Powers and Duties
In broad terms, public authorities are subject to civil liability for negligence and other civil wrongs, in the same way as private individuals and companies. The State and other public bodies are responsible for the actions and omissions of their employees and agents under principles of vicarious liability.
In some circumstances, statute law gives an express or implicit defence to a public authority which would not be available to an individual.
There has been considerable variation in the approach of the courts to the liability of public authorities, in the case of negligence by reason of the exercise and more commonly, the non-exercise of their discretionary powers. See generally the sections on administrative law in relation to the nature of the public powers.
In most instances, public authorities have powers and duties. Constraints in resources and other practical considerations, make it necessary for the authority to make choices in relation to how often and in what context it uses its powers. Statute law allows public authorities significant latitude in determining how it uses its powers and discharges its duties. The use or omission to exercise powers will be unlawful, only if they fail the very broad tests applied under administrative law.
Several cases involved instances where the public authority had powers of inspection, particularly in the context of building regulations and control. Individuals who had suffered “pure” economic loss, in the sense of devaluation of their property, sought to hold the public authorities, usually the Council liable for negligence in either the exercise of powers or the non-exercise of powers.
Negligent Exercise of Powers
The most difficult cases have involved claims that public authorities are liable for the negligent exercise of their powers. In Anns v Merton Borough Council, the then current broad test for liability in negligence was applied. It provided, in effect, for a presumption of liability for negligence, once a relationship of proximity existed. This presumption could be modified, only where public policy considerations justified immunity from liability.
Where public authorities actually exercise powers and are negligent in the manner in which they do so, it is more likely that a duty of negligence will be applied. Where the failure is at a higher level than the operational level, such as a decision not to exercise a particular discretionary power, the less likely it is that liability for negligence will be imposed.
Ultimately, the broad principles in Anns v Merton London Borough Council were overruled in England. Some Irish courts have taken the view, there could be no liability or duty of care in the exercise of public powers, even if the acts are unlawful, provided the functions are exercised in good faith.
The question of whether a duty of care arises will be at least influenced and in some cases entirely determined by the provisions of the relevant statute. In such cases, the question of whether there is liability for negligence is assimilated with the question of whether there is liability for breach of statutory duty in the particular circumstances and under the relevant legislation.
By the mid-1980s the English courts were retreating from the wide principles of liability set out in the Anns case. The House of Lords held that a duty should be imposed, only where it was just and reasonable to do so. The English courts become decidedly more reluctant to impose liability for the non-exercise of discretionary powers, while readily imposing negligence arising in the actual exercise of powers.
Negligent Exercise of Powers (Ireland) I
The courts in Ireland have taken a variety of approaches, many of which have been based on the very wider principles of negligence enunciated by the UK courts in the 1970s and ’80s. The English and Irish courts have retreated from the earlier broader approach to liability for negligence, which had likely to expand the potential liability of public authorities for the non-exercise of discretionary powers.
The Irish courts had followed the English courts in extending liability for the non-exercise of discretionary powers. In the early 1980s, the Supreme Court allowed a claim for negligence against a local authority, where a residential premises was purchased, which was unfit for human habitation. The buyer had relied on a negligent inspection by the local authority who had provided a housing grant.
In Siney v Dublin Corporation the Supreme Court reviewed the authorities on local authority negligence and found that the defendants were liable in negligence given that a defective inspection had been carried out and the flat was handed over to prospective tenants in an unfit condition. The decision which was later criticised as indefensible was later overruled in the mid-1990s.
In Ward v McMaster, the High Court applied a test based on the relationship of proximity between a Council and a purchaser of a structurally unsound house, purchased with the assistance of a local authority loan. The local authority had a duty under the purchase scheme, to value the property for the purpose of a loan. The valuation was negligent.
The High Court found the council itself to be negligent in the discharge of its statutory function. It based the duty of care on the proximity between the parties and the circumstances, including the statutory provisions. The court interpreted the statute as designed to protect the purchaser in these cases. The court considered it just and reasonable to impose a duty.
In contrast, where a local authority was sued for granting planning permission in an area subject to flooding and with inappropriate drainage, the High Court found there was no duty of care. The planning legislation was not designed to deal with building defects. This was covered under building regulations. The Supreme Court confirmed that the planning authority did not owe purchasers or occupiers of property a duty of care to ensure that a particular dwelling house was sound.
The Supreme Court affirmed the decision in Ward v McMaster. It founded the duty on the proximity of the parties, the foreseeability of the damage and the absence of a compelling public policy reason to the contrary. The Supreme Court emphasised that the proximity was based on the duty that the legislation created.
Further cases in the mid to late 1990s showed the difficulty of holding public authorities liable for the manner in which they exercised discretionary powers. In the case where a person sought to compel the council to take action to abate noise pollution, the High Court was unwilling to find that there was a duty of care on the Council, for which is could be made liable in negligence. An application by way of judicial review may be more appropriate.
Negligent Exercise of Powers (Ireland)
In Glencar Explorations v Mayo County Council (No.2), the Supreme Court retreated from the expansive concepts of negligence that had developed in England but had been in retreat by the late 1980s and early 1990s. The court pointed out that negligence usually applied to positive acts, rather than omissions. It was necessary, in all the circumstances that it is just unreasonable that the law should impose a duty with a given scope on the defendant.
The Chief Justice indicated that the fact that the exercise of a power by a public authority may confer a benefit, of which the person might be deprived, does not give rise to a duty of care at common law. The fact may, however, point to reasonable foreseeability arising from non-exercise of the power. The degree of proximity between the plaintiff and the defendant might be such as to render it just and reasonable to require a duty of care. The court laid less emphasis on the distinction between operational and policy matters.
The case involved a claim that the Council had acted outside its powers in providing a mining ban in its development plan. The Supreme Court found there was insufficient proximity because the powers were exercised for the benefit of the community as a whole and not for the benefit of particular persons. It was not, in any event, just and reasonable to impose a duty.
It could not be said the mining company was relying on the local authority to take reasonable care in the exercise of its statutory powers. There was no direct relation under the statute between the powers and the particular individuals. This was in contrast to the position in Ward v McMaster.
Even if the exercise of powers is unlawful, it does not necessarily follow that there is a duty of care, such that the person affected has a right to damages. Where a body is carrying out a public function which is not in pursuance of a public duty, it is not liable to individuals affected, unless it commits the tort of misfeasance of public office.
Policing Powers I
Prison authorities do not owe a general to the public at large to keep persons in custody, such as to be liable for their actions on escape. However, in particular circumstances, where prisoners were insufficiently controlled in the vicinity of a person’s property with glaringly obvious risks, a duty was held to apply.
There is no general duty of care on the Gardai in investigating a crime. In some cases, the Gardai have been held to owe duties of care in cases where their conduct has caused foreseeable damage and loss.
It was held that the Gardai owed a duty to an intoxicated claimant in a cell to take all reasonable steps to ensure that he would not injure himself accidentally or deliberately. They were obliged to carry out a search to ensure that he was not carrying matches and that they were bound to respond to any indication that there a fire has started.
The House of Lords allowed a claim for negligence where a detainee committed suicide in a police station cell, even though he did not have a mental illness. The negligence comprised allowing the defective condition of the cell to be used as a point from which to hang himself. The claim by the deceased prisoner’s family was not be defeated by the defences of a voluntary act, absence of causation and contributory negligence.
The Police have been held liable for failure to communicate to prison authorities, information relevant to a prisoner ’s mental condition. Liability has been found for failure to pass information to a prosecutor in relation to a bail application which would be relevant and influenced the court.
The Police were liable to road user where they took charge of a dangerous road traffic situation but negligently failed to place barriers and warning. The police were held to have a duty to the public to take care that the police officer was a suitable person to be entrusted with a gun in circumstances where earlier incidents showed clear risks.
The Police were not liable where they failed to respond to information regarding malfunctioning traffic lights. They were not liable where they were made aware of hazards on the highway but did not take steps to warn members of the public.
Although there is a general duty to fight crime in the Hill v West Yorkshire Chief Constable, the Yorkshire Ripper case was held that police could not be held responsible for failure to identify and apprehend a criminal so as to prevent further offences. This principle applies to policy and organisational decisions.
Policing Powers II
The European Court of Human Rights initially held that the decision was for disproportionate restriction of a claimant’s right of access to the court. The case was criticised. The court later overruled this approach and held that if the claimant has a genuine opportunity to contend for a duty being owned, then provided that court determining the question, engaged with the issue as to whether it was fair, just and reasonable in the circumstances there was no breach of Article 6 of the Convention.
A duty of care was held to exist where
- a police officer sued for negligent failure to prevent victimisation by fellow police officers causing psychiatric injury
- where a deranged police officer shot and killed persons suspected of being members of the IRA and then killed himself
- where the police negligently allowed publication of the name of their informers
It has been held arguable that a police owed a duty of care to a child allegedly been subject to sexual abuse and the parents alleged to have inflicted it when interviewing children in the context of Childrens Act proceedings.
No duty of care was owed by police officers at an unlawful eviction to prevent the commission of an offence. Their responsibility was limited to preventing a breach of the peace.
It has been held that there is no duty of care owed by the prosecution service to members of the public in the conduct of prosecutions generally. A duty of care arose where the prosecution had agreed to inform a court that defences would be taken into consideration, and they failed to do so.
Other Regulatory Authorities
In Beatty v Rent Tribunal in 2006, a claim was made for loss on the basis of the negligent exercise of powers by the Rent Tribunal. Although the exercise of powers was invalid, it was not just and reasonable to impose a duty. There was provision for an appeal on a point of law to the High Court. There was no reliance by the claimant by the Tribunal
The fire authority does not owe a duty of care, such as to be liable for damages and negligence to members of the public generally. However, if having arrived at the scene, they create a new or different danger, they may be liable for the consequences.
In contrast, the ambulance services duties are similar to those of hospitals and the health services generally. They have been held to have a duty of care, once an emergency call has been accepted for a particular patient.
Local Authorities
Local authorities may owe duties of care. Whether or not a duty applies, will be determined by the particular statutory context and relationship. In the United Kingdom, it has been held, for example, that local authorities
- as housing authorities owe duties to their council house tenant
- as mortgagees owe duties to purchasers of dwelling houses (in the context of valuation) and
- as occupiers to the users of swimming pools.
The local authority was held to owe a duty of care for the careless exercise of food safety powers by an environmental health officer. Local authorities have been held liable for negligently failing to correctly respond to inquiries regarding the status of roadways.
Local authorities in the United Kingdom have been held not to be liable in negligence in the context of more open and discretionary powers. They were held not to owe duties
- in the failure to exercise powers to collect waste where a child fell in piles of rubbish;
- where it failed to put safety locks on windows or
- as a housing advisory service where on account of negligent advice, a tenant was evicted by its private landlord.
Planning and Building Regulation Functions
A number of the United Kingdom and Irish cases have arisen in the context of planning and building regulations. Generally, Councils have not been held liable to landowners in granting or refusing planning permission. However, the planning authority does not enjoy blanket immunity in negligence in exercising its functions under planning law.
A duty of care may arise where the authority creates a danger in the course of exercising its functions and fails to remove a danger created.
A planning authority may be liable for the acts and omissions of its employees in the course of employment. A planning authority may not estop itself, or grant planning permission other than through the statutory process. In exceptional certain circumstances, the planning officer may be found to be liable for negligent misstatement.
Health Functions
The UK courts have held that health authorities should not have a duty of care in considering whether to take children into care. The House of Lords took the view that the seriousness of the problem required that professionals who act in good faith in what they believe to be the child’s interest, should not to be subject to conflicting duties. However, health professionals have a duty to suspected persons to investigate alleged abuses in good faith.
Where a child has been taken into care, a duty is owed in relation to placement. Local authorities have been held to owe foster parents duties in relation to furnishing critical information in relation to children.
Local authorities have been held liable for the negligence of educational psychologists in making future provision for specific children, in circumstances where their advice will be relied on. However, such a claim may involve difficulties in terms of causation, in that it may be difficult to prove what would have happened, but for the negligent advice and the effect, it would have had.
A drainage board with the power to maintain a flood defence and control sewage and drainage were held to have duties of care to claimants who sought to build a house near a river bank, to warn him of the dangers of flooding.
The Medical Research Council was held liable to persons who were given human growth hormones after a date when medical trials should have been suspended, due to a possible link with serious disease.
Harbour Commissioners were found to have a duty of care to ship owners to ensure that procedures to position and maintain buoys in lace as navigation marks, in order to mark a dredged channel.
The Health and Safety Executive could owe a duty of care in principle, to victims of a train crash where they fail to use their statutory powers to carry out a routine inspection. The Minister of Defence was held to owe a duty of care to personnel serving overseas, to provide a regime of secondary healthcare.
Other Functions
The Secretary of State was held to have a duty of care to a spouse of a person given indefinite leave to remain in the United Kingdom, which included a condition prohibiting her having resort to public funds.
On the other side of the line, it has been held that a judge does not owe any duty to litigants appearing before him. Adjudication officers within departments were held not to owe duties to claimants for benefits. Universities were held not to owe duties of care to their students in relation to examinations.
Cases in Ireland and England have held that financial regulators are not liable to classes of bank depositors.
It was held that no duty was owed by a marine surveyor employed by the Department of Transport to a ship purchaser, in relation to the issue a certificate of seaworthiness.
The question has been left open as to whether the Law Society in England and Wales has a duty of care in investigating its members’ conduct. It has been left open whether the Revenue owes a duty of care when responding to enquiries and taxation questions.
