Chapter 14 Guidance on answering the pop quizzes

Torts and crimes

Page 551: The trespass in Cooper was a tort. Was it also a crime? Can you think of a tort that is not a crime? A crime that is not a tort? An unlawful action that is neither a tort nor a crime?

• If the Secretary of State’s warrant was not a lawful defence to the tort of trespass, could it be a lawful defence to a criminal charge?
• Could the Secretary of State himself have been charged with a crime? Could Entick have sued him in tort, on the ground that the Secretary of State ordered the trespass to Entick’s property?
• One suggestion concerning unlawful acts that are neither torts nor crimes: you would probably find that most of the actions held to be unlawful in this book (e.g. in Anisminic, Padfield, A and X v Home Secretary [2004] UKHL 56, Ridge v Baldwin, etc. etc.) were neither torts nor crimes. Why is that generally the case with unlawful conduct in administrative law?

East Suffolk Rivers

Page 558: Was the Rivers Authority’s conduct unlawful in East Suffolk Rivers?

• You might say ‘yes’, because it was Wednesbury unreasonable (that is, no reasonable public authority would have fought the flooding in the way that the Rivers Authority’s men tried to fight it).
• Should a landowner in a similar situation today be able to ask a court for a mandatory order requiring the Rivers Authority to do something that isn’t ridiculous?
• Perhaps it is not quite clear! If the Rivers Authority had no statutory duty to take any measures, then could the landowner get a mandatory order? If not, it seems that it is not unlawful for the River’s Authority to take extremely unreasonable measures (if they caused no further harm by those measures).

Why is the ambulance service different from the police and fire services?

Page 576: In Michael [81], Lord Toulson evidently viewed the different treatment of 999 calls for ambulances as justified by special considerations about ambulance services. Can you reconcile Michael and Capital & Counties with Kent v Griffiths?

• It does seem puzzling that if the ambulance service, the police, and the fire brigade all carelessly fail to respond to a 999 call, the ambulance service will be liable but the police and the fire brigade will not. Perhaps the explanation is at least partly that the ambulance service is integrated with the National Health Service. As you can see from the cases on negligence in Chapter 14, the courts are more prepared to impose a duty of care in negligence on medical personnel. The courts will readily impose on doctors a duty to take care to make the patient better off (see in particular Phelps v Hillingdon [2001] 2 AC 619), but they hesitate to impose such a duty on the police and the fire services.

• In Kent v Griffiths [2001] QB 36, the Court of Appeal distinguished the ambulance service from fire brigades and the police: ‘It is …appropriate to regard [the ambulance service] as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service’ [45], Lord Woolf MR.

• In Kent v Griffiths, the defendant ambulance service failed to help Mrs Griffiths. But the ambulance service had undertaken to take her to hospital, and that feature provides another potential way of distinguishing the case from Michael.
• And Lord Woolf offered another distinction: that ‘The police and fire services' primary obligation is to the public at large, while the ambulance service serves the particular person whom they are sent to assist. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. … in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called.’ Kent v Griffiths [47].
• Is that convincing?

Profit lost because of a groundless administrative decision

Page 578: On the advice of an officer from the Health and Safety Executive, a local authority bans a bungee-jumping company from operating. The local authority later learns that there was no legal reason for that advice and allows the company to go ahead with its business. The company sues the Health and Safety Executive and its officer for compensation for the loss of the profits it would otherwise have gained during the time it was put out of business. How would you decide the case?

• The facts in the pop quiz are the facts of Harris v Evans [1998] 1 WLR 1285. The Court of Appeal struck out the statement of claim; there was no liability simply for loss caused by an unlawful action, and there was no liability for a careless regulatory decision because the officer owed no duty of care in negligence to the bungee company.

Summary

Page 579: Can you find the authority for the propositions in the summary on public authorities’ duties of care?

• Hint: it is all in chapter 14.