KEY FACTS
2.2 The problem of policy
2.2.3 Policy and the three- part test
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NEGLIGENCE: DUTY OF CARE
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2.2 THE PROBLEM OF POLICY
Lord Slynn said:
JUDGMENT
‘although the duties were intended to benefit a particular group, mainly children with special educational needs, the 1981 Act is essentially providing a general structure . . . The general nature of the duties imposed on local authorities in the context of a national system of educa- tion . . . the remedies available by way of appeal and judicial review indicate that Parliament did not intend to create a statutory remedy by way of damages.’
Again one of the reasons why judges may decide that it is not fair, just or reasonable to impose a duty is the availability of other remedies in disputes with public bodies.
CASE EXAMPLE
R v Cambridge University, ex p Persaud [2001] EWCA Civ 534
This is a case actually involving judicial review rather than a claim for negligence in tort. It concerned unfair treatment by the Board of Graduate Studies of the University and the Court of Appeal quashed the decision taken by the board. The Court held that, since judicial review is available to students in such circumstances, there was no general principle allowing a claim for negligence. Nevertheless, the Court did accept that each case should be judged on its indi- vidual facts and therefore it is possible that a duty of care may be identified.
While policy appears to have been a major factor in developing immunity for public bodies, it now appears that this immunity may be under threat because of the human rights implications.
CASE EXAMPLE
X v Bedfordshire County Council [1995] 3 All ER 353
This was a series of appeals for striking out actions against public authorities. One line involved child abuse where the local authority failed to act after the children were referred to them. The argument was that the children suffered long- term damage that could have been avoided had the council acted promptly. The other group involved a failure to provide special needs facili- ties. In the case of the child abuse negligence it was held that it would not be just or reason- able to impose a duty, since it would cut across the council’s other statutory obligations and remove resources that could otherwise be used for child protection. The justification given by the judges in the House of Lords was that the statute that the council were allegedly in breach of was for the benefit of the public generally, not only individuals.
The case was later taken to the European Court of Human Rights (under a different name) and a different answer given.
CASE EXAMPLE
Z and others v United Kingdom [2001] 2 FLR 612; [2001] 34 EHRR 3
The European Court of Human Rights accepted that the children had been subjected to inhuman and degrading treatment contrary to Article 3, and also that they had been refused an effective remedy contrary to Article 13. This result may mean that English courts will be forced to rethink the blanket immunity from liability that they have in the past been prepared to offer public bodies.
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NEGLIGENCE: DUTY OF CARE
Over a long period of time then it has been the case that judges have used policy as a means of ensuring that there is not an unrestricted expansion of liability in tort.
In Stovin v Wise [1996] AC 923 at 949 Lord Hoffmann explained the position in very explicit terms:
JUDGMENT
‘The trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not.’
In Harris v Perry [2008] EWCA Civ 907 the Court of Appeal held that it was impractical for parents to keep children under constant supervision and it would not be in the public interest for the law to require them to do so.
NO NO NO
YES YES YES
THE DEFENDANT IS LIABLE FOR NEGLIGENCE
Figure 2.2 The essential elements for proof of negligence with particular emphasis on the establishment of a duty of care.
Did the defendant owe the claimant a DUTY OF CARE?
The principle in past ca ses applies because the material acts are analogous to those in past cases:
• There is sufficient proximity between the parties in law for the defendant to have the claimant in his/her contemplation when acting or failing to act
• The harm is a reasonably foreseeable consequence of the defendant's act or omission
• In all the circumstances of the ca se it is fair, just and reasonable for the duty to be imposed on the defendant
Did the defendant BREACH the duty?
The defendant fell below the standard of care appropriate to the particular duty owed - measured objectively against the standards of a 'reasonable man'
Did the defendant's breach of duty CAU5E the claimant's DA
• The defendant's act or omission was the factual cause of the damage - 'but for' the act or omission it would not have occurred
• The damage is a reasonably foreseeable consequence of the breach of duty
THE DEFENDANT 15 NOT LlABLE FOR NEGLIGENCE
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