Public Authorities II
Prisoners
Prison authorities do not owe a general to the public at large to keep persons in custody, such as to be liable for their actions on escape. However, in particular circumstances where prisoners were insufficiently controlled in the vicinity of a person’s property with glaringly obvious risks, a duty has been held to apply.
The House of Lords allowed a claim for negligence where a detainee committed suicide in a police station cell, even though he did not have a mental illness. The negligence comprised allowing the defective condition of the cell to be used as a point from which to hang himself. The claim by the deceased prisoner’s family was not defeated by the defences of a voluntary act, absence of causation and contributory negligence.
The Police have been held liable for failure to communicate to prison authorities information relevant to a prisoner’s mental condition. Liability was based on the failure to pass information to a prosecutor in relation to a bail application which would be relevant and influence the court.
Police Powers
There is no general duty of care on the Gardai in investigating a crime. In some cases, the Gardai have been held to owe duties of care in cases where their conduct has caused foreseeable damage and loss.
It was held that the Gardai owed a duty to an intoxicated claimant in a cell to take all reasonable steps to ensure that he would not injure himself accidentally or deliberately. They owed a duty to carry out a search to ensure that he was not carrying matches and they were bound to respond to any indication that there a fire had started.
The Police were liable to road users when they took charge of a dangerous road traffic situation but negligently failed to place barriers and warnings. The police were held to have a duty to the public to take care that the police officer was a suitable person to be entrusted with a gun in circumstances where earlier incidents showed clear risks.
The Police were not liable when they failed to respond to information regarding malfunctioning traffic lights. They were not liable when they were made aware of hazards on the highway but did not take steps to warn members of the public.
Although there is a general duty to fight crime, in Hill v West Yorkshire Chief Constable, concerning the Yorkshire Ripper, it was held that police could not be held responsible for failure to identify and apprehend a criminal so as to prevent further offences. This principle applies to policy and organisational decisions.
It has been held that there is no duty of care owed by the prosecution service to members of the public in the conduct of prosecutions generally. A duty of care arose where the prosecution had agreed to inform a court that defences would be taken into consideration, and they failed to do so.
Operational Policing Duties
A duty of care was held to exist where
- there was negligent failure to prevent victimisation by fellow police officers causing psychiatric injury
- where a deranged police officer shot and killed persons suspected of being members of the IRA and then killed himself
- where the police negligently allowed publication of the name of their informers
It has been held arguable that the police owed a duty of care to a child allegedly being subject to sexual abuse and to parents alleged to have inflicted it when interviewing children in the context of Childrens Act proceedings.
No duty of care was owed by police officers at an unlawful eviction to prevent the commission of an offence. Their responsibility was limited to preventing a breach of the peace.
Some Regulatory Authorities
In Beatty v Rent Tribunal in 2006, a claim was made for loss on the basis of the negligent exercise of powers by the Rent Tribunal. Although the exercise of powers was invalid, it was not just and reasonable to impose a duty. There was a provision for an appeal on a point of law to the High Court. There was no reliance by the claimant on the Tribunal.
The fire authority does not owe a duty of care, such as to be liable for damages and negligence to members of the public generally. However, if, having arrived at the scene, they create a new or different danger, they may be liable for the consequences.
In contrast, the ambulance services duties are similar to those of hospitals and the health services generally. They have been held to have a duty of care, once an emergency call has been accepted for a particular patient.
Local Authorities
Local authorities may owe duties of care. Whether or not a duty applies will be determined by the particular statutory context and relationship. In the United Kingdom, it has been held, for example, that local authorities
- as housing authorities owe duties to their council house tenant
- as mortgagees owe duties to purchasers of dwelling houses (in the context of valuation) and
- as occupiers, owe duties to the users of swimming pools.
The local authority was held to owe a duty of care for the careless exercise of food safety powers by an environmental health officer. Local authorities have been held liable for negligently failing to respond to inquiries regarding the status of roadways correctly.
Local authorities in the United Kingdom have been held not to be liable in negligence in the context of more open and discretionary powers. They were held not to owe duties
- in the failure to exercise powers to collect waste where a child fell in piles of rubbish;
- where it failed to put safety locks on windows or
- as a housing advisory service where on account of negligent advice, a tenant was evicted by its private landlord.
Planning and Building Regulation Functions
A number of United Kingdom and Irish cases have arisen in the context of planning and building regulations. Generally, Councils have not been held liable to landowners in granting or refusing planning permission.
However, the planning authority does not enjoy blanket immunity in negligence in exercising its functions under planning law. A duty of care may arise when the authority creates a danger in the course of exercising its functions and fails to remove a danger created.
A planning authority may be liable for the acts and omissions of its employees in the course of employment. A planning authority may not estop itself, or grant planning permission other than through the statutory process. In exceptional certain circumstances, the planning officer may be found to be liable for negligent misstatement.
Childrens Services
The UK courts have held that health authorities should not have a duty of care in considering whether to take children into care. The House of Lords took the view that the seriousness of the problem required that professionals who act in good faith in what they believe to be the child’s interest should not be subject to conflicting duties. Health professionals have a duty to suspected persons to investigate alleged abuses in good faith.
Where a child has been taken into care, a duty is owed in relation to the placement. Local authorities have been held to owe foster parents duties in relation to furnishing critical information in relation to children.
Local authorities have been held liable for the negligence of educational psychologists in making future provision for specific children in circumstances where their advice will be relied on. However, such a claim may involve difficulties in terms of causation, in that it may be difficult to prove what would have happened, but for the negligent advice and the effect it would have had.
A drainage board with the power to maintain a flood defence and control sewage and drainage was held to have duties of care to claimants who sought to build a house near a river bank to warn them of the dangers of flooding.
Various Functions I
The Medical Research Council was held liable to persons who were given human growth hormones after a date when medical trials should have been suspended, due to a possible link with serious disease.
Harbour Commissioners were found to have a duty of care to ship owners to ensure that procedures to position and maintain buoys in lace as navigation marks, in order to mark a dredged channel.
The Health and Safety Executive may owe a duty of care, in principle, to victims of a train crash where they fail to use their statutory powers to carry out a routine inspection.
The Minister of Defence was held to owe a duty of care to personnel serving overseas, to provide a regime of secondary healthcare.
Various Functions II
The Secretary of State was held to have a duty of care to a spouse of a person given indefinite leave to remain in the United Kingdom, which included a condition prohibiting her having resort to public funds.
On the other side of the line, it has been held that a judge does not owe any duty to litigants appearing before him. Adjudication officers within departments were held not to owe duties to claimants for benefits. Universities were held not to owe duties of care to their students in relation to examinations.
Cases in Ireland and England have held that financial regulators are not liable to classes of bank depositors.
It was held that no duty was owed by a marine surveyor employed by the Department of Transport to a ship purchaser, in relation to the issue of a certificate of seaworthiness.
The question has been left open as to whether the Law Society in England and Wales have a duty of care in investigating its members’ conduct. It has been left open whether the Revenue owes a duty of care when responding to enquiries and taxation questions.
Assurances by Authorities
In Bates v Minister for Agriculture, Fisheries and Food [2011] IEHC 429 fishermen were assured by public officials that they were entitled to fish in a particular area in the Bay of Biscay and obtain sea fishing licences. The Minister/Department was found liable for negligence/negligent misrepresentation where it turned out that this advice was incorrect and the fishermen were subject to forfeiture of the vessels and heavy fines.
“if a plaintiff can establish negligence against a public authority or the State, in reliance on the Hedley Byrne principles [… ] without having to call in aid the fact that the defendant public body may have been exercising a statutory power or function when the alleged civil wrong was perpetrated, in my view, the position of the plaintiff is no different to that of a plaintiff who invokes private law duties in relation to occupiers’ liability or employers’ liability against a public body defendant. I can see no reason why a public authority or the State should be afforded immunity in an action for negligent misstatement by a person for whom it is vicariously liable, in the type of situation where a defendant, which does not have public authority status, such as the bank in the Hedley Byrne case which gave a reference as to the creditworthiness of its customer to another bank, would be held liable in tort. To adopt the words of Keane C.J. [in Glencar Exploration Plc v Mayo County Council [2002] 1 I.R. 84], the duty of care of the public authority should be ‘no greater but also no less’ than its counterpart in the private sector.”
In this case the liability could apply to a defendant for economic loss caused by negligent misstatement, “notwithstanding” that it was a public body.
Laffoy J.
“given the context in which the plaintiffs sought information from the officials of the Department in relation to their entitlement to fish for scallops …, in my view, the proximity test is met and a duty of care was owed to the plaintiffs, as persons who were applicants for, and the holders of, sea-fishing boat licences to enable them to fish for scallops, and who were relying on special knowledge and expertise of the officials of the Department in connection with the complexities of Community law on fishing. The duty of care required of the officials, when furnishing the information sought by the plaintiffs to them, to conform to a standard which would not expose the plaintiffs to unreasonable risks.”
Similarly in Walsh v South Tipperary County Council [2011] IEHC 503 a Council’s confirmation regarding the status of a road in a formal letter which turned out to be incorrect thereby causing loss to a property purchaser was held to be the subject of a duty of care and the Ccouncil was liable to the purchaser who thereby suffered loss
“in the absence of a statutory immunity, a public authority which issues a negligently inaccurate statement as to a relevant factual state of affairs is liable, within the ordinary rules of proximity and foreseeability, to any person suffering loss as a result. Such cases are to be distinguished from those where the public authority is exercising a statutory function where the authority concerned is required to exercise a discretion or an adjudicative role. In such cases the public authority will be immune from a claim in damages where there is an abuse of office or other serious wrongdoing.”
In Darlington Properties Ltd v Meath County Council [2011] IEHC 70, a case involving sale of land by the Council where it represented that certain roads would be constructed, the Council was found liable for negligent misstatement to the purchaser
“the duty of care is not confined to professional persons expressing opinions or giving information. For example, a vendor has a duty to take reasonable care so as to ensure that statements he makes in seeking to induce a sale are true. In Gran Gelato Limited v Richcliff (Group) Ltd [1992] Ch.560, it was common ground that the vendor owed a duty of care to a prospective purchaser and it was said that in the light of authorities such as Esso Petroleum Company Limited v Mardon [1976] Q.B. 801, the contrary could not seriously be argued. I am satisfied that a vendor, regardless of any other special relationship, is under a duty to take reasonable care to ensure that any representations made by him with a view to inducing [a] contract are accurate.”
“the County Council was not any vendor. It had a particular status and a particular means of knowledge. It was, after all, the planning authority. It itself granted the planning permission which rendered the building of the distributor road impossible. Yet it chose to market and offer the land for sale with explicit reference to the need for the distributor road to be built. Thus, even if it were necessary to show a special relationship (which it is not), I am satisfied that such special relationship existed having regard to the particular status of the County Council.”
Bates v Minister for Agriculture, Fisheries and Food [2018] IESC 5.
“The ruling of Laffoy J in this case is not one which overturns existing law. Rather, it applies it. What was sought from the Department by the plaintiffs was advice in a particular context: that of an imminent arrest. Had it been the case that the function being exercised on behalf of the defendant Minister was an administrative task conducted pursuant to a statutory remit, then, the question of whether any duty of care was owed, the proper starting point for any negligence analysis, would be answered negatively …
As was stated in the Cromane Seafoods case, the judgment of Charleton J at paragraph 29, where a wrong is alleged against a public body in the exercise of a duty, then the remedy is not negligence, but misfeasance in public office:
‘Negligence is not all encompassing. It has not swamped every other tort. If ill is broadcast of a person, the remedy is defamation. If a person is illegally arrested, the remedy is false imprisonment. If in public office, something is done which affects rights, the remedy may be judicial review in terms of overturning a decision in excess of jurisdiction or, if damages are sought, tort law requires that a claimant should prove misfeasance in public office. The authorities heretofore support the maintenance of those traditional boundaries’.”
“[under] the analysis by the trial judge, the imposition of liability for negligent information did not extend to the imposition of a duty of care in issuing licences based upon any supposed duty to examine documentation supporting such an application to ensure that advice was spontaneously proffered to the plaintiffs warning them off any anticipated danger; here, that area VIIIa was off limits for scallop fishing except for French vessels.
Any such wide imposition of liability would undermine the purpose for which the statutory regime was set up. The duty of the defendant Department, in the context of the statutory and European conservation regime, was owed to the community as a whole. That duty was not one specifically directed towards the protection of those in the fishing industry from error. Regulation of fishing, mandated by European law, is there to ensure that fishing was, and is, regulated in accordance with the statutory scheme, that the vessels licensed were of a kind appropriate to the task proposed and that whatever technical requirements accompanied the licence conformed to the basis upon which a positive permission might be granted. Such administrative duties are for the benefit of the proper regulation of fisheries and for the conservation of wild ocean stocks. There would not be a duty of care towards licence applicants to properly advise them of the areas in which they would be within the supra-national legislation for fishing. Rather, any duty that was owed went the other way. The duty was on the fishermen to carefully, correctly and honestly complete the application. This involved an undertaking by them to only fish within areas designated for the taking of the kinds of catch which they proposed. On this they could get their own advice.”
“In looking to the claim that the arrest of the vessels by the French Navy would not have taken place but for the assurance immediately given, it has been impossible to identify a statutory basis upon which the Department was charged with that task. Any issue, therefore, as to the law of negligence swamping the appropriate recognised tort of misfeasance in public office does not arise. Nor can it be said that in that particular context any wider duty was owed by the Department which excluded a duty of care to the plaintiff fishermen. Since the test for the imposition of liability for negligence depends on whether it was fair and reasonable in the circumstances to establish a duty of care, it should also be noted that this consideration is key to precedent decisions on negligent misinformation.”
“Mere reliance cannot be enough and nor is the knowledge that the person seeking the advice is likely to rely on it. That is to equate foreseeability of risk with the imposition of a duty of care. Since the primary question is whether there is a duty of care in the particular circumstances, the nature of what information is sought, the party from whom it is sought and the relationship between them are the points of focus. This was a classic case of the voluntary assumption of responsibility by the defendant Department in circumstances where it was likely that fishermen would rely on it. Here, the information sought by the plaintiff was in a situation of peril, that of imminent arrest. The guidance given was particular to that situation. It involved the consultation of documents that reposed within the expertise of the Department. While the relationship between the parties was not a professional one, or, to use the language from some of the older cases, one that would be regarded as equivalent to contract, in the situation from which advice was called for and the assumption of responsibility to provide accurate information which the Department assumed, this was what is now more commonly referred to as a special relationship giving rise to liability for negligent advice.
“In the absence of a statutory immunity, a public authority which issues a negligently inaccurate statement as to a relevant factual state of affairs is liable, within the ordinary rules of proximity and foreseeability, to any person suffering loss as a result. Such cases are to be distinguished from those where the public authority is exercising a statutory function where the authority concerned is required to exercise a discretion or an adjudicative role. In such cases the public authority will be immune from a claim in damages where there is an abuse of office or other serious wrongdoing.”