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duty of care - omissions liability - public authorities - no general duty of affirmative action
Held:The council were not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a 'cluster site' under the Council's policy for prioritising funding which required five accidents in three years. D had no duty of care to C in respect of this hazard. Even a statutory duty does not automatically give a private right of action. A statutory power does not create a common law duty to be exercised. Unless it would be irrational not to exercise that power. There must be exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because it is not exercised.Lord Hoffman on imposing liability for omissions: “There are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular shall take steps to prevent another from suffering harm from the acts of third parties or natural causes.”
Held: It was not possible to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. A common law duty of care could not grow parasitically out of a statutory duty not intended to be owed to individuals. The drivers had to take responsibility for the damage they caused and compulsory third party insurance is intended to ensure that they would be able to do so. In the instant case, where the complaint was that the authority had done nothing, the action had to fail. Stovin v Wise [1996] applied. C lost
duty of care - public authorities - significance of policy arguments - breach - proximity - statutory duties - decision overruled
Held: Where a statutory discretion was conferred on a public authority, nothing the authority could do within the ambit of that discretion was actionable at common law. If a new duty of care by local authorities were established, many more claims would be brought placing further strain on an already overstretched system. No duty of care would be imposed on local authorities fulfilling their public law duties towards children in need. C lost abuse case C lost education cases because the LA had no duty of care. But it was held that the LA could be liable, both directly and vicariously, for negligent advice given by their professional employees.
Per curiam. The report of a psychiatrist instructed to carry out the examination of the child for the specific purpose of discovering whether the child has been sexually abused and (if possible) the identity of the abuser has such an immediate link with possible proceedings in pursuance of a statutory duty that such investigations cannot be made the basis of subsequent claims.
Subequently:T his case was referred to the ECHR and there was called Z and others v The United Kingdom (2001) UCHR. The UCHR found against the UK for not providing a remedy to the children.This case could not survive the Human Rights Act and was overturned by D v East Berkshire Community NHS Trust and others [2003] CA.
Lord Browne-Wilkinson’s approach to duty:
(a) Will the inquiry into the defendantauthority’s conduct involve a consideration of any high-level policy matters?If so, court cannot intervene. Claim fails straightaway on grounds that it isnot justiciable. (b) Has the defendant authority actedwholly outside the ambit of its statutorily-conferred discretion?
(c)Application of Caparo tripartite test for duty. Note that at the ‘fair, justand reasonable stage’ further policy considerations will be taken into account
Claims in X v Beds failing (c). Five specific policy factors making it unfair,unjust and unreasonable to impose a duty of care in those instances:
(i)a common law duty of care would cut across the whole statutory system set upfor the protection of children at risk.
(ii)the task of the local authority in dealing with such children is‘extraordinarily difficult’.
(iii)the spectre of liability would perhaps cause local authorities to adopt a morecautious and defensive approach to their duties. (iv)the uneasy relationship between the public authority employee and the child’s parentswould become a breeding ground for hopeless litigation.
(v)there were alternative remedies available in the form of the statutorycomplaints procedures or an investigation by the local government ombudsman.
duty of care - public authorities - blind application of policy-based reasoning - police
Held: C had been exposed to a risk 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 C’s family and the investigating police officers. However, following Hill, 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. C lost
Held: The police owed no duty of care towards the daughter to protect her from the Ripper. Some further ingredient is invariably needed to establish the requisite proximity of relationship between the complainant and the defendant; she had been at no greater risk than most other members of the public had. C lost
duty of care - public authorities - public policy – police owe no duty of care to public
duty of care - public authorities - public policy - duty of care imposed on Local Authority for children in care
Held: Taking a child into care pursuant to a statutory power did not create a duty of care. However, C’s allegations were largely directed to the way in which the powers of the local authority were exercised, a duty of care was owed and was broken. Whether it was just and reasonable to impose a liability for negligence had to be decided on the basis of what was proved. Which except in the clearest cases, required an investigation of the facts. C won
duty of care - public authorities - public policy - statutory duty - duty of care, to whom
Held: It was plainly arguable that there was a duty of care owed to the parents and a breach of that duty by the defendants. C won.
duty of care – no duty situations - public policy – special educational needs
Held: Local education authorities could be vicariously liable for breaches by educational psychologists and teachers of their duty of care to pupils with special educational needs. C won
duty of care - public policy - public authorities - no duty situations in respect of local authorities – can not survive the Human Rights Act
Held: There was no dispute that the neglect and abuse suffered by the four child applicants reached the threshold of inhuman and degrading treatment. The UK failed in its positive obligation under Article 3 of the Convention to provide the applicants with adequate protection against inhuman and degrading treatment. Although the applicants’ had not been afforded a remedy in the courts, the Court found no violation of Article 6, their remedy was under Article 3 and 13.The applicants did not have available to them an appropriate means of obtaining a determination of their allegations or the possibility of obtaining an enforceable award of compensation for the damage suffered thereby. Consequently, they were not afforded an effective remedy in respect of the breach of Article 3 and there had, accordingly, been a violation of Article 13. Applicants succeeded
"the state had a positive obligation to take measuresto ensure that individuals within its jurisdiction-particularly children andother vulnerable persons-were not subjected to torture or inhuman or degradingtreatment even if administered by a private individual provided the authoritiesknew or ought to have known of the ill-treatment in question…local authoritywas guilty of failure to take reasonable steps to protect the applicants’Article 3 rights."
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