Case Studies II and III

Public Bodies and Omissions

Questions to:
ssis-tortlaw@exeter.ac.uk

2
Public bodies
Definition
Special position of public bodies
Immunities
Human Rights Act 1998
Action in negligence: Justiciability
Action in negligence: Policy-based decisons
Child cases
Crime victim cases
Business case
3
Omissions
What is an omission?
Duty of care in omissions cases
Emergency services cases
Control of third party cases
4
Definition of public bodies
Public bodies are those institutions which are
emanations of the state.
Often they will have some statutory origin, but
this is not always true.
Often they will be funded by the tax-payer, but
this is not always true either.
Usually they will serve a public purpose rather
than merely private purposes.
Within this definition, we can count government
departments, councils, the police, NHS hospitals,
schools, etc.
5
Special position of public bodies
where statute operates, courts must be careful to
ensure that tort obligations are consistent with its
terms;
one important statute that applies to public bodies is
the Human Rights Act 1998;
public bodies may be given quasi-legislative powers to
make decisions regarding large classes of people;
public bodies often perform regulatory or other
secondary functions, which means that they are not
primary wrong-doers;
public bodies serve public purposes, and there must
be care to ensure that they are not disabled from
doing so

6
Immunities
In the past, the state was a relatively small
phenomenon, intimately involved with the
Crown.
English law had a maxim that the King can do no
wrong and the King and other emanations of the
Crown could not be sued in the Royal Courts.
However, the scope of government activity has
expanded greatly over time (especially the last
150 years) and the law has recanted from the
earlier immunity.
In Mersey Docks and Harbour Board Trustees v
Gibbs (1866), HoL held that the immunity would
not extend to all government bodies.
7
Crown Proceedings Act 1947:
Section 1 removed actions against the Crown from the fiat
of the King.
Section 2 provides:
(1) Subject to the provisions of this Act, the Crown shall be
subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, it would be subject:
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to
his servants or agents at common law by reason of being their
employer; and
(c) in respect of any breach of the duties attaching at common law
to the ownership, occupation, possession or control of property:
Provided that no proceedings shall lie against the Crown by
virtue of paragraph (a) of this sub-s in respect of any act or
omission of a servant or agent of the Crown unless the act or
omission would apart from the provisions of this Act have given
rise to a cause of action in tort against that servant or agent or
his estate.

8
These provisions mean that there is very
little left of the old immunity.
The Crown is vicariously liable for the wrongs
of its servants.
However, there might remain an issue of
justiciability to which we shall return
shortly.
And there are some aspects of public bodies
which make them special (as we have seen)
and which reveal themselves in various policy
arguments.
9
Human Rights Act 1998
HRA applies to public authorities and permits a remedy
for breaches of European Convention on Human Rights.
HRA provides (1) that, wherever possible, primary and
subordinate legislation must be interpreted in a way that
is compatible with Convention rights and (2) that it is
unlawful for any public authority (including a court, but
not the legislature) to act in a way that is incompatible
with a Convention right.
Convention rights are the fundamental rights and
freedoms set out in arts 2 to 12 and art 14 of the
Convention, as well as arts 1 to 3 of the First Protocol
(rights to property, education and free elections) and
arts 1 and 2 of the Sixth Protocol (abolishing the death
penalty).
Section 11 of HRA makes clear that Convention rights
exist in addition to, not in substitution of, rights and
freedoms already endorsed at common law.

10
A question has arisen about the impact of the Act
upon tort, esp. as it applies to public bodies.
There has been little development of tort law to
accommodate the rights. Indeed, the attitude of
Supreme Court has been that, where a
Convention right exists, there may be no need
for tort to protect the substance of the right.
The key point is that the HRA creates a direct
cause of action against public authorities for the
breach of the Convention. The person affected
by a breach can bring an action for damages.
11
In Smith v Chief Constable of Sussex, Lord Brown
was of opinion that to the extent that arts 2 and 3 of
the Convention and ss 7 and 8 of the Human Rights
Act already provide for claims to be brought in these
cases [before the HoL], it is quite simply unnecessary
now to develop the common law to provide a parallel
cause of action
And to the extent that the proposed development of
the common law would go further than the
Strasbourg jurisprudence this would seem to me
undesirable and to give insufficient weight to the
public policy consideration [against a DOC] which
militate against the creation of civil liability in these
cases.
His Lordship was of the view that Convention claims
have very different objectives from civil actions.
12
Nolan (2013) has given three reasons why one cannot
expect that negligence law will slavishly protect
Convention rights:
Although there is obvious overlap, negligence protects
different interests from the Convention. Negligence provides
for a set of norms applicable to all persons, while the HRA
applies only to public authorities;
Convention rights cannot be seen to precede and to be more
fundamental than the rights protected by negligence. Tort
remedies have existed for hundreds of years and, indeed,
many public law concepts are built upon them; and
Seeking to alter tort law to slavishly protect Convention rights
would weaken the structural underpinnings of negligence and
cut across core principles.
Convention jurisprudence reveals a greater preponderance of
positive obligations than exist in the common law of negligence and
While there is no requirement of damage under HRA, there is such a
requirement in negligence.
13
There are cases where negligence would not
provide a remedy, but where such might be
available under the HRA.
The most obvious example is the so-called
operational duty that exists under
Convention article 2, concerned with the
right to life.
An illustration is given by Rabone v Pennine
Care NHS Foundation Trust.
14
Rabone v Pennine Care NHS Foundation Trust.
Held: breach of the operational duty under Convention art 2
(right to life).
There are 3 distinct obligations imposed upon the State under
the article:
a negative duty to refrain from taking life save in the exceptional
circumstances described in art 2.2;
a positive duty to conduct a proper and open investigation into
deaths for which the state might be responsible; and
a positive duty to protect life in certain circumstances. The latter
positive duty contains two distinct elements.
a general duty on the state to put in place a legislative and
administrative framework designed to provide effective
deterrence against threats to the right to life...
the operational duty ... articulated ... in the Osman case...
The court said that in well-defined circumstances the state
should take appropriate steps to safeguard the lives of those
within its jurisdiction including a positive obligation to take
preventative operational measures to protect an individual
whose life is at risk from the criminal acts of another...

15
Action in negligence: Justiciability
Assuming that an action is brought in negligence
against a public body, a first issue will be
whether the finding of a duty of care would be
consistent with any statute empowering action
by the public body. If such an inconsistency were
to arise, then the court could not hold in favour
of a duty on the basis of legislative supremacy.
Assuming that there is no such inconsistency, still
the court might find that it cannot hear a case in
negligence because of a lack of justiciability.
Justiciability is a concept going to the
jurisdiction or competence of the courts to hear
a matter.
16
Reasons for which a court might find a case non-
justiciable include:
statute provides the public body with a quasi-
legislative power to determine policy and/or allocate
resources, affecting broad classes of person, in such a
way that the imposition of DOC would be inconsistent
with that power (X v Bedfordshire CC; Phelps v
Hillingdon LBC). This kind of function is really one
belonging to executive and should not be interfered
with by the courts. However, a view has been taken
that such a matter might become justiciable if the
public body acts in a way which is Wednesbury
unreasonable: Phelps v Hillingdon LBC; A v Essex CC;
any remedy for wrong-doing is intended to be left to
public law, such as judicial review.

17
It should be noted that, even if a public body has
exercised powers in a way that is Wednesbury
unreasonable, it does not follow that a remedy is
available in negligence.
See Stovin v Wise.
18
Action in negligence: Policy-based decisions
Appellate courts have stressed a number of other
factors relevant to the question whether it would
be fair, just and reasonable to impose a duty of
care on a public authority.
It is difficult to order these cases, so I will deal
with them by reference to subject matter:
children
crime victims and
businesses
19
Child cases
In X v Bedfordshire CC, HoL rejected the idea that a
duty of care might be owed by the authorities to the
children. Although it was conceded that foreseeability
and proximity were present, there were policy reasons
for excluding a duty:
a number of bodies were involved in protection of children and
councils could not be singled out for liability;
imposition of a duty of care could upset the delicate nature of
the work done;
councils might adopt a defensive approach to their duties,
which might make them hesitant to remove at risk children;
r/ship between social workers and parents is often conflicting,
meaning that this would be a fertile area for litigation;
there is a statutory complaints procedure for dealing with
problems

20
The X case was subsequently appealed to the
ECtHR, which found that there had been a
breach of Convention art 3 by the United
Kingdom. This is the right to be free of torture
and inhuman or degrading treatment: see Z v
United Kingdom.
21
D v East Berkshire Community Health NHS
Trust: In CA, it was held that welfare
professionals did owe a duty of care to children,
but owed no such duty to parents. About the
children, it was said
[T]he recognition of a duty of care to the child on the
part of those involved should not have a significantly
adverse effect on the manner in which they perform
their duties. In the context of suspected child abuse,
breach of a duty of care in negligence will frequently
also amount to a violation of [Convention] article 3 or
article 8.
There was no appeal from this finding in relation
to the children.
22
D v East Berkshire Community Health NHS
Trust:
In relation to the parents, there was an appeal to the
HoL. Held: No duty was owed because of the
potential for conflict between the duty owed by the
doctor/social worker to the child and any duty held
to be owed to the parents. Lord Nicholls noted:
The interests of the child are that the doctor should
report any suspicions he may have and that he should
carry out further investigation in consultation with other
child care professionals. The interests of the parents do
not favour either of these steps.
The interests of the child must prevail, given the
vulnerability of the child. Doctors/social workers
should not have to fear law suits when seeking to
investigate abuse of the child.

23
Although many cases have involved the denial of a DOC, this is
not to say that Cs are never successful against public bodies.
In Phelps v Hillingdon LBC, qn arose whether a local education
authority could be liable to a child with special education needs
for its failure to properly meet those needs
Although the case concerned vicarious liability of council for
negligence of the psychologist, HoL indicated its greater
receptivity to such claims.
Lord Clyde rejected some of the traditional arguments against
public body liability:
Nor should [liability] inspire some peculiarly defensive attitude in the
performance of their professional responsibilities. On the contrary, it
may have the effect of securing that high standards are sought and
secured... As regards the need for this remedy, even if there are
alternative procedures by which some form of redress might be
obtained, such as resort to judicial review... which might achieve
some correction of the situation for the future, it may only be through
a claim for damages at CL that compensation for the damage done to
the child may be secured for the past as well as the future...
24
Crime victim cases
Hill v Chief Constable of West Yorkshire:
Cs claimed that D police were negligent in the
conduct of their investigations into the murders. If
they had not been negligent, their daughter would
not have been murdered. Held: no DOC was owed.
DOC might have skewed police activity, encouraging them
to undertake their tasks in a detrimentally defensive
manner.
DOC might require forensic analysis of police methods,
which would be inappropriate.
Issues of liability would cause a diversion of police
resources into preparation for proceedings, attendance
at court etc.
25
Smith v Chief Constable of Sussex Police:
Held: no DOC owed; Hill v Chief Constable
followed.
Lord Brown agreed that the facts were stronger
than in Hill. But he was persuaded by two of the
policy arguments in Hill, viz those concerning
fact that the police would adopt defensive practices
in this kind of case, devoting their energy and
resources to them at the expense of other types of
case and
the desirability of safeguarding the police from legal
proceedings which, meritorious or otherwise, would
involve them in a great deal of time, trouble and
expense more usefully devoted to their principal
function of combating crime.

26
In dissent, Lord Bingham formulated what he
called the appropriate liability principle:
if a member of the public (A) furnishes a police
officer (B) with apparently credible evidence that a
third party whose identity and whereabouts are
known presents a specific and imminent threat to his
life or physical safety, B owes A a duty to take
reasonable steps to assess such threat and, if
appropriate, take reasonable steps to prevent it being
executed.
Despite the decisions in these cases, involving
failures in investigations, Lunney and Oliphant
note that there have been many cases in which
the police have been held liable for their
positive acts of negligence (as opposed to
omissions to apprehend).
27
Business case
In Jain v Trent Strategic Health Authority, HRA had
not been in force, although Lord Scott thought that Cs
would have succeeded under that Act claiming breach
of Convention First Protocol art 1 (peaceful
enjoyment of possessions) and Convention art 6 (fair
and public hearing).
The qn arose whether they could sue D in negligence.
Held: no duty was owed.
Lord Scott noted that the making of an application for
cancellation occurred pursuant to a statutory power.
The purpose of the power is the protection of the
residents of the home in question.

28
Jain v Trent Strategic Health Authority
Lord Scott examined a number of cases where the
potential for conflict between parties arose and
concluded that there was a general principle
underlying them:
[W]here action is taken by a state authority under
statutory powers designed for the benefit or protection
of a particular class of persons, a tortious duty of care
will not be held to be owed by the state authority to
others whose interests may be adversely affected by an
exercise of a statutory power. The reason is that the
imposition of such a duty would or might inhibit the
exercise of the statutory powers and be potentially
adverse to the interests of the class of persons the
powers were designed to benefit or protect, thereby
putting at risk the achievement of their statutory
purpose.

29
What is an omission?
An omission involves an absence of action in the physical
world. This much is clear. However, occasionally a question
has arisen about how to classify a case where there is an
absence of action in circumstances of a larger activity.
In Kelly v Metropolitan Railway Co, it was held that this
was not simply a case of omission. Rigby LJ stated:
... the attempt to dissect the act of Ds servant, and to treat
the mere omission to turn off steam as nonfeasance ...
altogether fails. An engine-driver is in charge of the train, and
a passenger is in that train... with the permission of Ds. That
passenger is injured in consequence of the train being
negligently brought into collision with the dead-end. The
proper description of what was done is that it was a negligent
act in so managing the train as to allow it to come into contact
with the dead-end and so cause the accident. It is a case in
which the company by their servant neglected a duty which
they owed to C ...
30
In Stovin v Wise, Lord Nicholls endorses the type of
analysis we see in Kelly. He notes that sometimes the
distinction between act and omission is not clear.
The categorisation may depend upon how broadly one
looks when deciding whether the omission is a pure
omission or is part of a larger course of activity set in
motion by D. Failure to apply the handbrake when
parking a vehicle is the classic illustration of the latter.
Then the omission is the element which makes the
activity negligent.
L&O put it in terms of a difference between D making
things worse as opposed to failing to make things
better. But even here it must be admitted that the
distinction is only one of degree, and that different
duties of affirmative action restrict liberty of action
to different extents.
31
Duty of care in omissions cases
The duty to take active steps to assist another who is
at risk is of limited scope. Some reasons for this are
explored in Stovin v Wise. Lord Hoffmann stated:
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. One can put the
matter in political, moral or economic terms.
In political terms, it is less of an invasion of an
individuals freedom for the law to require him to
consider the safety of others in his actions than to
impose upon him a duty to rescue or protect.
32
Stovin v Wise
A moral version of this point may be called the why
pick on me? argument. A duty to prevent harm to others
or to render assistance to a person in danger or distress
may apply to a large and indeterminate class of people
who happen to be able to do something. Why should one
be held liable rather than another?
In economic terms, the efficient allocation of resources
usually requires an activity should bear its own costs. If
it benefits from being able to impose some of its costs
on other people (what economists call externalities)
the market is distorted because the activity appears
cheaper than it really is, So liability to pay
compensation for loss caused by negligent conduct acts
as a deterrent against increasing the cost of the activity
to the community and reduces externalities. But there is
no similar justification for requiring a person who is not
doing anything to spend money on behalf of someone
else.
33
There must be special reasons for the
imposition of an affirmative duty. L&O point
to a number of general circumstances in
which they believe courts are more likely to
impose an affirmative duty these are:
Ds creation of a source of danger, even if
entirely without fault
Ds undertaking of responsibility for Cs welfare
Ds occupation of an office or position of
responsibility (eg, as a parent or employer, or as
the owner or occupier of land)

34
Emergency service cases
Courts have been wary about imposing affirmative duties.
Capital & Counties plc v Hampshire CC held that a duty
might arise where (a) the rescue/protective service itself by
negligence creates the danger which caused Cs injury. Also,
(b) as a general rule a sufficient relationship of proximity will
exist when someone possessed of special skill undertakes to
apply that skill for the assistance of another person who relies
upon such skill and there is a direct and substantial reliance by
C on Ds skill.
CA considered whether fire brigade owed a duty to property
owners. Ordinarily, no assumption of responsibility because of
the real possibility of conflicts of interest arising.
[T]he fire brigades duty is owed [to] the public at large to prevent
the spread of fire and ... this may involve a conflict between the
interests of various owners of premises. It may be necessary to
enter and cause damage to As premises in order to tackle a fire
which started in Bs.
However, a duty was recognised on facts where fire brigade
had ordered Cs to turn off their sprinkler system.
35
Kent v Griffiths
Involved the ambulance service.
Lord Woolf recognised that it would probably be
wrong for a court to decide a case involving the
allocation of competing resources.
He also said that, in a case where ambulance officers
made a mistake in prioritising the needs of a less
serious over a more serious case, there would be no
action in negligence.
However, this case was different. There were no
alternative calls upon the ambulance in question.
It was held that the acceptance of the call in this
case established the duty. In other words, this was a
case of an assumption of responsibility for the patient
in question.
36
Control of third party cases
C claims that D owed it a duty of care for its
failure to ameliorate dangers posed by an
intermediate party.
In both of the cases to be considered, the
question was whether there was a duty to control
the actions of criminals.

37
Home Office v Dorset Yacht Club
Held: A duty was owed with respect to property in the
vicinity of the escape. Among the majority, various
approaches were taken to reach this result.
Lord Pearson analysed the case according to the
criteria in Donoghue v Stevenson and stated that it
was foreseeable that that damage was likely to occur
unless care was taken and that proximity arose
between the parties, which was geographical in
nature.
In the circumstances, there was a special relation.
The borstal boys were under the control of the Home
Office officers, and control imports responsibility.
38
Home Office v Dorset Yacht Club
Lord Diplock said that the question Am I my brothers
keeper?... may also receive a restricted reply.
The primary wrongdoer is the criminal the young
offenders who attempted escape. Thus, D could only be
made responsible as a secondary party.
Nevertheless, Lord Diplock outlined why he thought that a
duty of care was owed:
What distinguishes a borstal trainee who has escaped from one
who has been duly released from custody, is his liability to
recapture, and the distinctive added risk which is a reasonably
foreseeable consequence of a failure to exercise due care in
preventing him from escaping is the likelihood that in order to
elude pursuit immediately upon discovery of his absence the
escaping trainee may steal or appropriate and damage property
which is situated in the vicinity of the place of detention from
which he has escaped...

39
Home Office v Dorset Yacht Club
Lord Diplock continued:
[A]ny duty of a borstal officer to use reasonable
care to prevent a borstal trainee from escaping
from his custody was owed only to persons whom
he could reasonably foresee had property situate
in the vicinity of the place of detention of the
detainee which the detainee was likely to steal or
to appropriate and damage in the course of
eluding immediate pursuit and recapture.
40
Note that in Hill v Chief Constable of West
Yorkshire, which we have already considered
today, the Dorset Yacht Co case was
distinguished.
Lord Keith noted that
Sutcliffe was never in the custody of the police
force. Miss Hill was one of a vast number of the
female general public who might be at risk from
his activities but was at no special distinctive risk
in relation to them, unlike the owners of the
yachts moored off Brownsea Island...
41
In Smith v Littlewoods Organisation Ltd, HoL held
that no duty of care was owed.
Lord Goff stated that there is no general duty on a
householder that he should act as a watchdog, or that
his house should act as a bastion, to protect his
neighbours house... This followed from the idea that
one should not be held responsible for the deliberate
wrongdoing of others. He continued:
Any affirmative duty to prevent deliberate wrongdoing by
third parties, if recognised by English law, is likely to be
strictly limited... Liability should only be imposed...
where D has negligently caused or permitted the creation
of a source of danger on his land, and where it is
foreseeable that third parties may trespass on his land
and spark it off, thereby damaging C or his property...

42
Smith v Littlewoods Organisation Ltd
Lord Goff continued:
There is another basis on which a D may be held liable
for damage to neighbouring property caused by a fire
started on his (Ds) property by the deliberate
wrongdoing of a third party. This arises where he has
knowledge or means of knowledge that a third party
has created or is creating a risk of fire, or indeed has
started a fire, on his premises, and then fails to take
such steps as are reasonably open to him... to prevent
any such fire from damaging neighbouring property...

43