Tort 4. Negligence: Duty Of Care Iv - Exceptional Duty Of Care Scenarios: Public Authority Liability

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Stovin v Wise [1996]

duty of care - omissions liability - public authorities - no general duty of affirmative action

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FACTS Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Norfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed.

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.”

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Gorringe v CalderdaleMetropolitan BC [2004]

duty of care - omissions liability - public authorities - no general duty of affirmative action

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FACTS D was the local authority responsible under Highways Act 1980 for the maintenance of a country road. C drove too fast towards the crest of a hill and collided with a bus suffering very severe injuries. C argued that D’s failure to paint the word ‘SLOW’ on the road surface constituted a breach of its duty under the Highways Act and the Road Traffic Act 1988. She argued that that the statutory duties cast a common law shadow and created a duty to users of the highway to take reasonable steps in compliance with the duties in the section.

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

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X (a minor) &Others v Bedfordshire County Council & Others [1995]

duty of care - public authorities - significance of policy arguments - breach - proximity - statutory duties - decision overruled

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FACTS D local authorities. Combined appeals (abuse cases, and education cases). C two children who alleged negligent treatment of claims of child abuse. In one case, the child was left with its parents and suffered further harm, in the other it was unnecessarily taken away from them. In the education cases the issue was whether special education needs had been met.

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.

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Osman v Ferguson [1993]

duty of care - public authorities - blind application of policy-based reasoning - police

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FACTS D the police, failed to stop a man shooting and killing C’s husband. The man a teacher formed an unhealthy attachment with C’s 14-year-old son and began to harass him and his family. It was known he might do something criminally insane.

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

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Hill v Chief Constable of West Yorkshire Police [1988]

duty of care - public authorities - blind application of policy-based reasoning - police

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FACTS D the police failed to catch the "Yorkshire Ripper". C, the mother of the lat (13th) victim sued the police for negligence alleging inefficiency and errors in their handling of the investigation.

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

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Osman v UK [1999]

duty of care - public authorities - public policy – police owe no duty of care to public

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FACTS D the police, failed to stop a man shooting and killing C’s husband. The man a teacher formed an unhealthy attachment with C’s 14-year-old son and began to harass him and his family. It was known he might do something criminally insane. This case follows Osman v Ferguson 1993.

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

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Barrett v Enfield London Borough Council [1999]

duty of care - public authorities - public policy - duty of care imposed on Local Authority for children in care

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FACTS C was left psychologically damaged and an alcoholic when he left care of D a Local Authority.

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

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W v Essex County Council [1998]

duty of care - public authorities - public policy - statutory duty - duty of care, to whom

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FACTS D, the council placed a known sex offender with foster parents C. C’s children were abused. C made it clear that they were anxious not to put their children at risk by having a known sex abuser in their home, the social worker and D knew that and also knew that the boy placed had already committed an act or acts of sex abuse. The risk was obvious and the abuse happened.

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.

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Phelps v Hillingdon London Borough Council [1999]

duty of care – no duty situations - public policy – special educational needs

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FACTS D a local authority employed E an educational psychologist to assess C who was under-performing at school.E did not identify C’s dyslexia, C was thus not given the appropriate additional support, and C sued in negligence for the psychological and emotional harm she suffered.

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

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Z v UK [2001]

duty of care - public policy - public authorities - no duty situations in respect of local authorities – can not survive the Human Rights Act

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FACTS The parties in X & Others v Bedfordshire County Council (1995) HL took their case to the ECHR.

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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JD v East BerkshireCommunity Health Trust [2005]

The impact of the Human Rights Act 1998 on the commonlaw negligence action against public authorities and the singling out of childprotection workers

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FACTS Three conjoined appeals raising similar issues.

1. JD - the claimant was wrongly accused of having Munchausens Syndrome by proxy and making her child ill. The child in fact suffered from multiple severe allergies

2. RK – the claimant was wrongly accused of sexually abusing his daughter. The daughter had injured herself riding her bicycle and she also had Schamberg’s disease which involves purple patches on the skin.

3. MK – the claimant was wrongly accused of physically abusing her daughter resulting in a broken leg. The daughter suffered brittle bones.All claimants suffered psychiatric injury following the allegations and it was held that no duty of care was owed in each claim. The Court of Appeal upheld the decisions. The claimants appealed to the House of Lords.

Held: The appeals were dismissed. Healthcare professionals and social service professionals do not owe a duty of care to parents in their decision making with regards to matters affecting a child. To impose a duty would be an extension of situations in which a duty was owed. It would be impractical to impose a duty in relation to the suspected perpetrator of a crime and the duty would conflict with that of the victim.

1. LORD NICHOLLS: must consider two countervailinginterests of high social importance: need to safeguard children from abuse bytheir own parents and need to protect parents from unnecessary interferencewith their family life…so how to balance when a parent is wrongly suspected…childis doctor’s patient and so doctor obliged to act in best interest of hispatient…interest of parent an child diametrically opposed when doctorinvestigating abuse…not a satisfactory basis for imposing a duty of care on adoctor

2. LORD BROWN: Parents have legitimategrievances BUT safeguarding of child’s own welfare is greater and the price theparents pay in the interests of children generally

3. LORD BINGHAM, dissenting:interests of child and parents are generally consonant…duty of care in thiscase could help to instil due sense of professional responsibility…duty not tocause harm to a parent foreseeably at risk of suffering harm by failing toexercise reasonable and proper care in the making of a diagnosis of childabuse…

4. Court of Appeal argued that HRAimplementation was a factor in favour of recognition of a common law duty ofcare by changing balance of the policy arguments in stage 3 of the CAPAROapproach but House of Lords argued HRA as militating against recognition ofduty of care at common law…

Parents sued for compensation for psychiatric harm resulting from unfounded accusations of child abuse.

Held: X v Bedfordshire County Council [1995] (which denied a duty of care based on the "fair, just and reasonable" test) could not survive the Human Rights Act. A duty of care could sometimes be owed to a child suspected of being abused. But each case was to be determined on its individual facts. Where child abuse is suspected and removing the child from the parents was justified, no duty of care was owed to the parents. One of the three children won

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Merthyr Tydfil CBC vC [2010]

The impact of the Human Rights Act 1998 on the commonlaw negligence action against public authorities and the singling out of childprotection workers

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FACTS The claimant mother sought damages for a personal injury in the form of a psychiatric condition. The mother had reported inappropriate sexual behaviour by her neighbour's child to the NSPCC who then informed the local authority. Some time later, further abuse was then reported and the local authority denied having received the original report and refused to contact the NSPCC for confirmation. Following a complaint by the mother, the local authority acknowledged its error and apologised. A misunderstanding of D v East Berkshire had led to the authority's mistaken reliance on a third party argument.The judge held that as a children's parent is responsible for their safety, and as the mother had engaged with the authority directly, a distinct duty of care was owed to her. The authority's appeal was dismissed and there are reasonable grounds to proceed to trial.

The judge held that as a children's parent is responsible for their safety, and as the mother had engaged with the authority directly, a distinct duty of care was owed to her. The authority's appeal was dismissed. (1) It was possible to be subject to a number of duties, at least provided they were not irreconcilable. In addition, even where a local authority did owe a duty of care to a child, the authority was not immune from also owing a duty to the child's parents.

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Brooks v Commissionerof Police of the Metropolis [2005]

duty of care - special treatment of police defendants

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FACTS Duwaine Brooks was present at the notorious racist killing of his friend Stephen Lawrence. Duwaine had also been subjected to abuse and attacks. He brought a claim against the Commissioner for the failure to provide him adequate protection, support and assistance which was generally afforded to victims of serious crimes. He suffered post traumatic stress disorder which he claimed was exacerbated by the treatment he received from the police. The Commissioner applied to have the case struck out on the grounds that there was no reasonable cause of action. The High Court granted the application holding that no duty of care arose. Brooks appealed to the Court of Appeal who allowed the appeal holding that a there was a sufficiently proximate relationship to impose a duty of care. The Commissioner appealed.

Held: The appeal was allowed. The case of Hill v CC Yorkshire precluded the imposition of a duty of care.

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Smith v Chief Constable of Sussex Police [2008]

duty of care - special treatment of police defendants

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A claim in negligence against the police, who allegedly had been informed of death threats but had failed to take the necessary steps, was not bound to fail and should not have been struck out as it was arguable that the police owed the victim a duty of care.

FACTS According to S, he had repeatedly informed the police that his former partner (P) had threatened to kill him, the police had ample evidence and information to arrest P and they had no excuse for not doing so. Whilst the police were investigating the matter, P attacked S with a claw-hammer, which resulted in serious injuries to him.

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An Informer v A Chief Constable [2012]

duty of care - special treatment of police defendants - assumption of responsibility

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Although the police were under a duty of care in respect of the safety and well-being of an informer who was authorised as a covert human intelligence source, the duty of care did not extend to economic loss.

FACTS The claimant appealed against dismissal of his claim for damages against the police. He had provided them with information, but he said that they had acted negligently and in breach of contract causing him financial loss. The officer handling his case had failed to notify a judge of his involvement and had allowed a case for money laundering to proceed against him. The judge found no contract to that effect, nor any duty to avoid all economic losses.

Held: The claimant’s appeal failed. Arrangements for management of informers were both statutory and by Codes of Practice. They recognised a need to care for the informers welfare, which would include his financial well being, but only so far as his condition was affected by his acting as an informer. There was a duty to the claimant arising out of the proximity of the relationship, which extended beyond his physical welfare, possibly covering his financial welfare and the claim was based on financial loss. However, when considering the scope and extent of the duty, and the standard of care required, the complexity of the situation was to be borne in mind. In the particular circumstances, while there were failings, those failings did not amount to a breach of the duty owed.

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Van Colle v ChiefConstable of Hertfordshire [2008]

duty of care - alternative action under section 7 of HRA for breachof section 6 duty to uphold ECHR rights

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FACTS The appeal involved two separate cases: Van Colle and Smith.

The Van Colle case was brought under the Human Rights Act 1998 based on Art 2 (Right to life) of the Convention and did not raise the common law of negligence.

The Smith case was based in negligence alone.

Van Colle: Giles Van Colle employed Mr Brougham as a technician at his optical practice. Three months into the employment the two had an argument resulting in a physical confrontation. Following this, Mr Brougham never returned to work. Six weeks later the police found items belonging to the optical practice, along with other stolen items at Mr Brougham's home. He was arrested and charged with theft. Mr Brougham then started to harass Mr Van Colle to pressure him into not giving evidence. The harassment included torching his car and making death threats. Mr Van Colle reported this to the police who arranged a meeting to take a statement with a view to arrest Brougham. Unfortunately the meeting never took place as Mr Brougham shot and killed Mr Van Colle on his way home from work. Mr Brougham was convicted of murder. Mr Van Colle's parents brought an action against the police alleging violation of Art 2 and 8. The trial judge found for the claimant and awarded damages. The Court of Appeal upheld that decision.

Smith: Smith lived with his lover Gareth Jeffrey. He then ended the relationship and Jeffrey assaulted him. Sometime later Smith moved away but maintained contact with Jeffrey. Jeffrey wanted to resume the relationship but Smith did not. Jefferies then started sending abusive and threatening texts which included death threats. Smith contacted the police several times in relation to the threats and told them of the previous violence. Jeffrey eventually attacked Smith with a hammer causing him three fractures to the skull and brain damage. Smith brought an action against the police for their failure to provide adequate protection. The police applied to have the case struck out which was granted by the trial judge. The Court of Appeal however, reversed the decision and the Police appealed.

Held: Van Colle: Appeal allowed. According to Osman v UK a positive obligation to prevent death arises for public authorities only where the authority knew, or ought to have known, of the existence of a real and immediate risk to life. Whilst Van Colle was to be a witness and therefore within the class of persons to whom a duty to protect might arise, the crime for which he was a witness was of a minor nature and Mr Brougham did not have a history of violence. The threats were intimidating but not sufficiently serious to suggest that Mr Van Colle's life was endangered. Therefore no obligation arose to take reasonable steps to prevent the killing and thereby no violation of Art 2.

Smith: Appeal allowed. No duty of care was owed by the police. The case fell squarely within the principle established in Hill v CC Yorkshire. The common law of negligence should not be extended to comply with Convention rights. A separate cause of action exists and should be pleaded in appropriate cases.

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Savage v South Essex [2008]

duty of care - alternative action under section 7 of HRA for breach of section 6 duty to uphold ECHR rights

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The approach to a public authority's obligations under the European Convention on Human Rights 1950 art.2 adopted in Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193 applied to a health authority's obligations to prevent patients detained in hospital under the Mental Health Act 1983 s.3 from committing suicide. As well as requiring a health authority to employ competent staff and to adopt systems of work which would protect patients' lives, art.2 imposed an "operational" obligation on health authorities and their staff to do all that could be reasonably expected to prevent the patient committing suicide, if they knew, or ought to have known, that a particular patient presented a real and immediate risk of suicide.

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Rabone v Pennine CareNHS Foundation Trust [2012]

duty of care - alternative action under section 7 of HRA for breach of section 6 duty to uphold ECHR rights

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The European Convention on Human Rights 1950 art.2 imposed an operational obligation on states to protect mentally ill patients who were not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

FACTS M had suffered from depression and had been informally admitted to hospital following a suicide attempt. She was assessed as a high risk of suicide but was allowed two days' home leave during which she committed suicide. R brought proceedings against P for negligence and breach of art.2. The negligence claim was settled but the High Court held that there had been no duty on the hospital under art.2. The Court of Appeal dismissed R's appeal. The issues to be determined were (i) whether the art.2 obligation could in principle be owed to a mentally ill hospital patient who was not detained under the Mental Health Act 1983; (ii) if yes, whether there was a "real and immediate" risk to M's life of which P had known or ought to have known and which it failed to take reasonable steps to avoid; (iii) if yes, whether R were "victims" within the meaning of art.34 of the Convention; (iv) if yes, whether R had lost that victim status because P had made adequate redress and had sufficiently acknowledged its breach of duty; (v) if no, whether R's claims were time-barred under the Human Rights Act 1998 s.7(5); (vi) if no, whether the Court of Appeal had erred in holding that it would have awarded £5,000 each to R if their claims had been established.

HELD Appeal allowed. The European Court of Human Rights had not considered whether an operational duty existed to protect against the risk of suicide by informal psychiatric patients. However, the Strasbourg jurisprudence showed that such a duty existed to protect persons from a real and immediate risk of suicide where they were under the state's control. In the instant case, P owed an operational duty to M to take reasonable steps to protect her from the real and immediate risk of suicide. She had been admitted to hospital as a real suicide risk. She was extremely vulnerable and P had assumed responsibility for her. She was under its control. If she had insisted on leaving the hospital, the authorities could and should have exercised their powers under the 1983 Act to prevent her.

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Mitchell v GlasgowCity Council [2009]

duty of care - alternative action under section 7 of HRA for breach of section 6 duty to uphold ECHR rights - fair, just, and reasonable to impose a duty

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A duty to warn another person that he was at risk of loss, injury or damage as the result of the criminal act of a third party would arise only where the person who was said to be under that duty had by his words or conduct assumed responsibility for the safety of the person who was at risk. In the instant case, the local authority had not been under a duty to warn a tenant that his neighbour might resort to violence after being informed that he risked being evicted.

FACTS M were the widow and daughter of a man (D) who had been attacked and killed by his next-door neighbour (X). D and X were tenants of the local authority. In 1994, X used an iron bar to batter D's door and smash his windows after D had tried to get him to turn the volume of his music down. Thereafter X made repeated threats to kill D and intimidated other residents. On July 26, 2001, the local authority wrote to X inviting him to a meeting to be held on July 31. He was told that the purpose of the meeting was to discuss a recent incident involving D and a notice of proceedings for recovery of possession that had been served on him earlier that year, as consideration was being given to the issuing of a further notice. X attended the meeting and was told that a fresh notice of proceedings to recover possession would be served on him. X lost his temper and became abusive but then apologised. After leaving the meeting, he returned home and fatally assaulted D. In short, he did not say or do anything to alert the local authority to a risk that he would attack D when he got home, let alone that he would inflict injuries from which D might die.

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Summary

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i. Act/omission distinction very importantre PA defendants, in same way as with ordinary private defendants.

ii. Re omissions claims, same no duty ruleapplies by default. Mere fact that there is a statutory duty or power to do somethingdoes not mean that there is a common law duty in negligence: Stovin v Wise [1996] (obstruction onneighbouring land) and Gorringe vCalderdale [2004] (failure to paint ‘slow’ warning sign on brow of hillresulting in claimant crashing with a bus).

iii. To establish exceptional duty ofaffirmative action, still have to reason by analogy with existing categories:special relationships, assumption of responsibility, creation of situation ofdanger. But additional hurdle comes in after that in form of policyconsiderations (most commonly defensive practice, floodgates, conflict ofinterests).

iv. Even in cases of misfeasance, duty maystill be negated by policy considerations – Jainv Strategic Health [2009]

v. Some PAs treated differently – child protectionworkers (policy-based immunity partially removed) and the police (policy-basedimmunity largely intact).

Mostimportant point is relevance of policy considerations – general rule that ordinaryduty principles apply to begin with but then policy comes in on top