Social Services

Public authorities have responsibilities towards vulnerable individuals, and are accorded powers to protect such individuals from harm. This includes the power to provide care for children, the elderly and those suffering from mental illnesses. This chapter examines the potential liabilities of such authorities in relation to harm suffered because of failures in the provision of social services, for example, where claimants were abused while in the care of the authority, or where the authority failed to protect children from abuse by their family. We also examine harm which can arise where an authority has been over-zealous, as opposed to insufficiently attentive, for example where an authority erroneously suspects that children are being abused by their parents and unnecessarily removes children from their family.

Justiciability

When determining a negligence claim brought against a public authority, the first question a court will need to consider is whether the claim is ‘justiciable’, ie whether it is suitable for judicial resolution. It is only if a claim is ‘justiciable’ that the court ought to go on to consider whether a duty of care is owed and has been breached. While there are matters that may be relevant to both justiciability and duty of care, justiciability ought to be determined as a preliminary question, or at least, as far as possible, kept conceptually separate from the determination of whether a defendant owed a duty of care.

Highways

Damages claims brought against public authorities responsible for the maintenance of highways are common. It has been suggested that claims brought against local authorities in their capacity as ‘highway authorities’ represent the largest number of claims they receive. This is unsurprising given the total number of accidents that occur on the roads. While most accidents may be the fault of individual drivers, some could have been averted if the authority responsible for the highway had acted carefully in its maintenance of roads, its provision of signs, its removal of ice etc. Claims arising in such circumstances are considered in this chapter. As we shall see, claims brought against highway authorities are predominantly framed as breaches of the statutory duty contained in the Highways Act 1980 rather than as common law negligence claims. Common law claims tend to operate as a residual category, and they are brought when damages are not available under the 1980 Act.

Planning, Environmental, Banking, and Professional Regulation

In the previous chapter, we examined the negligence liability of authorities engaged in health and safety regulation. This chapter deals with regulation in other areas. It examines the tortious liability of authorities involved in regulation in the fields of planning, the environment, and banking, and of those authorities regulating professions such as law, accountancy, and medicine. In each of these areas, regulatory authorities are empowered to oversee and control the activities of third parties. Planning authorities regulate those involved in land development to ensure that development occurs in a manner that is compatible with wider public interests. Environmental regulatory authorities aim to minimize environmental hazards such as pollution and emissions caused by those engaged in industrial and other activities. Banking authorities seek to regulate financial institutions to ensure that they are not run in a manner that is fraudulent or otherwise detrimental to their customers and the wider financial markets. Regulators of professions attempt to ensure that only those who are competent are able to practise in particular professions.

Miscellaneous Public Authority Functions

Doctors owe a duty of care to their patients, and this duty will be owed regardless of whether the doctor is a public sector employee operating within a statutory framework or is providing health care privately. Medical negligence claims in relation to the care which doctors provide to individual patients are outside the scope of this book. Cases arise, however, that do not involve individual doctor-patient relations and raise broader questions of medical policy. In such instances, the fact that the defendant is a public authority exercising public powers is likely to be material to a determination of whether a duty of care should be imposed, and it is such cases we consider in this section. It should be noted that the potential liabilities in negligence of the bodies that regulate the medical profession are not considered in this chapter, but are examined in Chapter 14, where we consider professional regulators.

Education

It has long been established that schools owe a duty to look after the physical health and safety of their pupils. The duty imposed on schools has since been extended to taking care of the ‘educational needs’ of pupils. This has led to the imposition of liability in cases of ‘educational negligence’. These cases have tended to involve a failure to diagnose and treat learning difficulties, though the courts have made clear that schools are under a general duty to ensure that reasonable care is taken in the provision of education. As Lord Browne-Wilkinson noted in X v Bedfordshire County Council, ‘the education of the pupil is the very purpose for which the child goes to the school’ and the school thus has a duty to ensure that the child’s educational needs are met, and not just that he or she is physically safe while at school.

Police

The police are subject to a range of different legal controls. They have a general duty to uphold the law, and breach of this duty can, in principle, be enforced by way of judicial review proceedings brought by members of the public. If, in the course of enforcing the law, the police detain, arrest, or assault an individual without lawful justification, they can be held liable for the torts of false imprisonment or trespass to the person, and they may also be held liable for the tort of misfeasance in public office if they act maliciously and unlawfully in the purported performance of their duties. as well as statutory torts specifically aimed at the police. The Human Rights Act 1998 provides further significant additions to the claims that can be brought against the police, and these are considered further in chapter 7. Claimants have also sought to establish that the police, like other public authorities, can be held liable for the tort of negligence, and it is such claims that are considered in this chapter.

Detention

Public authorities are responsible for detaining individuals in a variety of situations. The police, prison authorities, and health authorities treating the mentally ill, are all empowered to confine people against their will. Given the almost complete control such authorities have over the detainees’ environment, and the dependence of the detainees on the authority to provide for their daily needs, it is foreseeable that in various circumstances the carelessness of the authority will harm those detained. This chapter considers the potential liability in negligence of detaining authorities. Negligence is not, however, the only, or even the most important, tort available to detainees. They may also be able to hold detaining authorities liable for the torts of assault and battery, misfeasance in public office, and false imprisonment, as well as various claims for breach of the European Convention on Human Rights. As this chapter explains, the tort of negligence often operates as a residual remedy where one of these other remedies is not available to a detainee. Another kind of negligence liability this chapter considers arises where harm is caused by the detainees themselves. Given that some of those detained may be dangerous, it is foreseeable that if they are incorrectly released or allowed to escape they will cause harm. This chapter examines whether those injured by detainees in such circumstances can hold the detaining authority liable in negligence. The possibility of the victims succeeding in claims for breach of the European Convention on Human Rights is such cases is considered in Chapter 7.

Human Rights Act 1998

The following chapter examines claims that can be brought under the Human Rights Act 1998 (HRA). The HRA makes it unlawful for a ‘public authority’ to breach the European Convention on Human Rights (‘the Convention’). The HRA accords to the victims of a breach of the Convention the right to pursue a claim against the offending public authority in the UK courts, when previously they were required to apply to the European Court of Human Rights in Strasbourg to vindicate their Convention rights.

Health and Safety Regulators

‘Health and safety regulators’ are public authorities whose primary purpose is to supervise the activities of third parties engaged in dangerous activities. Their aim is to provide protection from physical harm. This chapter examines the circumstances in which such regulators will be held liable in tort if their carelessness causes physical or economic losses to members of the public, or to those whose activities are the subject of the regulation. We consider other regulatory bodies, such as those concerned with planning and banking in Chapter 14, and we consider the potential liability of bodies concerned with providing information and warnings on health, but not with the direct regulation of potentially dangerous activities, in Chapter 18.