2.1.2. The Notion of Proximity and the Test of Fairness, Justice, and Reasonableness

A basic principle of English law is that the negligence liability of public authorities is determined according to the ordinary common law principles of negligence. No action will arise from the mere careless performance of a statutory function.³⁴ The claimant must show that the factual situation falls within the ambit of a common law duty of care.

In determining the existence of a duty of care in a ‘novel’ situation,³⁵ the courts have resorted to a tripartite analysis,³⁶ examined under the heads of foreseeability of harm, proximity between the parties, and whether it is fair, just, and reasonable to impose a duty of care.³⁷ It is in respect of the latter two elements that the courts have moulded the duties of care owed by public bodies. The discussion will thus focus upon how the courts have answered the following questions.³⁸ Is the relationship between the claimant and the defendant sufficiently proximate? Is it just, fair, and reasonable to impose a duty of care?

The structure of the discussion will be as follows. We will first examine the restrictive tendency of the courts in formulating duties of care. We will then go on to look at the effect of recent case law developments on this topic.

(P.64) 2.1.2.1. The Restrictive Approach to Duties of Care of Public Authorities

Over a long period of time, the courts repeatedly invoked a number of public policy concerns in refusing to impose duties of care upon public authorities. We will first examine the policy considerations commonly invoked by the courts. Then, the restrictive effect of both these policy factors and the test of proximity upon public authority liability will be analysed.

It is not possible to give an exhaustive catalogue of policy issues, but an account will be given of those concerns which have repeatedly appeared in state liability cases.³⁹ The multi-disciplinary nature of administrative decision-making has often been invoked against the imposition of a common law duty of care.⁴⁰ The existence of alternative remedies for claimants has also militated against common law duties: the courts have thus expressed preference for recourse to statutory appeal mechanisms,⁴¹ judicial review, the Criminal Injuries Compensation Board,⁴² and the Ombudsman schemes.⁴³ It has also been held that the sensitive and delicate nature of public bodies' activities can work against judicial scrutiny in negligence actions.⁴⁴ The negative impact that potential damages liability might have on public service provision has also been given as a reason for not finding a duty of care. Thus it has been feared that potential liability would prompt authorities to engage in liability-avoiding defensive practices, as well as diverting time and resources to repelling speculative claims.⁴⁵ The so-called ‘floodgates concern’ has also had an impact on public authority liability. This is a complex policy factor which has been applied in many areas of tort,⁴⁶ but there have been a number of cases in which the judiciary has expressed fears that a flood of unfounded claims would be made against public bodies should a duty of care be acknowledged.⁴⁷ The practical complexities of actions in tort against public (p.65) authorities have often been cited by the courts, which have rejected duties on the basis that to establish whether an action should succeed would involve time-consuming litigation inevitably diverting resources—both financial and in terms of manpower—from the core activity of public service provision.⁴⁸

We will now examine the concrete effect of these policy concerns. Many sectors of the public service have been afforded protection from judicial intervention on these policy bases. We will look at these spheres in turn.

Actions in negligence against the police have been dominated by the rule in Hill v Chief Constable of West Yorkshire, whereby public policy precludes claims concerning the investigation and suppression of crime.⁴⁹ The Hill rule has been applied in many police cases,⁵⁰ and has been extended to other agencies involved in the criminal justice system,⁵¹ so that, for instance, the Crown Prosecution Service does not owe a duty of care to those it is prosecuting.⁵² Exceptions to this stark exclusionary rule were nonetheless admitted. Indeed, Lord Keith in the Hill case held that a police officer may be tortiously liable to a person who is injured as a direct result of his acts or omissions.⁵³ Liability also arose when the police assumed some measure of responsibility for the claimant.⁵⁴

Negligence actions against regulatory authorities also met with resistance,⁵⁵ thus providing protection for bodies acting in the sphere of health and safety,⁵⁶ control of financial institutions,⁵⁷ and the supervision of (p.66) compliance with building regulations.⁵⁸ Policy concerns marked claims against planning authorities,⁵⁹ with rare findings of negligence.⁶⁰

The social welfare and education spheres have also been the objects of judicial attention in recent years. Prior to the recent case of Barrett,⁶¹ the social services were afforded a generous degree of protection from actions in negligence,⁶² and claims in respect of child protection had rarely succeeded.⁶³ In the education sphere, prior to the recent House of Lords' decision in Phelps,⁶⁴ it had been held that for policy reasons local authorities were not under a direct duty of care to children for the exercise of statutory functions to provide suitable education under the various Education Acts.⁶⁵

It should, however, be observed that these policy concerns have not always been unquestionably accepted. Certain claims have not been thwarted by these considerations.⁶⁶ So, health-care professionals have long been subject to duties of care in respect of the provision of medical treatment.⁶⁷ In general, the courts are more likely to recognize a duty of care when the impugned activity may also be undertaken by ordinary citizens, and is thus not intricately linked to the exercise of statutory functions,⁶⁸ such as the liability of public servants for the negligent driving of a vehicle.⁶⁹

However, negligence actions in respect of the exercise of governmental functions have traditionally been restrictively viewed by the courts. (p.67) Above and beyond policy concerns, other means of controlling the extent of duties have been invoked. This is highlighted by the law governing the liability of firefighters.⁷⁰ It has been held that policy factors should not prevent the imposition of a duty of care upon firefighters in respect of the owners of premises at risk of fire.⁷¹ But the use of proximity is significant. It was held in Capital & Counties Plc v Hampshire County Council that the fire brigade is in a sufficiently proximate relationship with property owners only if greater injury was caused than would have been sustained if nothing had been done at all.⁷² There is thus a duty not to create further danger⁷³ or to make the claimant's situation worse. On the other hand, there is no general duty to conduct firefighting operations with reasonable care.⁷⁴

Similarly, claims against regulatory authorities have often been rejected for lack of the requisite relationship of proximity,⁷⁵ and duties of care have also been denied by reference to other elements of the tort of negligence, such as the causally peripheral role of the defendant⁷⁶ or the purely financial nature of the loss.⁷⁷