KEY FACTS
2.2 The problem of policy
2.2.2 Policy and the refusal to impose a duty
34
NEGLIGENCE: DUTY OF CARE
QUOTATION
‘Judicial conservatism and the adoption by the House of Lords of Brennan J’s dictum in Sutherland Shire Council v Heyman may not close the categories of negligence. It does of course restrict their growth. First, by demanding that new duty- situations develop incre- mentally, it becomes harder to establish a new category of negligence significantly differ- ent from, or wider in scope, than its predecessors. Second, it may be that where a duty- situation is not entirely novel but analogous to a category or case where earlier authorities refused to recognise a duty, the door is indeed closed to expansion of the classes of duty- situations.’
J Murray, Street on Torts (11th edn, Butterworths, 2003)
35
2.2 THE PROBLEM OF POLICY
Liability of lawyers for court work
CASE EXAMPLE
Rondel v Worsley [1969] 1 AC 191
The claimant argued that he had only lost his case in court because of the negligent presenta- tion of the case by the barrister. The court refused to impose a duty because fear of a negli- gence action might prevent the barrister from effectively carrying out his duties in court and in any case could lead to cases being reopened thus ending certainty in litigation.
The judges have, however, subsequently removed this immunity because there are now better ways of avoiding abuse of process.
CASE EXAMPLE
Hall (Arthur & Co) v Simons [2000] 3 All ER 673
The appeals involved three separate claims against solicitors for negligent handling of pro- ceedings. The solicitors all claimed immunity from a negligence action in respect of advocacy.
The Court of Appeal held that none of the claims were covered by the immunity. The House of Lords, in a court of seven judges with three dissenting, decided that there was no longer any need for immunity in civil proceedings as collateral attacks like these would normally be struck out as an abuse of process, so there was no longer any justification.
The removal of the immunity and the reasoning behind it was also accepted by the House of Lords in respect of negligent advice in Moy v Pettman Smith and Perry [2005]
UKHL 7.
Immunity of judges from legal action
It was declared in Sirros v Moore [1975] QB 118 that a judge would not be liable for any negligence done in the performance of judicial office. Although with inferior judges it is possible that there is liability for acts done in excess of jurisdiction.
Liability of the police to the public
As we have already seen in Hill v Chief Constable of West Yorkshire one argument here of course is that there is an alternative means of compensating through a claim to the Crim- inal Injuries Compensation Authority.
But this is not always the case and in certain circumstances the courts are prepared to impose a specific duty on bodies such as the police.
CASE EXAMPLE
Reeves v Commissioner of the Metropolitan Police [1999] 3 WLR 363
Police were holding a prisoner who was a known suicide risk. When the prisoner did commit suicide the court rejected the police defence of novus actus interveniens. The suicide was the very risk that the police should have been guarding against.
The sort of blanket immunity from negligence actions enjoyed by the police has in any case led to the issue being challenged in a human rights context.
36
NEGLIGENCE: DUTY OF CARE
CASE EXAMPLE
Osman v United Kingdom [2000] ECtHR, 29 EHRR 245; [1999] Crim LR 82
Osman was killed by one of his teachers who formed an unnatural attachment to the boy. The teacher was convicted and later detained in a mental hospital. In a civil action for negligence against the police, the court rejected the claim on the basis of the immunity in Hill. A sub- sequent application to the European Court of Human Rights identified that this contravened Article 6. While the court appreciated that the rule was in place to ensure the effectiveness of the police, it had not been balanced with the rights of the public.
In general in any case the courts will not impose a duty on the police to act and therefore impose liability for a failure to act.
CASE EXAMPLE
Cowan v Chief Constable for Avon and Somerset [2001] EWCA Civ 1699
The claimant was being unlawfully evicted and threatened with violence by men acting for the landlord and the police were called to the scene by the claimant. The police were appar- ently unaware of the provisions of the Protection from Eviction Act 1977 and as a result failed to warn the men that they were committing a crime. The claimant then alleged neg- ligence by the police in failing to protect him. The court held that the police owed no duty to the claimant. Such duties only arise where there is a special relationship and there was none here.
As a result it has been held that the police do not owe any duty to a victim of crime, not only for negligence in the investigation of crime but also in the training of its officers on how to handle racial incidents.
CASE EXAMPLE
Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24; [2005] 1 WLR 1459
This involved the friend of the murdered teenager Stephen Lawrence. He claimed that he had suffered post- traumatic stress disorder both as a result of the handling of the crime investiga- tion and as the result of his own treatment as a witness and as a victim. The House of Lords would not accept that the police owed any duty in these respects. The reasoning is not unlike that in Hill, that to allow potential liability to witnesses and victims of crime would prevent the police from concentrating on their primary functions and would lead to a very defensive approach to tackling crime.
The same line was taken and the principle in Hill v Chief Constable of West Yorkshire was followed in joined appeals Chief Constable of Hertfordshire v Van Colle; Smith v Chief Con- stable of Sussex [2008] UKHL 50. Both cases involved prospective witnesses in criminal proceedings who had been attacked and murdered by the accused. In the first, the House of Lords rejected a claim that the police had breached the deceased’s right to life under Article 2 of the European Convention of Human Rights because the test in Osman v UK was not satisfied. The murderer was a seriously disturbed and unpredictable person and the court concluded that the police could not have anticipated his behaviour. In the
37
2.2 THE PROBLEM OF POLICY
second, there were no ‘special circumstances’, as required by Hill to impose a duty on the police.
One other consideration is that the police do not appear either to owe a duty of care towards ‘informers’, on whose support they rely extensively in the investigation of crime.
CASE EXAMPLE
Marsh v Chief Constable of Lancashire Constabulary [2003] EWCA Civ 284 Here a car dealer who was an informer for the police sought damages when his former busi- ness associate assaulted him. The former partner had been arrested but subsequently released by the police. The court held that it would not be ‘fair, just and reasonable’ to impose a duty on the police to take into account the claimant when considering releasing the business partner on bail. There was a duty to take the safety of the public into account in ordering release but there was no special relationship between the police and informers that would entitle the claimant to be owed a personal duty.
However, this is not to say that the police will be immune from action in all situations.
CASE EXAMPLE
Kuddus v Chief Constable of Leicestershire Constabulary [2001] 2 WLR 1789 Here a police officer had forged the claimant’s signature on a statement withdrawing a com- plaint. The court accepted that this was misfeasance in a public office and that it was possible to make an award of exemplary damages in such circumstances.
Liability of public authorities
The liability of public authorities has been the subject of a wide range of cases both for misfeasance and more often for non- feasance. Inevitably public authorities in any case act under statutory duties. Since public money is involved in settling such claims it is also inevitable that policy is a major consideration in determining whether or not claims in negligence are possible.
Similar attitudes are often taken to those applied to the police. The decision will very often rest on the fact of whether or not it is fair, just and reasonable in the circumstances to impose a duty. In this way the Court of Appeal would not accept that a health author- ity could be liable for the murder of a child by a psychiatric outpatient in Palmer v Tees HA and Hartlepool and East Durham NHS Trust [1999] Lloyd’s Rep Med 351. The reason- ing is very close to that in Hill.
In the case of non- feasance the traditional position was that in Home Office v Dorset Yacht Co [1970] AC 1004. The reasoning here was that where a public authority exercised discretion there could only be liability if the authority exercised that discretion so care- lessly and unreasonably that in effect it could be said that it had not exercised discretion at all.
Again the argument given by judges for not imposing a duty of care on a public body is very often the lack of proximity with the claimant.
exemplary damages A form of damages which is not related to compensation for damage suffered but which the court makes to show its disapproval of the defendant’s action
38
NEGLIGENCE: DUTY OF CARE
CASE EXAMPLE
K v Secretary of State for the Home Department [2002] EWCA Civ 983
Here a Kenyan citizen had been imprisoned for buggery of a minor and also for burglary and a deportation order was issued. For some reason the Home Secretary permitted his release and seven months later he raped the claimant. The court rejected the claim that the Home Office was liable for negligently releasing the man despite it being reasonably foreseeable that he would commit further crimes. There was insufficient proximity between the claimant and the Home Secretary for a duty to be imposed.
Two further connected reasons why a claim may be impossible against a public body are the effects of Crown Immunity and the fact that there is an alternative remedy for the damage suffered.
CASE EXAMPLE
Matthews v Ministry of Defence [2003] 1 All ER 689
The claimant suffered injury after being exposed to asbestos dust while serving in the Royal Navy between 1955 and 1968. Section 10 of the Crown Proceedings Act 1947 gave the Crown immunity from tort actions for such damage. An alternative system of compensation was created in 1983 by statutory instrument. The fact that the 1947 provision was repealed in 1987 would not help the claimant because it operated only in respect of subsequent claims and the claimant was therefore still subject to the provision. The claimant argued that the pro- vision was contrary to Article 6 of the European Convention on Human Rights in that it pre- vented him from having his rights determined by an independent and impartial tribunal. The trial judge held that the provision was a procedural bar to a substantive claim and infringed the Article 6 rights. The Court of Appeal held that the provision was substantive rather than procedural and that Article 6 did not apply and allowed the Crown’s appeal. In the House of Lords it was held that the provision was indeed substantive and meant that the claimant did not have any right to claim under English law. The alternative system of compensation was not incompatible with the Convention and there were no Article 6 rights in the circumstances.
Nevertheless, it may still be possible to identify a duty to act by a public body because of its assumption of responsibility and because of the specialist knowledge the particular body possesses. This in effect represents more than simple non- feasance.
CASE EXAMPLE
Thames Trains Ltd v Health and Safety Executive [2002] EWHC 1415 QB
This case followed the Ladbroke Grove rail crash. The claimants accepted liability and intended to settle with the victims. Here they were seeking a contribution towards that settlement from the Health and Safety Executive (HSE). The argument was that HSE was under a statutory duty to regulate safety on railways and therefore should at least be held partly responsible. For this the claimants needed to show that HSE owed a duty of care also to passengers using the rail- ways. The court held that, even though public regulators owe no specific duty to the public who may be injured if they fail to regulate effectively, the claim should not be struck out. This was because the regulator also possessed detailed knowledge of the dangerous state of the signalling system that led to the accident.
39
2.2 THE PROBLEM OF POLICY
Specific types of claim
The courts have also been reluctant to allow claims in certain circumstances that they feel would otherwise offend a superior principle, for example the action for ‘wrongful life’ is denied because judges consider that to allow such a claim would to be to interfere with the ‘sanctity of life’.
CASE EXAMPLE
McKay v Essex Area Health Authority [1982] QB 1166
A pregnant woman was not advised that she had contracted German measles and that her child would thus be born severely disabled. The claim was obviously made so that the parents would have the means to support such a severely disabled child. The court would not impose a duty on a doctor to advise of the need for an abortion in such circumstances because that would interfere with the idea of the sanctity of life and public policy would not allow that.
Nevertheless, in a long line of cases the courts have accepted that there can be an action for ‘wrongful birth’. This type of action is in effect a claim for economic loss, the cost of raising a baby usually where a negligent sterilisation operation has been followed by an actual birth (see Emeh v Kensington and Chelsea HA [1985] QB 1012, Gold v Haringey HA [1987] 2 All ER 888 and Udale v Bloomsbury HA [1983] 1 WLR 1098).
Now it has been accepted that there may be liability on the part of a negligent health authority for the extra costs of coping with a disabled child, although not for the general maintenance of the child.
CASE EXAMPLE
Rand v East Dorset HA [2001] 56 BMLR 39
Here doctors negligently failed to warn a couple of the results of a scan that showed that their baby would be born with Down’s syndrome. The court held that this deprived the parents of the opportunity to abort the foetus and that the heath authority should be liable for the increased costs of supporting a child with the disability. Hedley Byrne principles applied and damages were awarded for the financial loss that arose directly from the negligence (see Hedley Byrne v Heller and Partners Ltd [1964] AC 465).
The courts have also been reluctant to accept the existence of a duty of care in situations where there is traditionally no obvious legal protection in English law, for example privacy.
CASE EXAMPLE
Kaye v Robertson [1991] FSR 62
A famous TV actor suffered severe head injuries in an accident and was in intensive care. A newspaper then sent a photographer to the hospital who took a flash photograph. While the Court of Appeal did allow an injunction to prevent publication of the photograph, they were unable to find that there was any actionable battery or libel and there was no duty that could give rise to an action in negligence. There was no right of privacy.
40
NEGLIGENCE: DUTY OF CARE