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3 and 17 November Duty of care 4 and 5: public authorities We will be able to spend most of the second lecture going

through sample questions on public authorities. This provides an opportunity for some revision of duty of care (any area), nicely timed for after reading week bring any questions with you (or better still, email them in advance In addition, for the lecture on 17 November, prepare an outline of either of the problem questions, which we will discuss in small groups during the lecture. The tutorial will be devoted to discussing the Law Commission approach to these issues. Some points to think about as you do the reading can be found at the end of this section. This will raise some more conceptual issues. Remember that any area of the course can come up as a problem question or an essay question in the exam.
This is a lecture on the common law duties of care owed by public authorities. Most litigation is about roads, education, social services, and the police and the question is: does the defendant owe the claimant a duty of care in respect of this particular harm? Again as with psychiatric illness, breach is also important and think back to breach in this area. There are in theory no special rules on public authority liability in English law. In theory, there are no special rules applying to public authorities in English common law. Crown immunity was abolished in 1947 and for normal things like maintaining property and buying a car; being a public authority is of no significance. However, our approach to duty of care is so flexible and wide-ranging that all sorts of special issues with respect to public authorities comes under duty of care. Think of fair, just and reasonable under Caparo anything there is also relevant here. In the future when you come back to this: think about the nature of the debate and why is this area of law is so hard. There is one thing: when you go back over the material, think about why this is difficult and when answering problem questions on this read them in advance. Why is this, such a difficult area of law? There has historically been a bit of reluctance to impose liability on public authorities in the normal way; when they are acting in performance of their public duties. There are a number of things to think about why that might be so. The three related questions: resources, democratic competence and institutional competence. They are tightly related. 1. Resources: these concern issues around the distributive/distribution. Liability might have distributive consequences if D is a public authority. The types of activity that the D is carrying on are done for the benefit of everyone, not for the benefit of the one individual that brings the litigation; the activities that they are carrying on are done for everyones benefit, and not for the individual litigant.

There is a concern that public funds will be misallocated if they go to individuals. So should the resources that are supposed to go into public activities go to these individuals? It is difficult because the individuals have been harmed. 2. Democratic competence: There is a separation of powers question as well as a resources question: the courts are reluctant to interfere with governmentcreated bodies (with bodies acting under the authority of parliament). There is a democratic issue about courts interfering with the will of parliament and the argument might be that the proper response to wrongdoing is a democratic response not a legal one. 3. Institutional competence: This is the third related issue. The court thinks is this other body better placed to make this decision than the court?! Think about the Environment agency it is an expert and has all the information about all the different interests involved, should the court then overturn those interests? This is familiar from public law: class about proper relationship between courts and state and about the proper relationship between collective interests and individual interests. There are massive issues hidden in tort cases.

4. Fourth thing: Jane Stapleton says that in most of these cases, the defendant is the peripheral party and it is not really the local authority that is to blame. Think about police cases: someone else killed Cs son, not the police. The police are a peripheral party according to Stapleton. In child abuse cases, it is not the local child service authority that is mostly to blame. We should not be imposing liability when the defendant is peripheral to the harm. There are lots of other ways to split problems with respect to public authority liability - have courts got the balance right? The pervasive tension in cases is whether a duty of care will make public authorities more careful in an appropriate way: i.e. on one hand it puts in place proper incentives to make people careful and helps the case. On the other hand, the incentives may be too high and the does a duty of care make public authorities inappropriately cautious and litigation sensitive this is the defensive practice argument (in X and Von Colle). Empirical question: in theory we want to find out in fact what happens when the court puts in place a duty of care there is limited research available. Law Commission reports these were disappointing because of the lack of empirical research on the impact of judicial research. There is an empirical question of fact about whether liability makes things better or worse. However, the empirical evidence is missing. There is no breach of statutory duty in this course: it is a distinct tort and it applies if there is a duty in legislation which parliament intended to be actionable in private law. Last week with the Occupational Liability Act, it was clearly a case where a duty of care was actionable because it says so. It is usually more complicated to work out parliamentary intention. This is a SIDE ISSUE.

If there is no tort of breach of statutory duty we still have to ask question of whether there is a common law duty applying to authorities. The question really is whether a common law duty arises independently of a statute. I.e. is there a duty of care in negligence?

Essential reading If the reading looks lengthy, remember it is designed to cover 2 weeks of lecture and a tutorial. If you want to divide the load, do the L&O reading before the first lecture, and the Law Commission reading for the tutorial. There will be time for you to ask any questions or clarify any problems in the lecture on 17 November. L&O 504-544 Law Commission, Administrative Redress: Public Bodies and the Citizen Consultation Paper no. 187, paras 3.1-3.101 [24 pages - you dont need the detail on this section but we want you to have a sense of the context within which tort sits] , 4.101-4.188 [17 pages] Law Commission, Administrative Redress: Public Bodies and the Citizen Law Com No 322, chapter 3 [15 pages - note that we do not need to discuss misfeasance in public office or breach of statutory duty] Further reading Nolan, The liability of public authorities for failing to confer benefits (2011) 127 Law Quarterly Review 260-287 Bailey, Public Authority Liability in Negligence: The Continued Search for Coherence (2006) 26 Legal Studies 155 Bagshaw, Monetary remedies in public law misdiagnosis and misprescription (2006) 6 Legal Studies 4 Carol Harlow, Rationalising Administrative Compensation *2010+ Public Law 321 Outline Justiciability, public law and private law factors Notions of vires / discretion / rationality that are more familiar from public law (Anns v Merton London Borough Council [1978] AC 728; X (minors) v Bedfordshire County Council [1995] 2 AC 633 did the authority act within its discretion, also policy/operational distinction.) Fair, just and reasonable to impose a duty? Assumption of responsibility such as to engage a duty of care? Breach of duty / fault
Notions: vires/liability Caparo test Think about breach of that duty or fault. In recent cases; there is a considerable debate about which heading should be used to confine liability.

Traditionally the role of public law factors has been quite relevant; now it is less important than it used to be. There is more emphasis on Caparo and less on the public law factors. Youll see cases, which indicate that. Rather than ultra vires and Caparo; they ask: is this a justiciable question? i.e. a question that one should and can deal with. Local authorities run a bus service: for example, a driver runs someone over there are no questions of justiciability. A more difficult question on justiciability would be about whether to lay off the bus service or not for budgetary reasons.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 - illustrations of justiciability; suggestion of ultra vires test to define public authoritys liability
Facts The court, in this case the House of Lords, says that a public authority is only going to be liable (there is only going to be a duty of care) if theyre acting outside the ambit of their powers, so they suggest that a public authority will only be liable if acting ultra vires. This is the authority, which says: think about vires between normal duty of care questions. It is difficult to apply to public cases just because vires doesnt mean out and just because.., the question doesnt match the tort enquiry well. Discretion in Dorset Yacht survived better; there was more of a continuum not an either/or question. Public authority officers have discretion (they have the discretion to supervise the boys); but going to bed and leaving them to it was beyond their discretion it went beyond what was reasonable and they have gone beyond their discretion. This idea of discretion is closely related to what has become known to be policy operational distinction that is in X. The House of Lords in X rejected the ultra vires test as an end point. They did not say it was irrelevant they said that it was not the only question. It was rejected as a single criterion for public authority liability.

X (minors) v Bedfordshire County Council [1995] 2 AC 633 - rejection of ultra vires test; ask instead whether authority had acted within its discretion, and apply policy/operational distinction.
Facts X applies the policy operational distinction. The distinction is ill-defined but it is basically a distinction between deciding to do something as a matter of policy and then actually doing it - implementing it/an operation. The example that the House of Lords gives in this case, i.e. the example of a policy operational distinction, is the difference between deciding whether to open or close a school and then running the school and maintaining the buildings. They use the school example as a policy operational distinction. Emphasise that this is not a clear line it is not a straightforward dichotomy. The policy operational distinction was in turn disapproved of in Barrett and Phelps. This policy operational distinction is also controversial.

Downgrading of public law factors? Phelps v Hillingdon London Borough Council [2000] 3 WLR 776.

The House of Lords said that the fact that a public authority is acting within its public law discretion and working within the policy zone doesnt protect it from liability. What they say in Phelps is that those questions (policy operational distinctions and discretion) are guides as to whether a decision is justiciable. The concentration on justiciability and public law factors help us decide whether a decision is justiciable. The sorts of things that are not justiciable are allocation of resources and the distribution of risk. They say a non-justiciable decision is rare i.e. something about allocation of resources and of the distribution of risk. And those questions of discretion and policy are guidelines. (additional hurdles for duty of care questions with public authorities)

Barrett v Enfield London Borough Council [2001] 2 AC 550.

The ultimate question is justiciability again the House of Lords said this. Again discretion and policy operational distinctions are guides to whether a decision is justiciable. The greater the discretion and policy elements of what you are challenging the less likely something is to be justiciable: the continuum not a clear line.

Carty v Croydon London Borough Council [2005] 1 WLR 2312, esp [20]-[37]. Rejection of the discretion test; scepticism about the value of the policy/operational distinction

This is the last key case here. Carty is a Court of Appeal decision so it is not as strong an authority but it is useful if you can make sense of it. In Carty, the court confirms some decisions are not justiciable. The decisions that arent justiciable are those about the weighing up of public interests and they are rare. RARE. The court in Carty said the best thing to do is look at actual substance of decision. This was a case about special educational needs. And the Court of Appeal in Carty said there is a spectrum in this area: at one end you have decisions that are heavily influenced by policy, for example: shall we provide people to assess educational needs? These questions will come close to being non-justiciable, and they come close to being vires and then you have a special question of knowledge and expertise with respect to the child and there will be a duty of care. Carty: the question is - is it justiciable? The spectrum policy based: there is less likely to be duty of care is it is an exercise of judgment and expertise. There is very likely to be a duty of care under the public law bits. Another interesting thing: CA emphasises even if there is a duty; finding a public authority at fault will be a heavy burden for the claimant. Even with the duty - the fault standard is demanding.

Connor v Surrey County Council [2010] EWCA Civ 286; [2011] Q.B. 429 [76]-[102] (Laws LJ) on the underlying idea of justiciability
Facts: This is only interesting because the Court of Appeal in the handout identifies a shift from a heavy reliance of public law factors in a formal sort of way to a more pragmatic and flexible approach and they talk especially about Barrett and Phelps.

In the early days Dorset Yacht, X and heavy dependence on public law factors were seen as a barrier to public authority liability so how do we stop public authorities being responsible too often? Public law factors of vires, etc. In more recent cases (Barrett and Phelps but more clear in Court of Appeal decisions) we move towards an approach: public authorities you have a prior question of justiciability before you go to Caparo and non-justiciable decisions are decisions that allocate resources and distribute risks. The questions of policy, discretion and vires are guides within that decision so those public law factors are still there but they are less decisively applied. Once finished with the public law head of justiciability requirement go to Caparo so there is still room to say that there is no duty of care. In one pbq you have to do talk about public law factors. This test, makes it easier for liability to be imposed: the Human Rights Act has played a big role. When you finish duty of care there are periods during which the House of Lords takes a restrictive approach to duty of care and other periods where they are more liberal in finding a duty of care. Look back to be clear. It is now a more liberal period than we were once in, and breach plays a much stronger role now to control liability. One further point: Article from Bailey in first reading basic point of his is that we should ljust get rid of pub law factors we dont need it: Caparo can do all the work we need to do and that even with Caparo, breach should play a bigger role in restricting liability than duty. Controversial.

NB look at last weeks notes Public law factors in cases of pure omission
Stovin v Wise and Gorringe: The claimants said that the local authorities had negligently failed to exercise a statutory power. Stovin v Wise: this is the motorbike case where the local authority should have removed the obstacle. Gorringe: the claim was that the local authority should have written SLOW on the road. In Stovin there is dicta, which suggests that irrationality is pivotal with respect to failure to exercise a statutory power: dates after we were moving past that. What is confusing about the role of irrationality in respect of the failure to act and Gorringe clears it up a bit: the House of Lords says even with irrationality will rarely found a duty of care in respect of failure to act. The Nolan article on further reading: the position is that all public authority cases can be better dealt with by deciding whether they are about making things worse or making things better: i.e. imposing a harm or failing to give a benefit - think about all cases on this basis. NB for further reading: vicarious liability is basically about whether we are responsible for the torts of someone else and the main area in which vicarious liability operates is employment so the university is responsible for my torts while Im acting in the course of employment. This comes up in the case law of public authorities a lot because public authorities act through their employees. They dont think as a public authority; they do things via their employees.

So the distinction between direct and vicarious liability: Direct is when the public authority itself owes and breaches the duty. Its quite a difficult distinction as the House of Lords says in X an authority can only act through its employees is it difficult to differentiate? The courts will find a duty of care more readily if it is an identifiable employee who owes you a duty. Vicarious liability: The House of Lords is more willing to find a duty of care in respect of vicarious liability because of the way you apply the duty of care to a named individual. Think back to the assumption of responsibility cases. Caparo and the private law element of duty of care: Foreseeable, proximate, fair, just and reasonable to impose a duty of care. The emphasis in the public authority cases is on fairness, justness and reasonability there is not a lot of discussion on foreseeability or police. X is an important case: the result as you see will not be different but the law remains the same.

Stovin v Wise [1996] AC 923 Claimant must show irrationality if duty based on failure to exercise statutory power (dicta) Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 Caution about the dicta in Stovin, esp [4] (Lord Steyn), [26] and [31] (Lord Hoffmann). But contrast [91] (Lord Rodger). Direct liability and vicarious liability Phelps v Hillingdon London Borough Council [2001] 2 AC 619 - example of assumption of responsibility by individual psychologist to child. X (minors) v Bedfordshire County Council [1995] 2 AC 633 - authority can only act through its employees.
Facts: In one case there was a negligent failure to take a child into care when it was being abused. In another case, a child is taken away and taken into care on the mistaken assumption that the mothers partner was abusing the child. The three education cases: where special education needs were not being dealt with. There was no duty of care in these cases. Child abuse cases: The claim was dismissed on the basis that it was not fair, just or reasonable to impose a duty of care and the House of Lords identified six reasons: 1. Liability would cut across a statutory framework that was set up in place to protect children: worried it would do more harm than good. 2. The task of the local authority is extraordinarily delicate - getting it wrong in this area is very easy. There is a query about whether this is better under breach than duty of care. 3. This is the defensive practice concern: an imposition of a duty of care might make local authorities more cautious and defensive in their approach and they might need to be speedy. 4. The relationship between the social worker and the parent is full of conflict and so the House of Lords is concerned that there will be

unmeritorious litigation. Obviously if it is unmeritorious then they will lose, but they are worried about the local authority having to divert resources. Duty of care is a legal concept, it is not based on fact, because it is legal if we say no duty of care; it applies across the board and there is no litigation. If you say that there is no breach that is a factual argument and you can only decide that after a trial so even if D wins they have to go through the expense of a trial. So a diversion of resources into litigation is the fourth factor. 5. Alternative remedies: this comes up when you look at Law Commission report. Is tort the right place for this sort of question? Alternative remedies in X no compensation identified with them but then how crucial is compensation with relation to public authorities that behave badly? 6. Caparo told us we proceed incrementally in the tort of negligence, but the court said that there are no analogous cases so we cannot have a duty here. All these reasons have been subjected to a lot of criticism. In Barrett the House of Lords applies those six fair, just and reasonable factors and comes to the opposite conclusion.

Private law factors the duty of care X (minors) v Bedfordshire County Council [1995] 2 AC 633 The X - factors Not fair, just and reasonable to impose liability for negligent conduct of child abuse investigations Human Rights Act 1998
The Human Rights Act wasnt expected to have a big impact on duty of care in English law. Article 6 of the ECHR provides for a fair and public hearing by an individual and impartial hearing by

Osman v UK [1999] 1 FLR 193

This is a case about a child being stalked by a teacher and they reported this and the police failed to follow it up. The teacher killed the childs father and injured the child. This case was struck out on a question of law. So the duty of care is a legal question: that means that you can strike it out without a trial. You can strike out a claim on the basis that it has no prospect of success. Here, as a matter of law, police do not owe individual members of public a duty of care we strike the case out. In this case the Court of Appeal applied Hill v Chief Constable of West Yorkshire [1989] AC 53. The claimants daughter was the final victim of Yorkshire ripper and police dealt really bad with the killer. The mother of the final victim sued the police for failing to apprehend her killer and the House of Lords said that there was no duty of care in respect of the public investigation of crime. This was a massive deferential judgment. The case in Hill basically said that there was no duty of care in respect of the investigation of crime.

That was applied in Osman so the case was struck out without a trial. The reason is that it is fair, just and reasonable that the public interest in the investigation of crime should take precedence over the protection of individuals. The ECHR decision was controversial because they appeared not to understand the duty of care in English law. They saw what went on in cases as procedural immunity rather than the substance of law. They understood the way that the duty of care was working with the striking out procedure as a procedural not a substantive question. Court: whilst policy questions that were relied on in Osman are legitimate; they would have to be applied on a case by case basis, which of course undermines the role of the striking out procedure (the whole point is that it is not case by case, it favours D rather than C). Critical of duty of care and in conjunction with striking out. In subsequent decisions, this case was not mentioned but it had significant impact.

English courts applied Hill v Chief Constable of West Yorkshire [1989] AC 53 re policy authority European Court of Human Rights discusses English law striking out procedure. Influence on Barrett and Phelps? Phelps v Hillingdon London Borough Council [2000] 3 WLR 776
Facts: In this case, a local authority employed an educational psychologist to assess children with learning difficulties. The claimant alleged that there was a negligent failure to diagnose her dyslexia. In X, the House of Lords had left open the possibility that educational psychologists might assume responsibility to individuals. This was left open in X. There were four appeals in X and three were striking out ones. The most interesting one was Phelps itself but that was a real case before trial an actual decision as opposed to a striking out. Child sent to psychologist service and the psychologist said that he had no weaknesses so required no special help. She was diagnosed with dyslexia shortly before school and sued the local authority. The House of Lords held in favour of Phelps. o And they said if a duty of care would be owed in respect of advice given if there were no statutory powers then the mere fact that there are statutory powers doesnt mean that there is no duty of care. o The question in Phelps is: would there be a duty of care if there were no statutory powers? In this case, there was an assumption of responsibility by the psychologist to the individual child. The psychologist was specifically called in to look at the particular child, and it was clear that the teachers, parents and child would look after child. o There was an assumption of responsibility to the individual child and it was clear that everyone would follow the professionals advice. Interestingly the obiter wonders what the situation would be for a teacher and the House of Lords gives examples of the teacher teaching the wrong syllabus. The House of Lords in this case, said that it is more likely to find a duty of care when there is vicarious liability for an individuals breach. That you have an individual assuming responsibility and it is easier to find a duty of care.

The question is whether after that assumption of responsibility you then apply the fair, just and reasonable requirements. Do you still apply Caparo after an assumption of responsibility? o Lord Slynn: it would be exceptional but the House of Lords leaves it open for the local authority to establish that it would be incredibly disruptive to impose a duty of care.

Phelps: Assumption of responsibility Vicarious liability Query: fair, just, reasonable. A further thing to think about in Phelps: the lengthy discussion of fault. There is clearly a duty of care, and then there is a discussion about whether it was breached. It is clear that the court will not readily find fault in these cases. They apply the BOLAM standard. The court is not entirely but relatively protective of defendants.

Assumption of responsibility Query application of fair, just and reasonable test Note difference direct and vicarious liability - assumption of responsibility by individual Barrett v Enfield London Borough Council [2001] 2 AC 550 Fair just and reasonable to impose liability for decisions as to childs future, once he had been taken into care.
Facts: In this case, the boy was into care and he said that he was negligently left in foster homes where he was abused and he alleged therefore that the negligence led to personal injury and in this case, the House of Lords said in Barrett that the claimant is owed a duty of care by the local authority. Judgment: The House of Lords goes through six factors: they say they not very good and they dont apply here. Lord Slynn says that the factors in X dont have same force separately or cumulatively in this case. For a while: X and Barrett were coexisting. In X there was no duty of care in respect of whether to take the child into care or not. In Barrett: there was a duty of care once the child was in care. Two decisions drawing fine distinctions.

Z v UK [2001] 2 FLR 612 ECHR revisits the duty of care

This is what X was called when it got to the ECHR. Crucially in this case, there was no breach of art 6. The ECHR recognised that a duty of care was not an exclusionary rule of immunity but a substantive element of law. The striking out procedure plus the duty of care pursue a legitimate aim and are proportionate. The legitimacy of the duty of care under the Human Rights Act is confirmed in Z. One remaining doubt in Z is that in Z the case had gone all the way to the House of Lords.

So of course you havent been deprived to the right of a fair trial, you went to ECHR and there was the weighing of policy factors - so there is some question about whether an absolute approach legal nature of duty of care is recognised but basically be assured that duty of care is HRA compliant. While there was no breach of art 6 there was a breach of art 3. And Art 13 requires just compensation (satisfaction). That was breached because there had been no provision of compensation, now wed expect a case like that to got under HRA than through the common law. Well look at D later.

The development of the recent case law

Start at the end in this area of law it is easier because it is clearer.

D v East Berkshire Community Health NHS Trust [2004] QB 558 (Court of Appeal ) [2005] 2 WLR 993 (House of Lords).
This is a Court of Appeal and House of Lords decision. In child abuse cases you have parents suing local authorities as a result of false allegations of child abuse. This means that in some cases children are being taken in falsely. Parents are suing for psychological reasons and in one a child is suing as well. A child was wrongly taken into care: this was heard in the Court of Appeal. You would think they would have to apply X because this was a House of Lords decision and strike it out saying that there was no duty of care. That is not what they do The Court of Appeal says that the question is whether X survives the Human Rights Act. The Court of Appeal says that to some extent the policy issues in X have been discredited by later House of Lords decisions like Barrett. They have devalued and undermined the X factors. That is part of it. It is also about the Human Rights Act. The Court of Appeal in D says that the local authority is going to get sued under the Human Rights Act anyway for breach of Art 3 and therefore the policy concerned about defensive practices doesnt apply because they are going to get sued anyway. So the Court of Appeal decides there is a duty of care and they emphasise also that in cases of suspected child abuse the interests of the child are supposed to be paramount so a duty of care to the child should not have an adverse effect on the process/on decision-making. D in the Court of Appeal: a local authority does owe a duty of care to a child. Subsequent House of Lords decisions have discredited the policy in X. o HL is paramount so no question on the way in which the local authority carries out authority (?) The Court of Appeal said that there was no duty to parents but that was appealed to in the House of Lords. In the parents case, they appealed to the House of Lords. They lost again there was held to be no duty of care. If someone is wrongly accused of an offence malicious prosecution it turns on malice not on negligence. Usually a faults claim would turn on malice and not negligence and the Court of Appeal wants the same here. o The claimant argued that the Art 8 right to family life meant that we should get a different answer. Interestingly in the Court of Appeal the existence of a claim under the Human Rights Act was an argument in favour of a duty of care. The House of Lords argued against a duty of care, you have an alternative duty under the Human Rights Act, you dont need a common law duty of care. Jane Stapleton does the same thing. Malice is a requirement not negligence. Article 8 doesnt mean we need to change the common law, it makes it less important to change the common law. And key policy issue in the House of Lords is the conflict of interests. Normally, the interests

of the parents and their children are the same but not when the parent is accused of abuse and the House of Lords says that local authorities e.g. social services should be single-minded in their protection of the childs interest and not deflected by duties to the parents. Note the discussion of fault in this case.

The X factors do not survive Duties to children in decision to remove none to parents who are suspected of abuse Note significance of fault Brooks v Commissioner of police [2005] UKHL 24; [2005] 1WLR 1495 Although all of the propositions do not survive, Hill would be decided in the same way today
Facts: The claimant here was with Stephen Lawrence. It was a racist murder and then the police were racist and the MET police were found to be institutionally racist. In this case, Brooks was with Stephen Lawrence when he was murdered and Brooks was also attacked. Basically what happened was that Brooks was treated as a suspect and not as a victim and the investigation suggested that maybe they didnt offer the appropriate level of support that you would offer to a victim and they didnt offer reasonable weight to his account of what happened. The House of Lords takes us back to Hill: they said that Hill would be decided in the same way today. Some of the arguments wouldnt apply: no duty of care for the police etc. But there would be no duty of care, the police dont owe duties to individuals in respect of investigations of crime. The House of Lords in Brooks leaves open the possibility that there might be outrageous cases where there might be a duty of care. If anyone can think of anything more outrageous than thisnot a lot of space.

Van Colle v Chief Constable of Hertfordshire; Smith (FC) v Chief Constable of Sussex Police [2008] UKHL 50 [2008] 3 WLR 595
Facts: The claimants were parents of a man shot dead before he was going to give evidence in a burglary. The accused had approached witnesses and tried to dissuade them from giving evidence. There were fires on the victims property and some of these incidents, including phone calls had been reported and there had been no explicit death threat. No steps were taken to protect the claimants son. Held: In this case, the claimants claimed breach of art 2 of ECHR the right to life.

Smith (FC) v Chief Constable of Sussex Police [2008] UKHL 50 [2008] 3 WLR 595
Facts: In this case, the former partner was threatening the claimant. The threats included telephone texts including threats to kill The former partner had a previous history of violence and Smith had provided the police with the relevant details and the police didnt do anything.

His former partner attacked him but thankfully he didnt die he just claims in negligence not under article 2.

Held: The police won in both cases there was no duty of care. In the first case, he claimed under article 2. Below is stated what you need to prove to establish art 2 was breached. The common law claim also failed and again the House of Lords says that there is a core principle of public policy that in the absence of special circumstances the police owe no duty of care to protect individuals from harms caused by criminals. o A core principle of public policy: why did they reach that decision? They said it would encourage defensive policing and divert manpower and resources from crime fighting; they thought it would make them overly cautious. o Lord Bingham in this case: he had an interesting dissent in Smith. He said owing a duty of care would be entirely consistent with Hill because you have an individual; a named one, who should be protected. A named individual being threatened by another named one this is consistent with Hill not Osman.

- Art 2 claim unsuccessful Osman test: it must be established to [the court's] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. *29+ applies to witnesses for prosecution as well as ordinary members of public - Common law claim unsuccessful (Lord Bingham dissenting distinguishes Hill and Brooks). Emphasis on policy reasons defensive policing and diversion of public resources. CF Canadian Supreme Court decision in Hill v HamiltonWentworth (2007) 285 DLR 4th 620 Mitchell v Glasgow CC [2009] UKHL 11; [2009] 2 WLR 481 - duty to warn, also Art 2

There were two tenants of a local authority. One was physically violent towards the other. The local authority have a meeting with the person being violent and tell him that he will have to leave if he doesnt stop. He gets angry and murders the victim. The victims daughter and other family members sue the local authority saying they should have warned him he was telling that to the perpetrator. There were actions in negligence and under the Human Rights Act. The claimant said that there was a duty to warn and that there was adequate proximity between the victim and the local authority because of the tenancy relationship and all you needed was foreseeability. They were sued under the HRA and at common law (there was already proximity so all you need to prove is foreseeability) Last week: the House of Lords said foreseeability is not enough on its own. The claimants said that there no undertaking by word or action to show that the local authority had made itself responsible for protecting Mitchell from the criminal acts of D.

They said it was not fair, just or reasonable to impose a duty to warn and youve got a defensive practice argument that a duty will make people less good at primary responsibilities. The court says that if there was a duty to warn in this case all local authorities and the police would have to think about whether to warn potential victims and that would delay action and there would be more warnings than is helpful and that would slow down local authorities. You dont want them to act to avoid anything but for the public good. Under the Human Rights Act, the courts said that there was no basis upon which the local authority ought to have known that there was a real and immediate risk to life.


Both Van Colle and Mitchell involve claims for duty in respect of the actions of a third party note also the omissions lecture. Jain v Trent SHA [2009] UKHL 4; [2009] 2 WLR 248
Facts: This is a case where the claimant owned and ran a registered nursing home and the health authority thought that the physical conditions in the home were inadequate because of building work. They obtain an order to immediately cancel the claimants registration as registered nursing home providers removing their license. Without notice to the claimants and residents they immediately removed them from the home. The Jains appealed to the registered homes tribunal. They won and the tribunal said that there was no reason for the action that had been taken. Nothing warranted the immediate closure of home. They appealed and won. They sued in negligence the local authority, and they were already bankrupt at this stage because their living was taken away. The question: was there a duty of care in respect of making and preparing? Does a registered authority owe a duty of care in respect of the action in closing down? NO THERE IS NO DUTY OF CARE 1. Statutory powers to close down a home were for the protection of a particular class of persons (people in the home) and there was no duty to others. 2. There was a conflict question from D. The conflict from the people running home and the residents. 3. Again concerned about defensive action inhibiting the authority in its performance of duties. 4. There is no duty of care to protect parties to litigation. And they cite the Customs Excise v Barclays case. There is no duty of care under registered powers and no duty of care to other parties in regulation. The House of Lords thought what had gone wrong was lamentable and they were comforted that the HRA would apply here.


This doesnt help Jain because what happened to them, happened before the Human Rights Act, but in the future the House of Lords was happy that it will be dealt with. This is another case, where the House of Lords uses the HRA as a reason not to extend the duty of care in negligence. Under the Human Rights Act damages are much lesser than they would be in tort. There are also limitations issues. Two shifts: The shift from public to private law issues. Public law issues of vires etc which are still there, but more important are the Caparo issues. Then we have a debate on whether we should rely on Caparo or on breach to protect public authorities from too much liability. There is the issue about what would be too much and whether they need protecting; but the courts think they do so the question is how. In some cases, youll find the House of Lords disagreeing on the role of breach. So if you look at Lord Bingham in Brooks and in Smith we have a bigger role for breach and similarly you can look at D, the dissent emphasises breach. In D Lord Bingham talks about the shift to breach: a duty is a blunt tool in this area but other judges especially Lord Nicholls is worried about uncertainty if we reduce the importance of duty of care. Streams of case law here: it is sensible to think about whether you have a social services case (D, Barrett and X) education case (Phelps and X) police case (Von Colle/Osman/Hill) registered authorities (Jain): they each have a slightly different approach. Police are protected by duty of care. Education: fault is more significant than duty Social services: it depends on who your claimant is.

When trying to decide which you prefer no duty of care owed by regulators of nursing home to operators of nursing home where action is taken by a State authority under statutory powers designed for the benefit or protection of a particular class of persons, a tortious duty of care will not be held to be owed by the State authority to others whose interests may be adversely affected by an exercise of the statutory power. The reason is that the imposition of such a duty would or might inhibit the of the statutory powers and be potentially adverse to the interests of the class of persons the powers were designed to benefit or protect, thereby putting at risk the achievement of their statutory purpose. [28], per Lord Scott - lamentable lack of safeguards lead to obiter discussion of HRA (the case arose before HRA entered into force)

The relative role of duty and breach See the exchange between Lord Bingham and Lord Nicholls in D v East Berkshire Community Health NHS Trust [2005] 2 WLR 993 see also Phelps

Sample Questions 1. I do not believe that it is either helpful or necessary to introduce public law concepts as to the validity of a decision into the question of liability at common law for negligence. (Lord Browne-Wilkinson, X v Bedfordshire County Council) Discuss.

2. Newshire District Council in England run Soprano Secondary School. They employ Dr Melfi, an educational psychiatrist, to assess students with special needs. Anthony is struggling at school, so his teacher arranges for him to be seen by Dr Melfi. Dr Melfi is distracted when she sees Anthony, and because she is not concentrating properly, fails to notice that Anthony has dyslexia. Anthonys dyslexia is never diagnosed. As a result he performs badly at school and can only find poorly paid employment when he leaves. Mr Ritchie is a teacher in Soprano Secondary School. Because of budget constraints, Newshire have a policy that each teacher should teach two classes at a time. As a result, Mr Ritchie leaves his class of 13-year olds to get on with some work unsupervised. A group of his students break into the next door building, owned by John, and vandalise it. Soprano Secondary School catches fire, through nobodys fault. Carmen is a teacher at the school, which her daughter Meadow also attends. Carmen sees Meadow at a window of the burning building, crying for help. Everybody else has been successfully evacuated. Carmen calls the fire brigade and tells them that her daughter, Meadow, is trapped in the building. Carmen is told to stay out of the building because the fire engine will be with her very soon. The fire engine leaves the station immediately. Billy carelessly forgot to bring a map, and they get lost. They take an hour to reach the fire, by which time the building is destroyed and Meadow is dead. Discuss the parties rights and liabilities in tort. (Autumn 2008)