Tort- Lily Young

'The liability of public authorities in negligence continues to be a problematic area of the law. Some of the difficulties have been caused by the adoption by the courts of unnecessary and unworkable tests... Recent cases have helpfully continued the process of removing these special rules, leaving matters to be dealt with by the ordinary principles of negligence.... However, the cases remain difficult and the outcomes can still give rise to debate and disagreement. Insofar as there is a good case for extending the range of situations in which compensation is available in respect of the careless or unlawful acts of public authorities, it would be better to develop ex gratia schemes and the provision of remedies through ombudsmen than to extend the law of tort'. (Stephen Bailey, 2018).

By Lily Young

The liability of public authorities is a problematic area of law due to inconsistencies in applying ‘ordinary principles of negligence’ for omissions and failures. Per Lord Reed in Robinson v Chief Constable of West Yorkshire, ‘public authorities, like private individuals and bodies, are generally under no duty of care to prevent the occurrence of harm’.51 Whilst some cases have adopted the ‘uniform approach’ by holding public authorities equally as accountable as private individuals (McBride 2016), others have adopted the more nuanced ‘policy approach’.52 I will argue the latter, though giving more preferable outcomes, is overcomplicated. Instead, the law of tort’s protection can be extended by simply presuming public authorities have a positive assumption of responsibility toward claimants (one of the two ‘exceptions’ to the exclusion of negligence liability in cases of pure omissions).

The liability of public bodies in negligence can be treated the same as private parties, but often two different approaches are taken by the court. First is the ‘uniform approach’ outlined by McBride.53 Whether or not there is a duty of care is determined by asking if under the same circumstances, a private person would have owed the claimant a duty of care to save them from harm. This approach was used to establish a duty of care in Kane v New Forest DC, where the council created an unsafe footpath which crossed a main road at a

51 [2018] UKSC 4 52 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017 53 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017

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bend and failed to put up mirrors.54 This reasoning also prevailed in East Suffolk Rivers Catchment Board v Kent: if the neighbour did not owe a duty of care to prevent flooding, then neither did the Rivers Catchment Board.55

75 years after the East Suffolk case, the majority of the Supreme Court used the uniform approach to conclude that the police did not assume responsibility for a caller’s safety in a case of pure omission (Michael v Chief Constable of South Wales Police).56 Per Lord Toulson, although the principle of pure omission has been ‘worked out for the most part in cases involving private litigants [it is] equally applicable where D is a public body’. The assumption of responsibility, on the facts of the case, was discussed in just one of Toulson’s 140 paragraph majority speech. If a neighbour who heard Ms Michael being threatened did not owe her a duty of care to assist her, then neither did the police. The police were neither in a position of control over the ex-partner, nor had there been any assumption of responsibility toward the claimant. Under the ‘ordinary principles of negligence’ then, the law offers Ms Michaels no protection. However, turning to the policy approach, it is clear the claim should not have been struck out. It is difficult to find any policy reason why the police should not have owed a duty of care. Satisfying both tests in Anns v Merton LBC57 and Caparo v Dickman58, the damage was foreseeable (mistreating a cry for help could lead to death), there was a sufficient relationship of proximity (999 caller and Police) and it would be reasonable to impose a duty of care. Nonetheless, Michael59 is now the precedent and thus we can expect courts to follow the uniform approach when determining the liability of public authorities. I disagree that this is ‘helpful’, despite its straightforward nature.

The defences for the uniform approach, and the omissions principle at large, are flawed. First, the omissions principle is said to promote liberty. Per Lord Hoffmann in Stovin v Wise ‘… it is less of an invasion of an individual’s freedom for the law to require him to consider the safety of others in his

54 [2001] EWCA Civ 878 55 [1940] UKHL 3 56 [2015] UKSC 2

57 [1978] AC 728 58 [1990] 2 AC 605 59 [2015] UKSC 2

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actions than to impose upon him a duty to rescue or protect.’60 It is, as Howarth (2018) describes, a ‘rule against compulsory altruism and arbitrariness’.61 However, this is a problematic justification in the case of public authorities. It is not always the case that, in clearly defined circumstances (such as the statutes delegating power to the police), requiring a positive act is more onerous and invasive than ‘the corresponding abstention’ (Tofaris and Steel 2016).62 Honoré (1991) gives the example of litter, where ‘... the trouble involved in disposing of a wrapper neatly in a bin is much the same as the trouble involved in picking a wrapper up’.63 More fundamentally, the freedom of a public authority to fail to fulfil their constitutional function is entirely separate to the ‘intrinsic value’ of a private individual to live their life as they see fit. The ‘why pick on me?’ argument (see Lord Hoffmann in Stovin v Wise) cannot apply to public authorities where they have been specifically tasked and funded by statute or otherwise to prevent public harm.64 Other than reasonably protecting herself, the law obliges citizens to entrust their safety in the police. They are ‘the specialist repositories for the state’s monopolisation of legitimate force in its territory’ (Reiner 2010).65 Further, whilst limiting liability for pure omissions may encourage self-sufficiency and discourage overreliance on the state, many claimants may not be able to do so due to their age (X (Minors) v Bedfordshire CC)66, financial background (Mitchell v Glasgow)67, disability, or all three (CN v Poole).68

Third, defenders of the uniform approach argue the threat of legal action may prevent public bodies from fulfilling their duty, or distort priorities to reflect the risk of paying damages than meeting public needs. Whilst this may be adequate to protect soldiers in the ‘heat of the battle’ in a warzone (Mulcahy v Ministry of Defence 1996),69 this cannot apply to emergency services under ordinary circumstances. First, the tort of negligence holds private and public

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[1996] UKHL 15 61 Howarth, D, The Place of Tort Law in the Public Transport System: The Case of the British Railway, Journal of European Tort Law 9(2):191-225. 62 Tofaris, S., & Steel, S. (2016). NEGLIGENCE LIABILITY FOR OMISSIONS AND THE

POLICE. The Cambridge Law Journal, 75(1), 128-157. 63 A.M. Honoré, ‘Are Omissions Less Culpable?’ in P. Cane and J. Stapleton (eds), Essays for Patrick Atiyah (1991), pp. 31 ff.

64 [1996] UKHL 15

65 Robert Reiner (2010) THE POLITICS OF THE POLICE (4th edition) Oxford University Press.

66 67 68 [1995] 2 AC 633 [2009] UKHL 11 [2019] UKSC 25

69 [1996] EWCA Civ 1323

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bodies to account, and thus improve their performance. Often, the real reason why many sue ‘is the desire for a proper investigation into what went wrong, with the possibility of a public condemnation at the end’ (Spencer 200970; see Hill [1989] A.C. 53, 64).71 Internal investigations ‘lack the appearance of independence that judicial scrutiny has’ (Tofaris and Steel 2016),72 so tort provides a public and impartial forum. It is not clear the proposed ex gratia schemes and inclusion of ombudsmen would do this. Per Lady Hale in Michael, ‘it is difficult to see how [allowing greater liability] could make the task of policing any more difficult than it already is.73 It might conceivably, however, lead to some much-needed improvements in their response to threats of serious domestic abuse’ [198]. The police, and other public bodies, can and are held accountable in other areas of the law, but these do not undermine the vindicatory role of tort action and the need to right legal wrongs. Finally, any concerns of justiciability are irrelevant when determining duty of care. It has always been the role of the courts to determine the limits of delegated power, so this should extend to the responsibilities of those bodies too. Questions of standards and policy are better addressed under breach of duty and causation.

Instead, we should reconsider how the existing law could be adapted to better protect citizens from the failings of public authorities. Although McBride (2016)’s more general policy approach is attractive, it is also quite radical.74 Instead of assuming any public body owes a duty of care unless there is public policy to suggest otherwise, a more incremental approach would be to assume a public body has assumed a duty of care unless evidenced otherwise. This presumption can be rebutted without delving into matters of public policy which can be unpredictable and controversial and fits nicely into the recognised dual categories where a duty of affirmative action may exist. These are ‘D was in a position of control over T’ or where ‘D assumes a positive responsibility to safeguard C’ (per Toulson in Michael).75 Though the outcome may be the same, my construction could allow protection to slip in ‘through

70 Spencer, J. (1989). Public Nuisance—A Critical Examination. The Cambridge Law Journal, 48(1), 55-84. doi:10.1017/S0008197300108347 71 [1989] AC 53, 64 72 Tofaris, S., & Steel, S. (2016). NEGLIGENCE LIABILITY FOR OMISSIONS AND THE POLICE. The Cambridge Law Journal, 75(1), 128-157. 73 [2015] UKSC 2 74 McBride, Nicholas, Michael and the Future of Tort Law (February 1, 2016). (2016) Journal of Professional Negligence 14, University of Cambridge Faculty of Law Research Paper No. 36/2017 75 [2015] UKSC 2

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the back door’. Thus this reformulation of liability for public bodies is preferable to that of McBride’s and should be adopted.

Thus the most problematic area of tort law has been unsatisfactorily resolved. Under Michael, and going forward, we can sadly expect the liability of public bodies for omissions to match the liability of private parties (see CN v Poole BC).76 After 75 years of conflicting litigation it appears there is finally an answer to this question. Despite the Supreme Court’s reasoning however, the uniform approach to public liability should not be supported. Though McBride’s construction of a ‘policy approach’ is appealing, the law can more simply be adapted by imputing that public bodies have assumed a responsibility to safeguard unless shown otherwise. The fact that the court unanimously agreed that the family in Michael is able to pursue its ECHR art 2 claim means that public law clearly asks different questions to tort in regard to the responsibility of the state. Thus one cannot be a substitute for the other and we must allow tort to evolve; tort can compensate victims if the courts will let it.

76 [2019] UKSC 25

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