(P.36) 3. The Role of Ultra Vires in English Tort Liability

There has been much debate in English law about the relationship between administrative law invalidity⁵⁸ and the tort liability of public authorities.⁵⁹ This discussion has been heightened by both the European law influence and the greater awareness of the civil law approach through comparative law studies.⁶⁰ The discussion in this section will focus upon the torts of breach of statutory duty and negligence, but reference will also be made to other relevant torts.

3.1. Civil Action for Breach of Statutory Duty

Breach of a statutory duty by a public body can evidently give rise to a public law remedy. It may also result in a private law action in damages.⁶¹ This is a tort which could have moved English law towards a close relationship between breach of legality and damages liability. The recent history of this tort shows how far we are from such a position. Successful actions against public authorities on the basis of this tort have become ever more rare; the elements of the tort are restrictively drawn.

The tort of breach of statutory duty has not always favoured defendant public bodies. Early authorities suggested that the tort had a wide ambit.⁶² Until the late nineteenth century, an action arose for harm caused by the non-performance of a statutory duty against the person on whom the duty was imposed,⁶³ including public bodies.⁶⁴ This broad rule was overturned in Atkinson v Newcastle and Gateshead Waterworks Company, in which the Court of Appeal held that the existence of a civil action for breach of statutory duty depended primarily upon statutory construction.⁶⁵

The modern approach of the courts has been to follow this statutory (p.37) construction approach.⁶⁶ It is now no longer sufficient for a claimant simply to show that damage has been suffered in consequence of a breach of duty imposed by statute. There are two basic elements of a private law action in damages for breach of statutory duty. The claimant must show that on statutory construction the duty was imposed for the protection of a limited class of the public and that Parliament intended to confer private rights of action.⁶⁷ It is rare for statutes expressly to confer a right to damages for breach of an obligation,⁶⁸ and so the courts have had to divine the intention on other grounds.⁶⁹

Various indicia of Parliamentary intention have been asserted by the courts. The absence of an alternative means of enforcing a statutory duty for the protection of a limited class would indicate in favour of a private right of action, since otherwise there would be no method of securing the statutory protection.⁷⁰ On the other hand, if the statute does provide an alternative means of enforcing the statutory duty, this creates a presumption that the statutory right was intended to be enforceable by those means only.⁷¹

Although the courts invariably emphasize that Parliamentary intention is of paramount importance,⁷² it is clear that underlying many decisions is the influence of strong policy considerations. It has been emphasized that administrative activities containing any element of discretion should solely be covered by public law remedies.⁷³ In part this concern seems to be based upon the desire to avoid encroaching upon the sphere of discretionary executive decision-making.⁷⁴ There is also evidence that the restrictive approach is influenced by the financial consequences of imposing damages liability on public authorities. Lord Hoffmann inferred this (p.38) in O'Rourke v Camden LBC, where an action in damages for breach of homelessness legislation was rejected.⁷⁵ Underpinning the judgment was the belief that failure to provide such a public service does not entitle the disappointed consumer to sue for damages represented by the loss.⁷⁶ The disappointed recipient of the public service is no worse off than if the service had not been provided in the first place.⁷⁷ In his Lordship's view, common policy concerns inform all tort actions based upon the failure of public authorities to deliver public services.⁷⁸

The influence of policy factors may be detected in other cases, again cloaked in terms of legislative intention. The courts will allow an action only where the claimant's injury was of a kind intended to be protected by the statute.⁷⁹ In recent cases concerning duties imposed upon both private persons and public authorities,⁸⁰ the courts have taken account of the interest which is sought to be protected by the tort, giving more protection to the person or property than to pure economic interests.⁸¹ This policy consideration is attributed to legislative intent. In Feakins Ltd v Dover Harbour Board, it was held that the statutory obligations of a port to allow the transport of goods and animals did not confer a private law right on individuals to claim damages for a breach which caused economic loss.⁸² Tucker J adverted to the legislative intent: ‘where purely economic loss is concerned, as in the present case, there is in my view a strong indication that Parliament did not intend to confer a right of recovery’. In truth, this reluctance is probably underpinned by the same fears restricting negligence liability for pure economic loss.⁸³

Recent case law has indicated a general reluctance to allow private law actions for breach of public law duties. There is a wealth of examples. It has been particularly marked in the sphere of criminal justice. The provisions obliging the Crown Prosecution Service to bring a person remanded (p.39) in custody before the Crown Court to apply for bail before the expiry of the custody time limit do not create a private law cause of action.⁸⁴ It has been held that breach of the Prison Rules gives no right of action in damages to a prisoner.⁸⁵ An infringement of the Police Discipline Regulations does not give rise to a cause of action in damages for breach of statutory duty in favour of an officer facing disciplinary action.⁸⁶

This trend is seen in other areas of public service. Private law actions for breach of statutory duty against the fire services have been ruled out in broad terms.⁸⁷ In the education sphere, Lord Clyde has held that ‘the educational obligations imposed on local education authorities by statute cannot give rise to a (private law) action for damages for breach of statutory duty at the suit of pupils in their schools’.⁸⁸ In the medical sphere, it has been decided that breach of the obligation to provide after-care for patients discharged from mental hospital under section 117 of the Mental Health Act 1983 does not give rise to a civil action.⁸⁹ For social welfare or regulatory activities, it would seem that a private right of action for breach of statutory duty will arise only where the statutory duty is very limited and specific, as opposed to general administrative functions involving the exercise of administrative discretions.⁹⁰

On the rare occasions that the initial criteria of actionability are satisfied, it must be shown that the defendant has breached the statutory duty. The standard of breach primarily depends upon the language of the statute. The duty may be absolute, in the sense that the addressee is obliged to attain a particular result: for instance, sections 7 and 12 of the Nuclear Installations Act 1965 impose an absolute duty to prevent damage to property from the radioactive properties of nuclear material.⁹¹ Alternatively, other cases indicate that some degree of objective fault might be required, thus imposing an obligation to take reasonable care or a duty to undertake ‘reasonably practicable’ acts.⁹²

There appears to have been some judicial misunderstanding over the breach element. Lord Browne-Wilkinson seems to perceive this as (p.40) exclusively a tort of strict liability. In relation to the child abuse appeals in X (Minors), Lord Browne-Wilkinson held that the court must decide whether the statute demonstrated the parliamentary intention that ‘even where there is no carelessness by the authority it should be liable in damages’.⁹³ Indeed, his Lordship was even more explicit in an extrajudicial address:

The whole concept of liability for breach of statutory duty by itself, regardless of fault, is an extremely dangerous one in a modern, much-regulated society. It may or may not have its place if you are talking about specific duties laid down such as the Factories Act type of fencing obligations, where there is a statutory duty to do a defined thing. But when Parliament has set out a whole raft of social welfare functions involving broad duties, to say that people who without fault fail to carry out those duties are to be liable would be a poor idea.⁹⁴

The present approach to private law actions for breach of statutory duty is unsatisfactory. The fictional reliance of the courts on the missing legislative intention has been much criticized.⁹⁵ Various attempts have been made to provide a more principled approach to this tort.⁹⁶ Lord du Parcq famously exhorted the legislature to give a systematic statutory declaration as to actionability.⁹⁷ There is evidence that the legislature is addressing this point more frequently,⁹⁸ but political expediency means that the legislature will invariably prefer to avoid express acknowledgement of financial responsibility or immunity.⁹⁹ This leaves the judiciary to decide the issue. The Law Commission recommended a general presumption in favour of actionability in 1969,¹⁰⁰ but this was not acceptable to Parliament.¹⁰¹ On the strength of recent judgments, it would seem that the (p.41) present position is nearer to a presumption against damages for breach of public law duties.

In conclusion, the formulation of this tort is undoubtedly favourable to defendant public authorities exercising statutory functions. Whereas successful actions may arise from general legislation, for instance in the sphere of health and safety at work,¹⁰² damages claims for breach of specifically public law duties are restrictively viewed by the courts. It can thus be appreciated how far the courts have moved from a close rapport between breach of legality and damages. We will now look at how similar considerations are dealt with in the tort of negligence.