2.1.2.5. The New Approach to Public Authority Liability

The two House of Lords decisions in Barrett and Phelps mark a different approach to claims in negligence. The impact of these cases in terms of the illegality-liability rapport and the concept of justiciability has already been assessed.¹⁴⁷ We will concentrate here upon the attitude of the courts to the tripartite test of a duty of care.

The concept of a duty of care has traditionally dominated the tort of negligence. And yet, there are many other important constituent elements of the tort of negligence. These recent cases highlight a certain shift away from the concept of duty as the predominant controlling mechanism in public authority liability cases. Two particular points should be highlighted: a more sceptical view of policy concerns and a corresponding rise in importance of the standard of breach in controlling the occurrence of public authority liability.

2.1.2.6. Move Away from Duty: a More Nuanced Approach to Policy Considerations

As we have seen,¹⁴⁸ the courts traditionally invoked a series of public policy concerns as militating against the imposition of duties of care on public authorities in the exercise of statutory functions. The recent cases on public authority liability can be interpreted as illustrating a more nuanced approach to policy considerations. This is shown by developments in domestic law before the House of Lords, and may also be (p.78) strengthened by the decisions of the European Court of Human Rights. More recent domestic cases have confirmed the new approach, and have given further indications of the way forward.

The decision in Barrett first indicated a change in attitude to policy concerns.¹⁴⁹ The House of Lords showed a reluctance to accept the commonly invoked policy concerns to deny a duty of care, and refused to strike out the action in damages. Lord Slynn and Lord Hutton convey in their judgments a certain unease with a number of policy arguments, including the availability of alternative remedies, possible defensive practices, and the existence of multi-disciplinary administrative decision-making.

The move away from the restrictive approach has been continued in Phelps. Further doubt was cast on the veracity of the traditional policy concerns. We will examine this point in more detail when we turn to look at the cogency of the policy concerns in the comparative section below.¹⁵⁰ However, it should be emphasized that, for a number of reasons, the decision in Phelps may be seen as even more significant than Barrett. First, the impact of the decision in Barrett was limited by the fact that it concerned an application to strike out a claim. The House of Lords simply decided that the claimant had an arguable claim that it was just, fair, and reasonable to recognize a duty of care. The Phelps case was somewhat different. Although three out of the four appeals in Phelps were indeed interlocutory proceedings, the eponymous appeal, Phelps v Hillingdon LBC, had actually been to trial. The claim was not merely held to be arguable (as in Barrett); it was in fact considered to be fully justified and liability was upheld on the basis of concrete facts ascertained at trial. Secondly, in Barrett their Lordships carefully restricted their comments on the policy concerns to the particular circumstances of that case, and explicitly denied doubting the validity of the general policy concerns as enunciated in X (Minors).¹⁵¹ In Phelps, the challenge made to the policy concerns was more powerful. Not only was the language used of a particularly robust sort, but the views expressed seem to extend beyond the case at hand.

We should now turn to consider the human rights influence. We have seen above that in Z v UK, the ECtHR appeared to retreat from the Osman decision in its disavowal of Article 6. Nonetheless, it is submitted that this does not necessarily undermine the more liberal approach to public authority liability in English law. Although the more recent liberal decisions were no doubt heavily influenced by the decision in Osman,¹⁵² the impetus for change also came from a purely domestic perspective.¹⁵³ In (p.79) any case, the lack of overall and explicit reliance¹⁵⁴ by the House of Lords in Barrett and Phelps on Osman forestalls any charge that they were cases built upon foundations which have since crumbled.

Moreover, the European Court in Z v UK did place some emphasis upon the recent developments in English tort law as underpinning its retreat from Osman;¹⁵⁵ indicating that these decisions were illustrative of a careful balancing of policy concerns and sensitive to different factual situations, far from amounting to a blanket immunity denying access to court contrary to Article 6 ECHR. The reasoning of the ECtHR thus supports and encourages the English courts' more nuanced approach to policy concerns.¹⁵⁶ It is hard to believe that the courts will ignore the indication made by the ECtHR that it was the more liberal approach to duties of care adopted by the courts which reassured it that blanket immunities were no longer being applied in this sphere.¹⁵⁷ Indeed, in a series of recent cases, decided after the Z v UK, decision, the English courts have emphasized that ‘blanket immunities’ should no longer apply to public authorities, and that to decide otherwise would offend European human rights law as well as common law principles.¹⁵⁸

(p.80) In fact, it might well be argued that the decision in Z v UK will actually prove to be a further liberalizing force. There are various possible ways in which the English courts may take account of the ECtHR decision concerning the breach of Article 13.¹⁵⁹ The minimalist response to the decision in Z v UK would simply be to say that an effective remedy is now provided by the HRA, under which the courts have gained a power to grant damages as a remedy for the breach of a Convention right by a public authority.¹⁶⁰ Although this may well be a valid response to the ECtHR decision,¹⁶¹ one could also argue for a broader impact. It would make sense for human rights breaches to be remedied not only by the provision of damages under the HRA—which it is important to underline is perceived as a residual remedy¹⁶²—but also through orthodox tort law by means of the continuing evolution of the fair, just, and reasonable limb of the tort of negligence. Not only would this harmonized approach avoid the courts adopting a different response to the same factual circumstances—depending upon whether the remedy was based on the HRA or on the tort of negligence—but it would also encourage the process of weaving the Convention rights into domestic law¹⁶³ by developing tort law in line with the new human rights considerations.

Indeed, recent domestic cases would seem to have underpinned the shift to a more nuanced consideration of policy concerns, and indicate that there has indeed been a sustainable change in perspective on the part of the English judiciary. First, doubt has been cast upon the exclusionary approach, whereby public policy concerns could exclude a whole category of public service activity from scrutiny in public authority liability cases. In a series of decisions, including some decided after Z v UK, it has been emphasized that public authorities cannot expect to be protected by a ‘blanket immunity’ from liability in the exercise of their functions. This has been repeated in claims concerning planning authorities,¹⁶⁴ the (p.81) police,¹⁶⁵ social welfare authorities,¹⁶⁶ and emergency services providers.¹⁶⁷

Secondly, going further than a simple rejection of the exclusionary approach, the House of Lords has demonstrated its attachment to the basic premise that public policy requires that those who have suffered a wrong should have a right to a remedy.¹⁶⁸ Although this tenet may in some ways be seen as somewhat circular,¹⁶⁹ it might perhaps be interpreted as suggesting that in public policy terms there is a presumption in favour of the justice, fairness, and reasonableness of a duty: as one judge has held ‘very potent considerations are required to override’ that basic premise.¹⁷⁰

This does not mean that the outcome of litigation is now systematically in favour of the claimant,¹⁷¹ nor that the courts are deprived of the ability to dispense with claims without trial for lack of duty.¹⁷² Instead, once countervailing public policy concerns are invoked, the courts will proceed to a fine balancing of the competing factors, with this balancing act now no longer weighed heavily in favour of exclusion rather than reparation.

In concrete terms, the effects of the new approach ushered in by Barrett and Phelps have been felt. There are a number of cases in which the courts have indicated that they are now more willing to recognize duties of care in the area of public authority liability.

In the planning sphere, the Court of Appeal has not only strongly rejected the suggestion that a defendant planning authority should be protected by ‘blanket immunity’ from liability in the exercise of its planning functions, but has also illustrated its willingness to uphold duties. In (p.82) Kane v New Forest District Council, in a striking-out application, it was said that a claimant had a ‘positively powerful case’ that a planning authority had acted negligently in the opening of a footpath crossing point at a hazardous location before appropriate safety or visibility measures had been taken.¹⁷³ At trial, the defendant duly conceded that it owed the claimant such a duty.¹⁷⁴ In the linked area of highway safety, a more liberal approach seems even to be apparent in respect of omissions of the highway authorities, with the Court of Appeal taking a seemingly less rigorous approach than that advocated by Lord Hoffmann in Stovin v Wise.¹⁷⁵

In terms of the emergency services, Lord Woolf departed from the ‘fresh damage’ test laid down by Stuart-Smith LJ in Capital & Counties Plc v Hampshire County Council,¹⁷⁶ and allowed a claim in negligence against the London Ambulance Service for failure to respond promptly to an emergency call which it had ‘accepted’.¹⁷⁷ Lord Woolf concluded that the London Ambulance Service, unlike the fire brigade and the police service, was not merely under a limited duty not to cause additional damage, but rather under a ‘normal’ medical duty.¹⁷⁸

We have already examined developments in education cases.¹⁷⁹ In the social welfare sphere, over and above the Barrett decision discussed above, there are also signs of a more open approach at the duty level. In the Court of Appeal decision in S v Gloucestershire CC concerning two (p.83) joined appeals,¹⁸⁰ claimants brought actions for injuries caused by sexual abuse by their foster-fathers, alleging that local authorities had acted negligently in placing them with these foster parents and in the subsequent monitoring of their placements. May LJ held that following the decision in Barrett ‘a claim in common law negligence may be available to a person who claims to have been damaged by failings of a local authority who were responsible under statutory powers for his care and upbringing’.¹⁸¹ In the instant case, the Court of Appeal decided that the claims arguably disclosed a duty of care on the local authorities.¹⁸²

In another related case, L (A Child) v Reading BC,¹⁸³ the Court of Appeal allowed to proceed to trial a claim brought by a child and her father alleging negligence, misfeasance in a public office, and conspiracy to injure, stemming from investigations and interviews improperly conducted by police and social services following false allegations of child sexual abuse made by the child's mother against the father. It was held that when the police, and by implication other professionals,¹⁸⁴ interviewed the child, they arguably assumed responsibility to protect her from future harm which might ensue from the manner in which the investigation was carried out. As for the father, it was held to be arguable that there was an assumption of responsibility by the police officer to take reasonable steps not to damage the father during the investigation of the mother's complaint once it was clear that there was no evidence to support criminal proceedings. The Court of Appeal also refused to strike out the claim on the basis that it was not fair, just, and reasonable to impose a duty of care. Otton LJ held that ‘both claimants are entitled to access to the court to enable them to pursue their arguable substantive rights’.¹⁸⁵ This decision seems to differ very sharply from the approach of the House of Lords in the decision in X (Minors) concerning the appeal in M (A Minor) v Newham LBC, in which a claim by a child and mother against a local authority, a health authority, and a consultant psychiatrist for alleged negligence in the investigation of the sexual abuse of the child was struck out by the House of Lords.¹⁸⁶ In L (A Child) v Reading BC, not only were (p.84) the members of the Court of Appeal more reluctant to decide the case at a preliminary stage, but they seemed broadly more favourable towards the recognition of duties of care to the father and child based upon the assumption of responsibility by the police.

Even in police cases, the courts are showing a more nuanced approach to public policy considerations.¹⁸⁷ In sum, there is a good deal of evidence of a progression towards a more fact-sensitive analysis of duties of care, and a discernible movement away from a determination of such duties for whole swathes of public service activity on the basis of an aggregate weighing of public policy considerations with the interests of potential claimants.¹⁸⁸