In the case of Anns v. Merton London Borough Council,1 Lord Wilberforce, in considering the negligence liability of a local authority arising out of the exercise of its statutory powers to inspect buildings under construction, drew a distinction between the “policy” and “operational” aspects of the authority's functions and suggested that liability would more readily arise in respect of the latter. Since that time it has become common to consider the liability of public authorities generally in the tort of negligence by reference to this “policy/operational” dichotomy.

Explicit rights and freedoms such as those of thought, assembly, life, liberty and security of person occur in constitutional charters because they are activities and states which are necessary for any successful action. It is through the protection of its necessary conditions that freedom of action is itself protected. Moreover, without the inference that freedom of action is the basic value being protected we cannot justify the above rights and freedoms. If we accept this hypothesis about the justificatory structure of constitutions it provides us with a test of the completeness of the list of explicit rights and freedoms. We argue that no charter could justifiably include the usual explicit rights and freedoms and not include the right of the individual to property since the latter is no less a condition of free action than are the former.

Two “landmark” decisions on the recovery of damages for negligently caused nervous shock have now been delivered in two years by the highest courts in Britain and Australia—McLoughlin v. O'Brian by the House of Lords in 1983 and Jaensch v. Coffey by the High Court of Australia in 1984. Despite these decisions, it is difficult to say that the principles of law to be applied in such a case can be stated with absolute clarity and one tends rather to sympathise with the view of Comyn J. in Whitmore v. Euroways Express Coaches Ltd. that “no absolutely clear picture emerges and many of the judgments speak with different voices.” Nevertheless, certain principles in this area are clear and others are becoming clearer, and a statement of these principles now might be of assistance in allowing an absolutely clear picture to emerge.