POLICY
Whether a duty of care should be barred on policy grounds has troubled the courts. A distinction has been made between policy and operational decisions. In the former it would rarely be correct for a resource-allocating decision by a public authority to be challenged in a civil action for damages. In the latter it may be. The language used has now changed to decision making/implementation (X v Bedfordshire County Council [1995] 3 All ER 353) but the basic methodology is similar. In the case of decision making, a stringent application of justiciability and public interest will be applied. A three-stage test is applied: 1 Whether the exercise of the statutory discretion in question would have involved policy considerations such as resource allocation, priority management, etc. If so, no action in negligence should lie on fundamental justiciability lines and usurping Parliament’s authority. 2 Whether, exercising the (justiciable) statutory discretion, the public authority had done so in a way that took it outside the discretion Parliament was assumed to have conferred. To do so the court was to apply the Wednesbury unreasonableness test. 3 The court must then decide whether it was appropriate to impose a duty of care. This is the conventional third limb whereby it has to be fair, just and reasonable.
1 Policy and the emergency services
Assuming that a case has passed through the proximity barrier it may still fail on policy grounds. These may be on the justiciability issue, which was alluded to in Hill, where Lord Keith felt that a court was not equipped to judge the reasonableness of discretionary policing. There may also be general public interest factors which militate against a duty of care. These include a fear of defensive policing. (Elguzouli-Daf v Commissioner of Police for the Metropolis [1995] QB 355.) Similar fears were expressed in Capital & Counties with regard to the fire brigade, in that they might prioritise the protection of citizens with valuable property. The financial costs of actions which takes money away from operations is also raised. None of these policy issues was found to bar a duty in the Capital & Counties case, which survived the proximity hurdle. The court applied a policy/operational test and concluded that it would be fair, just and reasonable to impose a duty. 2 Emergency services and immunity In a number of the emergency services cases the court has concluded that the particular circumstances did give rise to broad public interest concerns and abandoned the policy/ operational test in favour of a wholesale refusal to recognise a duty of care. (Hill v Chief Constable of West Yorkshire Police; Osman v Ferguson; Alexandrou v Oxford [1993] 4 All ER 328; Ancell v McDermott [1993] 4 All ER 355; Hughes v National Union of Mineworkers [1991] 4 All ER 355.) The important distinction here is that the policy/operational test balances the interests of claimant and defendant, whereas the immunity rationale subordinates the claimant’s interests to a broader public interest inquiry. This may still result in a decision in the claimant’s favour as in Swinney v Chief Constable of Northumbria Police [1997] QB 464, where the police were refused immunity. The public interest in granting the immunity was outweighed by the competing public interest in keeping an informant’s information confidential. This decision, however, was unusual and may have been dictated by the approach of the Human Rights Act 1998.
Human rights
Osman v United Kingdom [1999] FLR 193
The European Court of Human Rights reviewed the Court of Appeal decision in Osman. It had been held that harm to the plaintiff was foreseeable and that there was proximity between the parties but that the public interest dictated that the police should not be liable for negligence in such situations. The decision was challenged on the basis that it violated an individual’s right to a fair and public hearing under Article 6 of the Convention. The European Court held that the application of a generalised public interest ground for denying a duty of care amounted to a disproportionate restriction on the plaintiff’s right of access to the courts. The Court of Appeal had failed to demonstrate that it had properly considered the scope and application of such immunity to the facts of the case by balancing out any competing public interest arguments.
The decision in Osman caused great difficulties to the English judiciary. (See Barrett v Enfield London Borough Council [1999] 3 All ER 193.) In essence, Article 6 was thought to confer procedural rights on a litigant rather than substantive legal rights such as whether a cause of action existed. It subsequently transpired that the European Court of Human Rights had misunderstood English tort law in Osman. They had failed to accept that a decision that the third limb of the test for duty of care is a part of substantive law. If a court decides that it would not be fair, just and reasonable to impose a duty of care this is different to having a procedural immunity which bars a litigant’s access to the court in breach of Article 6. (Z v UK [2001] 2 FLR 612. See also DP and another v United Kingdom [2002] 3 FCR 385.) The issues in these cases are complex and it could be argued that the decision in Z has settled the argument. However, it is impossible to ignore the effect that the Human Rights Act has had, and continues to have, on the fabric of substantive English tort law. The following case illustrates graphically the problems that the courts have when attempting to incorporate rights-based law into traditional English tort principles. You must remember that a claimant can now claim damages for a breach of a Convention right by a public authority as well as or in the alternative to tort damages. Even if a court determines that there is no duty of care, the claimant may still be able to sue for breach of a Convention right. D v East Berkshire Community Health NHS Trust; K and another v Dewsbury Healthcare NHS Trust; K and another v Oldham NHS Trust [2003] 4 All ER 796 (CA); [2005] 2 All ER 443 (HL) Each of three appeals before the court involved accusations of abusing a child made against a parent by the professionals concerned for the welfare of that child. All the accusations proved to be unfounded. In each case a parent claimed damages from an NHS trust for psychiatric harm alleged to have been caused by the false accusations or their consequences and in the second case, where the local authority was also a defendant, the child also claimed. The events all took place before the Human Rights Act 1998 came into force. In each case the primary case was advanced in negligence, and preliminary issues were tried, including whether any duty of care was owed to the claimant or claimants. It was common ground that the test to be applied was whether it was ‘fair, just and reasonable’ to impose such a duty. In each case the court of first instance held that no duty was owed to the parents, applying the principles contained in X that a common law duty of care could not be imposed upon a statutory duty as the observance of the common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by a local authority of its statutory duties. The claimants appealed to the Court of Appeal. The Convention rights considered included Article 3 (Article 3 provides: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’), prohibiting torture and inhuman or degrading treatment, and Article 8 (Article 8, so far as material, provides: ‘Everyone has the right to respect for his private and family life, his home and correspondence . . .’), providing the right to respect for private and family life. The Court of Appeal held: (1) No violation of Article 6 of the Convention was involved in the procedure of determining, by way of preliminary issues, whether the test of what was ‘fair, just and reasonable’, applied with the required respect for case precedent, precluded the existence of a duty of care. (2) The effect of X in each of the instant appeals was now restricted to the proposition that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence. (3) The effect of the 1998 Act was that it was no longer legitimate to rule that, as a matter of law, no common duty of care was owed to a child in relation to the investigation of child abuse and the initiation and pursuit of care proceedings. Given the obligation of a local authority to respect a child’s Convention rights, the recognition of a duty of care to the child on the part of those involved should not have a significantly adverse effect on the manner in which they performed their duties. In the context of suspected child abuse, breach of a duty of care in negligence would frequently also amount to a violation of Articles 3 or 8 of the Convention, although those asserting that wrongful acts or omissions occurred before the 1998 Act came into force would have no claim under that Act. The common law duty of care did not replicate the duty not to violate Articles 3 and 8. Liability for breach of that duty and entitlement to compensation could arise in circumstances where the tort of negligence was not made out. However, there were cogent reasons of public policy for concluding that, where consideration was being given to whether the suspicion of child abuse justified taking proceedings to remove a child from the parents, while a duty of care could be owed to the child, no common law duty of care was owed to the parents. (4) In the instant appeals a concurrent duty imposed in respect of the parent would conflict with the duties owed to the child. However, in the second appeal, the judge had erred in finding that witness immunity precluded any liability on the part of those employed by the local authority. The parents appealed to the House of Lords contending that the duty of health professionals to exercise due professional skill and care was owed to a child’s primary carers, usually parents, as well as to the child himself or herself, and that there was no good policy reason to deny the existence of such a duty, which was the same duty as that owed to the child. Held (Lord Bingham dissenting): Where the relationship between doctor and parent was confined to the fact that the parent was father or mother of the doctor’s patient, the appropriate level of protection for a parent suspected of abusing his or her child was that clinical and other investigations had to be conducted in good faith. There were cogent reasons of public policy for holding that no common law duty of care should be owed to the parent and it was not fair, just and reasonable to impose such a duty. The seriousness of child abuse as a social problem demanded that health professionals, acting in good faith in what they believed were the best interests of the child, should not be subject to potentially conflicting duties when deciding whether a child might have been abused, or when deciding whether their doubts should be communicated to others, or when deciding what further investigatory or protective steps should be taken. The suggested duty owed to parents did not have the same content as the duty owed to the child, which was to exercise due skill and care in investigating the possibility of abuse. At the time when the doctor was considering the possibility of abuse by the parent, the interests of parent and child were diametrically opposed. There might, exceptionally, be circumstances where the general rule did not apply. In the instant cases there were no such special circumstances, and accordingly, the appeals would be dismissed. The very significant effect of this case is that children are now owed a duty of care in negligence by local authorities when they are investigating child abuse and making decisions as to whether or not to take a child into care. No duty other than one to carry out investigations in good faith is owed to the parent/carer as this would raise a conflict of interest in the circumstances of these cases.
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