Tort - Public Authorities

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Public Authorities / Breach of Statutory Duty - Introduction

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There are three means by which recovery may be sought against a public authority:

i. Breach of duty of care in exercise of statutory duties > negligence;

ii. Ultra vires > judicial review;

iii. Breach of statutory duty > this is what we focus on here

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Development of Liability for Breach of Statutory Duty

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The following two difficulties are met by a Pl in these actions:

i. statutes concerning public authorities do not usually contain private causes of action;

ii. because their powers are created for the common good, there is a working assumption against recovery.

 State of the law: the courts have repeatedly recognised the right of a Pl to take an action for breach of statutory duties, but have been extremely reluctant in holding that a breach has occurred.

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Siney v. Dublin Corporation (1980)

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Pl tenant claimed damages for the Def’s failure to ensure that the flat they let to him was habitable – a duty under the Housing Act 1966;

Pl claimed (a) negligence; (b) breach of implied warranty; (c) breach of statutory duty.

SC:

(a) held that a negligence claim could exist, but this was obiter;

(b) decided in terms of breach of implied warranty;

(c) rejected the claim fo breach of statutory duty because the remedy in the 1966 Act was enforcement by the Minister (i.e. problem no. 1 above).

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Burke v. Dublin Corporation (1991)

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3 Pls sued for damages caused by unsafe heater emitting smoke in housed leased by the Def; they claimed on the same three ground as Siney.

SC: again, decided on breach of statutory duty. They assessed the 1966 Act as being for the benefit of the public at large (problem no. 2 above).

McMahon & Binchy find this reasoning weak: surely it is for the benefit of those who need social housing?

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Reilly v. Limerick Corporation (1989)

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Case concerning the provision of caravan accommodation on serviced sites for a group of individuals;

NB: SC held that the 1966 Act gives rise to duties and rights enforceable by private litigants; held that the authority had a duty to provide suitable accommodation to those who needed it; however, the duty was qualified by financial resources and availibility of land etc.; thus the court refused to make an order for the provision of serviced sites, and made an order to the authority to review its housing programme to include serviced sites.

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Glencar v. Mayo County Council (2001)

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Pl claimed that by imposing a mining ban, the Def had breached its statutory duties;

SC on the issue of statutory duties: s. 19 of the 1963 Act simply required the Def to make a development plan, a duty which the Def had discharged (albeit wrongly, with an ultra vires ban).

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Statutory Powers

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(I) Operational Powers - liability in negligence may lie in the ordinary way in claims involving the exercise of such powers e.g. a public authority may be vicariously liable for the torts committed by its employees.

(2) Discretionary decision-making powers - special rules apply and difficulties arise, with a public authority in the exercise of its discretionary making powers.

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Sunderland v Louth County Council

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The plaintiff purchased a house which transpired to be inhabitable due to a poor choice of site. An action had been successful against the vendor who was incapable of satisfying it.

An action was then brought against the County Council for granting retention permission for the building and not discharging their functions under the Planning and Development Act 1963 properly. The claim was rejected. It was held that while the damage was foreseeable, it was not foreseeable that a subsequent purchaser would not conduct his own survey of the property.

McCarthy J. distinguished the case from that in Ward pointing out that the relationship in that case was more paternalistic than the one in Sunderland, thereby giving rise to a duty of care. The principle that the planning legislation did not create relationship of care between the public authorities and private individuals was upheld by the Supreme Court in Convery v Dublin County Council.

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Beatty v The Rent Tribunal

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This case involved a challenge by the plaintiff against the rent tribunal in the exercise of its function in fixing rents under the Housing Act 1983. The tribunal fixed the rent at a rate lower than even the tenant had sought. The tribunal's decision was subsequently quashed
following judicial review proceedings. The plaintiff brought an action seeking compensation for the loss of rent.

The majority (Hardiman J., Geoghegan J. and Denham J.) rejected the claim on the basis that public authorities had immunity from suit in relation to the exercise of their powers for the public good. On the other had, Fennelly J. and McCracken J. rejected the claim on the basis that it would not be 'fair and reasonable' (Caparo) to impose a duty of care in these circumstances. Healy quite rightly criticises the immunity
reasoning behind this on the grounds that it has long been established that public authorities do not enjoy an immunity from suit (Siney and Ward) and further questions whether it is in breach of the European Convention on Human Rights and every citizens' right of access to the courts.

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Standard of Care

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Normal standard of care principles apply when assessing the conduct of the public authority.
The public authority must have been shown to have acted unreasonably in the circumstances.

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Misfeasance in Public Office

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A claim in negligence may be grounded against a public authority by a private party where such a party can prove that the public authority acted in bad faith in exercising its powers. Three Rivers District Council v Bank of England [2003].

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Kennedy v Law Society of Ireland [2005]

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Irish Supreme Court endorsed the approach adopted in Three Rivers. However, in Beatty the court emphasised that "bad faith in the exercise of public powers ... is the essence of the tort."

Furthermore, the court expressed its doubts that an action would lie against a judge or tribunal for misfeasance in public office
where the judge or tribunal was acting within its jurisdiction.

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Philips v Dublin Corporation

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The defendant corporation was not found liable where the 12 year old plaintiff fell down an elevator shaft. The doors of the lift had opened into a void. In declaring that the local authority was not an insurer, Barron J. stated:

The defendant was, in my view, under an obligation to take reasonable steps to prevent unauthorised entry to the lift shaft or unauthorised interference with the lift mechanism ... it must be remembered that an occupier is not an insurer and the defendant must expect that perhaps parental supervision would be lacking for a variety of reasons, but it is not justice to require and occupier, even in the position of a local authority, to have to bear the ultimate responsibility for other than its own actions, and failure to have someone in constant attendance, as has been suggested is unreasonable.

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Three Rivers District Council v Bank of England [2003]

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House of Lords decision held that deliberate wrongdoing was not necessary to bring a claim for misfeasance in public office and that it would suffice if it could be shown that subjective recklessness existed. Lord Steyn commented:

... reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort.