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:
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
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
X v Bedfordshire CC
M v Newham LBC
E v Dorset CC (1995) (HL)
(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.
(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)
Local Education Authority not liable
Serious bullying was outside school grounds
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 was the act of the plaintiff himself, and whether or not he was of sound mind.
Kinsella v CC of Nottinghamshire (1999) (QBD)
Claimant alleged, among other things, that during a search of her house the police had negligently caused damage to her property
This part of the statement of case would be struck out
The general rule in Hill did not provide blanket immunity in all cases, but in each case a balancing exercise had to be carried out. Where it was apparent to the court that the general rule of immunity was not outweighed by other policy considerations, such as the protection of informers, the immunity continued to exist.
In some cases the material for carrying out the balancing exercise was not provided by the pleadings, and the exercise fell to be performed by the trial judge after hearing the evidence. In other cases there would be sufficient material evidence available on the pleadings to enable a decision to be taken at a pre-trial hearing.
In the present case there were no public policy considerations countervailing against immunity, nor had the police assumed any special duty of care towards the claimant, nor could it be disputed that the police were acting in the course of investigating a crime, so matters did not need to be left to the trial judge to decide.
Waters v Commissioner of Police (2000) (HL)
Claimant police officer raped by fellow officer whilst off duty. She alleged, among other things, that the police had negligently failed to deal properly with her complaint but allowed her to be victimised by fellow officers
The claim against the Commissioner for breach of personal duty (although the acts were done by those engaged in performing his duty) should not be struck out
The Courts have recognised the need for an employer to take care of his employees quite apart from statutory requirements. Lord Slynn did not find it possible to say that this was a plain and obvious case that (a) no duty analogous to an employer's duty can exist; (b) that the injury to the plaintiff was not foreseeable in the circumstances alleged and (c) that the acts alleged could not be the cause of the damage. Could it be said that it was not fair, just and reasonable to recognise a duty of care? Despite reference to Hill and Calveley, Lord Slynn did not consider that either of these cases was conclusive against the claimant in the present case. Here there was a need to investigate detailed allegations of fact.
CROWN PROSECUTION SERVICE
Welsh v CC of Merseyside (1993) (QBD)
Plaintiff brought an action for the negligent failure of the police and CPS to ensure that the magistrates' court was informed that offences for which he had been bailed had later been taken into consideration by the Crown Court
The Crown Proceedings Act 1947 directed immunity to judicial, not administrative, functions
The CPS had a general administrative responsibility as prosecutor to keep a court informed as to the state of an adjourned case or had in practice assumed such a responsibility and had done so in the plaintiff's case, the relationship between the plaintiff and the CPS was sufficiently proximate for the CPS to owe a duty of care to the plaintiff. It was fair, just and reasonable for such a duty to exist and there were no public policy grounds to exclude the existence of such a duty.
Elguzouli-Daf v Commissioner of Police
McBearty v Ministry of Defence (1995) (CA)
Two prosecutions discontinued after plaintiffs detained for 85 and 22 days in custody
A defendant in criminal proceedings did not have a private law remedy in damages for negligence against the CPS, since, save in those cases where it assumed by conduct a responsibility to a particular defendant, the CPS owed no duty of care to those it was prosecuting
The CPS was a public law enforcement agency which was autonomous and independent and acted in the public interest by reviewing police decisions to prosecute and conducting prosecutions on behalf of the crown and, as such, there were compelling policy considerations rooted in the welfare of the community as a whole which outweighed the dictates of individualised justice and precluded the recognition of a duty of care to private individuals and others aggrieved by careless decisions of the CPS. It was clear that such a duty would tend to inhibit the CPS's discharge of its central function of prosecuting crime and, in some cases, would lead to a defensive approach by prosecutors to their multifarious duties. If the CPS were to be constantly enmeshed in interlocutory civil proceedings and civil trials that would have a deleterious effect on its efficiency and the quality of the criminal justice system.
Capital and Counties plc; Digital Equipment Ltd v Hampshire CC
John Monroe Ltd v London Fire Authority
Church of Jesus Christ v West Yorkshire Fire Authority (1997) (CA)
(1) Fire in building; fire officer ordered sprinkler system to be turned off; fire spread and entire building destroyed; (2) Explosion on wasteland; fire brigade did not inspect nearby property showered with flaming debris; property severely damaged; and (3) Fire in church classroom; four water hydrants failed to work and remaining three not located in time
(1) Fire brigade liable for negligence; (2) and (3) There was insufficient proximity to establish a duty of care, with the result that the defendants were not liable for negligence in respect of the fire damage.
(1) A fire brigade did not enter into a sufficiently proximate relationship with the owner or occupier of premises so as to come under a duty of care merely by attending at the fire ground and fighting the fire. However, where the fire brigade, by their own actions, had increased the risk of the danger which caused damage to the plaintiff, they would be liable for negligence in respect of that damage, unless they could show that the damage would have occurred in any event. The decision to turn off the sprinkler system had increased the risk of the fire spreading and, since the defendant could not establish that the building would have been destroyed in any event, it was liable for negligence and there was no ground for granting public policy immunity.
(2) Decision of trial judge affirmed: there was not sufficient proximity between the parties such as to impose a duty of care on the fire brigade and that the fire brigade did not assume responsibility or bring themselves within the necessary degree of proximity merely by electing to respond to calls for assistance.
(3) On its true construction, the requirement in s13 of the Fire Services Act 1947 that a fire brigade should take all reasonable measures to ensure the provision of an adequate supply of water available for use in case of fire was not intended to confer a right of private action on a member of the public. The s13 duty was more in the nature of a general administrative function of procurement placed on the fire authority in relation to the supply of water for fire-fighting generally. Accordingly, no action lay for breach of statutory duty under s13.
OLL Ltd v Secretary of State for Transport (1997) (QBD)
Group of 11 got into difficulties at sea. Plaintiffs alleged coastguard failed to respond promptly; miscoordinated rescue attempts; misdirected a lifeboat to the wrong area; misdirected a Royal Navy helicopter and failed to mobilise another. All members of the party were rescued but four children later dies and others suffered severe hypothermia and shock.
The coastguard were under no enforceable private law duty to respond to an emergency call, nor, if they did respond, would they be liable if their response was negligent, unless their negligence amounted to a positive act which directly caused greater injury than would have occurred if they had not intervened at all. Moreover, the coastguard did not owe any duty of care in cases where they misdirected other rescuers outside their own service.
There was no obvious distinction between the fire brigade responding to a fire where lives were at risk and the coastguard responding to an emergency at sea.
Kent v Griffiths (2000) (CA)
Plaintiff suffered an asthma attack. Doctor called an ambulance which did not arrive for 40 minutes, although a record prepared by a member of the crew indicated that it arrived after 22 minutes. The judge found that the record of the ambulance's arrival had been falsified, that no satisfactory reason had been given for the delay and that in those circumstances the delay was culpable.
In appropriate circumstances, an ambulance service could owe a duty of care to a member of the public on whose behalf a 999 call was made if, due to carelessness, it failed to arrive within a reasonable time.
Such a service was part of the health service, and its care function included transporting patients to and from hospital when it was desirable to use an ambulance for that purpose. It was therefore appropriate to regard the ambulance service as providing services of the category provided by hospitals rather than services equivalent to those rendered by the police or fire service whose primary obligation was to protect the public generally. Although situations could arise where there was a conflict between the interests of a particular individual and the public at large, there was no such conflict in the instant case since the plaintiff was the only member of the public who could have been adversely affected. Similarly, although different considerations could apply in a case where the allocation of resources was being attacked, in the instant case there was no question of an ambulance not being available or of a conflict of priorities. In those circumstances, the ambulance service, having decided to provide an ambulance, was required to justify a failure to attend within a reasonable time. Moreover, since there were no circumstances which made it unfair or unreasonable or unjust that liability should exist, there was no reason why there should not be liability if the arrival of the ambulance was delayed without good reason. The acceptance of the call established the duty of care, and the delay caused the further injuries.
CASES WHICH APPEAR TO REVERSE THIS TREND
Spring v Guardian Assurance (1994) (HL)
Plaintiff's prospective employer received such a bad reference from the defendant that it refused to have anything to do with him. Applications to two other companies were also rejected. Plaintiff claimed for the loss caused to him by the reference.
Applying the principle that where the defendant assumed or undertook responsibility towards the plaintiff in the conduct of his affairs and the plaintiff relied on the defendant to exercise due skill and care in respect of such conduct, the defendant was liable for any failure to use reasonable skill and care, an employer who provided a reference in respect of an employee, whether past or present, to a prospective future employer ordinarily owed a duty of care to the employee in respect of the preparation of the reference and was liable in damages to the employee in respect of economic loss suffered by him by reason of the reference being prepared negligently.
In the employer/employee relationship, where economic loss in the form of failure to obtain employment was clearly foreseeable if a careless reference was given and there was an obvious proximity of relationship, it was fair, just and reasonable that the law should impose a duty of care on the employer not to act unreasonably and carelessly in providing a reference about his employee or ex-employee. The duty was to avoid making untrue statements negligently or expressing unfounded opinions even if honestly believed to be true or honestly held.
Furthermore, public policy was in favour of not depriving an employee of a remedy to recover the damages to which he would otherwise be entitled as a result of being the victim of a negligent reference and even if the number of references given was reduced it was in the public interest that the quality and value would be greater.
White v Jones (1995) (HL)
A testator executed a will cutting his two daughters (plaintiffs) out of his estate. The testator became reconciled with them and sent a letter to his solicitors giving instructions that a new will be prepared including gifts of £9,000 each to the plaintiffs. Testator died almost two months later before the new dispositions to the plaintiffs were put into effect. Plaintiffs brought an action against solicitors for damages for negligence.
Where a solicitor accepted instructions to draw up a will and as the result of his negligence an intended beneficiary under the will was reasonably foreseeably deprived of a legacy the solicitor was liable for the loss of the legacy.
1. The assumption of responsibility by a solicitor towards his client should be extended in law to an intended beneficiary who was reasonably foreseeably deprived of his intended legacy as a result of the solicitor's negligence in circumstances in which there was no confidential or fiduciary relationship and neither the testator nor his estate had a remedy against the solicitor, since otherwise an injustice would occur because of a lacuna in the law and there would be no remedy for the loss caused by the solicitor's negligence unless the intended beneficiary could claim.
2. Adopting the incremental approach by analogy with established categories of relationships giving rise to a duty of care, the principle of assumption of responsibility should be extended to a solicitor who accepted instructions to draw up a will so that he was held to be in a special relationship with those intended to benefit under it, in consequence of which he owed a duty to the intended beneficiary to act with due expedition and care in relation to the task on which he had entered
Gorham v BT plc (2000) (CA)
Plaintiff brought an action for breach of duty of care in giving negligent pension advice to her husband, now deceased. Defendant conceded that it owed Gorham a duty of care and was in breach of duty in failing to advise him that his employers' scheme might be superior to a personal pension plan.
An insurance company which owed a duty of care to its customer when giving advice in relation to insurance provision for pension and life cover owed an additional duty of care to the customer's dependants where it was clear that the customer intended thereby to create a benefit for them.
However, that plaintiff could not claim for loss arising after the negligent advice had been corrected (in this case, in November 1992).
The principle in White v Jones covered the present situation. It was fundamental to the giving and receiving of advice upon a scheme for pension provision and life assurance that the interest of the customer's dependants would arise for consideration. Practical justice required that disappointed beneficiaries should have a remedy against an insurance company in circumstances like the present. The financial adviser could have been in no doubt about his customer's concern for the plaintiffs and the advice was given on the assumption that their interests were involved. The duty was a limited duty to the dependants not to give negligent advice to the customer which adversely affected their interests as he intended them to be.