55
The Denning Law Journal 2018 Vol 30 pp 55-84
ASSUMPTION OF RESPONSIBILITY BY PUBLIC
AUTHORITIES
Tom Cornford *
ABSTRACT
Since the House of Lords’ decision in the Gorringe case, there can be
no reason for imposing a duty of care in negligence on a public authority
that would not also count as a reason for imposing a duty of care on a
private person. In this context assumption of responsibility, as the primary
concept used to explain the imposition of a duty of care in novel
situations, acquires great importance. This article explores whether the
concept’s application to public authorities produces satisfactory results
and, finding that it does not, concludes that this underlines the folly of
insisting that public authorities must be treated in the same way as private
persons.
Keywords: tort, negligence, assumption of responsibility, public
authorities
1 INTRODUCTION
The tort liability of public authorities in English law is sometimes said
to be underpinned by “Dicey’s equality principle”, the principle that
public authorities are to be treated in exactly the same way as private
persons. 1 Between the House of Lords’ decision in Anns v Merton
Borough Council 2 and its decision in Gorringe v Calderdale Borough
Council, 3 this assertion was of doubtful accuracy. Anns appeared to
establish that a body’s subjection to the kind of duty or its possession of
the kind of power characteristic of a public authority was a reason
(although not a conclusive one) to impose on it a duty of care. The case
thus implied the existence of a form of negligence liability special to
public authorities and this implication remained a feature of the case law
* School of Law, University of Essex. Email: tomc@essex.ac.uk
1 See P Cane, ‘Damages in Public Law’ (1999) 9 Otago Law Review 489, 490.
2 [1978] AC 728.
3 [2004] UKHL 15, [2004] 1 WLR 1057.
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
56
for a quarter of a century afterwards. In Gorringe, however, it was
rejected. Gorringe is authority for the proposition that the presence of a
statutory power or duty is never a reason for imposing a duty of care and
the practical effect of this is to return the law to a state in which it
approximates Dicey’s principle much more closely.
One possible response to this turn in the law is to consider it in the
context of the wider question of the principle’s legitimacy. Critics argue
on a variety of grounds that justice demands some specialized form of
administrative liability (although this need not, of course, take the form of
a specialized variant of the tort of negligence).4 Defenders of the present
dispensation either approve of Dicey’s principle or are pleased to see
negligence confined to what they think of as its traditional role of
providing redress for the kinds of wrong that private persons are capable
of committing.5
A second possible response, however, is to examine in detail how the
law of negligence can be made to apply to public authorities once the
option of basing a duty of care on a statutory power or duty is removed.
This means exploring how a set of concepts developed in order to
determine whether there should be a duty of care where the defendant is a
private person can be made to do the same where the defendant is a public
authority. Such concepts apply easily enough, of course, where a public
authority performs an act identical in kind to one that might be performed
by a private person, as where one of its employees carelessly inflicts
physical injury on a member of the public. But their application becomes
more difficult where a public authority causes harm by performing acts
lacking an obvious private equivalent such as providing or failing to
provide welfare services or exercising regulatory powers. A number of
supporters of the current law have explored how the concepts in question
4 Post-Gorringe assertions of this view are to be found in T Cornford, Towards a
Public Law of Tort (Aldershot 2008) and the Law Commission, Administrative
Redress: Public Bodies and the Citizen (Law Comm CP No 187). Dicey’s
principle has recently been questioned in S Tofaris and S Steel, ‘Negligence
Liability for Omissions and the Police’ (2016) 75 CLJ 128, 136.
5 Notable articles approving of the change in the law wrought by Gorringe are S
Bailey, ‘Public Authority Liability in Negligence: the Continued Search for
Coherence’ (2006) 26 LS 155 and D Nolan, ‘The Liability of Public Authorities
for Failing to Confer Benefits’ (2011) 127 LQR 260. Gorringe also consorts well
with the view of the law promoted by the rights theorists Robert Stevens and
Allan Beever: see R Stevens, Torts and Rights (Oxford 2007) ch 10; A Beever,
Rediscovering the Law of Negligence (Oxford 2007) ch 9.
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57
apply to public authorities. 6 Their conclusion, or perhaps better, their
underlying assumption is that the application of these concepts can
produce a body of law that is coherent and in conformity with generally
accepted notions of fairness. As a critic of the current law, my view is the
reverse: careful examination of the application to public authorities of
concepts developed for the purpose of determining the incidence of the
duty of care in relation to private persons tends to demonstrate the
inadequacy of the current law and the folly of ignoring the public nature
of public authorities. Detailed consideration of the workability of the
concepts currently employed in dealing with public authority cases thus
provides another line of attack for those who regard Dicey’s equality
principle as misconceived and an anachronism.
In the present article I adopt this line of attack and since the concept
most commonly used in English law for determining the incidence of the
duty of care in novel cases involving private persons – and hence also in
cases involving public authorities – is assumption of responsibility, I
make it my focus.7 The questions I shall seek to address are: firstly, how
far can the concept of assumption of responsibility take us in explaining
the incidence of the duty of care in cases involving public authorities; and
secondly, if it cannot provide a satisfactory rationale for the current case
law, might its consistent application provide us with something better.
The answer I give to both questions will be negative: the concept does a
poor job of explaining the existing law and if one were to try to create a
better case law by applying it with rigour and consistency the result would
be a body of law in which the incidence of the duty of care would be far
more extensive than anything envisaged by the concept’s proponents but
which at the same time contained glaring inconsistencies. Far from
providing a workable alternative to the previous practice of basing a duty
of care on statutory powers or duties, I shall suggest, the attempt to make
use of assumption of responsibility tends to point us back towards forms
of liability that explicitly acknowledge the public nature of public
authorities.
6 See for example Nolan (n 5); R Bagshaw and N McBride, Tort Law (4th ed,
Harlow 2012).
7 I believe similar arguments to those I shall make in relation to assumption of
responsibility can be made in relation to other concepts intended to apply
indifferently to both private and public defendants in determining the incidence
of the duty of care: see further (n 87). Space precludes examination of these
concepts.
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
58
The plan of the article is as follows. Firstly, I attempt to sum up in a
few propositions the current state of the law on the negligence liability of
public authorities. Secondly, I define how I shall be using the expression
“assumption of responsibility” in the rest of the article. Thirdly, I examine
the application of the concept to a variety of types of public authority
activity. In doing so, I consider both its capacity to explain the existing
pattern of outcomes and its potential usefulness in creating a more
defensible pattern of outcomes. Fourthly, I conclude in the terms outlined
above.
2 THE NEGLIGENCE LIABILITY OF PUBLIC
AUTHORITIES: THE CURRENT STATE OF THE LAW
The current state of the law can, I believe, be summed up in a few
propositions. The first does not pertain specifically to negligence but
forms a general background and is worth stating for that reason. This is
that English law contains no general principle of administrative liability;
or, in other words, there is no general principle that entitles an individual
to damages where unlawful administrative action causes that individual
harm.8
The second is that the existence of a duty of care in negligence can
never be based simply on the fact that a public authority possesses a
particular statutory power or is subject to a particular statutory duty.9 This
proposition is usually expressed, as I have done, by reference to statutory
powers and duties but could perhaps be extended so as to encompass the
case in which an authority – for example a servant of the Crown or a
police officer – has public law powers or duties that are not statutory in
origin. The proposition would then be that an authority’s public law
powers and duties do not, without more, give rise to a private law duty of
care.10
8 More or less explicit statements to this effect are to be found from Lord
Wilberforce in Hoffman-la-Roche v Secretary of State for Trade [1975] AC 295
[358-59] and more recently by Sedley LJ in Mohammed and others v Home
Office [2011] EWCA Civ 351; [2011] 1 WLR 2862 [61]. For a general overview
of the obstacles to gaining reparation for harms done by public authorities see the
Law Commission (n 4) especially pt 4.
9 Gorringe (n 3) especially [32] (Lord Hoffmann), [71] (Lord Scott).
10 There is no authority to either support or undermine this more general, non-
statutory form of the proposition, however.
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The third proposition is that a public authority may, nonetheless, owe
a duty of care in those circumstances in which a private person
analogously placed would do so.11 An authority may thus owe a duty of
care when performing a function that, according to established case law,
gives rise to a duty of care when performed by a private person; or where
its actions satisfy the threefold Caparo test in circumstances in which a
private person performing the same actions would do so; and it may also
do so if it can be said to have assumed a responsibility towards the
claimant.12
The fourth proposition is that where there are arguable grounds for
finding a duty of care, the putative duty should be excluded if it would be
in conflict with other duties to which the defendant public authority is
subject. This general proposition can be analyzed in turn into two sub-
propositions, of which one corresponds to a general tendency while the
other represents a strict rule. The first sub-proposition concerns cases in
which the proposed duty of care would be a duty vis-a-vis the claimant to
deliver the benefit that the defendant authority is under a public law duty
to deliver to members of the public generally. In such cases, the tendency
is to say that a duty of care should be excluded because it might conflict
with the authority’s ability to perform its duties to the public as a whole.13
The second sub-proposition is that where an authority possesses a
power for the purpose of protecting some particular class of person it is
inappropriate to impose a duty of care towards some other class of person
who might be harmed by the power’s exercise. This type of argument is
11 This has been the law at least since Mersey Docks and Harbour Board v Gibbs
(1866) LR 1 HL 93.
12 See further below.
13 So, for example, the exclusionary rule enunciated in Hill v Chief Constable of
West Yorkshire [1989] AC 53 excludes a duty of care on the part of the police
towards potential victims of crime on the ground that this would interfere with
the wider duties they owe to the public as a whole. Since the overruling of the
ECtHR’s judgment in Osman v UK (2000) 29 EHRR 245, [1999] FLR 193, the
rule in Hill has been reasserted in a number of other cases, for example: Brooks v
Metropolitan Police Commissioner [2005] UKHL 24, [2005] 1 WLR 1495; Smith
v Chief Constable of Sussex Police [2008] UKHL 50, [2009] 1 AC 225; An
Informer v Chief Constable [2012] EWCA Civ 197, [2013] QB 579; Michael v
Chief Constable of South Wales Police [2015] UKSC 2, [2015] 2 WLR 343. For
instances of the application of the first sub-proposition outside the police context,
see: Mitchell v Glasgow City Council [2009] UKHL 11, [2009] AC 874; X v
Hounslow London Borough Council [2009] EWCA Civ 286, [2010] HLR 4.
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
60
foreshadowed in a number of earlier decisions14 but attains the status of a
general rule in Jain v Trent Strategic Health Authority15 where Lord Scott
(with whom the other members of the House agreed) said the following:
“...where action is taken by a state authority under statutory
powers designed for the benefit or protection of a particular class
of persons, a tortious duty of care will not be held to be owed by
the state authority to others whose interests may be adversely
affected by an exercise of the statutory power. The reason is that
the imposition of such a duty would or might inhibit the exercise
of the statutory powers and be potentially adverse to the interests
of the class of persons the powers were designed to benefit or
protect, thereby putting at risk the achievement of their statutory
purpose.”16
The fifth proposition is that a duty of care on the part of a public
authority may also be excluded on policy grounds other than those
mentioned in connection with the fourth proposition. The fourth
proposition concerns the theoretical compatibility of public and private
law duties. The fifth proposition concerns the effects of a duty of care on
the practical ability of a public authority to fulfil its duties. The policy
consideration typically falling under this head is that imposition of a duty
of care will lead to overkill or defensive practice and thus inhibit an
authority’s ability to carry out its wider duties. Since the Osman case, the
courts have greatly reduced their reliance on such considerations in the
face of the criticism that they were being used in blanket fashion and
without adequate evidence. 17 Nonetheless, they have not disappeared
14 Eg Caparo v Dickman [1990] 2 AC 605; Harris v Evans [1998] 1 WLR 1285;
Reeman v Department of Transport [1997] 2 Lloyd’s Rep 648; D v East
Berkshire Community Health NHS Trust [2005] UKHL 23, [2005] 2 AC 373.
15 [2009] UKHL 4, [2009] 2 WLR 248. The conflict here was between the
defendant authority’s duty to protect residents of care homes and the duty of care
alleged to be owed to the claimant care home owners.
16 Ibid [28].
17 Osman v UK (2000) 29 EHRR 245, [1999] FLR 193. The criticisms made of
the English courts in this regard by the ECtHR in the Osman case appears to have
had a lasting effect despite its later overruling. On the turn from policy
considerations to substantive legal rules as a way of controlling liability in cases
of public authority negligence see C Booth and D Squires, The Negligence
Liability of Public Authorities (Oxford 2006) ch 4 especially 4.06, 4.95-98.
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61
altogether from the case law as cases on “the Hill immunity” in relation to
police work show.18
To the propositions I have just described, one can also add what I
shall call “the background premise.” This is that the private law principles
that determine the incidence of the duty of care in negligence can never be
so extended as to require or justify the imposition of a duty of care in
relation to the most purely public law functions of public authorities,
those involving the exercise of powers to determine the rights or
entitlements of citizens. 19 As the name I have given it implies, the
background premise is generally assumed to be so obvious as not to need
stating.20 As a result, no justification is ever offered for it but, as I shall
argue below, it is not at all clear that it can be justified.
Lastly, before passing on to consider the concept of assumption of
responsibility, one more feature of the case law is worth considering, the
existence of a strong dissident strain of authority. From the time of Anns
onward, an influential minority of judges - Lords Wilberforce, 21
Bingham,22 Woolf23 and to a lesser extent Lords Nicholls,24 Slynn25 and
18 See further below.
19 In the typology below of types of public authority to case in relation to which
assumption of responsibility might apply, I call these “legal determination” cases.
20 An indicator of the existence of the premise in the case law is the tendency in
the pre-Gorringe case law – not altogether extinguished - to adopt barriers to
liability that distinguish sharply between the public and private parts of a public
authorities functions: the policy/operations distinction; the requirements that an
act be ultra vires or justiciable before liability can arise. In reform proposals the
premise is reflected in the idea that two kinds of public authority liability are
required, one belonging to private and the other to public law: see Administrative
Justice: Some Necessary Reforms Report of the Committee of the JUSTICE-All
Souls Review of Administrative Law in the UK (1988) ch 11; the Law
Commission (n 4) pt 4.
21 In Anns itself and see his remarks in Hoffmann-La Roche (n 8) [358-59].
22 See his lordship’s judgment in the Court of Appeal in X v Bedfordshire [1995]
AC 633 above and his dissenting judgments in D v East Berkshire [2005] UKHL
23, [2005] 2 AC 373 and Smith v Chief Constable of Sussex (n 13).
23 See Larner v Solihull Metropolitan Borough Council [2001] RTR 32 above,
Kent v Griffiths [2001] QB 36 (CA).
24 See his lordship’s dissenting judgment in Stovin v Wise [1996] AC 923 (HL).
His lordship seems to have recanted somewhat in D v East Berkshire (n 14).
25 See Barrett v Enfield LBC [1999] 3 WLR 79 (HL) and Phelps v Hillingdon
LBC [2000] 3 WLR 776.
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
62
Steyn26 – has persistently argued in favour of an expanded liability. Their
reasons for doing so have not always been made explicit but they are well
expressed by Lord Bingham in an article of 2010:27
“...if a member of the public whom a public service exists to serve
suffers significant injury or loss through the culpable fault or
reprehensible failure of that service to act as it should, is it not
consistent with ethical and, perhaps, democratic principle that the
many, responsible for funding the service, should bear the cost of
compensating the victim?”
This way of thinking involves an explicit rejection of the second
proposition set out above. That it persists can be seen in the judgment of
the minority in the recent Michael case,28 considered further below. In the
rest of this article, I shall refer to the principle enunciated by Lord
Bingham as “the Bingham principle”.
3 ASSUMPTION OF RESPONSIBILITY
The most strenuous attempts to define assumption of responsibility
are found not in the case law but in the work of commentators. Since the
commentators who go to such lengths to define the concept also believe
that its application – and that of cognate notions – to cases involving
public authorities can produce a satisfactory law of public authority
negligence liability, it is worth briefly reviewing these attempts at
definition.29 On certain points, they are in accord. They agree that in order
26 See his Lordship’s concordant but more pro-liability speech in Gorringe.
27 Lord Bingham, ‘The Uses of Tort Law’ (2010) 1 JETL 3.
28 Michael v Chief Constable of South Wales Police [2015] UKSC 2, [2015] 2
WLR 343.
29 The commentators whose views I discuss here are: N McBride and A Hughes,
‘Hedley Byrne in the House of Lords: an Interpretation’ (1995) 15 LS 376; R
Bagshaw, ‘The Duties of Care of Emergency Service Providers’ [1999] LMCLQ
71; R Stevens (n 5); D Nolan (n 5); R Bagshaw and N McBride (n 6). To avoid
the confusions associated with the expression “assumption of responsibility”, use
of it is avoided in the article by McBride and Hughes and in Bagshaw and
McBride’s book. For the sake of convenience, I overlook this nuance here. In
each work, a principle is advanced that is intended to explain some, at least, of
the decisions in which the courts used the expression.
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63
to assume responsibility, the defendant must perform some positive act.30
They agree too that the question of whether or not the defendant has
assumed a responsibility toward the claimant is an objective one i.e. that
the existence of an assumption of responsibility does not depend on there
being an intention on the defendant’s part to incur an obligation – legal or
otherwise – towards the claimant. A corollary of this is that, while the
judges in Hedley Byrne and in some other early cases talked of voluntary
assumption of responsibility, assumption of responsibility is now taken to
be voluntary in only a very restricted sense.31
The differences between the various accounts of the concept relate to
the question of whether or not there must be explicit dealings or
“mutuality” between defendant and claimant and whether it is necessary
for the claimant to have relied on the defendant’s undertaking. A number
of writers have insisted that mutuality and reliance are not prerequisites of
assumption of responsibility. They are not, however, in precise agreement
as to what are prerequisites. Stevens states that “[t]he foreseeable
possibility of detriment, whether by reliance of the claimant or a third
party, is relevant and will commonly be decisive in determining whether,
as a matter of construction, the defendant has by his actions implicitly
assumed responsibility towards the claimant.”32 Nolan appears to follow
him in this. 33 McBride and Hughes 34 and Bagshaw 35 emphasize a
30 cf Lord Hoffmann in Customs and Excise Commissioners v Barclays Bank
[2006] UKHL 28, [2007] 1 AC 181 [38]: “the notion of assumption of
responsibility serves a … useful purpose in drawing attention to the fact that a
duty of care is ordinarily generated by something which the defendant has
decided to do”.
31 As Nolan puts it, “[t]he better view, which was expressed by Lord Walker of
Gestingthorpe in the Customs and Excise Commissioners case, is that the
undertaking is voluntary because it is ‘conscious’, ‘considered’ or ‘deliberate’”.
See ‘The Liability of Public Authorities for Failing to Confer Benefits’ (n 5) 283
and Customs and Excise Commissioners v Barclays Bank Plc (n 30) [73].
32 Stevens (n 5) 14.
33 Nolan (n 5) 281. A similar view of assumption of responsibility appears also to
be taken by Allan Beever (n 5) ch 8.
34 See McBride and Hughes (n 29) 284: “[t]he defendant has accepted power over
the plaintiff knowing that he is expected to use reasonable care and skill in
exercising that power. He has failed to do so and the plaintiff has suffered loss as
a result.” I assume that the defendant having power over the claimant entails
dependence on the part of the claimant.
35 Bagshaw ‘The Duties of Care’ (n 29) 77: “at the very least the defendant must
undertake a task which he holds himself out as having special skill and
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
64
combination of dependence on the part of the claimant and skill and
knowledge of the claimant’s dependence on the part of the defendant.
Bagshaw, Stevens and Nolan all point, as illustrating the absence of the
need for reliance, to the example of the doctor who comes to the aid of an
unconscious patient. The doctor assumes responsibility for treating the
patient with reasonable care despite the patient being in no position to
consciously rely on the treatment.
A principle significantly different from any of those discussed in the
previous paragraph has been advanced by Bagshaw and McBride in their
text book. This is that “if A has indicated to B that B can safely rely on
him to perform a particular task with a certain degree of care and skill and
B has so relied on A, A will owe B a duty to perform that task with that
degree of care and skill”.36 Here actual reliance is central. Since, however,
this principle can explain only a small proportion of the cases in which
assumption of responsibility is invoked, the authors set out a number of
other principles to explain the remaining cases. The most important of
these is a principle of “severe dependency”.37 This states that “if A knows
that B’s future will be ruined if he does a positive act X, then A will owe
B a duty to take care not to do X”.38 The authors use it to explain Spring v
Guardian Assurance,39 Phelps v Hillingdon LBC40 and Smith v Eric S
Bush,41 and also what they call cases of “business sterilisation”. These are
cases in which the defendant acts in such a way as to cause the
foreseeable destruction of the claimant’s business and may occur where
the defendant is a regulatory authority able to damage the claimant by the
competence to undertake, and the task must be one which he knows the plaintiff
is dependent on being done with reasonable skill and competence.”
36 Bagshaw and McBride Tort Law (n 6) 180. This is what the authors call “the
extended principle in Hedley Byrne” as opposed to “the basic principle in Hedley
Byrne”, set out at 175, which relates purely to advice. The former presumably
includes or implies the latter.
37 Other principles proposed by Bagshaw and McBride (n 6) 200-06) are a
principle of liability for negligent intermeddling, invoked to explain White v
Jones [1995] 2 AC 207, a principle of liability for expenses incurred as a result of
putting property in danger, invoked to explain the Greystoke Castle [1947] AC
265, and a principle of liability for interfering with intangible property, invoked
to explain Minister of Housing and Local Government v Sharp [1970] 2 QB 223.
38 Ibid 97.
39 [1995] 2 AC 296.
40 n 35.
41 Smith v Eric S Bush, Harris v Wyre Forest DC [1990] 1 AC 831.
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use of its coercive powers42 or where the defendant is a private person
able to harm the claimant by other means.43
In sum, these attempts to make sense of the case law in which the
concept of assumption of responsibility is used yields two types of
principle. The first requires explicit dealing and mutuality between the
parties. The second does not but requires instead foreseeable detriment
flowing from the reliance of the claimant or a third party or a combination
of dependence on the part of the claimant with knowledge of that
dependence on the part of the defendant.
All the versions I have described of these principles require a positive
act and the assertion of some knowledge or skill on the part of the
defendant and take the question of whether there is an assumption of
responsibility to be an objective one in the sense explained above.
From the point of view of the argument I wish to make in this article,
it is the elements that these different competing conceptions of
assumption of responsibility have in common that are important. Little
turns on the differences, which all concern the extent to which the
defendant can he held to have assumed a responsibility towards parties
with whom she has no direct dealings or of whom she has limited
knowledge.44 At the same time, the more wide-ranging and the greater the
explanatory power of the version of the concept I adopt, the more
convincingly will my argument (if successful) achieve its aim of
demonstrating the concept’s unsuitedness to determining the incidence of
the duty of care in relation to public authorities. I therefore, and at the risk
of solecism, propose to use the expression “assumption of responsibility”
as an umbrella term covering all the principles and sub-principles I have
described in this section.
A further question concerns the relationship between assumption of
responsibility and policy considerations limiting the incidence of the duty
42 As in Harris v Evans (n 14) or Jain v Trent Strategic Health Authority (n 15).
43 As in the Australian case of Perre v Apand Pty Ltd (1999) 198 CLR 180 where
the defendant sold diseased potato seeds to farmers whose farm was close to the
claimants’ potato farm with the result that the claimants’ potatoes fell foul of a
legal prohibition on the sale of potatoes from an area where there were diseased
potatoes. The claimants sued successfully on the basis of the economic loss they
suffered.
44 Nearly every application of the concept I consider below is consistent with the
requirement that there be direct dealings between the parties. In the only one that
is not – Minister for Housing and Local Government v Sharp (n 37) – the
defendant had direct dealings with a third party in the knowledge that careless
performance of the task he had undertaken would harm the claimant.
ASSUMPTION OF RESPONSIBILITY BY PUBLIC AUTHORITIES
66
of care. On the one hand, the finding of an assumption of responsibility is
sometimes taken to obviate the need to consider questions of policy and
hence to satisfy by itself the fair, just and reasonable limb of the Caparo
test.45 On the other hand, in some cases, notably those concerning the
duties of the police towards members of the public, the existence of an
assumption of responsibility is treated as an indicator in favour of a duty
of care than can be outweighed by contrary policy considerations.46 The
commentators who have insisted most strongly on the meaningfulness of
the family of concepts I have grouped together under the title “assumption
of responsibility” do so because they think policy considerations have no
place in the law of negligence. On the basis of the strategy enunciated
above of adopting the form of the concept with the greatest explanatory
power, however, I shall treat the presence of an assumption of
responsibility as an indicator in favour of liability capable of being
overridden both by the consequential factors usually referred to as policy
considerations and by the restrictive principles in the fourth proposition
described in section I above.
Finally, it has been argued, notably by Barker, that the courts use
different versions of the concept of assumption of responsibility, no one
of which is capable of explaining all the cases, and switch back and forth
between them as a way of accommodating concealed policy concerns.47 In
the light of this, it might be objected that there is no point in examining
the application of the concept to public authorities since it cannot even
explain the cases in which it is used in relation to private defendants.
There are two answers to this objection. The first is that by adopting the
position that there is an assumption of responsibility where any one of the
proposed tests is satisfied, I avoid the problem that arises where the courts
speak of the concept as if it were a unitary one while meaning different
things by it on different occasions. The second concerns the formalism or
conceptualism of the current law. As I have suggested above, the current
45 See Henderson v Merrett Syndicates [1995] 2 AC 145 [181D] (Lord Goff);
Brooks v Metropolitan Police Commissioner (n 13) [29] (Lord Steyn).
46 See the cases referred to at notes 48-51.
47 See K Barker, ‘Unreliable Assumptions in the Law of Negligence’ (1993) 109
LQR 461; K Barker, ‘Wielding Occam’s Razor: Pruning Strategies for Economic
Loss’ (2006) 26 OJLS 289. This implies, of course, that the concept of
assumption of responsibility is not really distinct from the broader concept of
proximity. Many dicta suggesting this are to be found in the case law. More
recent academic assertions of this view are to be found in K Barker, R Grantham
and W Swain (eds), The Law of Misstatements: 50 Years on from Hedley Byrne v
Heller (Hart, 2015).
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approach of the courts to the negligence liability of public authorities
substitutes conceptual barriers to duties of care for the policy based
barriers that were more common in the pre-Gorringe case law. At the
same time, the supporters of this change in the law propose a highly
conceptual or formalistic method for determining the incidence of the
duty of care in relation to public authorities via the use of concepts such
as assumption of responsibility. If this approach can be shown not to
succeed in its own terms, then the unsatisfactory nature of the current law
will be exposed, notwithstanding the concept’s disutility in the kinds of
case in which it was originally developed.
4 THE APPLICATION OF THE CONCEPT OF
ASSUMPTION OF RESPONSIBILITY TO PUBLIC
AUTHORITIES
I turn then to consider how the concept of assumption of
responsibility can be applied to various types of case involving public
authorities. The types I shall consider are (as I shall call them) protection
cases, cases involving the giving of advice or information, rescue cases,
professional cases and cases involving legal determination of the rights or
entitlements of private persons. The meaning of these categories will
become clearer below. I arrange them according to how successfully the
concept of assumption of responsibility can be applied beginning with
those to which it can be applied most successfully and ending with those
to which it can be applied least successfully.
Two difficulties that arise from the attempt to apply the concept of
assumption of responsibility are worth outlining in general terms before
examining the particular types of case. The first concerns omissions. As
we have seen, it is a requirement of the concept that, in order to incur a
duty of care, a defendant must perform some positive act that brings her
into a relationship with the claimant. When this requirement is applied to
public authorities, however, it tends to produce unsatisfactory results.
Where the defendant is a private person, it makes sense to subject her to a
duty where she positively undertakes to assist the claimant and not to
subject her to a duty where she makes no such positive undertaking.
Where the defendant is a public authority which exists to serve a citizen,
to draw a distinction between the case in which the authority makes some
positive undertaking and the case in which it does not may make less
sense. As a matter of public law or of moral obligation, the authority may
be under an obligation in both cases and to insist on the distinction when
making a decision as to when to order the payment of compensation may
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68
lead to a pattern of decisions that would strike most people as
indefensible.
The second difficulty arises from the need to distinguish the class of
cases in which a public authority may be held to have assumed a
responsibility to the claimant from the class of cases in which a public
authority causes harm to a citizen or citizens by the failure to exercise its
powers properly. We may think of the latter class of cases as defined by
the Bingham principle i.e. as being the class of cases in which a member
of the public whom a public service exists to serve suffers significant
injury or loss through the culpable fault or reprehensible failure of that
service to act as it should. The Bingham principle does not represent the
law. As described above, this discourages the finding of a duty of care in
relation to most public authority functions. One would thus expect that the
class of cases in which a public authority could be held to have assumed
responsibility toward the claimant would be a much smaller one than the
class of cases defined by the Bingham principle. But it is not so simple in
practice.
A public service, to use Lord Bingham’s terminology, exists to serve a
citizen. Where it fails reprehensibly to act as it should and thereby causes
loss to the citizen, the law presently puts considerable obstacles in the
way of any claim to compensation based on negligence. Most importantly,
as per proposition two above, the fact that the service exists to provide a
service to a citizen – that it has statutory powers that enable it to do so and
is subject to statutory target duties that require it to do so – cannot be a
reason for imposing a duty of care. Yet if a person becomes subject to a
duty of care where she purports to be able to perform a task with skill and
knows that another is likely to depend on her so performing the task or
where she indicates to another that the other can safely rely on her
performing a task with skill and the other does so rely, then public
authorities must very often be subject to duties of care even and especially
where the task they are performing is the one that they exist to perform.
The doctrine of assumption of responsibility may thus require a duty of
care in exactly the circumstances in which the wider framework
governing the negligence liability of public authorities discourages it.
4.1 Protection Cases
I begin with what is really a residual class of cases. It consists of cases
in which a public authority is or is alleged to be under an obligation to
protect citizens from some – usually physical - danger to their safety. It is
distinct from what I call below “professional cases” in that the public
authority employees involved are not usually professionals; and from
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what I call below “rescue cases” in that the authority in question is not
apprised of the danger at exactly the moment that it is about to occur. Into
this class fall many types of police case, for example: cases in which the
police are aware of the activities of a criminal who poses a threat to
members of the category of persons to which the claimant belongs;48 cases
in which the police are aware of a specific threat to the claimant’s safety
from a particular person;49 cases in which the claimant is a witness and the
police are alleged to owe a duty to take care to conceal her identity and to
protect her from violence;50 cases in which the claimant is a suspect and
the police or prosecuting authorities are alleged to owe a duty to take care
in investigating the case against him.51 Into this class also fall a wide
variety of other types of case, for example: cases in which highway
authorities are alleged to owe a duty of care to members of the public to
avert dangers on the road;52 cases in which local authorities are alleged to
owe duties to protect their tenants from the depredations of other tenants
or neighbours; 53 cases in which health authorities are alleged to owe
duties to protect members of the public from infection.54
For cases which fall into this residual class, the notion of assumption
of responsibility does appear to provide a rationale for imposing a duty of
care in some cases and not others. To take the police cases referred to, for
example, the idea that the police assume a responsibility towards
witnesses or informants but not towards members of the public potentially
endangered by the presence at large of a criminal provides an explanation
of why there should be a duty of care in the former cases but not in the
latter. Cases in which the police fail to protect an individual from the
threat of a particular known individual occupy a point on the spectrum
between the two types of case referred to in the previous sentence and are
48 Hill v Chief Constable of West Yorkshire (n 13).
49 Osman v Ferguson [1993] 4 All ER 344 (CA); Van Colle v Chief Constable of
the Hertfordshire Police [2008] UKHL 50, [2009] AC 225.
50 Swinney v Chief Constable of Northumbria Police Force [1997] QB 464 (CA).
51 Welsh v Chief Constable of the Merseyside Police [1993] 1 All ER 692;
Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335;
Brooks v Metropolitan Police Commissioner (n 13).
52 Stovin v Wise (n 24); Gorringe (n 3).
53 Mitchell v Glasgow City Council, X v Hounslow London Borough Council,
both (n 13).
54 Furnell and another v Flaherty (trading as Goldstone Farm)(Health
Protection Agency and another, Part 20 defendants) [2013] EWHC 377 (QB),
[2013] PTSR D20.
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for that reason especially contentious.55 It would seem very plausible to
ascribe to a police force which is apprised of and takes some steps to
protect a claimant from a threat from a particular known individual an
assumption of responsibility towards the claimant. In the light of this, the
finding that no duty of care is owed in such cases can only be explained
by reference to the supposed conflict between the putative duty of care
and the police’s other obligations.
4.2 Information Cases
Another category in relation to which assumption of responsibility
appears to serve reasonably well as a mechanism for determining the
incidence of the duty of care comprises cases in which a public authority
has power to give advice or information to a citizen and chooses to do so.
For example, in T v Surrey County Council
56
the defendant authority kept
the name of a particular child minder on the register of child minders it
was obliged by law to maintain. T’s mother left T in the care of the child
minder after having sought and received assurances from an employee of
the authority that the child minder was to be trusted. In fact, on a previous
occasion, the child minder had caused injury to a child by violent shaking
and did the same to T. The court held that although the purpose of the
governing legislation was to ensure that only persons who were fit to act
as child minders should be registered, it did not give rise to duties to any
individuals who might rely on the register. The giving of specific
assurances by the authority to T’s mother was, however, capable of giving
rise to a duty of care and the assurances constituted negligence
misstatement. Here the notion of assumption of responsibility (or its
cognate, negligent misstatement) makes it possible to pick out a particular
act of the authority as attracting a duty of care where its other related
activity does not. There is a fine line, however, between cases in which an
authority merely has a power to give information to a specific individual
and cases in which, by doing so, it changes the legal position of the
individual concerned. As we shall see below, the use of assumption of
responsibility in relation to the latter is more problematic.
55 Note, in this respect, the dissenting judgment of Lord Bingham in Van Colle (n
49).
56 [1994] 4 All ER 448.
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4.3 Rescue Cases
At time of writing the four leading judgments in rescue cases in
English law are Capital and Counties PLC v Hampshire CC,57 OLL Ltd v
Secretary of State for Transport,
58
Kent v Griffiths,59 and the more recent
Michael and others v Chief Constable of South Wales Police.60 In Capital
and Counties, the Court of Appeal heard appeals in four cases in which
the fire brigade had been called to fires and failed to put them out. OLL
concerned the mismanagement by the coastguard of an attempted rescue
of a party of schoolchildren who had got into trouble at sea. Kent
concerned the calling of an ambulance whose late arrival led to the
claimant suffering injuries that she would have avoided if the ambulance
had arrived timeously. In Michael, a telephone call to the police from a
woman in danger of imminent violence was wrongly classified with the
result that the police arrived too late to save her life.
The role actually played by assumption of responsibility in the court’s
judgment in each of these cases is fairly limited. The question I wish to
address, however, is whether the concept can be used nonetheless to
explain the pattern of outcomes that occurred. Donal Nolan has attempted
to rationalise the differing outcomes of rescue cases concerning the
ambulance service, fire brigade and police using a conception of
assumption of responsibility as involving the voluntary acceptance of an
obligation by the defendant combined with the foreseeable possibility of
detrimental reliance on the part of the claimant.61 On this view, the reason
why there is an assumption of responsibility and hence a duty of care
when an injured person summons an ambulance but none where the fire
brigade is summoned to put out a fire or the police are summoned to the
scene of an emergency is that a person who summons an ambulance is
likely to renounce the alternative means of transport available to her
whereas a person who summons the other emergency services is likely to
have no other means of assistance to renounce. The paradoxical
consequence of this reasoning, however, is that the more absolutely
dependent a citizen is on the protection provided by a public authority, the
less likely the authority is to owe her a duty of care. 62 It would
57 [1997] QB 1004 (CA).
58 [1997] 3 All ER 897 (QB).
59 [2001] QB 36, [2000] 2 WLR 1158 (CA).
60 [2015] UKSC 2, [2015] 2 WLR 343.
61 Nolan (n 5) 281.
62 cf N McBride, ‘Michael and the Future of Tort Law’ (2016) 32 PN 14-31.
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presumably mean, for example, that someone who lived on a remote
island and who could only be brought to hospital by air ambulance would
be owed no duty of care if she called the ambulance service whereas if she
lived in a busy town and called the ambulance service, she would be owed
a duty.
On the most plausible interpretation of how assumption of
responsibility should apply to rescue services, I suggest, all the services I
have referred to would be held to have assumed a responsibility and hence
to owe a duty of care upon acceptance of an emergency call. Any person
who calls one of these services in an emergency is likely to rely on the
service and if a call is made on a person’s behalf and she is unaware of it
(as happens, for example, if a third party makes a call to the ambulance
service to rescue an unconscious person), she is very likely to depend on
the service fulfilling its function with reasonable care.63
This leads us naturally to question whether this is a satisfactory
pattern of outcomes? Policy fears about the supposed strain on the rescue
services aside, I suggest it is; but with one important caveat. As noted
above, however one interprets assumption of responsibility, it seems to
require that the defendant perform some positive act that can be treated as
constituting acceptance of an obligation towards the claimant. In rescue
cases, given the general expectation that rescue services will attempt to
assist people who ask for their help, the acceptance of the call for help
will usually be enough to constitute such a positive act. But suppose a
service’s phone operator does not answer the call or tells the caller that no
assistance will be forthcoming in circumstances where it is quite
unreasonable to do so, for example where the service in question is the
fire brigade and is perfectly capable of coming to the caller’s aid and has
at the time in question no competing demands for its assistance.64 Suppose
further that the caller suffers harm that would probably have been avoided
if the fire brigade has attended the fire. It makes no sense, I suggest, to
differentiate a case such as this by denying the existence of a duty of care
if one would be found in the case in which the phone operator allowed the
caller to believe that the fire brigade would attend.
63 Even if we accept the argument that the fire brigade should not be under a duty
to answer emergency calls because this duty would conflict with its wider
obligations, we are nonetheless left with a pattern other than the actual one.
64 cf D Brodie, ‘Public Authority Liability: the Scottish Approach’ (2007) 11
Edin LR 254, 256.
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4.4 Professional Cases
The offer of help – explicit or implicit – to a member of the public by
a qualified professional is the paradigm example of assumption of
responsibility. For this reason, one would expect the concept to apply
most easily in those cases in which the claimant’s complaint against a
public authority can be treated as a complaint about the failure of a
professional person employed by the authority to provide the relevant
service. This expectation is, to some extent, borne out by the case law.
Bodies within the NHS can be held vicariously liable for the failure of the
doctors working for them to provide the treatment expected; 65 local
authorities can be held liable for the negligent misstatements of the
surveyors they employ;66 and education authorities can be held liable for
the failure of the teachers and educational psychologists they employ to
respectively provide adequate education or correct diagnosis for children
with special educational needs.67 It is arguable also that local authorities
can be held liable for the omissions of the professionals they employ in
the field of child protection.68
A difficulty with the idea that public authorities can be held
vicariously liable for the acts of professionals they employ is that it, too,
can produce obvious anomalies. Where a local education authority or the
social services department of a local authority causes harm to children, it
may be because the professionals who work for the authority have failed
in their professional duty – the head master of a school may have failed to
provide a child with appropriate education, social workers may have
failed to take the steps necessary to remove a child from abusive parents –
but it may also be because of failings that are administrative rather than
professional in nature and cannot be ascribed to any particular individual.
So, for example, a badly run education authority might fail through simple
administrative incompetence to make the arrangements necessary to assist
a child who needs home schooling or the social services department may
have been informed that a child needs its help but, again, through
administrative incompetence – because there is a rapid turnover of staff,
because files are lost and letters or emails left unopened – may have failed
to take the necessary steps. It would be hard to justify making a finding of
65 Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1
QB 428 (QB).
66 Smith v Eric S Bush [1990] 1 AC 831 (HL).
67 Phelps v Hillingdon London Borough Council (n 25).
68 See D v East Berkshire Community Health NHS Trust (n 14).
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liability in the cases that conformed to the model of vicarious liability for
failings of professionals while denying it in the cases where the causes of
harm were of the administrative type.69
This problem can be avoided if we take the view that professional
liability is only a special case of assumption of responsibility. We can
then say that the authorities that employ professionals assume a
responsibility toward the persons whom they aim to assist. This solution
brings us back to the problem of omissions, however. As noted above,
assumption of responsibility, however interpreted, requires some sort of
positive act on the part of the defendant and yet some of those failures on
the part of authorities to provide expected services that cannot be ascribed
to identifiable professionals will also be cases of pure omission. Consider
again, for instance, the example of the social services department given
information about a child in danger which fails through sheer
administrative incompetence to act timeously. In such a case, the
defendant authority may never make towards the child a gesture that
could be interpreted as an assumption of responsibility and yet, to refuse
liability in this case while finding it in another in which a similar failure is
preceded by such a gesture would be, again, to make an indefensible
suggestion.
4.5 Legal Determination Cases
Cases which involve the making of legal determinations by public
authorities as to the rights or entitlements of private persons and in which
the question of tortious liability arises are rare, but they exist. One such is
the well-known Maguire case70 in which the claimants fitted out vehicles
for use as taxis in reliance on a policy promulgated by the local authority
but were then denied the licences necessary to operate the taxis when the
policy turned out to be unlawful. Another is the Banks case71 in which the
claimant was a farmer who suffered financial loss when the Secretary of
State made his herd the subject of a Movement Restriction Order on the
basis of a fact-finding process vitiated by procedural impropriety. A third
example is the Jain case referred to above where the claimants were the
proprietors of a care home who suffered the ruination of their business
after the defendant health authority obtained an ex parte court order
69 cf Booth and Squires (n 17) 9.102-9.110.
70 R v Knowsley MBC, ex p Maguire (1992) 90 LGR 653.
71 Banks v Secretary of State for Environment, Food and Rural Affairs [2004]
EWHC 416, [2004] NPC 43.
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cancelling the home’s registration on the basis of inaccurate
information.72
It might be thought that in relation to cases of this sort, the concept of
assumption of responsibility had no relevance at all. Legal determinations
are the purest form of exercise of public law power and it is widely
supposed that the functions they involve are too unlike the activities
undertaken by private persons for it to be possible for negligence to have
any application. 73 Since assumption of responsibility is a concept
belonging to the law of negligence, it too is supposed to have no place in
legal determination cases. Assumption of responsibility would thus appear
to be relevant only in the sense that there was a kind of negative
correlation: there is never assumption of responsibility in such cases and,
correspondingly, there is never a duty of care. For two reasons, this
appearance is misleading however.
Firstly, one can make a strong case that wherever a public authority
makes a legal determination with respect to the rights or entitlements of a
particular citizen, it assumes a responsibility towards that citizen. All the
necessary elements are there: the authority acts positively with respect to
the citizen; the citizen will commonly be reliant or dependent for some
aspect of her welfare on the authority’s act, or both: and the citizen will be
aware of this reliance or dependency. In most such cases, moreover, the
authority’s act can be seen as involving a representation as to the
authority’s power to perform the act, a representation which amounts to a
species of negligent misstatement where it turns out to be false. So in
Maguire, for example, the authority gave the false impression to the
claimants that they would receive taxi licences and they suffered loss as a
result while in Banks, the claimant was led to believe that his herd was
subject to a valid Movement Restriction Order when it was not and
suffered loss as a result.
Secondly, parties have attempted to invoke assumption of
responsibility in a number of cases involving the making of legal
determinations by public authorities and while the argument has been
rejected in some cases it has been accepted in others.74 An early example
72 n 15.
73 This supposition is an expression of what I called in Section I above “the
background premise”.
74 Cases in which the argument has been made and rejected are: W v Home Office
[1997] Imm AR 302; Rowley v Secretary of State for Work and Pensions [2007]
EWCA Civ 598, [2007] 1 WLR 2861; St John Poulton’s Trustee in Bankruptcy v
Minister of Justice [2010] EWCA Civ 392, [2011] Ch 1. In addition to the cases
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76
of a case where the argument succeeded is Ministry of Housing and Local
Government v Sharp. 75 This involved a scheme whereby persons who
suffered loss as a result of the denial of planning permission were paid
compensation. If permission were later granted the developer had to repay
the compensation to the Ministry and this obligation was recorded on the
local charges register as a local land charge. Under the governing
legislation, the registrar of local charges was the clerk to the relevant local
authority. It was his duty to register the charge and where an official
search was requisitioned, to produce a certificate indicating the charge’s
existence. The facts were that an owner of land subject to such a charge
obtained planning permission and sold the land to a developer. Prior to the
sale, the developer’s solicitor requisitioned a search of the local charges
register but due to the negligence of a clerk in the registry, the resulting
certificate made no reference to the charge. As the Court of Appeal held,
the certificate was conclusive as against the Ministry and the developer
was thus able to avoid having to pay back the compensation. The Ministry
sued the local registrar, Sharp, and his employer, the local authority, for
breach of statutory duty and negligence. The members of the Court of
Appeal were not able to agree as to whether an action lay for breach of
statutory duty – Lord Denning MR thought it did while Salmon and Cross
LJJ thought it did not – but they were able to agree that Sharp was liable
for negligent misstatement on the principle of Hedley Byrne and his
employer, the local authority, conceded that it was vicariously liable.
The case provides a good illustration of the fine line between the
situation in which an authority causes loss by giving out erroneous
information (discussed above under the heading “information cases”) and
the situation in which an authority harms a person by the improper or
careless exercise of its power to determine legal rights or entitlements. It
is easy to represent as being an instance of the former: the clerk to the
local authority mistakenly informed the developer that there was no
charge and his employer, the local authority, conceded that it was
vicariously liable for the resulting loss. On a true legal analysis, however,
it was an instance of the latter. As Lord Denning explained,76 in his role as
local registrar Sharp was not a servant of the local authority. Qua
registrar, he was under a statutory duty to provide an accurate certificate
and the certificate was conclusive as to the existence or not of the charge.
mentioned in the text, the argument was made and partly accepted in McCreaner
v Ministry of Justice [2014] EHWC 569 (QB), [2015] 1 WLR 354.
75 n 37.
76 At p 265.
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The registrar’s careless exercise of his power thus had the effect of
depriving the Ministry of its right to the money secured by the charge.
The judges of the Court of Appeal fudged or glossed over this difference,
but we should not allow their equivocation to blind us to true nature of
their decision.
Sharp is peculiar in that the right or entitlement in question was that
of a branch of government. 77 There are other cases in which public
authorities have been held to assume responsibility in the exercise of
powers to determine rights or entitlements, however, in which the persons
affected have been ordinary citizens. One such case is Neil Martin Ltd v
Revenue and Customs Commissioners.78 The claimant in this case was a
builder who applied to the Revenue for a certificate which he needed to in
order to obtain work as a subcontractor. In processing his claim, the
Revenue made a series of errors with the result that he only obtained the
certificate after a long delay, thus occasioning loss. The errors included
wrongly insisting that he had to produce company accounts, failing to
ensure that he signed the relevant forms while at the tax office, mistakenly
treating the forms submitted by the claimant as an application for
something other than the required certificate, marking a second set of
forms with the wrong Unique Tax Reference, and sending the certificate
once granted to the wrong address. The Court of Appeal held that the third
of these errors, but not the others, gave rise to a duty of care: in deciding
to treat the claimant’s application as an application for something other
than the sought after certificate, the anonymous employee had assumed a
responsibility towards the claimant and the Revenue was vicariously
liable for its breach.
Another example is Welton v North Cornwall District Council.79 Here,
the owners of a guest house made expensive improvements to their
premises on the advice of an environmental health officer given when the
officer paid them an informal visit. The improvements turned out not to
be required under the relevant legislation. On the owners’ action for
recovery of the wasted expenses, the Court of Appeal held that the officer
had, in effect, been offering an advisory service and could thus owe a duty
of care to the owners and be liable for negligent misstatement. In reaching
its judgment, the court emphasized the informal nature of the officer’s
visit and characterized the giving of advice as beyond the officer’s
77 Moreover, if the registrar could be represented as making a direct undertaking
to anyone it would be to the person seeking the certificate.
78 [2007] EWCA Civ 1041; [2007] All ER (D) 897.
79 [1997] 1 WLR 570.
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statutory functions. The case might thus appear to fall outside the category
of cases involving the making of a legal determination as to rights or
entitlement. As Lord Scott VC pointed out when he distinguished Welton
in another case, 80 however, the officer’s giving of advice could not
plausibly be differentiated from his statutory functions in this way. The
plaintiffs did what he told them to do not simply because he was an expert
on the subject who had proffered advice but because he had coercive
powers which they believed he would use against them: the officer’s
giving of advice in this context was itself an exercise of coercive power.
The case thus concerns the exercise of a public authority’s powers to
determine rights, despite the Court of Appeal’s attempt to make it appear
otherwise.
It is, of course, a noteworthy feature of these cases that the courts
never admit that a public authority making a determination as to rights or
entitlements can, in so doing, make an assumption of responsibility. In
each case, the court pretends that some employee of the authority has
somehow stepped outside its statutory function and performed an act of
the sort that would involve assumption of responsibility if performed by a
private person. Justifications have occasionally been advanced in the case
law for the view that assumption of responsibility is incompatible with the
performance of a statutory function. One is that where a public authority
is subject to a statutory duty to act it cannot be said to have assumed
responsibility towards those affected by its action because it was not
acting voluntarily. 81 This insistence that a person can only assume
responsibility in relation to acts which she is not legally obliged on other
grounds to perform is inconsistent with the definition of assumption of
responsibility I set out above, however. It assumes a reading of
“voluntary” as entailing freedom of choice whereas, in a number of
leading cases, defendants have been found to have assumed responsibility
despite being under a legal obligation to perform the act to which
assumption relates.82 To define assumption of responsibility in this way,
80 Harris v Evans (n 14).
81 See Customs and Excise Commissioners v Barclays Bank Plc (n 30) [14] (Lord
Bingham), [94] (Lord Mance) respectively; Neil Martin Ltd v Revenue and
Customs Commissioners [2006] EWHC 2425 (Ch) 97 (Andrew Simmons);
Rowley v Secretary of State for Work and Pensions (n 74) [54] (Dyson LJ);
Darby v Richmond upon Thames LBC [2017] EWCA Civ 252 [18] (Thirlwall
LJ).
82 See Barrett v Enfield LBC and Phelps v Hillingdon LBC, both (n 25), in both of
which the defendant public authorities were held to owe duties vicariously as a
result of actions performed by the professionals they employed while at the same
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moreover, would have the consequence that the concept could not be used
to explain the incidence of the duty of care in cases involving public
authorities since most public authority cases in which an assumption of
responsibility may be found are ones in which the authority is obliged by
statute to perform some action vis-à-vis the claimant.83
The conventional picture I presented above of the role that assumption
of responsibility might play in legal determination cases is thus false. It is
not true that there is never a duty of care in such cases, nor that the
concept of assumption of responsibility is not or cannot be used. The
concept has been used in some cases. The courts have tried to make it
appear that these cases did not truly involve the exercise of powers to
determine citizens’ rights or entitlements but typically they did involve
such exercise. If the concept were used consistently, moreover, it would
justify imposing a duty of care in many and perhaps the great majority of
legal determination cases. Its use cannot, therefore, be said to justify by
itself the current pattern of liability and no liability in such cases. This
prompts the question whether assumption of responsibility, in
combination with one or more of the exclusionary principles discussed
above might produce a pattern like that to be found in the actual case law.
In particular, one might ask whether the use of assumption of
responsibility together with what I called above the fourth proposition –
namely that a putative duty should be excluded if it would be in conflict
with the other duties to which the defendant public duty was subject –
might produce a pattern of liability like that in the case law.
The answer is that it would not. The legal determination cases in
which a duty has been found are ones in which the courts have been able
to delude themselves that determination of rights or entitlements was not
involved, either by pretending that the relevant acts could be attributed to
an employee rather than to the authority itself or that the authority was
simply dispensing information. These cases are not ones in which the
possibility that a duty of care would conflict with the authority’s other
public law duties was less present than in cases in which no duty was
found. In Neil Martin, for example, a duty on the part of the tax
time being under statutory obligations to act. In a non-public authority context,
see Henderson v Merrett Syndicates Ltd (No 1) (n 45), in which an assumption of
authority arose on the basis of conduct undertaken in fulfilment of a contractual
obligation to a third party and Spring v Guardian Assurance Plc [1995] 2 AC 296
(HL), where an assumption of authority was held to arise in relation to an act
required by the defendant’s membership of a self-regulatory body. cf Nolan ‘The
Liability of Public Authorities for Failing to Confer Benefits’ (n 5) 283.
83 As in Barrett and Phelps (n 25).
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authorities to correctly determine the claimant’s tax status could
presumably be said to have conflicted with its duties to do the same for
other tax payers and to obtain the maximum tax take for the treasury
while in the Welton case, a duty on the part of the health inspector to take
care in determining the guest house owners’ obligation under the relevant
legislation could be said to have conflicted with his duty to protect the
interests of potential customers of the guest house in health and safety.
The idea of a duty of care based on assumption of responsibility and
limited where necessary to avoid conflicting duties also has a serious
deficiency from a normative or justificatory point of view. If the typical
legal determination case involves an assumption of responsibility and is
therefore on all fours with the typical professional case, why should the
need to avoid conflicts between duties exclude liability in relation to the
former and not in relation to the latter? It might be thought that what
distinguishes the two types of cases is that legal determination cases
usually involve difficult decisions as to the allocation of resources
whereas, in professional cases, once a professional person (whether public
or private) has assumed responsibility towards an individual the only
issues that arise relate to practical competence in the provision of the
service offered. This distinction will not withstand examination, however.
Even once a public sector professional has chosen to serve a given
individual, the choices she makes in providing the service will have
resource implications and involve choices that affect other persons to
whom she might owe a duty. An NHS doctor must balance the time spent
in administering a treatment to a particular patient against the time to be
spent in treating other patients and to attach a duty of care to one patient
might be thought to produce a conflict with the duties owed to others; in
preparing a statement for a pupil with special educational needs, an
education officer will make recommendations having implications vis-à-
vis the resources that can be spent on other pupils;84 and a social worker
deciding whether to place a child in care with a foster family and which
foster family to choose owes conflicting duties to both the child and the
foster families concerned.85 The choices to be made in these cases do not
involve matters of high policy and in the first and second of these
examples, the exclusionary principle involved – i.e. that there should not
be a duty of care towards a particular individual where the authority
concerned owes a duty to all members of the public who share the
84 cf Phelps (n 25); Carty v Croydon LBC [2005] EWCA Civ 19, [2005] 1WLR
2312.
85 Barrett v Enfield LBC (n 25); W v Essex CC [2001] 2 AC 592.
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situation of the individual in question - is one I represented above as a
tendency rather than an absolute rule. Nonetheless, if we compare the
potential conflicts of duties involved in such cases with those in the case
in which Lord Scott’s strict exclusionary principle was enunciated, there
seems no reason to allow a duty of care in the former while excluding it in
the latter. The failure in Jain was to take reasonable care in ascertaining
the facts when deciding whether to apply for the cancellation of a care
home’s licence. No hard question of policy was involved here either and
if a health authority cannot be put under a duty of care for fear that it
might not cancel a care home’s licence when the protection of the
occupants’ well-being made it necessary to do so, it is hard to see how we
can be confident that imposition of a duty of care might not have an
equally distorting effect on a doctor deciding which treatment to
administer, an education officer recommending special educational
provision or a social worker deciding to recommend that a child be placed
with a foster family.
Thus the recognition that many legal determination cases might
involve an assumption of responsibility on the part of the public authority
concerned tends to point up the arbitrariness of the principles of blanket
exclusion adopted in recent case law. A more defensible method of
determining the incidence of the duty of care in legal determination cases
would be to assume its prima facie existence and limit it by reference to
any deleterious consequences that its imposition seemed likely to have.
But it is precisely to avoid such an approach – essentially the one set out
in Anns v Merton Borough Council86 – that the current dispensation has
been adopted.
A final question is whether an approach to legal determination cases
based on the consistent application of assumption of responsibility might
produce satisfactory outcomes even if those were not the outcomes to be
found in current case law. Having surveyed all categories of public
authority cases, however, we are now in a position to see that the
consistent application of the concept of assumption of responsibility
would produce across the whole range of public authority cases an
incidence of the duty of care far more extensive than usually
contemplated by the concept’s proponents. The question whether use of
the concept in relation to legal determination cases is better addressed as
part of the larger issue of whether its use can produce a pattern of
satisfactory outcomes for public authority cases as a whole and
accordingly I postpone it to this article’s conclusion.
86 n 2.
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5 CONCLUSION
The concept of assumption of responsibility cannot be used to explain
or justify those parts of the law on the negligence liability of public
authorities to which it appears to have application. As we have seen, there
are various anomalies for which it cannot account.
But if it cannot explain or justify the current law could its consistent
application result in something better? One might, speculate on this basis
that assumption of responsibility could form the foundation for a more
extensive law of public authority negligence and that in doing so it might
cure what many have for long felt to be a defect in English law, the lack
of a developed form of administrative liability. Such a development
would be supported by the principle enunciated by Lord Bingham. It
should not surprise us if the consistent application of assumption of
responsibility produces the kinds of outcomes required by that principle.
As noted above, the paradigm example of assumption of responsibility is
the offer of help to a member of the public by a qualified professional.
What distinguishes a professional person from any other provider of
services is professed expertise and a commitment to serving the public
interest. A professional is thus very like a public authority and in some
systems is treated as one. What the discussion above has demonstrated,
however, is that while a law of public authority negligence liability based
on assumption of responsibility might be far more extensive than the
concept’s proponents envisage, it would still suffer from unjustifiable
lacunae as a result of the requirement that a person act positively in order
to assume responsibility. Hence, as we saw, the fire brigade that attends a
fire and incompetently fails to put it out would be liable while the fire
brigade that unreasonably omits to attend would not; the social services
department that apprised itself of the facts relating to an abused child and
negligently failed to remove the child from her abusive parents would be
liable while the social services department that negligently failed to take
notice of the child’s situation in the first place would not; and so on. If
one were minded to use negligence as the vehicle for a developed form of
administrative liability, one would therefore be better off relying on the
Bingham principle directly than using assumption of responsibility as a
kind of proxy.
Faced with the inadequacy of the concept of assumption of
responsibility, there are a number of possible responses. One is to
continue the so far fruitless search for some concept that is, on the one
hand, consistent with the basic principle that public authorities are to be
treated as if they were private persons but that, on the other hand, avoids
the harsh or seemingly unjust results to which the principle otherwise
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gives rise.87 Another is to adhere to the principle that public authorities
must be treated in the same way as private persons while simply accepting
that this produces harsh and unjust results. A third response would to be to
abandon the dogmatic adherence to Dicey’s equality principle and to
accept at last that English law requires a form of specialized
administrative liability, one based overtly on the principle that there
should be compensation for the misdeeds of public authorities.
With respect to this last possibility, one final observation is in order.
In my description at the beginning of this article of the current state of the
law in this area, I outlined what I called “the background premise” namely
the view that a public authority acting in the exercise of a public law
power or in pursuit of public law duty can never owe a duty of care except
when it attracts such a duty by performing an activity that might equally
well be performed by a private person. In other words, even if it might
appear desirable to extend a principle that applies to private defendants in
such a way as to impose a duty of care upon a public authority in relation
to some activity that lacks an obvious private counterpart, it is somehow
never appropriate to do so. The approach of the courts to what I called
above legal determination cases tends to confirm the existence of the
background premise. In a number of such cases, the courts have justified
the imposition of a duty of care by assimilating the acts of the defendant
public authority to ones that might be carried out by a private person.88
Where such assimilation is not possible, however, or where the courts are
clear sighted enough to recognize that the case involves the making of a
legal determination, despite the superficial resemblance to an activity that
might be carried out by a private person, then a duty of care is denied.89
What justification is there for this state of affairs? None is to be found
in the case law. Instead, the courts present us with a series of ad hoc
excuses for restricting liability without ever providing or even
87 The notion of “general reliance” propounded by Mason J in Sutherland Shire
Council v Heyman (1987) 157 CLR 424 and discussed by Lord Hoffmann in
Stovin v Wise (n 24) 953-55 has been considered for this purpose but with little
success. More commonly, adherents of Dicey’s equality principle tend to deny
that there is any special problem of public authority liability and look instead for
principles that will explain why there should be liability in cases (whether with
public or private defendants) involving omissions. For a useful exposition of such
principles see H Wilberg, ‘In Defence of The Omissions Rule in Public Authority
Negligence Claims’ (2011) 19 TLJ 159.
88 As in Barrett (n 25); Phelps (n 25); Sharp (n 37); Neil Martin (n 81); Welton (n
79).
89 n 74.
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acknowledging the need for a global explanation for the refusal to provide
compensation in relation to loss caused by distinctively public law
functions. One is left with the sense that the English legal system’s lack of
a developed form of administrative liability is the product of nothing more
than a blind fearfulness and conservatism.