FRAMEWORK FOR LEGAL ACTION IN LAWSUITS INVOLVING NEGLIGENT OMISSION

THE FRAMEWORK FOR ACTIONS

 The framework for actions (pre-Human Rights Act 1998) was laid down by the House of Lords. Stovin v Wise [1996] 3 All ER 801 A bank of earth on British Rail property made it difficult for drivers turning right at a junction to see traffic approaching. A number of accidents had occurred at this spot previously. W drove her car into S’s motor cycle. W’s insurer paid off S and sought a contribution from the highway authority which had failed to implement its earlier decision to remove the mound of earth, which it had the power to do. The allegation of negligence was therefore of pure omission. The highway authority argued that it had no duty of affirmative action and therefore the relationship between it and the plaintiff was insufficiently proximate. A majority of the House of Lords found that the highway authority was not liable. Discussion of the very complex principles involved will occur here in two stages. The framework for actions will be set out and the law discussed primarily in the context of the emergency services cases. These have already been discussed from a different aspect.  What will be described as the ‘education cases’ will follow.

Omissions

 1 There was no liability on a public authority for a pure omission. (Lord Hoffmann.) The mere fact that a claimant’s harm was foreseeable did not create a duty of care.

 2 Where a statutory power was conferred, the fact that the public authority was acting under a statutory power did not generate an analogous duty to act, as an order of mandamus could only force a public authority to consider the exercise of a statutory power. It could not force it to act. Even if the alleged negligent conduct related to a statutory duty (as opposed to a power), a private right to sue for breach of that duty did not automatically arise. That was dependent on the intention of Parliament. As Parliament had only seen fit to impose a power, this made it even more unlikely that they intended a common law duty to be recognised. This reasoning of Lord Hoffmann in Stovin would appear to be at odds with the reasoning of the House of Lords in X v Bedfordshire County Council [1995] 3 All ER 353, which allowed actions in some of the education cases. The cases can probably only be reconciled by saying that Lord Hoffmann’s reasoning for the majority represents a determination to deny a duty of care where the allegation relates to a pure omission by way of failure to exercise a statutory power. However, some indication as to Lord Hoffmann’s thinking was given in a later case:

Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326

The claimant suffered severe injury driving a car when she braked and skidded into a bus just before the crest of a hill. The bus driver was not at fault and the claimant brought proceedings against the local authority alleging that their failure to place signs on the road warning motorists that they were approaching a dangerous part of the road was a breach of duty. In terms of the common law duty she alleged that the Road Traffic Act 1988, which imposed a duty on every local authority to prepare and carry out a programme of measures designed to promote and improve road safety, created a common law duty to users of the highway, in parallel with the statutory duty in the Highways Act 1980 s 41 to maintain the highway, to take reasonable steps to promote and improve road safety. This argument was rejected by the House of Lords, who held that a broad public duty did not generate a common law duty of care and thus a private law right of action. Lord Hoffmann: My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty. This statement makes it clear that the courts will not be willing to create a common law duty where none existed before on the basis of a broad statutory power or duty. They will, however, find a duty where a local authority has acted pursuant to a statutory duty or power and the requirements of common law duty of care are satisfied. This would explain the difference between the ‘road safety’ cases and the ‘education’ cases. A further example of such reluctance came in Rowley v Secretary of State for the Department of Work and Pensions [2007] 1 WLR 2861, where the claimant alleged that the Child Support Agency had caused her economic loss and psychiatric damage as a result of negligence in their handling of her claim for child support against her children’s father. The Court of Appeal struck out her claim as there was no action for breach of statutory duty and no grounds for finding a common law duty of care. The scheme laid down by Parliament provided for judicial review and compensation for most cases where there was loss as a result of mismanagement of claims. There was no assumption of responsibility by the minister to the claimant and on the three stage test the claim failed as it would not be fair just and reasonable to impose a duty in these circumstances.

 1 Exceptions to the general principle

(a)     Relationship with the third party causing harm

 Where the claimant suffers harm as a result of the actions of a third party over whom he alleges the defendant has carelessly failed to exercise control, proximity of relationship can be established by reference to the nature of the relationship between the defendant and the third party. For example, Home Office v Dorset Yacht Co [1970] 2 All ER 294, where the defendant had responsibility to control the third party. In practice, it is difficult for the facts of a case to provide the sort of relationship between defendant and third party that will override the omissions difficulty and create a sufficiently proximate relationship between defendant and claimant.

(b) Undertaking and reliance

 Where a public authority undertakes to act in a particular way and the claimant relied on that undertaking. In Stovin, Lord Hoffmann laid down two conditions. First, that it had to have been so irrational for the public authority not to have exercised the power that there would be a duty to act under public law principles. (Wednesbury unreasonableness – see Associated Prouncial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.) Second, that there were exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised. Such exceptional grounds would have to be found in either a reasonably held general reliance by the community as a whole that the discretionary service in question would be provided to all of them (general reliance) or in a similarly reasonably held particular reliance on the part of an individual that the service would be provided for him (specific reliance). Clearly this, as Lord Hoffmann intended, would be difficult to establish. In terms of general reliance he held that the defendant’s failure to act could not be described as irrational given the many other demands on its time and resources. Even if it could be deemed irrational, the second test could not be established either at a community or individual level, as the community itself, through the standard of its driving, was primarily responsible for road safety. 

2 Specific reliance and the emergency services

Actions brought against a non-local public authority are likely to fall between undertaking and reliance. Actions against the police for failing to prevent the commission of a crime, the fire brigade for failing to attend a fire and the coastguard are likely to fail. However, an action against the ambulance service, once an emergency phone call has been made and details given, may give rise to a duty. (Kent v Griffiths [2000] 2 WLR 1158.) This is because the ambulance service, as part of the health service, is similar to the service provided by hospitals to individual patients, whereas the police and fire brigades serve to protect the general public.

3 General reliance and the emergency services

The approach of the courts is that even if the public count generally on the police to investigate crime and apprehend criminals and the fire brigade to respond to emergency calls, it does not follow that it is reasonable for the public to rely on scarce resources being committed in each and every case. It has therefore been held that the police (Alexandrou v Oxford [1993] 4 All ER 328), the fire brigade (Capital & Counties v Hampshire County Council [1997] 2 All ER 865) and coastguard (Skinner v Secretary of State for Transport (1995) Times, 3 January) owe no duty in failing to respond to an emergency call. The public apparently rely on fire insurance more than the fire brigade! It is arguable that the Human Rights Act 1998 may provide for positive obligations which the common law has been reluctant to provide. Actions against public authorities that fail for want of a relevant affirmative obligation might succeed because of a relevant Convention obligation, such as safeguarding personal integrity, protecting property or the right to life. Carelessness in the exercise of statutory powers – proximity This differs from what has gone before, as what the claimant is challenging is not the decision as to whether or not to exercise the statutory power, but the way in which that power has been carried out once the decision has been made to exercise it. The distinction has been expressed in a number of ways such as ‘policy/operational’ and ‘decision making/implementation’.

In this category, it is not possible for the court to classify the alleged carelessness as a pure omission but it will still take into account the fact that the public authority was not obliged to do anything in the first place. In this sense omissions considerations still influence the court’s decision. This can be done through the proximity doctrine. In the same way that a voluntary rescuer can only be held liable for any additional risks they create, the court will use the ‘fresh damage’ principle to limit a public authority’s liability for its ‘voluntary conduct’. They will only be liable if they have made the claimant’s situation worse. 1 Proximity and the fire brigade Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865 In each of the three cases property damage to the plaintiff’s property was found to be reasonably foreseeable as a result of the defendant’s negligence. Two of the cases failed on proximity. In one (John Monroe) the allegation was that the fire brigade had failed to spot smouldering debris; in the second (Church of Jesus Christ of Latter Day Saints) it was that it had failed to maintain its hydrants. As the fire brigade is not obliged to answer an emergency call, if they do choose to answer it the same lack of proximity would bar the action. No duty is assumed to fight a fire with reasonable skill and care. In the third case (Capital & Counties) the allegation was that the fire brigade had turned off a sprinkler system and made the situation worse. On this fresh damage basis proximity was established.

2 Proximity and the police

The police, on a similar basis are not liable for failing to answer an emergency call (Alexandrou v Oxford) or, when answering it, for causing no more than the danger that was originally at stake. (Similar reasoning applies to the coastguard: OLL v Secretary of State for Transport [1997] 3 All ER 897.)