2. Recurring Themes Concerning Duty of Care in Respect of the Exercise of Statutory Powers

As I have explained, in modern practice the central tort for the imposition of liability in the administration in respect of the exercise of their powers has been in the tort of negligence rather than, notably, the tort of breach of statutory duty,³³ and over the last half century the concept of the duty of care has borne the brunt of the court’s attention in controlling liability in this situation. While the so-called ‘tests’ for the imposition of a duty of care have varied over this period, in the context of the exercise of public powers most courts now follow the approach of the House of Lords in Caparo and so look (p.336) at the foreseeability of the claimants harm, ‘proximity’ and whether it would be ‘fair, just and reasonable’ for there to be liability for negligence.³⁴ While sometimes the courts have denied the existence of a duty of care against a public authority on the ground of the lack of forseeability or proximity³⁵ in many cases, the crucial question for the courts is whether it is ‘fair, just and reasonable’ to impose a duty of care or whether there are convincing policy reasons to the contrary given the particular factors present in the case before them and in the light of previous authorities.³⁶ There are, nonetheless, a number of recurring themes in judicial discussions of these very open issues.³⁷

(a) The statutory context

The most important theme emerging from the case law of the last decade has been the concern of the courts to relate the issue of liability for negligence to the particular statutory context of the power whose exercise is impugned. This was most succinctly expressed by Lord Browne-Wilkinson in X v Bedforshire CC, who considered that, even if the defendant’s action was ‘justiciable’ and so not a matter of policy for its own decision:

[t]he question whether there is…a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done…[A] common law duty of care cannot be imposed on a statutory duty if [its] observance…would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties.³⁸

This idea has a number of variants. So, sometimes the courts express concern that the imposition of liability should not defeat the purpose for which the statutory power in question was created or, even more demandingly, that the purpose of the statutory power should be (at least in part) aimed at the protection of the interest of the claimant before the court. This last variant has been used both positively and negatively. Positively, a court may say that the purpose of the statutory power being to protect the claimant from the type of harm suffered by him is a good reason for the finding of a duty of care, as in Perrett v Collins³⁹ in the context of the safety of aircraft. However, this variant has also been used to argue against the existence of a duty of care as, for example, in the East Berkshire case, where the Court of Appeal held that statutory powers in local authorities to remove children at risk of abuse from their (p.337) families were aimed at the protection of children, with the result that while a duty of care could be owed by the local authorities to any child harmed by the exercise of these powers, no such duty could be owed to their parents.⁴⁰ Sometimes, a court focuses not so much on the person harmed, but on the nature of the harm suffered. So, for example, in Harris v Evans the claimant ran a business providing ‘bungee jumping’ and who suffered lost business (‘pure economic loss’) after the Health and Safety Executives (‘HSE’⁴¹) decision led to a prohibition on use of bungee with a mobile crane: here the HSE did not owe any duty of care to the business in question.⁴²

This theme is a very important one and reflective of a number of fundamental features of English law. First, it shares with the traditional approach to the incidence of civil liability for breach of statutory duty a starting point in interpretation of implied parliamentary intention, but unlike this tort, it does not focus so much on the question of an implied and indeed fictitious imposition of liability in damages (adding a ‘private right’ to whatever sanctions or remedy are provided for breach of the ‘public law duty’),⁴³ but rather on the consistency of imposing civil liability with the purpose of the statute, a teleological interpretation of the powers actually created.⁴⁴

Secondly, it reflects the fundamentally exceptional nature of English legislation: for statutes are seen traditionally as interventions, departing from a position generally established at common law only to the extent to which they themselves provide.⁴⁵ While one could argue with the appropriateness of this vision as regards the nature of some English statutes (where they purport to govern a large area of the law, exclusively and systematically), it is fully reflected in the piecemeal nature of English law’s statutory public powers, which are particular and carefully drawn even if numerous and varied. This marks a striking contrast to the French approach to administrative powers, for French public law accepts that its administration has an inherent power to govern, notably under the idea of the pouvoir exécutif des lois.⁴⁶ So, in the context of police administrative, the administration has a general power to intervene in the interests of ordre public, whether or not particular bodies are given particular powers by loi, for example to regulate a product or recall it from the market in the interest of citizens’ safety.⁴⁷ So, too, the starting point of French law to liability in the administration for the exercise of its police administrative is a general one, though the decisions of the Conseil d’Etat themselves reflect a degree of ‘empiricism’.⁴⁸ By contrast, by holding that the existence of a duty of care in the tort of negligence for public authorities depends on the particularities of the powers which they exercise, English judges allow their vision of the special nature of statutes and therefore the particular nature of administrative powers, to spill over into their treatment of the common law of liability.

(p.338) The English judicial approach also reflects a second fundamental characteristic of the English common law: the temptation towards casuistry, by which I mean, towards distinguishing ever more finely between the contexts of decision making rather than appealing to broader rules. Modern English judicial treatment of precedents reflects the tension on the one hand between the need for consistency and legal certainty and on the other the practical limitations of constructing legal propositions in the context of the civil process, where arguments are focused on particular facts (or sets of facts) and necessarily restricted both in their nature and in the type of evidence with which they may be supported. While English judges do take into account policy considerations in their development of the law, they are also conscious of these limitations and on their relative position to Parliament in terms of democratic legitimacy. In this tension, the vice of casuistry is found at one extreme of the spectrum of compromises between these tensions, paralysing the attempt to construct useful (because more generally applicable) legal propositions, at the other end of which is the vice of legal formalism, where legal rules are applied to inappropriate contexts or with inappropriate results out of a bare appeal to authority.

In my view, the English temptation towards casuistry was encouraged by judicial rejection of ‘blanket immunities’ for certain categories of administrative activities, a rejection seen (at one time) as necessary to give effect to the decisions of the European Court of Human Rights in Osman and Z.⁴⁹ It is reflected in two elements of the case law governing administrative liability. First, it is seen in the invocation in this context of the idea that any extension of liability to new situations (that is, ones whose facts have themselves not previously been the subject of judicial decision) must be ‘incremental’, that is, based on analogy with other decisions and rather cautious, an invocation used from time to time in other types of problem areas of the tort of negligence.⁵⁰ Secondly, the major decisions of the last decade concerning the liability of public authorities have been liberal in their use of distinguishing the approaches to liability in previous cases by reference to their statutory context or facts, or both.⁵¹ Of course, distinguishing previous cases is as much a part of the doctrine of precedent as following them, but the extent to which the courts distinguish previous judicial statements of the law differs significantly in different legal contexts and at different historical periods. The extent to which earlier cases have been distinguished in the law governing the liability of public authorities reflects a lack of confidence in the formulation of general rules or even guiding principles for the imposition of a duty of care in this area. In this way, the repeated question whether the imposition of a duty of care is ‘fair, just and reasonable’ is used merely as a cover for deciding each slightly different set of facts or differently characterised claim de novo, on the basis of a fresh assessment of the relevant factors or considerations of policy.

(p.339) (b) The relationship between the illegality of a public body’s action and the need to protect ‘policy decisions’

The relationship between the illegality of a public body’s action and the need to protect ‘policy decisions’ has often been seen as central to judicial decisions as to the imposition of a duty of care in the tort of negligence. There have been a number of variations on this theme.⁵²

The first clear signs of the courts’ relating their approaches to judicial review of administrative decisions and to the imposition of liability can be seen in the House of Lords’ decision in Dorset Yacht.⁵³ In principle where Parliament has given a discretionary power to a public body, the courts should not interfere with its exercise, except to the extent to which it acted ultra vires, that is, beyond the ambit of its powers as defined by the grounds of review of administrative decision making; a duty of care may also be a potential interference in the exercise of a discretionary power and so should not be imposed except where the action in question was ultra vires. In this way, administrative illegality was made a condition for the imposition of a duty of care as regards the exercise of discretionary powers. On the other hand, a distinction was drawn between the sort of decision which involved the assessment of policy and ‘operational decisions’, which merely involved the putting into effect of decisions of policy already made. As to the latter, there was no reason why the courts should not impose a duty of care, subject to any other applicable considerations, such as the nature of the harm suffered by the claimant. Unlike the position in French law, the administrative illegality of a public body’s decision making was not a ground of liability but a mere threshold to be crossed.⁵⁴

However, the courts soon became dissatisfied with this approach to the relationship between administrative illegality and liability in negligence. For they found the distinction between ‘policy’ and ‘operational’ decisions difficult to use as a touchstone of liability, and also considered that certain types of administrative illegality (notably, procedural ones, such as breach of the principle audi alteram partem) were not relevant to the question whether or not a public body’s discretion should be protected. For this reason, from the late 1980s, the courts preferred instead either to focus attention on the most general substantive ground of administrative review, Wednesbury unreasonableness, as a necessary hurdle for the imposition of a duty of care in negligence in this situation, or instead (and sometimes as well) to assess the ‘justiciability’ of the public body’s decision, that is, the appropriateness for judicial assessment of the various factors which a public body would have to consider in coming to its view as to how to act.⁵⁵ While ‘justiciability’ is a flexible concept, it accepts that while some policy decisions may be appropriate for assessment by the court, others must remain with the public bodies to which a power of decision is entrusted; in particular, courts have avoided imposing duties of care in respect of decisions where these impinge on the allocation of resources between different public functions or services.

(p.340) More recently, moreover, the House of Lords has appeared to go further. For, in Barrett and Phelps, it was accepted that a duty of care could be imposed in respect of the decision making under statutory powers even in the absence of any administrative illegality, though they also accepted that a decision to exercise a statutory discretion is likely not to give rise to liability in negligence, ‘unless it is wholly unreasonable so as not to be a real exercise of the discretion, or if it involves the making of a policy decision involving the balancing of different public interests’, whereas ‘acts done pursuant to the lawful exercise of the discretion can…be subject to a duty of care, even if some element of discretion is involved’.⁵⁶ Given this acceptance, it is difficult to know how lasting this rejection of the link between administrative illegality and liability will be, for the courts have remained concerned to say that their imposition of duties of care must not interfere with the ‘policy decisions’ of public authorities in their exercise of statutory powers and this way of thinking provides a natural link to the question of the legality of these decisions themselves.⁵⁷ Moreover, the administrative illegality of a public body’s decision making may be relevant to the imposition of a duty of care in another way. For sometimes a court draws attention in refusing to impose such a duty to the existence of means of recourse open to the claimant other than in damages in tort. So, for example, where a person adversely affected by an administrative decision has the right to challenge that decision by appeal or judicial review, this may reduce the need to use the tort of negligence to create some remedy.⁵⁸ On the other hand, there is judicial support for the view that the presence of a statutory discretion should remain relevant, but to breach of duty, rather than to the existence of a duty of care.⁵⁹

Finally, it should be remembered that a court may refuse to impose a duty of care on the ground that it would not be ‘fair, just and reasonable’ to do so even where the hurdle of administrative illegality or interference with the policy decisions of a public authority has been overcome. Here, ‘policy factors’ come into account in the court’s own assessment of the appropriateness of finding a duty of care. So, at times, the courts have assessed whether a duty of care would impose too great a financial burden on the defendant or defendants in its category more generally, whether it would adversely affect their behaviour (by encouraging ‘defensive’ decision making) or conversely would create an incentive to more careful behaviour.⁶⁰ These ultimately highly individuated decisions on duty of care are not particular to the public context and can be seen in relation to private bodies acting in a commercial setting.⁶¹

(c) The relationship to ‘private law’

English law did not traditionally distinguish a separate public law and I have suggested earlier that for this reason it has a residual and rather hazy sense of its own private (p.341) law:⁶² its starting point is the ‘ordinary law’ of the land (the common law) from which statute derogates, including statutes which define the special powers and responsibilities of public bodies.⁶³ While it is indeed true that English courts have seen the liability of public bodies in the exercise of their statutory powers as a distinct legal problem, at least since Dorset Yacht,⁶⁴ it is still set in the wider framework of the law of torts in general and of the tort of negligence in particular, and the vast majority of this body of law is concerned with cases between private individuals or companies outside situations involving public bodies or public powers. This belonging of the law governing administrative liability to a wider structure dominated by private law cases has affected it in a number of ways, but two are particularly prominent.

First, even where the particular hurdles associated with the imposition of a duty of care in respect of the exercise of public powers are overcome, a claimant may face further hurdles shared by the general law, notably, as to the type of conduct of the defendant and the type of harm which he suffers.

As to the former, the general law of negligence distinguishes between liability for action and for omission, subjecting the latter to additional requirements of the existence of a special duty, a relationship of control or an ‘assumption of responsibility’.⁶⁵ This issue of liability for omissions was particularly prominent in the House of Lords’ decision in Stovin v Wise, where a bare majority of the House of Lords held that a highway authority did not bear a duty of care in respect of failing to make a junction safer.⁶⁶ Given that the case concerned an omission, the question then became whether the public nature of the defendant’s powers, duties and funding imposed on it a positive duty to take action.⁶⁷ So, where a public authority fails to exercise its powers, a claimant must overcome the general (private) law’s restrictive attitude to liability for omissions, this creating particular problems in the administrative context.⁶⁸

Perhaps, though, the nature of a claimant’s harm is an even more difficult hurdle to overcome. For while the courts since Donoghue v Stevenson have showed themselves fairly ready to impose duties of care in respect of a person’s death, personal injury or damage to property, they have been much more restrictive as to his psychiatric injury or pure economic loss.⁶⁹ In a number of important decisions concerning administrative liability, the claimants have sought damages in respect of these more contentious types of harm and while sometimes the courts have refused recovery either explicitly on the ground of the irrecoverable nature of the harm in the circumstances, in other cases it has formed the background to their reluctance to find a duty of care on the public nature of the defendant’s action. So, for example, when in Murphy v Brentwood DC (p.342) ⁷⁰ the House of Lords departed from its own previous decision imposing a duty of care on local authorities in respect of the inspection of building foundations in Anns v Merton LBC,⁷¹ it did so on the ground that the harm suffered by the claimant house owners was ‘pure economic loss’ rather than that the local authority was acting under and within its statutory powers (though the public nature of the defendant was not irrelevant to this issue).⁷² More recently, when in the East Berkshire case⁷³ the Court of Appeal had to decide the question of liability in the exercise of local authority powers to remove children from their families it distinguished between claims by children and by their parents on grounds which related to the function and purpose of the statutory powers in question, but it did not go unnoticed that any harm suffered by the parents would be psychiatric and financial,⁷⁴ the recovery of both of which have proved problematic in the tort of negligence more generally.⁷⁵ In this way, a person’s claim in negligence against a public authority may be affected by judicial attitudes to the nature of his harm common to negligence claims generally.

However, the connection with private law sometimes pulls in the opposite direction, for where a public servant undertakes an activity which an ordinary citizen may do, such as the provision of health care or driving a vehicle, the courts have readily imposed a duty of care.⁷⁶ Moreover, recently, English courts have sometimes had recourse to private law notions in order to escape the confines which they have imposed as a matter of public law. This approach first became apparent in X v Bedfordshire, and was then picked up and considered in Phelps. The starting point was a contrast between the imposition of a duty of care on a public body directly and the imposition of a duty of care on a public servant for whose tort a public body is then vicariously liable. In both of these cases, the courts imposed liability on public bodies vicariously by imposing a duty of care on ‘professionals’ employed by them, seeing no reason why a doctor, psychologist or teacher employed by a public body should be treated differently from any other professional.⁷⁷ This allows a court to impose liability on a public body, even though it has refused to impose liability through a direct duty of care on the ground that this would not be ‘fair, just and reasonable’. In doing so, the courts are often comforted by the fact that the liability of professionals is restrained by the Bolam test to the standard of care required of them.⁷⁸ In this way, judicial control over liability is shifted from the stage of recognition of a duty, to the stage of breach of duty.⁷⁹ A very important aspect of this is that under the Civil Procedure Rules,⁸⁰ written evidence may be used to support a claim by a defendant to have a claimant’s case struck out, rather than proceeding on the assumption that the claimant’s alleged facts are true: so that in some cases a defendant may succeed in strike out on the ground of lack of breach of duty.⁸¹

(p.343) It is difficult, however, to assess how far the courts will have resort to this escape into private law. First, it relies on the notion of ‘professional liability’, which appears comprehensible but nevertheless possesses no legally defined ambit: in one sense, any person who exercises any degree of skill (or holds themselves out as so doing) can be said to be ‘professional’. Secondly, as Lord Slynn recognised in Phelps, sometimes the same considerations which lead a court to reject a direct duty of care apply equally to the imposition of liability indirectly through the torts of public servants.⁸²

(d) The distinction between persons primarily and secondarily responsible

In some decisions on the liability of public authorities a distinction has been drawn between the position of those primarily responsible and those secondarily responsible for a claimant’s harm, a distinction of potentially great importance for liability for the regulation of product safety. The idea of the distinction is that where a public authority’s powers relate to the control of behaviour of another (typically private) person, and the latter’s behaviour causes the claimant’s harm, the private person is primarily responsible for the harm, the public authority being at most secondarily responsible. The same idea is sometimes cast in the language of causation, so that the private person is said to have ‘directly’ caused the claimant’s harm, whereas the second person has only ‘indirectly’ caused it.

The question of the liability of a public authority in respect of the actions of others arose squarely in 1970 in Dorset Yacht, where it was alleged that borstal officers in charge of young offenders had been negligent in failing to prevent them from escaping and causing damage to the plaintiff’s property.⁸³ In this case itself, the House of Lords found that there was a relationship of control between the officers and the boys, stemming from the situation itself created as a result of the exercise by the Home Office of its statutory powers in relation to young offenders, whose purpose was in part the control of the boys’ actions. For this reason, a duty of a care could be found.⁸⁴

However, in other cases the distinction between a person primarily responsible and the defendant sued who is (at most) secondarily responsible has been seen as a reason for rejection of a duty of care in the latter. So, in Marc Rich, one of the reasons for the denial of a duty of care in a classification society of a ship to the owner of cargo which was lost when the ship went down was that the primary responsibility for the seaworthiness of the ship rested on its owners, rather than on the society, whose role was ‘subsidiary’.⁸⁵ A similar line of thinking can be seen in the distinction drawn in Capital & Counties as regards the duties of care of fire services between cases where their intervention creates a fresh danger (for which they should be responsible) and where it merely fails to deal with a danger created by a third person (who started a fire).⁸⁶

This idea may be particularly potent in the context of the regulation by a public body of a private person’s conduct. So, for example, in Yuen Kun Yeu v A-G of Hong Kong⁸⁷ it was held that a statutory regulator of the provision of financial services in (p.344) Hong Kong should not owe a duty of care to those who incurred loss as a result of the fraudulent conduct of a deposit-taking business, in part on the ground that the ‘immediate cause’ of the plaintiffs loss was the conduct of the business and that there was no relationship of control of the sort which existed between the borstal officers and the boys in Dorset Yacht.⁸⁸