Chapter 14 Notes on key cases

Torts

Entick v Carrington (1765) 19 Howell’s State Trials 1029: Action in trespass for breaking into the plaintiff’s home, breaking open his chests, and stealing his private books and papers; the defence was that the Earl of Halifax, a Secretary of State, had given the defendants a warrant to seize the plaintiff’s books and papers to investigate sedition. The defendants argued that the ministers of the King need such an authority in order to protect the state; the plaintiff won because ‘the common law does not understand that kind of reasoning’. There is no royal prerogative to dispense state officials from the law, and state necessity is not a ground on which an administrative authority can do what would otherwise be unlawful.
East Suffolk Rivers Catchment Board v Kent [1941] AC 74: Action in negligence; the Board’s men had taken ‘quite ridiculous’ steps (steps that ‘no reasonable man would have adopted’) to mend a sea wall after the defendant’s fields were flooded. The plaintiff suffered much greater flood damage than he would have if they had acted carefully and competently. The defendant had a statutory power but no statutory duty to repair sea walls. The Court of Appeal held the defendants liable for ‘breach of duty to do their work with reasonable care and expedition’. But the defendant won in the House of Lords: there was no liability in negligence for damage that would have been avoided if they had acted reasonably. It seems that the Board would have been liable if the men had acted dishonestly, and it is clear that the Board would have been liable if they had unreasonably caused damage that would not have happened without their intervention.
Home Office v Dorset Yacht [1970] AC 1004 (HL): Action in negligence; Borstal officers took their trainees to an island in Poole Harbour; seven trainees escaped at night and boarded a yacht in the harbour. They unmoored it, collided with the plaintiff’s yacht, boarded the plaintiff’s yacht, and caused further damage. On a preliminary issue as to whether there was any duty of care, the plaintiff won; The House of Lords held that if the ofﬁcers caused a risk that the boys would damage the plaintiff ’s property, then they owed the plaintiff a duty to take reasonable care to prevent the risk from coming about. The Law Lords were divided over how to develop or to contain Lord Atkin’s statement of the neighbour principle in Donoghue v Stevenson (see p 525).
Caparo v Dickman [1990] 2 AC 605: Action in negligence. Investors bought a company that turned out to be less valuable than they had expected; they sued the company’s auditors for negligence in preparing the financial information that the investors relied on when they bought the company’s shares. On a preliminary issue as to whether the auditors owed a duty of care to potential investors, the defendants won; even if they know that members of the public may form a view of the value of the company by reading their report, it was not just and reasonable that a duty of care should be placed on the auditors. They had no relation with potential investors among the public that would make it just to require them to give compensation if they made a careless mistake. The House of Lords restrained the neighbour principle from Donoghue v Stevenson, holding that ‘in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.’ (617-8)
X v Bedfordshire [1995] 2 AC 633: Actions by nine children in breach of statutory duty and in negligence against local authorities, for carelessness in deciding whether to take children into care, and for failing to assess special education needs carefully. Since the statutes in X gave the authorities discretion as to how their duties were to be performed, Lord Browne-Wilkinson held that the authorities could not be liable in negligence unless ‘the decision complained of is so unreasonable that it falls outside the ambit of the discretion conferred upon the local authority’ (736). Their conduct could not be held to be outside the ambit of the discretion if the issues included ‘matters of policy’ that are not justiciable (738). And even if the conduct was not within a statutory discretion, the court will not impose a duty of care in the exercise of a statutory duty or power if it would inappropriately interfere with the authority’s functions.
Stovin v Wise [1996] AC 923: Action in negligence. A county council with statutory power to take steps to make roads safe had decided to cut away a bank from a roadside to improve visibility at a dangerous junction. But then nothing was done to implement the decision. The plaintiff was injured in an accident on the highway, and the defendant driver claimed that the council had breached a duty of care to the plaintiff. The trial judge held that the Council was in breach of a common law duty of care to the plaintiff and was liable to provide 30% of the compensation for her injuries. But on appeal to the House of Lords, the defendant Council won. Lord Hoffmann followed the reasoning of East Suffolk Rivers and extended it: a public authority can be liable for carelessly failing to use its statutory power to beneﬁt a person only if (1) ‘it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act’, and (2) ‘there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised’ (953).
O’Rourke v Camden [1998] AC 188: Action for breach of statutory duty. The plaintiff sued the Council for damages for breaching a statutory duty to house him. The judge struck out the claim, the Court of Appeal restored it; in the House of Lords the defendant won and the claim was struck out. The House of Lords held that unless the statute showed an intention to confer rights to compensation, a statute imposing a public law duty to house the homeless could not create a duty in private law to provide compensation for failure to provide housing.
Barrett v Enfield [2001] 2 AC 550: action in negligence. Having been in the care of the local authority from age 10 months to 17 years, the plaintiff sued the authority for (among other things) negligently failing to protect him from physical, emotional, psychiatric or psychological injury. The judge struck out the claim as disclosing no reasonable cause of action and the Court of Appeal upheld the judge’s decision, but in the House of Lords the plaintiff won. The House of Lords held that the matter should proceed to trial. They distinguished X v Bedforshire:it might be fair, just and reasonable to impose a common law duty of care on a local authority as to its care for a child once it took a child into care, even if for policy reasons it was not fair just and reasonable to impose a duty of care on the authority when it was deciding whether or not to take a child into care. Note that the House of Lords did not decide that it was fair, just and reasonable to impose a duty of care, but refused to strike out the claim on the ground that that decision needed to be made on the basis of all the facts that would emerge at trial.

The decision limits the effect of X v Bedfordshire, by insisting that the fact that careless acts causing harm are carried out within the exercise of a statutory discretion is not in itself a reason why no claim for negligence should be available.

Phelps v Hillingdon [2001] 2 AC 619: Actions in negligence; four children with learning difficulties sued their local education authorities for negligently failing to assess or to provide support for their disabilities. On motions to strike out their claims (and in one case on an appeal from judgment for the plaintiff), the plaintiffs won; Lord Slynn held that ‘persons exercising a particular skill or profession may owe a duty of care in the performance to people who it can be foreseen will be injured if due skill and care are not exercised . . . A doctor, an accountant and an engineer are plainly such a person. So in my view is an educational psychologist or psychiatrist and a teacher’ (654). The local education authorities might be vicariously liable for breach of those duties of care; Lord Slynn accepted the X v Bedfordshire view that it may be wrong to impose a vicarious liability on a local authority if doing so will interfere with the performance of the local education authority's duties. But he held that ‘it is not to be presumed and I anticipate that the circumstances where it could be established would be exceptional’ (653).

The case limits the effect of X v Bedfordshire by extending public authorities’ vicarious liability for negligence of professionals who advise them.

Three Rivers District Council v Bank of England [2003] 2 AC 1: Action in misfeasance in public office. Investors in the Bank of Credit and Commerce International sued the Bank of England for failing to shut down BCCI before the Bank failed through fraud by its officers. The Bank of England owed the claimants no private law duty of care in carrying out its public law regulatory function, so the investors tried misfeasance. The House of Lords held that liability for misfeasance in public office could arise if the defendant exercised public power for improper motives, or if the defendant acted beyond its powers and in the knowledge that such actions would probably result in injury to the plaintiff. Reckless indifference as to its powers and as to harm to the claimant was sufficient for the tort. On a motion to strike out the claim, the claimants won in the House of Lords (Lord Millett dissenting on the ground that there was no prospect of success).

Although the House of Lords would not strike out the claim, it was doomed by the complete implausibility that the investors would ever be able to show that the officers of the Bank of England had not merely acted carelessly but dishonestly in failing to stop BCCI from defrauding its customers. Lord Millett was right. The litigation went on for 13 years, and cost more than £100 million in lawyers’ fees, and it never had any prospect of success.

Anufrijeva v Southwark LBC [2003] EWCA Civ 1406: Claims for Human Rights Act damages for breach of Art 8 of the Convention. Asylum seekers claimed that local authorities had infringed their rights under Art 8 by failing to provide special needs accommodation required by statute for a family member, and by maladministration that led to delay in deciding asylum and immigration applications. The defendants won. The Court of Appeal held that there was no infringement of Art 8. Delay and unlawful withholding of beneﬁts do affect private and family life detrimentally, but Art 8 is not infringed unless a public authority shows a culpable lack of respect for the claimant’s private and family life, and the impact on the claimant is severe [45], [48], [143]. Carelessness is not enough in itself.

The decision establishes that public authorities have no general liability under the Human Rights Act to compensate a claimant for unlawful decisions or maladministration that affect the claimant’s private and family life.

Gorringe v Calderdale MBC [2004] UKHL 15: The claimant was injured in a head-on collision with a bus at the crest of a hill. The word "slow" had been painted on the road below the crest of the hill, but that marking had apparently disappeared when the road was resurfaced. The claimant argued that the local authority had caused the accident by breaching its duty under the Road Traffic Act 1988 s 39 to ‘carry out a programme of measures designed to promote road safety’. The defendant won. Following Stovin v Wise (and extending it to cases in which a public authority has a public law duty to take measures to prevent harm), the House of Lords held that a common law duty of care cannot be founded ‘simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide’ [32].
D v East Berkshire NHS Trust [2005] UKHL 23: Claims in negligence. Parents sought damages for psychiatric injury caused to them when doctors and social workers wrongly determined that the parents had abused or harmed their own children. In the House of Lords, the defendants won. The Law Lords held (Lord Bingham dissenting) that it was against public policy (and therefore not reasonable under Caparo v Dickman) to impose a duty of care to the parents: ‘…a doctor must be able to act single-mindedly in the interests of the child. He ought not to have at the back of his mind an awareness that if his doubts about intentional injury or sexual abuse prove unfounded he may be exposed to claims by a distressed parent.’ (Lord Nicholls [85]).

Note that if the doctors or social workers had acted in bad faith, they and the health authorities would have been liable in misfeasance.

Smith v Ministry of Defence [2013] UKSC 41: Five British soldiers had been killed or injured by roadside bombs and by friendly fire, while on active service in Iraq. Their families brought claims in negligence, and also under the Human Rights Act (asserting that the Ministry had breached an implied positive obligation under Art 2 of the ECHR, to protect their lives). The Ministry asked the Court to strike out the Human Rights Act claims on the ground that there was no duty under Art 2, and to strike out the negligence claims on the ground that it was not fair, just and reasonable to impose a duty of care in negligence, and also on the ground of ‘combat immunity’ (i.e., immunity of the government to claims in negligence for injuries suffered while a soldier is engaged in combat with an enemy). By a 4-3 majority, the Supreme Court allowed the claims to go to trial. In assessing the positive duty under Art 2 of the ECHR, in imposing a duty of care, and in assessing the scope of comat immunity, the Court held that the Ministry should not be subjected to unrealistic or excessively burdensome duties. But the Court held that whether any such duties would be excessively burdensome could not properly be determined without hearing evidence in a trial. Lords Mance, Wilson, and Carnwath dissented on the positive duty under Art 2 and on the duty of care in negligence. Lord Mance said that ‘the threat of exhaustive civil litigation following any active military operation would affect decision-making and lead to a defensive approach, both at the general procurement and strategic stages and at the tactical and combat stages when equipment was being deployed’ [131], and that the approach of the majority was ‘likely to lead to the judicialisation of war’ [150].
Case C-6/90 Francovich v Italy [1991] ECR I-5357: The plaintiff worked for an Italian company that went bankrupt without paying his wages; an EC Directive required member states to provide employees with protection for their wages in a bankruptcy; Italy had failed to implement the Directive. In a claim against Italy for failure to implement the Directive, the plaintiff won; the European Court of Justice held that a member state is liable to compensate individuals for harm caused by breaches of Community law for which it is responsible. It could be liable for harm caused by failure to implement a directive if (1) the directive was designed to give rights to individuals, (2) those rights are identifiable from the terms of the directive, and (3) there is a causal link between the State's breach of its duty and the harm to the individual.

Note that the British state has no general legal liability in English law for breaches of law! This is a special rule of EC law that the ECJ developed to give effect to EC law. See pp 553-4.

Case C-46/93 Brasserie du Pêcheur [1996] ECR I-1029: Actions for damages for breach of EC law. The claimants were (1) a French brewery that had been prevented from selling beer in Germany by import restrictions, and (2) Factortame, the fishing company that had successfully challenged British restrictions on foreign fishing vessels. On references from the German and English courts, the European Court of Justice held that ‘Community law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious, and there must be a direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties.’ [51]