#5376 - Omissions And Liability Of Public Authorities Theory Notes - Tort Law

Public Law Element:

• Lord Slynn – Barrett – discretion doesn’t immediately mean no duty of care. It is on sliding scale.

• Lord Wilberforce – Anns – policy sphere is where statute gives wide choices to PA whereas operational sphere is where statute gives powers to the PA to execute those other wider policy decisions. But yet still degree will come into it.

• Lord Browne-Wilkinson – X and Others – effectively said if acts are of policy type (allocation of budget etc.) then claim for negligence fails. Then we ask if acts were within the discretion of the PA, were they Wednesbury/Irrational? [Interesting as most cases just look at discretion enquiry and policy/operational type enquiry as interchangeable tests for whether justiciable].

• Lord Hoffmann – Stovin – Criticised policy/operational divide. Then applied Wednesbury differently – Lord BW applied to actual conduct (was what the PA did irrational?), while Hoffman applied it to the conduct the plaintiff alleged that the PA should have engaged in (would it be irrational to fail to do this?). Distinction clear on facts – irrational to overlook previous decision to move mound, yes –doesn’t follow that it is irrational to take any other course, i.e. doesn’t necessarily follow that it is irrational to fail to do what C claimed they should do.

Helllooooooooooooooooooo Adam

Policy Arguments for the Liability of Public Authorities in Negligence:

1. It could raise standards by deterring careless conduct (and by facilitating a public examination in court of what went wrong).

2. Without the possibility of private actions, public services are effectively rendered ‘voluntary’, since there may be no negative consequences if public authorities choose not to provide them.

3. If the point of public services is to prevent or remedy misfortunes that occur to people, financial compensation is one way of doing that i.e. it’s an alternative (albeit less desirable) to the service intended to be provided.

Policy Arguments against Liability of Public Authorities in Negligence:

1. Aim of providing public services is to socialise risk of event occurring, by pooling resources to create the emergency services. The point of this is to take action against harmful events, not to give money to those who suffer from them.

2. Often tortious liability will undermine the socialisation of risk:

a. Defensive practices could impair effectiveness of services,

b. Loss of resources through litigation and payouts,

c. Public authorities likely to be targeted by cynical claimants since the former will always be able to meet cost orders.,

3. There may be better alternatives to private action: Ombudsmen, complaints to government departments, political pressure etc.

Omissions.

Hart and Honore – problems of causation:

• Any conduct can be described in terms of an act or an omission.

• Sometimes it makes more sense or is more relevant to describe as an omission – e.g. where there is a legal duty to act and D hasn’t it will be more legally relevant to describe as such.

• Some writers have a problem with then linking such a description to setting in motion the events which cause damage and as such cannot see causation without us ourselves making movements.

• But there is no special difficulty here, no rational distinction can be made between the causal status of acts and omissions. [Me – if found that you should have acted, to not act is identical to acing where you shouldn’t have].

Nolan (2011):

• Two types of creating a source of danger. First is where you make a statement that induces detrimental reliance. Gorringe – “if highway authority creates a reasonable expectation about state of highway it will have duty to keep as such”. Also Kent explicable as such (but not in reasoning). Second where you actually create a physical danger – Dorset Yacht. (Also Griffiths possible explanation, danger created was that others would neglect to go to help in expectation that D would).

• Barrett = assumption of responsibility. [This isn’t based on D having any active part in danger].

• Final category is position of responsibility as in case of landowner – Goldman. [But explicable as creating a danger, or as assumption of responsibility?] Also Barratt ignored possible route to duty.

• Public authority liability the same as that for a private individual failing to act for someone’s benefit – Gorringe. But in JD and Gorringe were duties not found through statutory duty? Yes but these were specific to individuals rather than general statutory duties to the public. But Nolan says not a distinction between specific and general public since you can frame any stat duty as such/not as such, thus clearly just founded on normal principles for private individuals. Also cases themselves give little support to such a reading/distinction.

Lord Hoffman – 2 justifications for non-liability for omissions:

• It is more burdensome on D to impose omissions liability than acts liability. Second, many others could also have acted so why is it that D should be the one who pays?

Cane – another justification, and how to defeat all three:

• Omissions simply isn’t the cause of the harm.

• More burdensome – nope – fails to account for case where all D must do is shout “move”. Thus can only account for cases where it is actually more of a burden to act than to be restrained.

• Others could have acted – nope - in cases of negligent acts the law already fastens onto a convenient defendant, the one who acts. Negligent driver is more convenient target than road authority despite both being responsible in some way. Question then is of fault and not of whether culpable or not – there will always be several culpable, in omissions there are just more culpable individuals.

• No causation – nope – causation argument simply imposes the moral limits on the liability that we do allow for omissions. Where we think that D ought morally to have done something the duty will be imposed...