligence.

173. See Bowman and Bailey ‘Negligence in the realm of public law – a positive obligation to rescue’, above n 6, at 306–307, cited by Fairgrieve in the passage referred to in n 154.

174. [2004] EWHC 1585 (Admin) (unreported).

175. By virtue of s 5(2)(b) of the Parliamentary Commissioner Act 1967.

176. [1990] 2 AC 605.

177. At para [26].

178. Respectively, persons seeking entry clearance as the spouse of a refugee and persons seeking exceptional leave to remain in the UK on the basis that removal would be incompatible with the Convention.

179. At paras [31] and [40].

180. Subsequently disapproved; see above. Community or individual reliance might, however, justify imposition of a duty of care in respect of an omission apart from this proposition.

181. [1997] Imm AR 302.

182. [2004] EWHC 1585 (Admin) (unreported) at [38] and [39].

183. At para [42]. The case is difficult to reconcile with Jones v Department of Employment [1989] QB 1, which was not mentioned.

184. At para [43].

185. Difficulties still remain as regards such matters as the scope of direct as distinct from vicarious liability, the extent to which it is appropriate to hold individuals personally liable, concepts of detrimental and community reliance as regards liability for omissions and the curious difference in the scope of liability of the ambulance service on the one hand and the police and fire services on the other.

* I am grateful to Stephen Todd and Michael Bowman for their very helpful comments, which do not involve any assumption of responsibility on their part. A draft of this paper was presented to the Tort Section at the SLS Conference at the University of Strathclyde in September 2005. I am also grateful for the comments of participants there and for those of anonymous reviewers.

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