Public Authorities I
Liability of Authorities
In broad terms, public authorities are subject to civil liability for negligence and other civil wrongs in the same way as private individuals and companies. The State and other public bodies are responsible for the actions and omissions of their employees and agents under the principles of vicarious liability. In some circumstances, statute law gives an express or implicit defence to a public authority which would not be available to an individual.
There has been considerable variation in the approach of the courts to the liability of public authorities in the case of negligence by reason of the exercise and, more commonly, the non-exercise of their discretionary powers. See generally the sections on administrative law in relation to the nature of the public powers.
The question of whether a duty of care arises will be at least influenced and, in some cases, entirely determined by the provisions of the relevant statute. In such cases, the question of whether there is liability for negligence is assimilated with the question of whether there is liability for breach of statutory duty in the particular circumstances and under the relevant legislation.
Some Irish courts have taken the view there can be no liability or duty of care in the exercise of public powers, even if the acts are unlawful, provided the functions are exercised in good faith.
Powers & Duties
In many instances, public authorities have powers and duties. Constraints in resources and other practical considerations make it necessary for the authority to make choices in relation to how often and in what context it uses its powers.
Statute law often allows public authorities significant latitude in determining how they use their powers and discharges their duties. The use or omission to exercise powers will be unlawful only if they fail the very broad tests applied under administrative law.
Where the failure is at a higher level than the operational level, such as a decision not to exercise a particular discretionary power, the less likely it is that liability for negligence will be imposed. Where public authorities actually exercise powers and are negligent in the manner in which they do so, it is more likely that a duty of negligence will be applied.
Broad Application of Negligence
Several cases involved instances where the public authority had powers of inspection, particularly in the context of building regulations and control. Individuals who had suffered “pure” economic loss, in the sense of devaluation of their property, sought to hold the public authorities, usually the Council, liable for negligence in either the exercise of powers or the non-exercise of powers.
The most difficult cases have involved claims that public authorities are liable for the negligent exercise of their powers. In Anns v Merton Borough Council, the then current broad test for liability in negligence was applied.
It provided, in effect, a presumption of liability for negligence once a relationship of proximity existed. This presumption could be modified only where public policy considerations justified immunity from liability.
Retreat from Broad Approach
By the mid-1980s, the English courts were retreating from the wide principles of liability set out in the Ann’s case. Ultimately, the broad principles in Anns v Merton London Borough Council were overruled in England. This more restrictive approach has been followed in Ireland.
The House of Lords held that a duty should be imposed only where it was just and reasonable to do so. The English courts become decidedly more reluctant to impose liability for the non-exercise of discretionary powers while readily imposing negligence arising in the actual exercise of powers.
Development of Irish Approach
The courts in Ireland have taken a variety of approaches, some of which have been based on the very wider principles of negligence enunciated by the UK courts in the 1970s and ’80s. The Irish courts have also retreated from the earlier broader approach to liability for negligence, which had likely to expand the potential liability of public authorities for the non-exercise of discretionary powers.
The Irish courts had followed the English courts in extending liability for the non-exercise of discretionary powers. In the early 1980s, the Supreme Court allowed a claim for negligence against a local authority, where a residential premises was purchased, which was unfit for human habitation. The buyer had relied on a negligent inspection by the local authority that had provided a housing grant.
In Siney v Dublin Corporation, the Supreme Court reviewed the authorities on local authority negligence and found that the defendants were liable in negligence where a defective inspection had been carried out, and the flat was handed over to prospective tenants in an unfit condition. The decision, which was later criticised as indefensible, was later overruled in the mid-1990s.
Proximity Approach
In Ward v McMaster, the High Court applied a test based on the relationship of proximity between a Council and a purchaser of a structurally unsound house purchased with the assistance of a local authority loan. The local authority had a duty, under the purchase scheme, to value the property for the purpose of a loan. The valuation was negligent.
The High Court found the council itself to be negligent in the discharge of its statutory function. It based the duty of care on the proximity between the parties and the circumstances, including the statutory provisions. The court interpreted the statute as designed to protect the purchaser in these cases. The court considered it just and reasonable to impose a duty.
In contrast, where a local authority was sued for granting planning permission in an area subject to flooding and with inappropriate drainage, the High Court found there was no duty of care. The planning legislation was not designed to deal with building defects. This was covered under building regulations. The Supreme Court confirmed that the planning authority did not owe purchasers or occupiers of property a duty of care to ensure that a particular dwelling house was sound.
The Supreme Court affirmed the decision in Ward v McMaster. It founded the duty on the proximity of the parties, the foreseeability of the damage and the absence of a compelling public policy reason to the contrary. The Supreme Court emphasised that the proximity was based on the duty that the legislation created.
Discretionary Powers
Further cases in the mid to late 1990s showed the difficulty of holding public authorities liable for the manner in which they exercised discretionary powers. In a case where a person sought to compel the council to take action to abate noise pollution, the High Court was unwilling to find that there was a duty of care on the Council, for which it could be made liable in negligence. An application by way of judicial review may be more appropriate.
Current Irish Approach
In Glencar Explorations v Mayo County Council (No.2), the Supreme Court retreated from the expansive concepts of negligence that had developed in England but had been in retreat by the late 1980s and early 1990s. The court pointed out that negligence usually applied to positive acts rather than omissions. It was necessary, in all the circumstances, that it is just and reasonable that the law should impose a duty with a given scope on the defendant.
The court laid less emphasis on the distinction between operational and policy matters. The Chief Justice indicated that the fact that the exercise of a power by a public authority may confer a benefit of which the person might be deprived does not give rise to a duty of care at common law.
That fact may, however, point to reasonable foreseeability arising from the non-exercise of the power. The degree of proximity between the plaintiff and the defendant might be such as to render it just and reasonable to require a duty of care.
The case involved a claim that the Council had acted outside its powers in providing a mining ban in its development plan. The Supreme Court found there was insufficient proximity because the powers were exercised for the benefit of the community as a whole and not for the benefit of particular persons. It was not, in any event, just and reasonable to impose a duty.
It could not be said the mining company was relying on the local authority to take reasonable care in the exercise of its statutory powers. There was no direct relation under the statute between the powers and the particular individuals. This was in contrast to the position in Ward v McMaster.
Even if the exercise of powers is unlawful, it does not necessarily follow that there is a duty of care, such that the person affected has a right to damages. Where a body is carrying out a public function which is not in pursuance of a public duty, it is not liable to individuals affected unless it commits the tort of misfeasance of public office.
Road Arrangments
In Burgess v Mulholland [2012] IEHC 566 a local authority was found to be liable where a 13-year-old was injured by a car as he tried to cross a busy road crossing at which the council was doing works to render it safer. The temporary arrangements were confusing and the judge found that the council was negligent in the management of the junction. Irvine J.
“ setting up an alternative pedestrian crossing, it did so in circumstances where it made it extremely difficult for a pedestrian to access the pedestrian signal box to avail of what is commonly described as the “green man” phase provided for within the traffic light sequence. The pole upon which that signal was mounted was located amongst road traffic cones and other debris on an area of broken ground adjacent to the roadway. The location of the traffic light pole on which the pedestrian signal box was mounted was so positioned that any pedestrian trying to access it would have to try to reach their hand around in a blind type of fashion in order to try to depress the signal by exerting pressure on the glass plate to the front of the signal box.”
“The effect … was that the plaintiff’s intended path of travel across the temporary crossing was impeded, but more significantly, the positioning of [the] vehicle made it impossible for a pedestrian of the plaintiff’s height to see clearly the pedestrian red/green man signal on the traffic light on the central island to which he had intended travelling. In this regard, I think it was more than reasonably foreseeable that a young man such as the plaintiff this junction in circumstances where his line of sight to the red/green man signal is impeded and where he did not have ready access to the signal box controlling the pedestrian crossing and when traffic was stationary in his favour would decide to cross the roadway without seeking to deploy the pedestrian signal.”
The plaintiff was found not to be contributolrliy negligent
“[w]as thirteen years of age at the time and found himself faced with a relatively inaccessible signal, an invisible pedestrian light and a grossly impeded crossing. I do not believe that he took an unreasonable decision, when the traffic appeared to be stopped at the junction to proceed to walk across the roadway. Further, when the lights changed against him I accept the submission made by counsel on behalf of the plaintiff that he then had a Hobson’s choice. He was at risk if he move. He was at risk if he turned back or moved forward. According, having concluded that it was not unreasonable for him to move from the footpath, I do not believe that I can hold him contributorily negligent for anything he did thereafter.”
Lighthouse Failure
In Henue v Mayo County Council [2016] IEHC 324 the County Council was held liable for its failure to discharge its functions as lighthouse authority with due care. The plaintiff was injured when a ferry boat on which she was a passenger went onto the rocks on a dark night.
“The facts of this case are different to Conole. The Conole case concerned a vessel which was delivered to the owner in an unseaworthy condition capsizing with significant loss of life. The Court held that, although the vessel would not have capsized but for its unseaworthiness (the causa sine qua non), the proximate cause of the accident (causa causans) was the fact that the owner, knowing that it was unseaworthy, proceeded to sea by overloading the vessel with an excess number of passengers. The case before this Court is quite different. There was evidence given to the Court and accepted by the trial judge that the skipper of the vessel was not aware that the leading lights were not working until he got around the end of the harbour and that, in fact, he had intended to rely on them.I am satisfied that there was no novus actus interveniens.”
Destruction of Horse
In McDonagh v Galway County Council [2019] IEHC 717, Simons J.
“The liability arises primarily as a result of the failure on the part of the local authority to comply with a condition precedent to the exercise of the statutory power of destruction, i.e. the requirement to serve a valid demand for payment of scheduled fees. The Control of Horses Act 1996 has conferred upon local authorities an exceptional power, namely to destroy a horse owned by a third party without any obligation to pay statutory compensation. This power has been fairly characterised as “Draconian” by the High Court (Hedigan J.) in Burke v. South Dublin County Council (No. 1) [2013] IEHC 185. The Control of Horses Act 1996 and the Bye-Laws prescribe few enough constraints on the exercise of this power. One such constraint is that there must be a lawful demand for payment of outstanding charges before the power to destroy the animal can be exercised. On the facts of the present case, this requirement was not complied with …
The imposition of liability for a procedural failure of this type does not involve the courts ‘second guessing’ the making of a policy decision by a public authority or the exercise of a discretion in respect of the allocation of resources. Rather, the courts are simply ensuring that there is compliance with the requirements of the legislation.”
“The concern articulated in Cromane Seafoods is that public officials would be impeded in making difficult policy decisions, involving the prioritisation of the allocation of financial resources, by fear of their decisions being challenged subsequently. By contrast, a local authority official who proposes to invoke the power to destroy a horse need only ensure that the minimal procedural requirements under the Act are complied with.”
“The unlawful action has resulted in immediate damage to property. This is to be distinguished from the facts of Glencar Explorations and Cromane Seafoods: the claim for damages in each of those cases was, in effect, for pure economic loss. This distinction is an important one. None of the concerns as to causation or remoteness discussed in those judgments are applicable to the destruction of a horse. Part of the rationale for limiting the extent of a public authority’s liability to pay damages is the difficulty in delineating the scope of that liability. The ambit of public authority regulation of all aspects of modern society is now so extensive that most actions on the part of a public authority could be said to affect the interests of an enormous range of individuals. In particular, the imposition of regulatory controls on the carrying out of development works, such as those at issue in Glencar Explorations and Cromane Seafoods, is of such general application that the making of a policy decision has a significant ripple effect. For example, a development plan policy which promotes a particular type of development project in an area will have a knock-on effect for many other landowners. Whereas there will have been no physical damage to their property, that part of the land’s open market value which reflects its development potential may, arguably, have been affected. The concepts of remoteness and causation allow for the placement of some limit on a public authority’s liability.
The destruction of a horse falls at the other end of the spectrum. In contrast to the notional reduction in development potential of land, the property right at issue, i.e. the ownership of the horse, has been entirely extinguished. The justification for imposing liability for damages is stronger.”
“Although Clarke J. was in the minority (together with Laffoy J.) on the outcome of Cromane Seafoods on its facts, the foregoing statement on the need to guard against giving the State an immunity or, indeed, excessive protection, appears to me to be applicable to the type of administrative action involved under the Control of Horses Act 1996.”
State Action Voided by EU Rules
Barlow v Minister for Communications, Marine and Natural Resources [2019] IEHC 416 dealth with the scope of the duty of care of the Minister. Under an Agreement of 1965, vessels registered in Northern Ireland were allowed to fish for mussel seed in the State’s territorial waters. The Agreement was found unlawful. The plaintiffs, whose fishing businesses had been adversely affected by the fact that the Northern Ireland competitors had been allowed to fish where they had no right to do so, claimed against the Minister for negligence breach of constitutional rights, breach of statute and breach of legitimate expectation.
“Though there are recognised torts that make it unlawful to manage or use property in such a manner that injures others, I do not see that the tort of negligence arises in the instant case. As mussel seed is the property of the State, I cannot see that the State is under a duty of care to manage the mussel seed in such a way that protects the commercial interest of the plaintiffs. In *668 the same way the owner of a gravel quarry is not under a duty to manage the gravel in order to protect the commercial interest of persons engaged in road building. Though it is clearly desirable to manage mussel seed appropriately, I cannot see that failing to do so amounts to negligence.”
“I do not believe a duty of care existed between the appellants and these respondents in 2008. The Department was undoubtedly aware of the Castlemaine situation, but it was also in the context of an awareness regarding all the other operations of a similar nature within the State. In the years 2008 to 2010 some 150 Natura 2000 surveys had to be carried out by the State. The question of where national priorities lay, or who should receive resources, or where surveys should be carried out first; all were preeminently questions for the executive, even accepting meetings actually took place between representatives of the respondents and the Department between 2008 and 2010. But it is difficult to find that anywhere in the relationship there could be said to be a ‘duty of care’ or ‘proximity’, even if loss might have been foreseeable”.
“Is the standard of care similar to that which applies to professionals, i.e. that the professional in question by act or omission has acted in a way which no other similarly qualified professional would have done if taking reasonable care?”
“In fact, the closely connected issue of standard of care presents as great a challenge as that of duty of care. It impacts on the entire timespan encompassed. First, it is questionable whether the law can comfortably accommodate a situation where operational negligence would involve a Donoghue v. Stevenson [1932] A.C. 562 test. That threshold is a low one based, as Lord Atkin put it, on knowledge of the effect of actions or omissions on one’s neighbour. But, to cite inaction between 2000 and 2008 raises an entire range of issues already touched on in this judgment, again including proximity and whether there was a duty of care at all. It is unclear if the actions of a Minister in an area of discretion are to be considered on the basis of the standards applicable in a professional negligence action, or, alternatively perhaps, on The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 standards. All of these questions seem to me to present insuperable difficulties, at least in the instant case. As to a ‘professional negligence’ standard, there was no concrete evidence about what would have been the normally accepted procedure by a person in the position of the Minister. Were a The State (Keegan) v. Stardust Compensation Tribunal test adopted, a court would have to hold that a Minister acted, or omitted to act, in a way no Minister could reasonably act. In short, applying a higher standard implies evidential deficits, and a misapplication of the law; applying a lower standard far too easily places a court in a position of being a surrogate decision maker in this area, an issue further explored below, especially bearing in mind the fact that, prima facie, the Minister was acting ultra vires.”
Incorrect Certificate
Kielthy v Minister for Agriculture, Fisheries and Food [2021] IECA 273 was a claim for damages based on the alleged failure of the Department to issue the correct certificate of registration for the plaintiff’s boats and negligent misrepresentations regarding the possibilities of obtaining permits for dumping at sea.
The High Court dismissed the claim and Court of Appeal confirmed this position. Ni Raifeartaigh J. observed:
“Even at the level of fact, one can readily see that the present case was very different to those which arose in rare cases where similar claims against public authorities were successful; such as Bates [v Minister for Agriculture and Food [2020] 2 I.R. 149], where there was a specific representation to specific vessel owner in a specific situation …, or Walsh v South Tipperary County Council [2012] 1 I.R. 522], where incorrect information was furnished in writing by a Council official in response to a specific request from a solicitor about whether a particular section of a roadway had been taken ‘in charge’ by the Council. The appellant was unable to point to anything similar in the factual matrix of his case. A duty of care was found in those cases by reason of the particular facts; whereas the appellant simply asserted a similarity between his situation and those cases, without addressing the question in any detail.”