#16713 - Public Authority Liability - Aspects Of Obligations

Acts/omissions by PAs can cause loss to individuals

Q: when can/should individual recover monetary compensation in respect of loss caused by admin (in)action & how be assessed?

LC 04 considered Eng law unable provide coherent answer

does/should Eng law use ordinary common law of torts or does/should it adopt specific PA regime?

General concerns:

Consti/institutional competence of courts

Protecting PAs from excessive litigation/threat of liability affecting exercise of functions, but

Deserving individuals harmed by serious failures of PAs don’t remain uncompensated

tort of negligence:

Over past few decades, courts have gone back/forth between conflicting approaches when determining whether PA owes CL duty of care against background of stat duty/power

LBW extra-judicially described as ‘nightmare world’

Tofaris notes the confusion & uncertainty this has caused

Also demonstrated by McBride - shows how regular courts (inc. HL) ave flitted between the 2

The approaches:

Policy-based framework

• underlay Lord Wilberforce judgement in Anns v Merton LBC

• invoked in Hill v CC West Yorkshire 89, X v Bedfordshire, Kent v Griffiths, XD v East Berkshire, Smith/Van Colle, , Smith v MoD

  Private part analogy framework/‘equality principle’

• known as the Diceyan approach - associated with Lord Hoffman

• applied in Capital & Counties v Hampshire, Stovin v Wise, Goringe v Calderdale MBC, more recently Michael v CC South Wales & Robinson v CC West Yorkshire 18

  Following Michael/Robinson Tofaris says there is a ‘tolerably clear outline’ of analytical framework - i.e the ‘equality principle’ = the law

  note generally, debate been about ‘duty of care’ stage but Lord Bingham suggested that standard of care could be adjusted for PAs to limit liability (in response to policy concerns) in cases such as D v East Berks - noted by Gumbel i.e shifts focus to fault

1. policy-based framework

   Recognises there are issues particular to pub authorities

   PAs have duties/powers under statute which, if exercised, could prevent arm to C by TP

   PAs easy to trace & guaranteed financial resources to support claims

   They also have no legitimate self-interest - their functions are other-regarding (Williams)

   Acknowledges the tension here between public/private law & resolves it

   Accepts the normal framework of neg, but applies it in a way offering protection to PAs through use of public law concepts (e.g justifiability/deference) & policy arguments (in relation to duty of care)

1. Justiciability

   Additional preliminary hurdle - consider whether claim apt for judicial resolution

   basically means courts won’t decide cases outside their consti/democratic/insti competence

   Test: Lord Hoffman Barrett v Enfield LBC 01: non-justiciable where existence of neg would involve court considering matters of policy raising issues they are ill-equipped & ill-suited to assess & on which Parl couldn't have intended the courts would sub their views for minister/official

   Application: Laws LJ Connor v Surrey CC

1. where decision = pure policy choice under statute, non justiciable (unless so unreasonable as to be UV)

2. where involves policy & operations, sensitive approach - greater policy, more likely non-justiciable

3. where purely operational, justiciable

   Thus where NHS makes mistake caring for patient, operational so justiciable

   but if get to hospital & insufficient beds coz LA decided want spend on ambulance, policy thus no!

   Lord Hoffman critical of this distcintion in Stovin v Wise as everything, to him, can be boiled down to allocation of resources thus policy thus non-justiciable

2. Duty of care

   Application of Caparo v Dickman framework - e.g Mitchell v Glasgow CC (Lord Hope)

   This was the test to always be applied (novel or not)

   Reasonable foreseeability of harm, proximity (elusive - best related to specific situations e.g omissions or PEL ETC), fair, just & reasonable (balancing factors for/against with view to incremental developing law)

   e.g Hill (Lord Keith) - no improvement to police standards (already motivated by general sense of pub duty), inappropriate judicial exam of police strategy (arguably justiciability), defensiveness, allocation of resources

• Defensive exercise of functions:

• Idea that imposing liability will stop them acting in interests of community

• this was main concern in Hill - used language of immunity

• note also lack of proximity key in Hill & ‘immunity’ shunned by Lord Toulson in Michael - in line with case law following Osman v UK

• X v Bedfordshire - children not removed from abusive parents ‘Hill principle’ applied thus LA not liable

• Smith v CC Sussex Police - C injured by ex despite repeated reports to police - proximity but no liability coz ‘Hill principle’, also employed by HL in Brooks

• but rejected in Phelps v Hillingdon LBC 01 instead reasoned that imposing liability would increase standards

• fact that argument goes both ways highlights its flimsiness!

• Morgan notes the argument is ‘far from proven by evidence’

• Markesinis & Fedtke criticise its use in Stovin v Wise by Lord Hoffman - surprising & worrying given evidence so thin

• but Morgan notes Hoffman subsequently conducted priv research & considered Phelps to have had unqualified disaster for the country’s education system - called for experience-based cost-benefit analysis

• Tofaris & Steel say no empirical evidence - cite evidence of POs in review of Riot Act where rejected argument of deterrence caused by liability - conflicts with its use

• Morgan notes that judges same in case which invoked & didn't - seems unlikely want to rule out policy altogether

• ECtHR accepted it in Osman as did Hughes/Mance in Robinson - approved ‘Hill principle’

• but Toulson rejected in Michael

• Morgan suggests whether this rejection can last will depend on whether acts/omission distcintion Reed made in Robinson can bear the weight put upon it

• Diversion of resources: having to defend claims/pay compensation would divert resources from primary functions

• accepted in Hill, X, Smith

• but also rejected in Phelps

• no empirical evidence - ofc there will be a cost but still an argument it might improve standards overall thus need evidence to show detriment overall!

• argument also means less likely award damages where multiple Cs

• Counter-intuitive position that ‘the greater the problem, the less likely here is to be a remedy’ Lord Reed in Armes v Nottinghamshire CC 17

• but Toulson seemed accepting of it in Michael

2. private party analogy framework/equality principle

   Following Lord Reed majority reasoning in Robinson v CC West Yorks 18 this s now the position of Eng law - he considered it a ‘return to orthodoxy’

   Basic concept: at CL, PAs generally subject to same liability in tort as private individuals/bodies

   in other words, ordinary neg principles apply

   often called the Diceyan approach - every man whatever rank/position subject to ordinary realm of law & amenable to jurisdiction of ordinary tribunals - idea that ‘equality’ demanded by his view of RoL

• McBride described Michael as ‘most stunning, clear and, to be honest, completely unexpected re-affirmation of the Diceyan approach’ (imagine what he’d say about Robinson!

• but in Robinson Lord Hughes/Mance dissented in their reasoning - favoured policy-based approach

• Morgan: in Michael/Robinson & Darnley v Croydon NHS 18 SC criticising use of policy reasoning - in Rob & Croydon considered ‘not novel’ cases so should just use precedent

• thus seems rejection of policy not just to do with PAs but part of wider shift in neg law

• Overall, Robinson considered non-liability of PAs for failures to act under their stat powers/duties to depend entirely on application of omissions principle & not on any policy consideration

• This approach seen in East Suffolk v Kent 41 - stat power couldn't generate duty of care, Board only liable if made things worse (omissions principle)

• also endorsed by Lord Hoffman in Stovin & Gorringe - PAs found not liable on omissions principle

• hence Reed considered it a return - debatable, given simultaneity!

• Reed seemed place blame for policy approach on Anns v Merton - said when overruled by Caparo should’ve moved away - Hughes considered this unrealistic & I agree coz Caparo allowed for policy too

• Also, crown immunity until 47 so couldn't sue State - hence arguably not orthodox

• Relationship of CL doc with stat duty/power

• duty of care won’t be imposed if excluded by/inconsistent with statute

• won’t be imposed j because there is a stat duty/power enabling/requiring them prevent harm (Hoffman in Gorringe)

• all depends on ordinary duty of care principles - e.g Phelps psych assumed responsibility, LA vicarious liability

• Is policy relevant at all? Only in 2 situations (same for priv individuals):

1. Novel situation where established principles don’t provide an answer

2. Where need consider departure from precedents (Reed, Robinson)

• as Morgan points out, this may mean focus on arguments turn to whether it is a ‘novel’ case/not

• likely be controversial e.g Mance thought Robinson novel but Reed thought established

• note Goukamp said ‘scholars who seek explain tort law in terms of rights will celebrate Michael’ - coz jettisons policy largely

• Reed emphasised that cases justifying PA noon-liability on policy have been ‘suspended’

• said they should be rationalised differently e.g rationalises Hill as about omissions - thus a somewhat revisionist approach

• Tofaris notes 2 of key consequences of Robinson = PAs will be liable for+ve tortious acts in same way ad priv individual & omissions principle...