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Pubic authorities – negligence actions – control devices1

Published online by Cambridge University Press:  02 January 2018

Douglas Brodie
Douglas Brodie*
Affiliation:
University of Edinburgh
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Extract

X (minors) v Bedfordshire County Council is by far the most important decision on the liability in negligence of public authorities since Anns v Merton London Borough Council. These two authorities, along with Dorset Yacht Co v Home Office, furnish the ground rules for such actions. The leading judgment in X v Bedfordshire CC, in which all his brethren concur, is given by Lord Browne- Wilkinson; the only other judgment being given by Lord Jauncey. The common thread running through this trilogy of cases is the emphasis on the significance of the element of discretion in the exercise of the statutory functions of a public authority: ‘Most statutes which impose a statutory duty on local authorities confer on the authority a discretion as to the extent to which, and the methods by which, such statutory duty is to be performed’.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 1 , March 1998 , pp. 1 - 14
Copyright
Copyright © Society of Legal Scholars 1998

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Footnotes

1

I am grateful to a number of colleagues who made helpful comments. In particular, I am greatly indebted to Ms J Convery and Mr C M G Himsworth for their critical comments on earlier drafts. The standard disclaimer applies; albeit with unusual vigour.

References

2 (1995) 3 All ER 353.

3 (1978) AC 728.

4 (1970) AC 1004.

5 X v Bedfordshire CC at 368.

6 X v Bedfordshire CC at 368.

7 A number of other bodies such as the prison service would be in the same position. The position is more complicated in respect of certain public bodies, such as the police, who possess at least some common law powers as well as statutory ones.

8 Wade, W and Forsyth, C Administrative Law (Oxford Clarendon Press, 7th edn, 1994) p 245 Google Scholar.

9 In X v Bedfordshire CC at 366 Lord Browne-Wilkinson said that Geddis v Bann Reservoir (Proprierors) (1878) 3 App Cas 430 was best regarded as authority for the proposition that careless exercise of a statutory duty or power provides no defence to a claim based upon a ‘free-standing common law cause of action’.

10 X v Bedfordshire CC at 362 and 392. Of course, the patient in the private hospital would have the alternative of a contractual action. On a similar note, in Walker v Northumberland CC (1995) 1 All ER 737 Waller J had indicated that the policy/operational divide was not relevant to a claim by an employee that the employer's obligation to take reasonable care had been breached.

11 D Oliver ‘Anns v London Borough of Merton Reconsidered’ [1980] CLP 269.

12 Ibid at 269.

13 (1878) 3 App Cas 430.

14 Ibid at 455–456.

15 See also Mersey Docks v Gibbs (1866) LR 1 HL 93. It may be noted that for Lord Browne-Wilkinson (at 366): ‘…the careless exercise of a statutory power or duty cannot provide a defence to a claim based on a free-standing common law cause of action, whether in trespass, nuisance or breach of a common law duty of care. If Lord Blackburn's dictum in Geddis v Proprietors of Bann Reservoir merely refers to the circumstances in which statutory authority can be used as a defence it raises no problems.’

16 See Wodehouse v Levy (1940) 2 KB 561; Lyus v Stepney BC (1941) 1 KB 134.

17 (1955) AC 549. A further example is Haley v London Electricity Board (1965) AC 778, which usually comes up in discussion of standard of care. There electricity undertakers, pursuant to statutory powers, had excavated a trench along a footpath. The plaintiff, who was blind, fell and tripped over a barrier erected to warn passers by. The claim in negligence was viewed as being straightforward and was based on a breach of the duty owed by the defendants if in carrying out their statutory powers they did not take reasonable care to prevent damage to the public. Discussion focused on the issue of breach.

18 Dorset Yacht at 1066–1067. See also Lord Reid at 1031 as to the significance of discretion.

19 Ibid at 1066.

20 X v Bedfordshire CC at 382.

21 Ibid at 367.

22 Ibid at 362–363.

23 (1991) 1 AC 398.

24 Would a misrepresentation action have to cross the hurdle of excess of discretion conferred? The unreported Court of Appeal case of King v North Cornwall DC (8 February 1995) might suggest not. The case was raised on the misrepresentation qualification to Murphy and no mention was made of the issue of discretion. In Welton v North Cornwall [1997] 1 WLR 570, which also concerned the Hedley Byrne principle, the point was not taken. In any event, the condition precedent would not have troubled the plaintiff since the inspector ‘was acting both outside the powers of the Act and also outside the informal enforcement practice of the defendants’.

25 [1964] AC 465.

26 King v North Cornwall DC above n 24; Richardson v West Lindsey CA [1990] 1 WLR 522.

27 [1994] 4 All ER 577.

28 Of course, in any event, there might be a duty by virtue of a contract.

29 A contemporary example of this is furnished by the Management of Health and Safety at Work Regulations 1992. Whilst reg 15 excludes liability, it has been suggested that the provisions on risk assessment might well be relevant to common law claims. See Hendy, J and Ford, M Munkman's Employers Liability (London: Butterworths, 1995) p 183 Google Scholar.

30 [1990] 2 AC 605.

31 [1985] AC 210.

32 It should be noted that in Stovin v Wise and Norfolk Country Council (1996) 3 All 801 at 823 Lord Hoffmann took the view that Dorset Yacht was not an affirmative action case.

33 Dorset Yacht at 1066.

34 X v Bedfordshire CC at 362. It is worth noting what Lord Nicholls said in Stovin v Wise (at 811) where, with reference to judicial review, he observed that a statutory discretion cannot’… properly be exercised in an unreasonable manner, that is, in a way that no sensible authority with a proper appreciation of its responsibilities would act…’

35 Fleming, J E Law of Torts (Sydney: Law Book Company, 1992)Google Scholar.

36 [1996] 3 All ER 801 at 821.

37 Stovin v Wise at 828.

38 (1988) AC 175.

39 Yeun Keun Yeu at 198.

40 Dorset Yacht at 1067.

41 X v Bedfordshire CC at 368.

42 Ibid at 370.

43 Ibid at 378.

44 Ibid at 382.

44a Ibid at 380.

45 [1994] 4 All ER 640.

46 X v Bedfordshire CC at 391.

47 Ibid at 367.

48 See the discussion in Craig, P Administrative Law (London: Sweet and Maxwell, 3rd edn, 1994) pp 620–623 Google Scholar.

49 X v Bedfordshire CC at 369.

50 P Cane ‘Suing Public Authorities in Tort’ (1996) 112 LQR 13 at 16.

51 Taylor v City of Glasgow Council 1996 SLT 701 at 704, per Lord Johnston.

52 The policy arguments invoked in Hill v Chief Constable of West Yorkshire (1988) 2 All ER 238 have been influential in a number of cases involving bodies other than the police. See D Brodie ‘Public Authorities and the Duty of Care’ (1996) JR 127 at 139.

53 J Stapeleton ‘Duty of Care: Peripheral Parties and Alternative Opportunities for Deterrence’ (1995) 111 LQR 301 at 312.

54 (1985) 157 CLR 424 at 464, per Mason J.

55 [1994] 4 All ER 602 at 631.

56 Stovin v Wise at 832, per Lord Hoffmann.

57 [1988] AC 473 at 482.

58 [1991] 1 AC 398.

59 Ibid at 463.

60 1997 SLT 1330.