Public Authorities: Liability in Negligence

‘Public authorities whose duties may also include a duty to protect the public’s life (such as the police, the fire brigade, or the ambulance services) should never be exempt from liability in negligence, which has resulted in loss of life.’

 

 

 

 

Introduction

The issue of whether public authorities are liable for negligence claims while exercising their discretionary power is a recurring area of public law. Some of the challenges encountered are a result of the adoption by courts of unworkable and unnecessary tests, along with the basic principles that define the law of negligence. Such measures are often taken with the intention of limiting liability. However, at times, the objective is to extend liability, like the suggestion that a duty of care could arise in the event that public authorities do not exercise statutory powers. The matter is especially contentious in case considerable public policy deliberations emerge. When faced with the issue of liability, the courts have demonstrated a profound desire to visit the Dorset Yacht case and settled it by various means. For this reason, in England law, the limits of negligence liability that public authorities are faced with appear to be extremely unstable. Since Dorset Yacht, the main focus has shifted from duty to breach. At the same time, various devices that draw on 'policy' concerns have been suggested for use in denying liability and/or illustrating relevant variances. A key focus of the debate on holding public authorities accountable for negligence is the issue of the effect of extending and changing liability on bureaucratic behaviour. Opinions regarding the effect of changing liability vary significantly. Consequently, the courts have had a comparatively unrestricted preference to embrace varying positions on the matter at different times. The premise of this essay is to explore the extent to which public authorities are held liable for negligence while executing their prerogative rights, especially where a life has been lost.

Public authorities’ policy issue on negligence

Public authorities play a basic role in providing or exercising public functions and/or services. Some of these public authorities such as the police, ambulance services, and the fire brigade also have a duty to protect the public's life. This role brings with it the issue of duty of care. In other words, the public authorities have to ensure that they protect individuals under their care from possible harm, in the course of exercising their duties. However, all too often, accidents happen and the public authorities are accused of negligence, especially if they fail to protect the public from such accidents.   The issue of whether public authorities should be exempt from liability in negligence, especially in cases where a life has been lost, has been a recurring debate in tort law.  The matter is especially vexed where there has been considerable identification of public policy considerations. As far back as Dorset Yatch, the courts have time and again returned to the issue of liability and adopted different means of resolving the issue.

Although the courts recognise that the main duty in addressing a claim of negligence in exercising the discretionary power of a public authority is to establish a solution to the wrongs, this issue has led to the emergence of “policy” concerns of negligence liability. The set up of these policy issues is with a view to circumscribing or denying the duty of care bestowed on the state, and therefore a liability. The public issues revolve around 6 concerns: (i) whether public resources have been put to efficient use; (ii) if liability shall act as an incentive to public authority staff to act in an unwelcome or defensive manner; (iii) if liability could upset fragile relationships and would be impracticable to allocate reasonably considering that public authorities employees engage in multidisciplinary activities; (iv) the fear that acknowledgement of a duty of care shall subject the courts to floodgates of accusations, coupled with intricate and vexatious litigation; (v) alternative solutions available, and (vi) if an obligation of duty of care might contract the role of a statutory regime.

Most of these arguments revolve around the issue of the effect of establishing a duty of care on the behaviour of pertinent parties. Arguments (i), (ii), and (iii) seek to question the reactions of public authorities, while argument (iv) is concerned with the reaction of potential claimants.  Policy issue (iv) has raised fears that in case of a change in liability, this is likely to trigger a considerable rise in litigation. This effectively acts as an increased incentive for public authorities to deal with the issue of liability. X v Bedfordshire identified the likelihood of increased liability opening up floodgates but since then, this matter has been contested.

Policy positions as propagated by the courts seem to be deeply opposed to a duty of care. However, in recent years, the courts have increasingly been seen to recognise that a duty of care does exist. Nonetheless, the courts have also been willing to make use of policy concerns in a bid to establish standards for showing that a public authority has indeed acted in a negligent manner. Towards this end, the courts have identified different, albeit minor positive effects of enforcing a duty of care. Nonetheless, this is often the norm, as opposed to the exception. Certain courts have even pointed out that enforcing a duty of care on public authorities could help to improve the standard of performance of public authority officials. Concerns have also been raised to the effect that enforcing a duty of care on public authorities might result in unwanted 'defensive administration' or even limit the effectiveness with which public authority officials execute their work.

Liability for negligence of various public authorities

Before one can conceive a tort of negligence, it is important first to establish that the claimant is owed a duty of care by the defendant. Caparo v Dickman is recognised as the leading case in English law in terms of testing for a duty of care. In this particular case, the House of Lords formulated a 'three-fold-test' to establish if a duty of care results in negligence. First, the harm ought to be reasonably foreseeable on account of the defendant's conduct. Secondly, there ought to be proximity between the parties involved, and finally, liability ought to be imposed in a just, fair, and reasonable manner.  The current law has no provision for protecting or rescuing another individual from harm dispensed by a third party. This then raises the issue of the extent to which public authorities such as the police, whose duty it is to protect and rescue people from harm, owe such people a duty of care in negligence.

            Consequently, the level to which public authorities can be said to be liable for negligence under English law appears to be rather unstable. Traditionally, public authorities have enjoyed blanket immunity when it came to being held liable for negligence. While many countries have since abrogated this blanket amnesty, public authorities, by and large, retain considerable freedom from tort liability, especially in terms of “discretionary decisions” that they might have made while executing their duties while in office. This understanding hinges on the premise that public authorities, even as they make discretionary decisions, ought to also balance various conflicting, albeit precious, interests as they deem fit. Such interests include individual liberty, care for the vulnerable, order, and personal security, among others. Among various jurisdictions, the courts exempt public authorities from liability in negligence by not reviewing this process. For instance in the United States, public authorities are exempted from liability emanating from their discretionary actions. In the United Kingdom, the idea of discretion as it relates to the liability of public authorities remains a very fundamental issue.

            There are two arguments that we can rely on contending that the police owe individuals duty of care to protect them from possible harm. First, the facts fulfil the 'three-fold-test' alluded to above, as spelled out in Caparo v Dickman. Secondly, because the police have taken the responsibility to protect an individual, it is no longer necessary to apply the 'three-fold-test' analysis by Caparo. The English law has clearly established that police officer while executing their duties to the public such as maintenance of law and order, do not owe them a duty of care. This position has been highlighted by the rulings of various courts. For example, in Hill v Yorkshire Police, the claimant (Mrs Hill), whose daughter was murdered by the Yorkshire Ripper claimed that the police were negligent in their investigations as evidenced by a number of mistakes made, something that would not have happened if the police force was competent in exercising reasonable skill and care. In an attempt to establish if Mrs Hill's claim of police negligence was valid, the House of Lords supposed that the factual allegations against the police were true. The House of Lords further assumed that in case the police had been careful in exercising reasonable care, they would have arrested the murderer before he had a chance to kill Mrs Hill's daughter. However, the House of Lords rules that the police were not liable for negligence. The ruling assumed the form of blanket immunity and was founded on several policy objections.   Lord Keith established police immunity on similar grounds to those found in Rondel v Worsley. However, Arthur v. Simons has since overruled this case. The blanket immunity enjoyed by the police and other public authorities against being sued for negligence now looked somewhat doubtful after the ruling in Osman v. UK where the ECHR (European Convention on Human Richts) established that immunity of this nature contravenes article 6.1 of the ECHR. As such, cases against the police should be taken to trial.

            The Hill principle was again upheld in Brooks v Comr. The claimant in the company of Stephen Lawrence was the victim of a racist attack by a gang of white youths. The attack left the claimant traumatised while Stephen Lawrence was murdered.  His claim was that the police negligent in according him suitable support and protection and hence owed him a duty of care. In its ruling, the House of Lords while invoking Hill maintained that the police did not owe the claimant any legal duty of care. 

            Osman v Ferguson reported a special relationship between the victim and the police, thereby creating grounds for the breach of duty. However, in keeping with Hill, imposing such a duty on public authorities would contravene public policy. This is because doing so would hinder the police from exercising a higher standard of care for the public. Moreover, it would lead to considerable diversion of valuable police resources meant to suppress crime and undertake investigations. However, Osman v. UK reversed this court ruling.

            In Swinney the police/CPS had accidentally divulged an informant's details to a suspected criminal, putting the informants in danger. The informants (Mr & Mrs Swinney) received several violent threats, resulting in psychiatric injury. Laws J. allowed the informants' appeal but the police moved to the Court of Appeal, arguing that they did not owe the claimants a duty of care. The appeal ruled that the case moves to trial on grounds that the police had assumed responsibility to handle the information in a suitable manner, oblivious of its sensitive and confidential nature. There was no ground therefore to deny that a duty of care existed.

In Mullaney v West Midland, the claimant received serious injuries in a toilet when his fellow constables failed to answer his radio calls for help. He was thus seeking damages against the chief constable for negligence by his colleagues to answer his calls for help. In its ruling, the court held that the chief countable owes his officers similar duties to those employers owe their employees.

            In L v. Thames Valley Police, the judge ruled that it was just, reasonable, and fair to impose a duty of care on a police officer who had in the course of investigating a case of false claim of sexual abuse developed a special relationship with the father of the victim who had been falsely implicated with having raped her daughter. 

While the police have a duty to protect an individual from possible harm by others, they have such a duty to prevent an individual from self-harm. In Orange v. Yorkshire, the judge ruled that while prison authorities and the police owed prisoners a duty of care, which entailed assessing their risk for committing suicide, they did not owe them a general duty to undertake measures to prevent suicide if it has not been established that the prisoner could be at risk of committing suicide.  However, in Kirkham v Greater Manchester Police, the Judge imposed a duty of care on the police as they were aware that their prisoner was suicidal.

            For the same reasons that police officers are exempted from liability, it would also be unjust, unreasonable, and unfair to impose a duty of care on the fire-brigade. In this case, the individual ought to insure his property against fire.  In Munroe v. London Fire, the court established that imposing a duty of care on the fire service would result in defensive fire fighting, as opposed to increased efficiency in services delivered.   The “floodgate argument” also came up in this case, in that imposing a duty of care on the fire service would render them vulnerable to any manner of claims. In Capital v. Hampshire County Council, the fire service was not protected by public policy immunity following an operational decision to turn off the sprinkler system, thereby increasing damage from the fire.

Conclusion

The issue of whether public authorities should be held accountable for negligence over the manner in which they exercise their discretionary powers remains quite problematic. The courts have time and again recognised that they have a key role to play in ensuring that they find a solution to claims of negligence involving public authorities. Towards this end, various “policy” concerns appertaining to efficient utilisation of public funds, the possibility of liability acting as an incentive to public authority officials to execute their duties in an undesirable or defensive manner, and the risk that an acknowledgement of a duty of care could see courts faced with floodgates of intricate litigations. Nevertheless, the courts have on various occasions found public authorities liable for negligence while exercising their statutory duties. In particular, the courts acknowledge that the police force, fire brigade, and ambulance services have a duty of care to ensure the safety of people while exercising their prerogative powers.

 

Bibliography

Books

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Journal articles

Bailey SH and Bowman MJ ,’Public authority negligence revisited’ 59 [2000] 1 The Cambridge Law Journal 85

Bailey S (2006),'Public authority liability in negligence: the continued search for coherence' 26 [2006] 2 The Journal of the Society of Legal Scholars 155.

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Mot, JD and Faure M, ‘Public authority liability and the chilling effect’ [2014] 22 Tort L Rev 120

Niles MC, ‘Nothing but Mischief’: The Federal Tort Claims Act and the Scope of Discretionary Immunity’ (2002) 54 Administrative Law Review 1275.

 

Case Laws

Arthur Hall v Simons [2000] 3 WLR 543

Brooks v Commissioner of Police for the Metropolis [2005] 1 WLR 1495

CAPARO INDUSTRIES PLC v. DICKMAN. [1990] 2 AC 605

Church of Latter-Day Saints v Yorkshire Fire Authority [1997] CA

John Munroe (Acrylics) Ltd v London Fire and Civil Defence authority [1997] CA. 

Capital & Counties (Capco) v Hampshire County Council [1997] 3 WLR 331

Hill v Chief Constable West Yorkshire Police [1988] 1 AC 53

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC 1004 

L (A Minor) and P (Father) v Reading Borough Council and Chief Constable of Thames Valley Police [2001] 1 WLR 1575

Mullaney v. Chief Constable West Midlands Police [2002] EWCA 700.

Osman v Ferguson [1993] 4 All ER 344

Osman v United Kingdom [1998] EHRR 101

RONDEL v WORSLEY [1969] 1 AC 191 

Swinney v Chief Constable of Northumbria Police Force [1997] QB 464

X and others (minors) v Bedfordshire County Council [1995] 3 All ER 353 

Orange v Chief Constable of West Yorkshire Police - [2001] All ER

 

Online articles

Carver T, ’Liability of Public Authorities’ (2012)

Kennedy C, ’The liability of public authorities (private law causes of action against public service providers exercising their statutory functions)’ (2010)

Priel D, ‘British Politics, the Welfare State, and Tort Liability of Public Authorities’ (Digital Commons, 2010) accessed 31 January 2017