Is there a Duty to Prevent Harm in Tort? A Common Law Perspective

2021 ◽  
Vol 12 (2) ◽  
pp. 116-145
Author(s):  
Paula Giliker
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Tort Law ◽  
Public Authority ◽  
Public Authorities ◽  
Statutory Duty ◽  
Starting Point ◽  
Private And Public ◽  
Legal Position ◽  
The Common

Abstract In this paper, I will examine the extent to which the common law of tort in England and Wales imposes a duty to prevent harm on public authorities and private individuals. As will be seen, the starting point for the common law is that such liability should, in both cases, be regarded as exceptional. This must, however, be weighed against duties to prevent harm that arise under the torts of negligence and breach of statutory duty. Public authorities may also face claims that their failure to prevent harm is in breach of ECHR arts 2 or 3. While the law is complex, this paper identifies three key arguments that explain the current legal position at common law, namely that: (i) tort law should treat private and public parties alike: (ii) human rights claims should be treated as distinct from private law claims and (iii) libertarian concerns signify that a duty to prevent harm should be exceptional and needs to be justified. While these arguments provide both an explanation of and a justification for the current law, this article questions to what extent the treatment of public authority liability may be regarded as unduly harsh on vulnerable claimants.

Pubic authorities – negligence actions – control devices

Legal Studies ◽  
1998 ◽  
Vol 18 (1) ◽  
pp. 1-14 ◽  
Author(s):  
Douglas Brodie
Keyword(s):  
County Council ◽  
Public Authority ◽  
Home Office ◽  
Public Authorities ◽  
London Borough ◽  
Statutory Duty ◽  
Common Thread ◽  
Borough Council ◽  
The Common ◽  
Control Devices

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.

scholarly journals THE NEGLIGENCE LIABILITY OF PUBLIC AUTHORITIES FOR OMISSIONS

2019 ◽  
Vol 78 (3) ◽  
pp. 545-569
Author(s):  
Tom Cornford
Keyword(s):  
Common Law ◽  
Public Law ◽  
Public Authority ◽  
Duty Of Care ◽  
Public Authorities ◽  
The Public ◽  
The Common

AbstractIn this article I address the question of whether the omissions principle – the principle that the common law does not impose liability for omissions – applies with the same force in negligence cases involving public authority defendants as in cases involving private defendants. My argument is that the answer depends upon the answer to a prior question: can a duty of care be based upon the public law powers and duties of a public authority? In making my argument, I refute the views both of those who insist that a claim in negligence against a public authority can be rejected purely because it relates to an omission not falling within one of the standard exceptions to the omissions principle and of those who insist that such a claim can succeed while at the same denying that a duty of care can be based on a public authority's public law powers and duties.

Liability of the State and Public Authorities in Israel and South Africa

2013 ◽  
pp. 1-47
Author(s):  
Max Loubser ◽  
Tamar Gidron
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Economic Loss ◽  
Tort Law ◽  
Public Authority ◽  
The South ◽  
Public Authorities ◽  
Pure Economic Loss ◽  
The Law

Both the Israeli and the South African legal systems are classified as mixed legal systems, or mixed jurisdictions. In Israel, tort law was originally pure English common law, adopted by legislation and later developed judicially. In South Africa, the law of delict (tort) was originally Roman-Dutch but was later strongly influenced by the English common law. Under both systems, tort law is characterized by open-ended norms allowing extensive judicial development. This paper traces and compares the structural basis, methodology, policy, and trends of the judicial development of state and public-authority liability in the Israeli and South African jurisdictions. Specific factors that have impacted the development of state- and public-authority liability are: (1) constitutional values, (2) the courts’ recognition of the need for expanded protection of fundamental human rights and activism towards achieving such protection, (3) the multicultural nature of the societies, (4) problems of crime and security, and (5) worldwide trends, linked to consumerism, toward the widening of liability of the state and public authorities.Within essentially similar conceptual structures the South African courts have been much more conservative in their approach to state liability for pure economic loss than their Israeli counterparts. This can perhaps be attributed to a sense of priorities. In a developing country with huge disparities in wealth, the courts would naturally be inclined to prioritize safety and security of persons above pure economic loss. The South African courts have been similarly more conservative in cases involving administrative negligence and evidential loss.The development of the law on state and public-authority liability in Israel and South Africa is also the product of factors such as the levels of education, the effectiveness of the public service, and the history and pervasiveness of constitutional ordering. Despite important differences, the law in the two jurisdictions has developed from a broadly similar mixed background; the courts have adopted broadly similar methods and reasoning; and the outcomes show broadly similar trends.

The Common Law, Reasons and Administrative Justice

1994 ◽  
Vol 53 (2) ◽  
pp. 282-302 ◽  
Author(s):  
P.P. Craig
Keyword(s):  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Public Authorities ◽  
General Duty ◽  
House Of Lords ◽  
Recent Developments ◽  
Private And Public ◽  
The Common ◽  
Home Department

The capacity of the common law to develop and evolve is well recognised within both private and public law. This is indeed one of its enduring qualities. The objective of the present article is not, however, to contribute to the jurisprudential debate concerning the nature of the adjudicative process at common law. My object is more modest. It is to consider and place in perspective some of the recent developments which have occurred at common law in relation to the duty of public authorities to provide reasons. It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision. It is equally well known that this proposition has been the target of regular attack by those who argue that such a general duty should exist. A reconsideration of both of these propositions is timely in the light of case law developments culminating in the House of Lords' judgment in R. v. Secretary of State for the Home Department, ex p. Doody.

THE LIMITS OF FREEDOM OF INFORMATION AND HUMAN RIGHTS, AND THE POSSIBILITIES OF THE COMMON LAW

2014 ◽  
Vol 73 (3) ◽  
pp. 471-474
Author(s):  
Kirsty Hughes
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
Veto Power ◽  
Freedom Of Information ◽  
Freedom Of Information Act ◽  
Public Authorities ◽  
The Supreme Court ◽  
Charity Commission ◽  
The Common

ACCOUNTABILITY, transparency, and freedom of information are essential to democracy. These values are not absolute; hence the law is used to demarcate how much transparency, access, and freedom are allowed. The Freedom of Information Act 2000 (FOIA) provides a mechanism for accessing information held by public authorities. It has been heavily criticised for not providing sufficient access due to its wide exemptions and section 53 veto power. Nevertheless, it was thought that, where citizens seek information, they should use FOIA. In Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 W.L.R. 808, the Supreme Court found that this may not always be the appropriate method. The Supreme Court held, by a majority of 5:2, that Kennedy should not have pursued his claim under FOIA; instead he should have sought disclosure via the Charities Act 1993 (“Charities Act”) and judicial review. The majority took this opportunity to criticise the overuse of human rights, and to emphasise the significance of the common law and its role in ensuring accountability and transparency.

Alternative Remedies

2019 ◽  
Author(s):  
Duncan Fairgrieve ◽  
Dan Squires QC
Keyword(s):  
Human Rights ◽  
Judicial Review ◽  
Public Authority ◽  
Public Authorities ◽  
Public Office ◽  
Statutory Duty ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
Injured Party ◽  
Alternative Remedies

This book focuses primarily upon claims brought against public authorities for the tort of negligence. Where a public authority causes harm to an individual, either deliberately or carelessly, there may also be other remedies available to the injured party. The present chapter considers some of the more important alternative remedies, though perhaps the most significant alternative now available are claims brought under the Human Rights Act 1998, which are considered separately in Chapter 7. In this chapter we examine the torts of misfeasance in public office and breach of statutory duty as well as judicial review proceedings and complaints to the Ombudsmen.

13. Ombudsmen and inquiries

2021 ◽  
pp. 500-546
Author(s):  
Timothy Endicott
Keyword(s):  
Human Rights ◽  
Local Government ◽  
Judicial Review ◽  
Common Law ◽  
European Convention ◽  
Judicial Process ◽  
Public Authorities ◽  
The Common ◽  
Key Features

This chapter examines ombudsmen and other facilities for investigation of the working of government, and the ways in which they can resolve disputes and improve administration. The ombudsmen’s role has four key features: (1) it is independent; (2) it investigates a complaint; (3) it looks for injustice caused by maladministration; and (4) it makes a report. The chapter explains the ombudsman process, the Parliamentary Ombudsman, local government ombudsmen, and the effects of ombudsmen’s reports. The chapter also explains the law on judicial review of ombudsman decisions and judicial review of the way in which public authorities respond to ombudsman reports, and argues that the judicial process has very little to offer in improving the operation of ombudsman schemes. The role of inquiries is also explained, with discussion of the Equality and Human Rights Commission, the Inquiries Act 2005, and public authorities’ duties to inquire under the common law and the European Convention on Human Rights.

The Sale of ‘Liquid Gold’ in Ireland: Some Thoughts from Tort Law

2019 ◽  
Vol 26 (1) ◽  
pp. 45-59
Author(s):  
Aoife Finnerty
Keyword(s):  
Breast Milk ◽  
Human Milk ◽  
Common Law ◽  
Tort Law ◽  
Liquid Gold ◽  
Statutory Duty ◽  
The Common ◽  
The Law

Abstract At present, the sale of human milk in Ireland is completely unregulated. When the transaction concerns tainted breast milk and physical harm subsequently occurs, however, it may still be subject to the law of tort. By selling unsafe milk, a seller may be in breach of their statutory duty under the Liability for Defective Products Act, 1991 and their conduct may amount to negligence under the common law.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

Sign in / Sign up

Export Citation Format

Share Document