Cases of Negligence in Public Bodies Overview and rulings

Public Policy

Anns v Merton LBC

Abstract: A local authority may be
liable in negligence for its failure to inspect building foundations properly or
at all if it be shown that the action taken was carried out otherwise than in
the bona fide exercise of its discretion and negligently. In 1962 the appellant
local council approved building plans for a block of flats, the construction of
which was completed that year. In 1970 structural movements led to walls
cracking and other damage; in 1972 the lessees commenced proceedings against,
inter alia, the council, alleging negligence in failing to inspect the building
walls properly or at all so as to ensure that the foundations were built to the
appropriate depth as shown on the approved plans. Upon hearing the council's
appeal concerning whether the actions were statute-barred, the House of Lords
agreed further to consider whether the council were under a duty of care.

Summary: Held, that (1) under the Public
Health Act 1936 the council had a power, as opposed to a duty, to inspect
building work to ensure compliance with the by-laws; (2) failure to carry out
inspections would not render the council liable unless it be proved both that
they had failed to properly exercise their discretion not to make inspection and
that they failed to exercise reasonable care to ensure compliance with the
by-laws; (3) where such inspections were carried out the council retained a
discretion as to the manner in which such inspections were performed: if such
discretion was not bona fide exercised, the council might be liable in
negligence for failure to take reasonable care; (4) the actions were not
statute-barred, the cause of actions having arisen when the dangerous state of
the building manifested itself. (Home Office v Dorset Yacht Co Ltd [1970] A.C.
1004 HL and Sparham-Souter v Town & Country Developments (Essex) Ltd [1976] Q.B.
858 CA (Civ Div) applied; East Suffolk Rivers Catchment Board v Kent [1941] A.C.
74 HL considered; Dutton v Bognor Regis Urban DC [1972] 1 Q.B. 373 CA (Civ Div)
explained).

Caparo Industries Plc v Dickman

A firm of accountants, appealed against
a decision of the Court of Appeal (Times, August 5, 1988) that they owed a duty
of care to shareholders when preparing an auditor's report as required by
statute. C had brought an action against D and another, directors of F, a public
company in respect of which the report had been prepared, alleging negligent
misstatement. C had purchased shares in F as part of a take over bid and,
placing reliance on TR's report, had bought further shares. The report was
subsequently proved to have to given a false picture of F's profits and C
suffered a loss. The Court of Appeal had drawn a distinction between existing
shareholders, to whom TR owed a duty and potential investors in respect of whom
no duty was owed. TR submitted that it did not owe a duty to either group, since
the necessary degree of proximity between the parties was missing.

Summary: Held, allowing the appeal, that
no duty was owed either to existing shareholders, or to potential investors,
since for a duty to arise, three factors had to exist, namely: (1) a sufficient
degree of proximity in the relationship between the parties; (2) the knowledge
that the report would be communicated to the shareholder or investor in
connection with a particular transaction in the contemplation of the parties,
Smith v Eric S Bush (A Firm) [1990] 1 A.C. 831 HL applied, and (3) the
shareholder or investor would place reliance on the report when deciding whether
to enter into the relevant transaction. Auditors of a public company routinely
preparing accounts, in contrast to the preparation of a report for a specific
purpose for an identified party, owed no duty to the public at large who might
place reliance on company accounts when making investment decisions. To impose
such a liability would open the floodgates to an indeterminately wide class of
people, JEB Fasteners Ltd v Marks Bloom & Co [1981] 3 All E.R. 289 QBD
distinguished. Furthermore, it was necessary to impose some limit on liability
for economic loss arising in the absence of a contractual relationship between
the parties.

White v Chief Constable of South Yorkshire

The Chief Constable appealed against a
ruling ([1998] Q.B. 255, [1996] C.L.Y. 4533) allowing the appeal of four police
officers, P, against the dismissal of their action against the Chief Constable
and others for damages for negligence and/or breach of statutory duty. P had all
suffered post traumatic stress disorder as a result of their involvement in the
aftermath of the Hillsborough Football Stadium disaster in which many spectators
had been killed and injured. The Chief Constable admitted that the disaster had
been caused by police negligence in allowing overcrowding to occur, but disputed
P's entitlement to recover damages in tort for the psychiatric injury they had
suffered. P contended that justice demanded that they be compensated for the
harm they had suffered as a result of a tort and that there was no justification
for treating physical and psychiatric injury as different kinds of damage. P
further argued that they were entitled to recover damages either on the basis of
an employer's duty to protect employees from harm through work or by virtue of
their status as rescuers.

Summary: Held, allowing the appeal,
(Lord Goff dissenting and Lord Griffiths dissenting in part) that a chief
constable owed officers under him a duty analogous to that of an employer to
care for the safety of employees and to take reasonable steps to protect them
from physical harm, but there was no extension of that duty to protect from
psychiatric injury where there was no breach of the duty to protect from
physical injury. As a result, the employment relationship did not create a
liability on the Chief Constable for psychiatric injury sustained by P who had
not been involved in the disaster as rescuers and it was not possible to
classify P as primary victims, since none of them were at any time exposed to
personal danger nor reasonably believed themselves to be so, Page v Smith [1996]
A.C. 155 HL considered. Recognition of P's claims would significantly widen the
established categories of cases for which damages could be recovered for pure
psychiatric harm and to allow the claims would not fit easily with the decision
in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310 HL to deny
compensation to bereaved relatives of victims of the disaster who had not
witnessed events at first hand or acted as rescuers. The fact that P's injuries
were sustained in the course of discharging their duties as police officers did
not of itself justify extending the law so as to allow their claims.

Legal Personnel

Sirros v Moore

Where a judge acting in his capacity as
such does an act which is in fact outside his jurisdiction under the mistaken
belief that he is entitled so to act, he will be immune from any proceedings
taken against him in respect of that act. A circuit judge, having refused an
appeal from a magistrates' court order for deportation for apparent lack of
jurisdiction, ordered the appellant, then on bail, to be detained. Habeas corpus
was granted on the ground that being mistaken as to his jurisdiction the judge
had not followed the appropriate procedure and the detention was invalid on an
action by the appellant against the judge and the arresting police officers for
assault and false imprisonment: held, (1) that although the judge in fact had
jurisdiction he mistakenly thought he had not; the wrong procedure had been
followed and the detention was invalid; (2) that the judge, and the police
officers acting on his instruction, was immune from liability because the acts
complained of were done by him acting in his capacity as a judge, acting in good
faith, albeit mistakenly. (Anderson v Gorrie [1895] 1 Q.B. 668 CA referred to
and Rondel v Worsley [1969] 1 A.C. 191 HL referred to).

Kelley v Corston (CA (Civ Div)) Court of Appeal (Civil
Division) 10 July 1997

Appealed against a decision dismissing
her appeal from a ruling that her claim against C, a barrister, should be struck
out under the Rules of the Supreme Court Ord. 18 r. 19 . Following the granting
of her decree nisi of divorce K claimed damages against C on the ground that C
had been negligent in advising her, on the day of the hearing before the hearing
had begun, in her claim for ancillary relief against her husband. C succeeded in
having the statement of claim struck out on the ground that she was protected
from an action in negligence by the doctrine of immunity from suit which covered
actions closely connected with the conduct of the case in court such as, as in
her case, a settlement made at the door of the court, Rondel v Worsley [1969] 1
A.C. 191 HL and Saif Ali v Sydney Mitchell & Co [1980] A.C. 198 HL considered. K
contended that since the effect of the settlement was that there was no
subsequent trial the settlement had no intimate connection with the trial and C
was therefore not immune from an action in negligence.

Summary: Held, dismissing the appeal,
that C was protected from an action in negligence by the doctrine of immunity.
Following Rondel v Worsley and Saif Ali v Sydney Mitchell & Co a barrister is
immune from suit from anything said or decided by them either in court or in pre
trial proceedings. This is qualified by the test of intimate connection between
events outside the court and those within the confines of the court, Rees v
Sinclair [1955-95] P.N.L.R. 56 CA (NZ) applied. The settlement made at the door
of the court was inextricably linked with proceedings within the court as the
court had an overriding duty to consider and approve the provisions of the
settlement before making the consent order in accordance with the Matrimonial
Causes Act 1973 s. 33A , Peacock v Peacock (1991) [1991] 1 F.L.R. 324
considered. The judge considered all the relevant affidavit evidence and found
it just to make an order. Accordingly, K and C's negotiations, made before the
hearing, were intimately connected with the conduct of the cause in court.

Elguzouli-Daf v Commissioner of Police of the Metropolis (CA
(Civ Div)) Court of Appeal (Civil Division)

E and another (M) appealed against the
striking out of their claims against the CPS on the grounds that they disclosed
no cause of action. M was arrested and charged with handling Semtex explosives.
At committal, no evidence was offered against him. He had been detained for 85
days and claimed that it should not have taken the prosecution that long to
realise that the case against him would fail and, as a result, he had suffered
loss, damage, anxiety and distress. E had been detained for 22 days for alleged
rape before his prosecution was abandoned. He claimed that the CPS had acted
negligently in relation to the processing of forensic tests which proved to be
negative.

Summary: Held, dismissing the appeals,
that it had to be decided whether the CPS could be said to owe a duty of care to
those it was prosecuting with reference to the categories of liability listed in
Caparo Industries Plc v Dickman [1990] 2 A.C. 605 HL. It was necessary to
consider the foreseeability of the damage, the relationship between the parties
and whether it was equitable and just to impose a duty of care. The CPS acted in
the public interest and was independent of the government. Persons aggrieved by
prosecutors' decisions had many private law remedies if there was a deliberate
abuse of power. In a previous case the House of Lords had found that the police
were immune from civil liability for negligence in respect of criminal
investigations, Hill v Chief Constable of West Yorkshire [1989] A.C. 53 HL
applied. The argument against imposing a duty of care on the CPS was even
stronger because the work of the CPS involved the use of their discretion. The
prosecutors were under a duty to treat defendants fairly but it did not follow
that defendants should therefore be able to sue them for negligence. If such a
duty was imposed there was a risk that prosecutors would be encumbered by
seeking to protect themselves against such claims and valuable time and
resources would be wasted, Welsh v Chief Constable of Merseyside [1993] 1 All
E.R. 692 QBD distinguished.

Police

HILL v CHIEF CONSTABLE OF WEST YORKSHIRE [1989] AC 53

My Lords, in 1975 a man named Peter
Sutcliffe embarked on a terrifying career of violent crime, centred in the
metropolitan police area of West Yorkshire. All his victims were young or fairly
young women.  Between July 1975 and
November 1980 he committed 13 murders and 8 attempted murders on such women …
Sutcliffe’s last victim was a 20-year-old student called Jacqueline Hill, whom
he murdered in Leeds on 17 November 1980. By chance, Sutcliffe was arrested in
suspicious circumstances in Sheffield on 2 January 1981 and he confessed to the
series of murders and attempted murders following interrogation.

Miss Hill’s mother and sole personal
representative (the appellant) now sues the Chief Constable of West Yorkshire
(the respondent), claiming on behalf of Miss Hill’s estate damages on the ground
of negligence

A substantial number of matters are set
out and relied on as indicating that the West Yorkshire police force failed in
[their duty of care].  It is
unnecessary to set out these matters in detail. 
They amount broadly to allegations of failure to collate properly
information in possession of the force pointing to Sutcliffe as a likely suspect
and of failing to give due weight to certain pieces of information while
according excessive importance to others. 

 [I]t
must be assumed that in the course of their investigations into the series of
crimes committed by Sutcliffe the West Yorkshire police force made a number of
mistakes which they would not have made if they had exercised a reasonable
degree of care and skill such as would have been expected to be displayed in the
circumstances by an ordinarily competent police force.

Hughes v National Union of Mineworkers

Public policy required that senior
police officers charged with controlling a force of officers to control public
disturbances should not generally be liable to their subordinates who might be
injured by attacks by rioters. P, a police officer, was posted to maintain
public order at a colliery where striking mineworkers were picketing working
miners. He formed part of the front line of officers outside the colliery
entrance. At one point, a vast number of pickets surged forward, missiles were
thrown at the police, and he was knocked backwards and injured. He brought an
action against the Chief Constable of North Yorkshire, inter alia, for
negligence in causing, permitting or requiring him to take up an unsupported and
unprotected position, and failing to implement proper riot control. The Chief
Constable applied to strike out the proceedings as disclosing no reasonable
cause of action. The district registrar dismissed the Chief Constable's
application.

Summary: Held, allowing the Chief
Constable's appeal, that a senior police officer with the task of deploying
police officers to control a serious public disorder had to make critical
decisions with little or no time for serious considered thought, and in
circumstances where individual officers might be in danger of physical injury.
It was not in the public interest that a senior officer should have to make
those decisions in the knowledge that they might be the basis of a subordinate
officer's action in negligence. Accordingly, no cause of action had been
disclosed (Hill v. Chief Constable of West Yorkshire [1988] C.L.Y. 2435 applied;
Knightley v. Johns [1982] C.L.Y. 2126 distinguished)

Brooks v Commissioner of Police of the Metropolis (HL) House
of Lords 21 April 2005

The appellant commissioner of police and
individual serving police officers appealed against a decision that the
respondent (B) could claim damages in negligence and for breaches of the Race
Relations Act 1976 s. 20 arising from the manner in which B was treated by the
police when he was a victim of crime and an eyewitness to murder. B had been the
victim of a racist gang attack in which his friend was murdered. B consequently
developed post traumatic stress disorder and sought damages from the
commissioner on the grounds of negligence, false imprisonment and misfeasance in
public office and from the individual officers for breaches of s. 20 of the 1976
Act. The appellants submitted that the primary function of the police was to
preserve the Queen's peace, and that, in the course of performing their function
of investigating crime, the police owed no legal duties to take care that either
a victim or a witness as such did not suffer psychiatric harm as a result of
police actions or omissions. The appellants relied on Hill v Chief Constable of
West Yorkshire [1989] A.C. 53 HL as authority for that proposition. B did not
challenge the decision in Hill but contended that it did not stand in the way of
his submission that the police owed him a common law duty sounding in damages
to: (i) take reasonable steps to assess whether he was a victim of crime and
then accord him reasonably appropriate protection, support, assistance and
treatment if he was so assessed; (ii) take reasonable steps to afford him the
protection, assistance and support commonly afforded to a key eyewitness to a
serious crime of violence; and (iii) afford reasonable weight to the account
that he gave and act upon it accordingly.

Summary: Held, allowing the appeal, that
there was no basis for sensibly imposing on the police any of the three legal
duties asserted by B, as those duties would cut across the freedom of action the
police ought to have when investigating serious crime. The principle in Hill had
to be judged in the light of legal policy and the bill of rights, Hill applied.
With hindsight, not every principle in Hill could now be supported and a more
sceptical approach to the carrying out of all public functions was necessary.
However, the core principle of Hill had remained unchallenged in domestic
jurisprudence and European jurisdiction for many years and it had to stand. The
three alleged duties of care were undoubtedly inextricably bound up with the
police function of investigating crime, which was covered by the principle in
Hill. Making full allowance for the facts that the instant proceedings were a
strike out application, and that the law regarding the liability of the police
in tort was not set in stone, the court was satisfied that the three duties of
care put forward were conclusively ruled out by the principle in Hill, as
restated, and had to be struck out.

Van Colle v Chief Constable of Hertfordshire (HL) House of
Lords 30 July 2008

The first appellant chief constable
appealed against a decision ([2007] EWCA Civ 325, [2007] 1 W.L.R. 1821) that the
police had been under a duty to take preventive measures to protect a witness
who was being threatened and who was subsequently murdered, and that they were
in breach of that duty and therefore acted incompatibly with the European
Convention on Human Rights 1950 art. 2 . The second appellant chief constable
appealed against a decision ([2008] EWCA Civ 39, [2008] H.R.L.R. 23) that a
claim in negligence against the police arising from an allegation that they had
failed to take necessary steps after being informed of death threats against an
individual should not have been struck out. The cases involved two victims (G
and S). G had been murdered just days before he was due to give evidence for the
prosecution at the trial of a defendant (B) on charges of theft. B was convicted
of G's murder. G's parents alleged that G's murder by B had occurred after a
number of threats and incidents of witness intimidation by B against G and
others of which the investigating police officer (R) should have been aware and
which should have led him to take steps to protect G against the risk of serious
harm. According to S, he had repeatedly informed the police that his former
partner (P) had threatened to kill him, the police had ample evidence and
information to arrest P and they had no excuse for not doing so. While the
police were investigating the matter, P attacked S with a claw-hammer, causing
serious injuries. In bringing proceedings against the respective chief
constables, G's parents relied on art. 2 of the Convention, while S's claim was
brought under the common law. The issue was whether the Court of Appeal had been
correct to reach the two decisions that it had.

Summary: Appeals allowed. (Lord Bingham
dissenting in respect of S's case) (1) (Per Lord Hope) As to the art. 2 claim
brought by G's parents, the relevant test was set out by the Strasbourg court in
Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193 ECHR. Under the test, the
court had to be satisfied that the authorities knew or ought to have known "at
the time" of the existence of "a real and immediate risk to the life" of an
identified individual from the criminal acts of a third party. If they failed to
take measures within the scope of their powers which, judged reasonably, might
have been expected to avoid that risk, the relevant positive obligation would
have been violated. In G's case, that test had not been met. The murder had been
the action of a seriously disturbed and unpredictable individual, and it could
not reasonably be said that R should have anticipated, from the information
available to him at the time, that B constituted a risk to G's life that was
both real and imminent. It had been argued that by involving G in B's
prosecution, in particular by requesting him to be a witness at B's trial, the
police had exposed him to a risk to his life, thereby placing him in a special
category of witnesses, not shared by all members of the public, to whom a lower
threshold applied. However, the test in Osman was invariable and was not
intended to impose a standard which might vary from case to case, Osman applied.
(2) (Per Lord Hope) As to S's claim in negligence, the balance of advantage in
this difficult area lay in preserving the principle set out in Hill v Chief
Constable of West Yorkshire [1989] A.C. 53 HL, whereby, in the absence of
special circumstances, the police owed no common law duty of care to protect
individuals against harm caused by criminals. In Brooks v Commissioner of Police
of the Metropolis [2005] UKHL 24, [2005] 1 W.L.R. 1495 Lord Nicholls of
Birkenhead said that there might be exceptional cases where the circumstances
compelled the conclusion that the absence of a remedy sounding in damages would
be an affront to the principles that underlay the common law. That approach was
to be respected, but S's case did not fall into that category. That was why, if
a civil remedy was to be provided, there needed to be a more fundamental
departure from the core principle in Hill. That should be resisted, in the
interests of the wider community, Hill and Brooks followed. (3) (Per Lord
Bingham) The Court of Appeal had been right to decide as it had in S's case. If
a member of the public (X) furnished a police officer (Y) with apparently
credible evidence that a third party whose identity and whereabouts were known
presented a specific and imminent threat to his life or physical safety, Y would
owe X a duty to take reasonable steps to assess such threat and, if appropriate,
take reasonable steps to prevent it being executed.

Emergency services

Capital and Counties Plc v Hampshire CC (CA (Civ Div)) Court
of Appeal (Civil Division)14 March 1997

Abstract: The duty of a fire brigade to
ensure there was an adequate supply of water did not give rise to an action
where a fire brigade had turned off a sprinkler allowing a fire to cause
substantial damage. HCC appealed against a decision that the fire brigade was
liable in negligence for turning off a sprinkler system whilst attending a fire
at C's premises, which resulted in the fire getting out of control, causing
substantial damage to C's property. JM appealed against a decision that the
brigade owed no duty of care to JM with regard to a fire that had broken out at
JM's premises after the fire brigade had purportedly inspected the surrounding
area to ensure that no danger remained from an extinguished fire caused by a
third party. CJC appealed against the dismissal of its claim for negligence and
breach of statutory duty under the Fire Services Act 1947 s. 13 after the fire
brigade had been unable to fight a fire immediately due to the absence of an
adequate water supply.

Summary: Held, dismissing the appeals,
that the fire brigade's statutory powers to act could not be converted into a
common law duty and a brigade was not under a duty to answer a call for
assistance nor to take care to do so, Stovin v Wise [1996] A.C. 923 HL applied.
However, where the fire brigade, by its own negligence, created the danger which
caused the plaintiff's injury, the plaintiff could recover damages for
negligence. Section 13 of the Act, which imposed a duty on the fire brigade to
take all reasonable measures to ensure there was an adequate supply of water for
fire fighting, was not intended to confer a private law right on individuals,
but was merely part of the brigade's general administrative function to procure
water for fire fighting and could not give rise to an action for breach of
statutory duty.

OLL Ltd v Secretary of State for the Home Department

Summary: Held, that, while attempting to
perform rescues at sea, the coastguard owed no duty of care in respect of the
misdirection of its own personnel or other rescue organisations involved,
Capital and Counties Plc v Hampshire CC [1997] Q.B. 1004 CA (Civ Div) applied

Kent v Griffiths (No.3)(CA (Civ Div)) Court of Appeal (Civil
Division)3 February 2000

K, pregnant and asthmatic, was attended
by her GP, who at 4.27 pm dialled 999 and requested an ambulance to take K to
hospital, giving her personal details and informing them that she suffered from
bronchial asthma. The ambulance took 38 minutes to arrive, although a crew
member had falsely recorded the arrival time. K suffered a respiratory arrest
with catastrophic results, including substantial memory impairment, personality
change and a miscarriage. K brought an action, inter alia, against the London
Ambulance Service, LAS, alleging negligence in failing to respond promptly and
in failing to give her oxygen continuously in the ambulance. LAS was found
liable in damages, since in the particular circumstances they owed a duty of
care to K as an individual patient. The judge held that there was no reasonable
excuse for the delay and, because it was a highly probable that K would not have
suffered a respiratory arrest but for the delay, LAS was culpable. LAS appealed
contending that its situation was analogous to that of the police and fire
brigade, who owed no common law duty of care to the public at large.

Summary: Held, dismissing the appeal,
that an ambulance service could owe a duty of care to an individual member of
the public, once an emergency phone call providing the personal details of that
person had been accepted by the service and LAS was liable in damages to K. The
situation with LAS could be distinguished from that of the police force and fire
service, since they served to protect the general public, whereas the service
provided by LAS, as part of the health service, was more akin to that which was
provided by hospitals to individual patients, Alexandrou v Oxford [1993] 4 All
E.R. 328 CA (Civ Div) and Capital and Counties Plc v Hampshire CC [1997] Q.B.
1004 CA (Civ Div) distinguished. In the instant case, only K's welfare was at
issue and there was no conflict of priorities, therefore the requirement of
foreseeability necessary to establish sufficient proximity was made out.

Home Office v Dorset Yacht Co Ltd

Abstract: Borstal officers owe a duty to
take such care as is reasonable in all the circumstances with a view to
preventing the boys under their control from causing damage to private property.
Seven Borstal boys caused damage to the plaintiffs' yacht for which an action
was brought against the Home Office. On the preliminary issue whether the Home
Office owed any duty of care, Thesiger, J. held in the affirmative and the Court
of Appeal dismissed an appeal from his decision.

Summary: Held, (1) that the question of
law had been rightly answered in the affirmative; and (2) that public policy did
not require an immunity from such an action. (Home Office v Dorset Yacht Co Ltd
[1969] 2 Q.B. 412 CA (Civ Div) affirmed; Donoghue v Stevenson [1932] A.C. 562 HL
applied; Bourhill v Young [1943] A.C. 92 HL considered, Carmarthenshire CC v
Lewis [1955] C.L.Y. 1904 considered, Commissioner for Railways v Quinlan [1964]
A.C. 1054 PC (Aus) considered, Davis Contractors v Fareham Urban DC [1956] A.C.
696 HL considered, Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] A.C. 465
HL considered, Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The
Wagon Mound) [1961] A.C. 388 PC (Aus) considered and Rylands v Fletcher (1868)
L.R. 3 H.L. 330 HL considered).

The Jurisprudence of EC+HR

Osman v United Kingdom (23452/94)

a teenage boy, was seriously injured and
his father, F, was killed after being shot by P, O's former teacher, who had
become obsessed by O. Prior to the shooting, a number of disturbing incidents
had occurred, including damage to O's home, in respect of which P had been
interviewed by the school authorities and the police. P, who had also shot and
injured a deputy headmaster and killed his son, was convicted of manslaughter. O
and his mother, M, brought an action for negligence against the police in
respect of their conduct of the investigation into P's activities, but the Court
of Appeal ordered the action to be struck out as disclosing no reasonable cause
of action on the ground that, following the House of Lords' ruling in Hill v
Chief Constable of West Yorkshire [1989] A.C. 53 HL, for reasons of public
policy, no action in negligence could lie against the police in respect of the
investigation and suppression of crime. O and M applied to the ECHR, contending
that the state had failed to protect the lives of O and F and to protect the
family from harassment contrary to the European Convention on Human Rights 1950
Art. 2 and Art. 8 , and that O and M had been denied access to a court in
respect of that failure, contrary to Art. 6(1).

Summary: Held, that (1) there had been
no violation of Art. 2. The state was not in breach of its positive obligation
to take preventative measures to protect an individual whose life was at risk
from another, as the requirement that the police knew or ought to have known
that there was a real and immediate threat to O and F's lives from P was not
met, since none of the incidents prior to the shootings were life-threatening,
there was no proof that P was responsible for those acts and there was no
evidence that P was mentally ill or prone to violence; (2) for the same reasons
the state was not in breach its positive obligations under Art. 8, and (3) there
had been a violation of Art. 6(1). The fact that the Court of Appeal, in
applying the exclusionary rule in Hill, dismissed O and M's claim as disclosing
no cause of action did not preclude the application of Art. 6(1). The rule in
Hill, which appeared to act as an absolute defence to an action in negligence
and thereby prevented a court considering the competing public interests in a
case before it, constituted a disproportionate interference with a person's
right to have a determination on the merits of an action against the police in a
deserving case in breach of Art. 6(1).

Z v United Kingdom (29392/95)

Z and his three siblings sought relief
from the European Court of Human Rights, challenging a decision of the House of
Lords that local authorities should not be held liable in respect of the
exercise of their statutory duties safeguarding the welfare of children. Z, who
had been subjected to severe long term neglect and abuse, argued that the
authorities had breached the European Convention on Human Rights 1950 Art. 3
which granted freedom from torture or inhuman or degrading treatment. It was not
contested that the abuse suffered reached a level of severity prohibited by Art.
3 of the Act. The behaviour of the family had been reported to the social
services on several occasions, yet they had only acted five years after the
first complaint, when the children were placed in emergency care at the
insistence of their mother. It was also argued that Z had been denied the right
to a fair trial and had not been afforded a remedy in the courts, as guaranteed
by Art. 13.

Summary: Held, granting the application,
that the system had failed to protect Z and his siblings, and Art. 3 of the Act,
which was applicable to situations where ill treatment was administered by
private individuals, had been violated, A v United Kingdom [1998] 2 F.L.R. 959
ECHR applied. While the role of social services was acknowledged to be a
difficult one, the state had clearly failed in its positive obligation to
protect the children from ill treatment of which it had, or ought to have had
knowledge, Osman v United Kingdom (23452/94) [1999] 1 F.L.R. 193 ECHR
considered. It was further held that the applicants had been denied an effective
remedy following the state's breach of duty, since there had been no procedure
in force to enable them to obtain an enforceable award of compensation for the
damage suffered, and, therefore, Art. 13 of the Act had been breached. The
fundamental right enshrined in Art. 3 should entitle injured parties to
compensation for non-pecuniary damage as part of the range of redress. Damages
were awarded accordingly.

X (Minors) v Bedfordshire CC

Abstract: In cases involving Acts
establishing a framework for the promotion of the social welfare of the
community, it would require exceptionally clear language to show a parliamentary
intention that those responsible for the carrying out such difficult and
sensitive duties should be liable in damages if they fail to discharge their
statutory obligations. In the first of the two cases concerning allegations of
child abuse (the Bedfordshire case), five children claimed that they had
suffered parental abuse and neglect over a period of five years. They claimed
that the local authority, despite being fully aware of such abuse, had failed in
its duty under the Children Act 1989 s. 17(1) to safeguard their welfare and had
failed to apply for a care order under s. 31 of the Act. In the second of the
two cases (the Newham case), an order was made for the removal of a child from
her mother on the erroneous assumption that the mother's boyfriend was sexually
abusing the child. The mother and the child claimed that the psychiatrist and
the social worker employed by the local authority had failed to investigate the
facts with proper care, thereby causing injury to the plaintiffs. In both cases
the defendant local authorities succeeded at first instance in having the
plaintiffs' claims struck out as disclosing no cause of action. The Court of
Appeal dismissed the plaintiffs' appeals. In three further cases (the education
cases) various plaintiffs brought claims against their local education
authorities (LEAs) alleging failures in performance of the LEA's statutory
duties under the Education Acts of 1944 and 1981. In one case (the Hampshire
case) the plaintiff's claim was based solely on the alleged vicarious liability
of the LEA for the failure of the headmaster and others to refer the plaintiff
for an assessment of his special educational needs under the Education Act 1981
s. 5 . In the other cases (the Dorset case and the Bromley case) the plaintiffs
claimed that the LEA had negligently failed to make proper provision for their
special educational needs, contrary to the duties of the LEA under ss.2 and 7 of
the 1981 Act, in addition to claims for vicarious liability. In each of the
education cases the plaintiffs' claims were struck out at first instance for
disclosing no reasonable cause of action. The plaintiffs' appeals were allowed
in part by the Court of Appeal.

Summary: Held: dismissing the
plaintiffs' appeals in the child abuse cases and the LEA's appeals in the
education cases, that (1) although a breach of a statutory duty does not by
itself give rise to a private law cause of action, one will arise if it can be
shown that the statutory duty was imposed for the protection of a limited class
of the public, and Parliament intended members of that class to have a private
right of action for breach of that duty. If the statute does provide some other
means of enforcing that duty that will generally indicate that a private right
of action does not lie, but the presence of such other means of enforcement will
not necessarily be decisive (Cutler v Wandsworth Stadium Ltd [1949] A.C. 398 HL
considered; and Lonrho Ltd v Shell Petroleum Co Ltd (No.2) [1982] A.C. 173 HL
considered); (2) in order to found a cause of action flowing from the careless
exercise of statutory powers or duties, the plaintiff has to show that the
circumstances are such as to raise a duty of care at common law. The mere
assertion of the careless exercise of a statutory power or duty is not
sufficient (Geddis v Bann Reservoir Proprietors (1877-78) L.R. 3 App. Cas. 430
HL (UK-Irl), Home Office v Dorset Yacht Co Ltd [1970] A.C. 1004 HL considered);
(3) if the decisions complained of fall within the ambit of a statutory
discretion they cannot be actionable in common law. If the decision complained
of is so unreasonable that it falls outside the ambit of the discretion
conferred, there is no a priori reason for excluding all common law liability.
However, if the factors relevant to the exercise of the discretion include
matters of policy, the court cannot adjudicate on such policy matters and
accordingly a common law duty of care in relation to the taking of decisions
involving policy matters cannot exist. If the complaint alleges carelessness not
in the taking of a discretionary decision to do some act, but in the practical
manner in which that act has been performed, the question whether a common law
duty of care exists is to be determined according to the usual principles within
the context of the statutory framework (Anns v Merton LBC [1978] A.C. 728 HL,
Rowling v Takaro Properties Ltd [1988] A.C. 473 PC (NZ), Hill v Chief Constable
of West Yorkshire [1989] A.C. 53 HL applied); (4) the duty imposed on local
authorities under the Children Act 1989 s. 17 is a general duty pointing to an
issue of peculiar sensitivity: the decision whether to split the family in order
to protect the child. It is impossible to construe such a provision as
demonstrating an intention that even where there is no carelessness by the
authority it should be liable in damages if a court subsequently decided that
the removal or failure to remove a child was a breach of that duty; (5) although
in the child abuse cases the plaintiffs' complaints concerned the manner in
which the local authorities exercised their duties to safeguard the welfare of
children under s. 17 of the Act and did not involve considerations of policy, it
was not just and reasonable to superimpose a common law duty of care on the
authorities in addition to their statutory duties to protect children. A common
law duty of care would cut across the whole statutory system for the protection
of children at risk. Local authorities may adopt a more cautious approach to
their duties, and a substantive complaints procedure already existed (Caparo
Industries Plc v Dickman [1990] 2 A.C. 605 HL considered); (6) the social
workers and the psychiatrists were retained by the local authority to advise the
local authority, not the plaintiffs, and did not assume any professional duty of
care to the plaintiffs. The local authorities could not be vicariously liable
for their actions; (7) in the education cases, it was not just and reasonable to
impose on a LEA a duty of care to exercise the statutory discretion involved in
operating the special needs machinery of the Education Act 1981. If a common law
duty were held to exist there was a real risk that it might encourage hopeless
and vexatious cases. As in the child abuse cases, the courts should hesitate
long before imposing a common law duty of care in the exercise of statutory
powers for social welfare purposes; (8) where a LEA offered psychological advice
to the public in exercise of a statutory power, it comes under a duty to
exercise care in its conduct; and (9) a headmaster, psychologist or adviser
employed by a LEA is under a duty of care providing advice to parents and
children. The position was quite different from that of the doctor and social
worker in the child abuse cases, since there was no potential conflict between
the professional's duty to the plaintiffs and his duty to the LEA (E (A Minor) v
Dorset CC [1994] 3 W.L.R. 853 CA (Civ Div) overruled in part).