Chapter 6 Answers to end-of-chapter questions

Special duty problems: public bodies

1. Why are the courts reluctant to make a finding that a public body owes a duty of care to individuals harmed by its negligence? Would breach be a better tool to control liability?

The first part of this question requires you to draw out and elucidate upon the policy arguments used by the courts to deny that public bodies should owe individuals a duty of care in negligence. Among the reasons suggested are the following (all of which can be found within many of the cases in the chapter):

  • public bodies are paid for using taxpayers' money and taxpayers would not like their money to be used paying compensation (particularly in the current political/social climate where there are many cuts being made to public services to meet demands of the national budget)
  • if a public body has to pay out compensation it will have less money to spend on other things e.g. vital services
  • the activities of public bodies are delineated by statute and, therefore, are often discretionary (i.e. they have the power to do something but not always a duty to do so) and therefore the courts should not get involved with the intentions of parliament
  • it would place too many restrictions on how public bodies operate if they were able to be held open to negligence claims, leading to so-called 'defensive practices'
  • too many people are usually involved in making decisions or taking the actions for which public bodies are sometimes accused of negligence and it would be unfair to hold a public body liable for the failings of individuals (who may be hard to identify)
  • finding a private law duty of care owed to individuals would lead to numerous and frivolous claims being made by individuals thinking they could claim some 'easy money' due to a perception that public bodies have 'deep pockets'

These (among other) reasons have been used by the courts in a number of cases to explain the denial of a duty of care in negligence (cases with good examples of clear policy reasons used to deny a duty of care include Hill (and subsequent cases about the police investigatory function), X v Bedfordshire, Stovin). The best answers would link the reasoning to the cases by using e.g. judicial quotations, and not simply list the potential reasons alone.

A good answer would not only critique the policy decisions but also contrast the policy reasons outlined for denying the existence of a duty of care with the reasons given in cases where a duty of care was established (especially now in the light of Robinson v Chief Constable of West Yorkshire Police [2018]). What is it about such cases that makes it easier for a court to find a duty? And are there any cases where it might be argued that the reasoning or the decision could/should have gone the other way? Overall, and so as to lead nicely into the second part of the question, it should be acknowledged that the concept of 'duty of care' is a judicial tool used as a control device to keep the liability of public bodies within 'acceptable' bounds. There has been much academic work on public bodies and duty of care – using some articles or e.g. the findings of any relevant public inquiry would help to give an answer to this question – particularly a critical one – more substance. Examples of further reading can be found at the end of the chapter.

[Depending on the level of coverage it has been given in your study of tort law, it would also be possible to bring in a discussion of human rights here, and how findings that public bodies’ actions or inactions have violated individuals’ human rights in some cases allow us to reflect upon the duty of care question.]

The second part of the question asks about whether breach would be a better tool to control liability. A good answer to this part would need to follow on from the first part, e.g. by first critiquing the use of duty as a control device. There are many reasons why duty is thought to be rather a 'blunt' tool for shaping when defendants may or may not be liable, not least the fact that it means many people will be excluded by one decision (leading to criticisms of 'immunity from suit'). In D v East Berkshire there is much discussion of whether it would be better to allow a duty in public body cases (thereby also sending the message that public bodies and their employees ought to take care in their dealings with individuals) but using the concept of the standard of care to control liability – i.e. saying that only the worst negligence would be likely to fall below this standard. Lord Bingham, for example, said that even where a duty would be recognised and 'breach rather than duty were to be the touchstone of recovery, no breach could be proved without showing a very clear departure from ordinary standards of skill and care' (at [49]). Furthermore, he came back to this idea in one of his final judgments in Smith v Chief Constable of Sussex [2008], where he elaborated his ‘liability principle’ in the context of an action against the police (see now also Lord Kerr (also dissenting) in Michael v Chief Constable of South Wales Police [2015]). Controlling liability via breach, rather than duty, might have further advantages in that it would allow for greater flexibility and negate the idea of public bodies being immune to negligence actions. Still, however, in the context of other areas of negligence, there has been criticism of the way the standard of care is used to the advantage of certain defendants (e.g. the medical profession) and a very good answer would go on to include some critique of this.

2. Should the liability of public bodies be treated any differently from that of private bodies/individuals?

Clearly, this is more than just a question requiring a descriptive answer detailing whether public bodies are treated differently than private bodies and individuals in law. While there is room for a short description of some instances of this different treatment (e.g. by taking a couple of clearly outlined examples, such as the police, or child care services and showing how the courts have treated them), a good answer should also bring in (and critique) the policy reasons that the courts have used to justify whether the liability of public bodies (generally or specific types) should be treated differently. For example, why, when the harm suffered is clearly foreseeable and the relationship between claimant and defendant could be described as proximate, should it not be easy to establish a duty, as it would be in cases not involving public bodies? Some of these ideas were discussed in depth in the recent case of Robinson v Chief Constable of West Yorkshire Police [2018] and some of the judicial reasoning from that case would perhaps be very useful in answering this question.

Taking an example, again from the police, while it might be argued that the decision in Hill was correct (on the ground of lack of proximity), it would seem to us to be pretty clear that first Osman and then, certainly, Brooks, and then also Smith and Michael are distinguishable (see sections 6.4.1 and 6.5.3) – the relationship has become highly proximate in all four later cases, and the potential harm clearly foreseeable – the policy reasons in Hill would, to us, therefore seem to require more scrutiny before they can be relied on. It is – at least in other instances – trite law that the higher the degree of foreseeability and the higher the level of proximity, the more fair, just and reasonable it would be for a court to find a duty of care in novel factual situations. However, this is clearly not what has happened in the later police cases. The central question is whether this is a necessary feature of our tort system? An 'answer' to this would have to compare the countervailing policy reasons that have given rise to a duty of care in other comparable cases and whether the imposition of a duty of care in these cases is enough to justify the different treatment of public bodies as a whole. A very good answer may compare the (sometimes different) approach taken in other jurisdictions. Again, the inclusion of academic sources would greatly benefit an answer here and a list of further reading including some on the specific example of the police can be found at the end of the chapter.

3. Is there any valid reason to treat the emergency services differently from each other when dealing with whether a duty of care is owed?

This is an interesting question which would clearly draw on some of the introductory material in the answers to the previous two questions e.g. regarding policy reasons used to justify the denial of a duty of care. However, it requires a closer examination of the situations in which emergency services in particular will (and will not) be found to owe a duty of care. The starting point is obviously to outline the situations in which each emergency service (clearly the main three are required: police, fire service and ambulance service, but there is also the coastguard – all are accessed by dialling 999) will and will not owe a duty of care. There is probably more to say about the police in this respect, but the other services must – obviously – be compared. Table 6.2 in section 6.5.6 may be helpful here as a starting point.

The upshot of this initial discussion would seem to be that all the emergency services are treated in the same way when we are talking either about policy decisions (e.g. about funding or resource allocation) or about direct and physical negligent acts (therefore it would make no difference if an ambulance driver, police driver or driver of a fire engine crashed into your car – see Robinson v Chief Constable of West Yorkshire Police [2018] for the latest discussion of this). However, as regards whether a duty of care is owed or not when it is not an operational matter, only the ambulance service will owe what could be described as an 'automatic' duty of care. That is, the ambulance service (following Kent v Griffiths) owes a duty to respond and to respond without negligence (e.g. negligently-caused delay or failures with equipment or personnel), but the fire service, coast-guard and police do not. There are obviously (both different and shared) policy reasons behind this, which must be highlighted and explored.

The police force can be further distinguished in that their 'functions' seem to have been separated still further in terms of whether or not a duty can be owed. When what they are criticised for is their 'negligent' handling of an investigation then the barriers seem to be almost completely up with regard to duty (often referred to as them having 'blanket immunity', though this is largely denied by the courts, see Hill, Osman, Smith and more recently, Michael - sections 6.4.1 and 6.5.3)). When it is how they deal with the people and other procedural matters associated with their investigations (such as informants, see Swinney, or people held in custody, see Reeves (see also section 4.2.1), among other issues) then the answer seems different – a duty can be found. Often this is justified using the foreseeability and proximity language of Caparo (which also was heavily relied on in Hill, which is pre-Caparo) – an informant clearly has a high degree of proximity with the police and it is clearly foreseeable that harm may come to them should the police be negligent. This has led the courts to 'justify' the finding of a duty by looking at the countervailing policy reasons used in these cases. However, there are also cases where the courts have not done this and the reasons why this is can be evaluated and critically analysed (consider Brooks, who was as much of a witness and/or a victim as he was a suspect, yet the same reasoning was not applied to him – obviously as well as academic writing on this case there has been a public inquiry which could be useful, and there is lots of additional material on e.g. news and other websites).

Whether these distinctions can be considered 'valid' depends on a thought-out discussion of the actual policy arguments put forward by the courts in all these cases (including ambulance, fire service and coastguard) and a careful critique of them. Perhaps you do see the ambulance service as akin to an extension of the NHS, in which case maybe you agree that the ambulance service should be treated differently. Or perhaps you don't – perhaps (particularly because we use the same telephone number to call all of them – or even that if you were in a multiple-car pile-up you would call fire, police and ambulance) you think of them as all part and parcel of the same thing and no departures with regard to duty are justified. Maybe you would argue that this is because they are all services paid for by taxes paid by the public and (perhaps more importantly), they are all services on which people rely on – often with the largest cost at stake: their lives. Whatever you feel here, it is important, in the context of an essay, to justify your answer and give case examples – judicial quotes and extracts from academic journal articles will also give your answer more weight. Some further reading that may assist you can be found at the end of the chapter.

4. Why should the police be afforded what seems like a greater degree of protection from negligence claims taken against them, as compared with other emergency services?

This is essentially another way of asking the previous question, so an answer would be much the same as that for question 3, perhaps with a little less detail on the other services (and a lot less on the general introductory points on public bodies and duty generally) and a little more detail on the police – in particular on the details of cases and the policy reasons used by the judges to deny (or find) a duty of care. It is important to remember that the key part of the question is 'why?' – therefore, it is the reasons given by the courts for treating the police force differently that should be focused on most and, most importantly, critiqued, not the facts themselves (though they lend context to the critique). Very good answers will contrast the approach taken in other jurisdictions and consider whether this is better, as well as considering academic opinions.

5. What impact have decisions of the European Court of Human Rights and the passage of the Human Rights Act 1998 had on negligence litigation against public bodies?

This is quite a difficult question as it requires good knowledge of the history of public body negligence as well as an ability to interpret the changes that have taken place over time and, in particular, those that came about due to the three main judgments of the European Court of Human Rights relevant to this question (Osman v UK [1997]; Z v UK [2001] and TP & KM v UK [2001] – see sections 6.4.1 and 6.4.2). The fact that these appear at all is obviously an indication that human rights issues have appeared in negligence cases against public bodies (and have done even prior to the HRA) and this is clearly going to form part of the answer. Some knowledge of the relevant Articles of the European Convention on Human Rights is, therefore, essential.

A good way to approach the planning of a question like this is to write yourself a timeline. Put the key cases on the line and you already begin to have a picture of what happened when – you can also include any other significant factors on the timeline. Sometimes this might be a world or domestic event; it could be something like a change of government or a national disaster, for example. Here, it would seem appropriate to include the passage of and coming into force of the Human Rights Act 1998 and perhaps any other significant public body negligence cases (i.e. at House of Lords/Supreme Court level) in and around the timeframe being considered.

So, what are the key cases before Osman v UK in 1997? A reading of this chapter should have drawn some of these out for you. Osman v UK in the ECHR stemmed from the domestic case of Osman v Ferguson [1993], so obviously this is relevant. The domestic Osman decision rested heavily on the precedent set by Hill – and the policy reasons espoused within it (see section 6.4.1). What happened post-Osman v UK, but pre- the other two cases listed? Furthermore, what were the domestic starting points of the two other ECHR cases here? They must be relevant too, but you will need to place them on the timeline in the appropriate place in order to gain oversight of the bigger picture forming.

In very basic summary, in Osman v UK [1997], the ECHR ruled that the fact the Osman's domestic case had been struck out following the precedent of Hill (and, therefore, never receiving a full trial on the facts) was a violation of Article 6 of the Convention (the right to a fair trial. The Osmans also claimed violations of Articles 2 and 8, but these claims failed). This had an obvious domestic impact in negligence cases against public bodies, as it seemed to suggest that striking out cases without hearing them in full was a violation of the right to a trial. However, only a few years later, in Z v UK and TP & KM v UK in 2001, the ECHR said (in similar circumstances, but involving cases against a local authority rather than the police force) that this interpretation of the strike-out procedure was, in fact, wrong - and there was therefore no violation of Article 6 when using the striking out procedure per se.

However, in those cases, violations were found of different Articles – meaning there had still been a violation of human rights law by the public authorities concerned. It is the impact of this that is very significant, particularly in terms of answering this question – take a step back and think what this actually means. In Z and TP & KM, the ECHR basically said that the way the local authority had acted had violated the claimants' basic and fundamental human rights (here Article 3 and Article 8 respectively), even if this couldn't amount to negligence in domestic law because the case could be struck out as disclosing no duty of care. It is from this premise (as well as the passage of the Human Rights Act and the consequent ability to use the Convention articles in domestic claims against public bodies – as well as gaining a better understanding of the difference between the HRA’s ‘vertical’ and ‘horizontal’ effect) that we begin to see the use of human rights terminology and claims in domestic negligence cases – the best place to start exploring this is D v East Berkshire Community NHS Trust [2005], but you can bring yourself right up to date by reading e.g. Smith & oth­ers v Ministry of Defence [2013], Sarjantson v Humberside Police [2013], Michael v Chief Constable of South Wales Police [2015] and – most recently and relevantly – the Supreme Court decision in Commissioner of Police of the Metropolis v DSD and another [2018]. Furthermore, much of the academic literature (some listed in the further reading or referred to within the chapter) discusses the impact of human rights on negligence and in particular public body liability.

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