3.2.3. Challenging Policy Concerns

Much criticism has been levied at the policy concerns which have so restricted the negligence liability of public authorities. We have seen that policy concerns are by no means absent in French administrative law.¹¹⁹ But they apply less forcefully and are less potent than those in English law: they do not oust liability entirely.¹²⁰ This is an element that might influence English law: comparative law can help us to re-evaluate the assumptions underlying domestic law, and the power of the traditional policy concerns may thus be questioned. Indeed, in a case concerning the (p.278) existence and extent of the immunity of advocates, Lord Steyn opined that ‘[comparative experience may throw some light on the question whether in the public interest such an immunity of advocates is truly necessary’.¹²¹ There is no reason why the traditional public policy concerns in state liability cases should not also be subject to similar scrutiny.¹²²

We have already seen that the House of Lords has recently taken a more nuanced approach to the standard policy concerns invoked in negligence actions against public authorities.¹²³ We will not examine this in detail again here. But the shift in attitude is perhaps most clearly illustrated by Lord Nicholls' response to the argument invoked by the defendants in the Phelps case that by recognizing a duty of care the courts would be overburdened by a flood of unfounded claims brought against public bodies. Lord Nicholls rejected this with the phrase that ‘[d]enial of the existence of a cause of action is seldom, if ever, the appropriate response to fear of its abuse’.¹²⁴ This statement challenges the predominance of the duty concept in shaping the limits of negligence.¹²⁵ If it is inappropriate to reject claims by denying a duty of care, the courts will have to find other ways of tracing the contours of legal liability. We will turn now to look at these elements in some detail.

3.2.4. Establishing a Balanced Approach to State Liability

We have argued in a previous chapter that recent decisions of the courts illustrate a shift away from the predominance of the duty concept as the overriding control mechanism in the tort of negligence.¹²⁶ As a result of these cases, it is likely that greater reliance will be placed upon other elements of negligence actions. In this final section, we will look at the ways in which public authority liability actions, in particular those grounded in negligence, may be kept within reasonable bounds notwithstanding the more liberal approach to the issue of duty. The French legal system will be used as a point of reference, as this illustrates ways in which a developed legal system can resort to effective control mechanisms other than simply the notion of fault.

(P.279) 3.2.4.1. Breach of Duty

We have already seen that there has been a shift in emphasis from duty to breach in determining negligence claims against public authorities.¹²⁷ We have also examined the way in which the notion of breach may reduce the number of successful claims brought against public bodies.¹²⁸ In particular, the Bolam test¹²⁹ for professionals, if applied rigorously,¹³⁰ would ensure that weak or vexatious claims do not progress. By moulding the duty of care in line with the surrounding statutory framework and by taking account of, as in French law,¹³¹ the difficulties and sensitivities of decision-making at the breach level,¹³² the courts can adopt a measured approach to claims concerning differing types of administrative activity. Recent cases show how the courts may use the new procedural framework to develop tools to allow for the weeding out of hopeless claims, whilst at the same time ensuring that they have a sufficiently full factual picture of all the circumstances of the case.¹³³