There is a clear reluctance to hold public authorities such as the police, emergency services, social services in the UK liable. No special principles govern the liability of public authorities. The ordinary requirements of foreseeability, proximity and fairness, justice and reasonableness must be satisfied must still be satisfied. - Justin Santiago
The argument is that liability should not be imposed on public bodies for three reasons :-
1. They are set up for the purpose of protecting the public or a section of it and it is clearly foreseeable that harm may be suffered if the supervisory or regulatory work is carelessly done. It would be putting too much liability on public bodies preventing them from administering their duties.
2. Any award for damages will come out of public funds.
3. There will be intrusion by the courts into the workings of bodies which form part of the democratic process.
There have been several case law developments which point to making public authorities more liable for negligence as well as HRA 1998 which has forced courts to not make it so easy for defendants to deny there was a duty of care and hence escape liability.
However what would would tilt the balance in favour of the public bodies being held liable for negligence would be if the there was a single claimant involving personal injury. Kent v Griffiths – single claimant, personal injury held liable contrast with Capital and Counties plc v Hampshire County Council Capital and Counties – multiple claimants, property damage not held liable. Also Barret v Ministry of Defence – claimant can be identified as an individual who is in real and imminent dangerand not merely in the same position as the public at large held liable.
Some cases involving failure to act will also shed light on the extent to which the courts will hold public authorities liable. In Stovin v Wise: public authorities cannot generally be held liable for a failure to act, so long as they have not actually created the danger themselves. Lord Hoffmann left open the possibility that a public body could be held liable for a failure to exercise a statutory discretion where (1) the failure to do so is Wednesbury unreasonable or irrational and (2) there are exceptional grounds for holding that the policy of the statute requires compensation.
Gorringe v Calderdale further suggested that in the absence of a right of action for breach of statutory duty and in the absence of any underlying common-law duty owed by that public body to an individual, the omission on the part of the public body can found a private law right of action by that individual.
The effect of the HRA 1998 has been twofold :-
1. Vertical effect – allows any person who is the victim of a public authority’s breach to bring proceedings against the authority - the message to the English courts is that they have been wrong to afford public authorities an immunity from negligence liability for instance allowing pre-emptive tactics such as preliminary striking out applications on the bases there was no duty of care, Hill v Chief Constable of West Yorkshire and X (Minors) v Bedfordshire County Council, Osman v Ferguson on appeal to Osman v UK based on Article 2 – everyone’s right to life shall be protected by law, Article 8 – right to family life, Z and others v UK (petition by X (minors) v Bedfordshire County Council).
2. Horizontal effect – one may rely on the convention even in litigation against another private person and the courts must ensure that all their decisions are human-rights compatible since the courts are public authorities under the HRA 1998. The central provision of the Act is to be found in S6(1) which states : “It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
- Justin Santiago
- Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.
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