FOR THE PURPOSES OF RIGHT TO SELF-DETERMINATION, HOW DOES ONE DEFINE PEOPLE IN CONTEXT OF KASHMIR
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The Denning Law Journal 2013 Vol 25 pp 129 - 158
THE PUBLIC LAW DIMENSION OF PUBLIC
AUTHORITY LIABILITY
Tom Cornford
ABSTRACT
In 2008, the Law Commission published a consultation paper on
Administrative Redress. The paper was informed by the basic assumption that
the problem of administrative liability in English law can only be understood
by examining both its tortious and its public law dimensions and that a
satisfactory solution would involve a form of liability that straddled the
public/private divide. In this article I endorse the Law Commission‟s
assumption. I advance a rationale for a form of liability that involves
reparation for harms resulting from acts unlawful as a matter of public law
and argue that the form of liability that the rationale supports would inevitably
impinge upon the territory currently occupied by the law of tort. I then
proceed to criticise the views of scholars who have recently argued that a
satisfactory law of public authority liability can be arrived at by the use of the
concepts of orthodox tort law alone.
1. INTRODUCTION
In 2008, the Law Commission published a consultation paper entitled
Administrative Redress: Public Bodies and the Citizen.
1
The paper
considered, amongst other things, the issue of when a monetary remedy
should be awarded to citizens who suffer harm as a result of unlawful
administrative action (i.e. who are the victims of “public law wrongs” as I
shall call them) and it canvassed the familiar failings in this respect of current
law. It pointed out the absence of a remedy in a number of situations which
appear to call for one. It mentioned, for example, the case of the taxi driver
deprived of a license during the period of challenge to a wrongful decision to
remove it,
2
the farmer prevented from marketing his cattle by an erroneously
Dr Tom Cornford, MA Cantab, LLM London, Barrister, Senior Lecturer Essex
University School of Law.
1
Consultation Paper No.187, available on the Law Commission's website at
<http://lawcommission.justice.gov.uk/docs/cp187_Administrative_Redress_Consultat
ion.pdf> accessed 6 May 2013.
2
R v Knowsley Borough Council ex parte Maguire [1992] COD 499.
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
130
made movement restriction order,
3
and the person who loses his job when he
is mistakenly placed on a child abuse register.
4
It also drew attention to the
pervasive uncertainty and instability of the law of tort, and in particular the
law of negligence, in so far as it relates to public authorities. The
Commission‟s proposed solution was, in essence, a single form of liability
that straddled the boundaries of public law and the law of tort. The proposal
was welcomed by some
5
and subject to a great deal of criticism from others
6
but it was, in any case, strongly opposed by the government and consequently
abandoned. At the same time, during roughly the period of gestation of the
Law Commission‟s project, the courts became increasingly conservative. The
prospects of success for a claimant seeking compensation from public
authorities for misuse of their powers diminished.
7
We are thus left with a
situation in which the deficiencies identified by the Law Commission remain
but in which there is little immediate prospect of the courts or the government
doing anything about it.
The status quo – or aspects of it – has its defenders. Amongst recent
writers, there are those who on the one hand, accept that there exists in the
law as a whole deficiencies of the sort identified by the Law Commission but
who, on the other, insist that the private law of tort must continue as before,
unruffled by the problems that afflict public law. In this article I wish to
consider the recently expressed views of two respected scholars who take this
view, Donal Nolan and Roderick Bagshaw. In recent writing on the law of
negligence, the first defends the position currently taken by the courts and
suggests that any lacuna in the system for holding public authorities to
account must remain the province of public law while the second suggests an
incremental extension of the duty of care to cover one type of case in which
citizens are harmed by unlawful administrative action while appearing to
accept that the court‟s general position with regard to the liability of public
authorities should remain the same.
The view I shall take here is that the Law Commission was right in its
basic contention and the supporters of the status quo wrong: one cannot arrive
at a defensible view as to how the law of tort should apply to public bodies
3
R (Banks) v Secretary of State for Health [2004] EWHC 416 (Admin), [2004] NPC
43.
4
R v Norfolk County Council Social Services Department ex parte M [1989] QB 619.
5
See eg K Oliphant, Tort and Insurance Law Yearbook: European Tort Law 2008
(ESRETL 2008) 219.
6
See Law Commission Analysis of Consultation Responses at
<http://lawcommission.justice.gov.uk/docs/lc322_Administrative_Redress_responses.
pdf> accessed 6 May 2013.
7
The most obvious manifestation of this is the Gorringe case discussed further below.
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without attending to the public law as well as to the tortious dimensions of the
problem and any attempt to do so will lead to unsatisfactory results. The focus
of the commentators whose arguments I shall consider is on negligence and,
as a consequence, most of my criticisms of those arguments will also concern
negligence. But if the commentators are right to think that the correct
approach to the negligence liability of public authorities can be determined
without considering the position of public authorities in public law then it
must, by the same token, be possible to disregard the position of public
authorities in public law in determining the correct approach to their liability
in tort law as a whole. The conclusions I draw will thus concern tort law
generally and not just the law of negligence.
The plan of the article is as follows. In Part 2, I shall briefly set out what I
consider to be the strongest argument for the creation of a form of liability
specifically concerned with public law wrongs. It will be seen that the form of
liability it supports would inevitably impinge upon the existing law of tort. In
Part 3, I shall examine the arguments of Nolan and in Part 4 those of
Bagshaw. The argument I make in Part 2 may be subject to myriad objections
and in the course of this single article I cannot hope to rebut these or to
convince sceptics that the form of liability it supports is the right one. Nor will
pointing out the flaws in Nolan and Bagshaw‟s position show conclusively
that my belief in the inescapable salience of the public law dimension is
correct. But I will, I hope, have done enough to show that the case for a form
of tort liability with an explicitly public law dimension cannot be dismissed
without a detailed answer from those opposed to it.
2. THE CASE FOR A UNITARY ADMINISTRATIVE
LIABILITY
The following argument presents, I suggest, the strongest reason for
developing the law so as to provide reparation for public law wrongs. It also
expresses the underlying normative impulse that has led many to view the
present failure of the law to provide such reparation as unfair.
8
I present the
argument in numbered steps.
1. Although separate (but overlapping) bodies of law apply to public
bodies and private persons, there are certain basic moral and legal
principles that apply to both.
8
Cf the argument made in T Cornford, Towards a Public Law of Tort (Ashgate
2008).
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132
2. One such principle is what might be called a principle of corrective
justice, namely that those who are responsible for the wrongful losses of
others have a duty to repair them.
3. It follows that where a citizen suffers loss as a result of a public law
wrong committed by a public body with respect to that citizen, the public
body is under a duty to repair the loss.
4. Step 3 is open to the obvious objection that public law wrongs are
wrongs to society as a whole rather than to individuals and that it cannot
therefore be right to award compensation to citizens who happen to suffer
loss as a result of them. The answer is that, properly understood, the
norms of public law perform a dual function. On the one hand, they
ensure that public bodies act with fidelity to the public purposes for which
their powers are granted. On the other hand, they ensure that public bodies
act with fairness towards individuals and infringe their private interests no
more than can be justified by reference to the lawful public aims that they
seek to attain. Breach of those public law norms intended to protect
individuals may result in loss to the individuals concerned and it is in
these circumstances that the award of compensation is appropriate. On
this basis, we may also say that public bodies owe duties to those affected
by their actions to treat them in accordance with the norms of public law
and that, correspondingly, those affected possess entitlements to be so
treated.
The argument may be made clearer by a pair of examples. Imagine,
firstly, that a public body has the power to award and to revoke licences that
are necessary if a company is to market a drug. Suppose further that the body
purports to revoke a company‟s licence on a particular ground when on a
correct reading of the law it does not have the power to do so and that as a
result the company suffers loss. The norm here breached is the rule requiring
the public body to direct itself correctly as to its powers. It protects the public
interest in having the body act lawfully. But it also ensures that, as long as no
lawful ground for removing the licence exists, the company‟s interest in
retaining it is protected. The public body owes the company a duty to behave
in accordance with the norm and the company has a corresponding
entitlement that the body so behave. Where the body breaches the norm
causing loss to the company, the principle of corrective justice dictates that
the proper remedy is monetary compensation.
Imagine, secondly, that a housing authority has a duty to provide citizens
with accommodation if they are homeless and in priority need. Suppose that
the authority unreasonably refuses to provide an applicant with
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accommodation and that there is a significant period before the rectification of
the decision during which the applicant is homeless. The authority owes the
applicant a duty to deal with her application reasonably and the applicant has
a corresponding entitlement that the authority do so. Where the authority
breaches the norm causing harm to the applicant in the form of homelessness,
the principle of corrective justice demands that the authority repair the loss by
paying compensation.
An objection sometimes made to the idea of liability based on public law
unlawfulness is that the impugned decision cannot be said to cause harm to
the claimant because it can be taken again lawfully with the same result. In
the two examples previously given, however, the unlawfulness is of the sort
that enables the court to say that the authority has reached substantively the
wrong outcome. Such substantive unlawfulness is unusual outside the field of
human rights law but even where there are no grounds for saying that a lawful
decision-making process will produce a different outcome from the unlawful
decision-making process that preceded it, breach of procedural norms may
have produced harm to the persons affected. So for example, delay in the
making of a decision may cause loss of economic opportunities while the
refusal to allow affected persons to participate in the making of a decision and
the failure to give reasons may cause anxiety and distress to the persons
affected. It is arguable that these kinds of harms should also be the subject of
compensation.
The numbered steps above may be presented in a different order. Doing so
brings out a different facet of the argument.
1. Public authorities owe duties to the citizens affected by their actions to
treat them in accordance with the norms of public law.
2. Breach of such duties calls for a remedy. At present public law provides
a remedy in most circumstances in which its norms are breached: a citizen
can have an unlawful act which affects her quashed, in some cases she can
prevent such an act before it occurs and she may also be able to compel an
authority to perform some act affecting her interests which it is obliged to
perform. But where somebody suffers a loss as a result of unlawful
administrative action, public law provides no remedy.
3. In accordance with the principle of corrective justice (as defined in Step
2 of the first version of the argument described above), the natural
solution is that where a public authority causes harm to a citizen by
breaching the duty it owes to that citizen to treat her in accordance with a
norm of public law, it must repair the harm.
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Putting the argument in this way brings out a significant feature of current
English public law, namely that it involves a form of unequal treatment. The
victim of unlawful administrative action who applies for a remedy before the
action causes loss is able to obtain one, whereas the victim of such action
who, through no fault of her own, is not able to apply for a remedy before it
causes loss is left with none.
The foregoing gives a rough idea of the grounds that might be advanced
for developing a form of liability for harm-causing acts that are unlawful as a
matter of public law. To gain a slightly fuller picture of a how a form of
liability like that justified by the argument might work, a little more needs to
be said about the picture of public law it assumes and the implications of this
picture. I present the account, again, in the form of a series of numbered steps.
1. Every public authority exists for some purpose or set of purposes. In
other words, every public authority has some overarching duty or mission.
Typically, assigning such an overarching duty is a matter of statutory
interpretation.
2. A public authority is obliged at all times to act in pursuit of its
overarching duty or mission. It has no private purposes.
3. A public authority must also exercise its powers in accordance with the
norms of public law. The norms in question are those familiar to us from
judicial review. What duties a public authority is subject to in any given
situation is a question to be determined by reference to the relevant statute
as interpreted in the light of the norms of public law.
9
4. With these propositions in mind, we can address the question of how a
public authority can be said to owe duties to individuals in particular
situations. Not every public authority owes duties to individuals and
public authorities that do owe duties to individuals will often perform acts
that do not involve them in any such duty. In general terms, a public
authority will owe a duty to an individual where a reasonable authority
would have that individual in contemplation as likely to suffer harm to
some protected interest as a result of its actions. To be slightly more
specific, there are two main types of circumstance in which such a duty
might arise. Firstly, it may be part of the authority‟s mission to assist
individuals in some way. This is obviously so, for example, in the case of
many welfare functions such as those concerned with the provision of
9
I leave aside here the question of public authorities, such as the Crown or the police,
the source of whose powers is not statutory.
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housing, education or nursing care. In such cases, where, as in the
homelessness example above, a person applies to the authority for a
benefit, there is little difficulty in discerning a relationship between
authority and applicant and any reasonable authority would have in
contemplation the applicant and the likely effect of its decision on the
applicant‟s interests. On this basis, we can say that the authority owes the
applicant a duty to decide her case in accordance with the norms of public
law. This does not entail that the authority is obliged to make the decision
in the applicant‟s favour and deliver the requested benefit. But there might
be a situation, as postulated in the example above, in which it was
unreasonable for the authority to do otherwise and if it did do otherwise
we would be able to say that the authority had breached its duty to the
applicant and thereby caused loss. The authority might also breach one of
the norms of procedural propriety and thereby cause harms such as
anxiety or distress.
We may also say of an authority whose mission it is to deliver a certain
sort of benefit to individuals that it ought to have in contemplation a
particular individual even though the individual in question has not
applied for it. This might be the case for example where an authority
whose mission is child protection receives reliable information that a
particular child is in danger of harm. As a reasonable authority, it ought to
act on this information, and this puts it in a relationship with the child in
question: it owes the child a duty to deal with her case in accordance with
the norms of public law.
5. It goes without saying, of course, that the overarching duty of many
public authorities is not to assist individuals. Some indeed, can only be
plausibly regarded as serving very general public interests. This would be
true, for example, of an agency that protected some feature of the
environment or of the Bank of England in its role as the setter of interest
rates. But often an authority can only attain its assigned ends by
determining or interfering with the rights of individuals and here again it
is natural to speak of there being a relationship between the authority in
question and the individual affected by its actions. This is the second type
of circumstance in which a duty to an individual may arise, the
hypothetical case above of the licensing authority being an example. Its
public mission is to serve the public interest in the availability of safe
drugs. But in fulfilling this mission it must determine whether private
persons have the right to market the drugs. The authority owes such
persons a duty to decide their cases in accordance with the norms of
public law.
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Not every harm caused by the breach of a public law duty owed to an
individual by an authority is of the sort that could properly be the subject
of compensation. Citizens should not expect to be compensated because
they are mildly exasperated by some instance of procedural propriety. Nor
should they expect to be compensated for the absence of some benefit that
would have accrued to them as a result of a favourable decision of a
public authority if the benefit was not one that it was part of the mission
of the authority to confer.
10
Three broad types of harm would be proper
subjects for compensation: firstly, interests in receiving the benefits which
it was the purpose of a particular public function to provide, the
corresponding harm being the absence of or failure to receive the benefit;
secondly, interests generally recognized in positive law as a whole such as
those in person and property, the harm consisting in the infringement of
these; and thirdly, the interests referred to above that might be harmed by
the failure to observe procedural propriety in making decisions relating to
holders of either of the first two types of interest.
As described so far, the form of liability contemplated would arise only in
cases that might also be the subject of judicial review. But this would be to
underestimate the reach of public law. We tend to think of public law as only
concerned with cases in which public authorities make formal determinations
of the kind that are usually the focus of judicial review. By the same token we
tend to think of acts done in the course of practical activities carried out by
public authorities through their employees – such as the fighting of a fire by
the fire brigade, or the cleaning of a watercourse by an internal drainage board
– as being within the purview of negligence and not of public law. This way
of thinking is merely, however, a product of the current remedial structure of
English law and not defensible as a matter of principle. A public authority is
obliged, as a matter of public law, to act reasonably so as to ensure that its
actions conduce to the public purpose that it exists to attain. This explains,
why, for example, the fire brigade must act reasonably in making policy
decisions as to levels of staffing, what equipment to buy and so forth. But it
also entails that the fire brigade must act reasonably when actually fighting
fires: just as unreasonable decisions about staffing and equipment would
cause the fire brigade to fail in its duty to protect the public from the dangers
of fire so too would unreasonable decisions on the ground. But whereas
reasonableness in the former context would involve the traditionally
recognized public law virtues of taking into account relevant considerations
10
So, if for example, an authority has a duty to inspect buildings to ensure that they
are safe, the owner of a building should not be able to claim compensation if she
suffers loss because the authority‟s inspection failed to disclose a defect in the
building that made it less valuable but did not render it unsafe.
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and ignoring irrelevant ones, reasonableness in the latter context would be a
matter of practical competence. It would closely resemble what we usually
think of as constituting reasonable conduct in the context of negligence law.
11
A similar argument can be made even in relation to those functions that
are normally thought of as purely administrative in nature. If the tax
authorities decide that a citizen is entitled to a tax rebate, they are then under
an obligation to send the citizen in question a letter containing a cheque and
this means that the clerk charged with carrying out the task must not forget to
do it or post the letter to the wrong address or include a cheque in the wrong
amount. In other words, reasonableness on the part of the authorities involves
the competent implementation of their higher level decisions as well as the
original making of those decisions.
If it is accepted that public authorities are under a duty to perform their
practical tasks with reasonable competence, then duties to particular
individuals to do so will arise according to principles similar to those
described above as determining when duties to individuals arise in the making
of formal determinations. Such duties will arise: where an authority has
already decided to confer a benefit on a given individual; where, despite not
having decided to confer a benefit on a given individual, an authority is under
an obligation as a matter of public law to do so; or where any reasonable
authority would foresee that a failure on its part to perform one of its activities
with reasonable competence would harm an important interest of an
individual, one recognized in general positive law.
We can illustrate each of these different types of circumstance by
reference again to the case of the fire brigade.
i)Where the fire brigade, in pursuit of its overarching duty to protect the
public from fire, undertakes to put out a fire at a house belonging to a
given individual, then it will be under a duty to the individual in question
to act with reasonable competence in trying to put out the blaze.
ii) Where the fire brigade has not undertaken to put out a particular fire but
where it is unreasonable, given its overarching duty, not to do so, it will
also be under a duty both to attempt to put out the fire and to do so with
reasonable competence.
iii) Where the fire brigade has undertaken to put out a fire at a house
belonging to an individual and it is foreseeable that in doing so it may
cause harm to recognized interests of the individual, such as person or
11
For an attempted refutation of the assumption that there are two distinct species of
reasonableness, one appropriate to negligence and the other to public law, in Towards
a Public Law of Tort (n 8) 72-74.
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138
property, it will be under a duty to the individual to act with reasonable
competence in seeking to avoid causing the harm in question. Here the
duty is identical to the duty the fire brigade would be under in negligence.
On the view set out here it owes such a duty concurrently in both
negligence and in public law.
Once it is recognized that the reach of public law extends well beyond the
range of cases traditionally dealt with in judicial review, it becomes clear that
a satisfactory form of administrative liability must extend equally far, from
cases generally thought of as belonging to public law such as the case of the
wrongfully withheld licence to cases like that of the fire brigade. I hope it is
clear from the above, however, that this does not necessarily entail that there
will be liability wherever a public authority harms or fails to confer a benefit
on a citizen. It must first be established either that the authority‟s overarching
mission is to assist individual citizens in some way or that the exercise of its
powers is likely to infringe in some ways citizens' recognized interests. Then
it must be established that the authority owes a duty to the particular claimant
either because the reasonable exercise of the authority‟s power would bring
the claimant within its contemplation or because it has undertaken to assist the
claimant. And it must also be shown that the authority‟s unlawful behaviour
has caused one or more recognized forms of harm to the claimant. One way of
implementing liability of this type, would be to identify the duty of care in
negligence with the public law duties whose existence I have postulated
above. If this were done, the existence of a duty of care could be denied if its
imposition would tend to stultify the authority in the performance of the
function to which it related.
The development of a specialised branch of the law of negligence would
be one way of implementing the form of liability I propose. No doubt it might
be possible to develop instead other existing torts such as misfeasance in a
public office. The most likely method would of course be legislation. But it
should not be supposed that the legislative enactment of a form of liability
like that outlined here would result in something separate from tort law that
could be safely disregarded by tort lawyers. The form of liability proposed
here overlaps so much with the existing law of tort and shares so many of its
concerns, that it would belong as much in the civil law courts as in the
Administrative Court.
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3. THE GORRINGE CASE AND LIABILITY FOR
NONFEASANCE
Gorringe
In Gorringe v Calderdale Borough Council,
12
the claimant was injured
when she drove her car too fast over the crest of a dangerous hill and hit a bus
coming in the other direction. At some time in the past, the word “slow” had
been painted on the road as it approached the crest but this appeared to have
been obliterated by subsequent resurfacing. Section 39 of the Road Traffic
Act 1988 provided:
(2) Each relevant authority – (a) if it is a local authority, must prepare
and carry out a programme of measures designed to promote road
safety…(3) Each relevant authority – (a) must carry out studies into
accidents arising out of the use of vehicles (i) if it is a local authority,
on roads or parts of roads …within their area…(b) must, in the light
of those studies, take such measures as appear to the authority to be
appropriate to prevent such accidents, including…the construction,
improvement, maintenance or repair of roads for the maintenance of
which they are responsible and other measures taken in the exercise
of their powers for controlling, protecting or assisting the movement
of traffic on roads.
The claimant argued that that the authority owed a common law duty of
care to act reasonably in the fulfilment of its duty under s.39 to improve the
safety of the roads in its area. The duty had been breached, she argued, by the
authority‟s failure to give further warning of the dangerous nature of the crest.
The Court of Appeal accepted that in principle the authority might owe a
duty to improve the road markings if it would be unreasonable in the light of
its duty under s.39 not to and it conducted an inquiry into the reasonableness
of the authority‟s system for calculating the frequency of accidents on
different parts of the road system and for deciding where to spend its budget.
In doing so it followed the approach laid down by Lord Woolf in an earlier
case about s.39, Larner v Solihull Metropolitan Borough Council.
13
May and
Stuart-Smith LJ found the system reasonable while Potter LJ, dissenting,
found that it was not.
By contrast, the House of Lords rejected the idea that a common law duty
to act could be based on the existence of a statutory power. It held that there
12
[2004] UKHL 15, [2004] 1 WLR 1057.
13
[2001] RTR 32 (CA).
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140
was no duty of the sort that could give rise to an action for breach of statutory
duty and, that in the absence of a duty deriving from statute it would be wrong
to impose a common law duty in negligence. The authority‟s failure to
improve the existing road markings was thus a case of pure nonfeasance.
There were no grounds for making it liable for the claimant‟s injury.
Gorringe is an important case. It illustrates the way in which a case
involving public authority liability can cross the boundaries between public
law and the ordinary law of tort. On the one hand, the harm suffered by the
claimant was physical injury of the sort that commonly forms the subject of
negligence actions. On the other hand, the alleged fault of the defendant
authority consisted in a failure to fulfil its statutory duties in the way required
by the norms of public law and this failure could in principle have been
challenged in judicial review.
14
In undertaking a review of the reasonableness
of the authority‟s actions, the Court of Appeal adopted an approach very
similar to that advocated in the argument above. The House of Lords rejected
this approach and by insisting that a common law duty of care cannot be
based on a statutory power or duty effectively overruled a long line of earlier
cases going back to Anns v Merton Borough Council.
15
Misfeasance and Nonfeasance
In his article „The Liability of Public Authorities for Failing to Confer
Benefits‟,
16
Donal Nolan examines the case and ends by endorsing the
distinction between misfeasance and nonfeasance upon which the House of
Lords‟ decision depends. In his discussion of the distinction, he begins by
considering Lord Hoffmann‟s observations in the earlier highway case of
Stovin v Wise.
17
According to his lordship, the two justifications usually given
for the rule were that to impose on private individuals a duty to help others
might be unduly burdensome and that there is often no principled reason to
impose a duty to help on one particular individual rather than another (the
„why pick on me‟ argument). Neither applied to public authorities since, in
most cases in which it was alleged that they had failed in some duty to assist
14
For other examples of negligence cases involving physical harm of which the same
might be said see e.g. Thomson v Home Office [2001] EWCA Civ 331 (negligence
action by prisoner attacked by fellow prisoner with razor blade disputing
reasonableness of prison governor‟s policy of allowing prisoners to use razorblades)
and Miller v Greater Glasgow Health NHS Board 2011 SLT 131 (negligence action
by patient who contracted MRSA in hospital based on defective nature of hospital‟s
infection control policy).
15
[1978] AC 728 (HL).
16
(2011) 127 LQR 260.
17
[1996] AC 623 (HL) at 946.
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the claimant, they existed for the very purpose of rendering assistance of the
sort in question. Nolan notes that these are not especially good justifications
for the general presumption against liability for nonfeasance. They do not
satisfactorily explain, for example, why an ordinary private person should not
be liable for an omission to act in circumstances in which to act would not be
unduly burdensome and in which there are no or few other people who could
render the assistance required.
18
But, Nolan argues, there are more convincing
justifications for the differential treatment of misfeasance and nonfeasance.
Here he cites Tony Honoré, „who argues that in general harmful abstentions
are less culpable than wrongful acts, because while the latter constitute
inroads on security, the former threaten only the expectation of improvement,
a different and secondary value.‟
Honoré‟s argument is false, however, and to see why it is useful to
examine the essay in which it is made.
19
Honoré begins the essay by pointing
out, first of all, that at the level of the general background duties that each of
us owes to all the world, there is a good reason to treat misfeasance as more
culpable than nonfeasance. The reason is that we can all easily bear duties to
refrain from acting so as to harm others but we cannot so easily bear duties to
assist others. It is also easier to assign duties to help particular others to
persons who have some particular reason for helping those others than it is to
assign such duties to citizens in general or to anyone who might be able to
help. In other words, Honoré starts with the same position as that set out by
Lord Hoffmann in Stovin. Honoré also acknowledges that there are many
situations in which a person may be said to come under distinct, as opposed to
background, duties to others and that in these situations it often appears to
matter little whether the duty-holder harms the person to whom the duty is
owed by acting or by failing to act. So, for example, a parent will be held
equally culpable for beating or for starving her child. Moreover, Honoré tells
us, distinct duties may often have greater weight than background ones.
Honoré provides a familiar list of the types of circumstance in which distinct
duties may arise: where D creates a danger which she is then under a duty to
prevent harming others; where D holds some special position of
responsibility; where there is a relationship of dependence between D and
18
Nolan mentions in this connection Weinrib‟s article „The Case for a Duty of
Rescue‟ (1980) 90 Yale LJ 247 at 262 and A Beever, Rediscovering the Law of
Negligence (Hart 2007) 210. He is presumably thinking of cases like those of the man
who does nothing to help a child drowning in a shallow pond. In such a case, the child
can be saved without an undue burden being imposed and if he is the only person
present, or one of a small number, the „why pick on me‟ argument has no purchase.
19
T Honoré, „Are Omissions Less Culpable?‟ in P Cane and J Stapleton (eds) Essays
for Patrick Atiyah (Oxford, Clarendon Press 1991).
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
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another; where someone has conferred a benefit on D and she therefore owes
a duty in return; and where D has made an undertaking.
Honoré‟s aim, I take it, is to show that there are reasons for treating
misfeasance as more serious than nonfeasance that go beyond this basic
distinction between background duties and distinct duties. If it were not, there
would be no reason to say anything more once the basic distinction had been
made. Moreover, to make good the proposition that misfeasance harms
security more than nonfeasance it is not sufficient to give examples in which
the situations compared both involve background duties, because in such
cases the difference in seriousness between misfeasance and nonfeasance can
be explained by reference to the basic distinction. This can be seen if we
consider an example that Honoré seems to think supports his security
argument. He says that someone who drops litter is more culpable than
someone who fails to pick up the same litter even though the harm caused and
the likely effort that would be required to do the right thing would be the same
in each case. But here Honoré is comparing two background duties: the duty
that a citizen owes to society as a whole not to drop litter and the duty that a
citizen owes to society as a whole to pick up someone else‟s litter. The greater
culpability of breach of the former duty can be explained by the second, “why
pick on me” justification for the original point about background duties. We
can see this more clearly if we make a comparison of the relative culpability
of someone who drops litter with someone whose job it is to pick up the litter
and who fails to do so. Here it is much less clear that misfeasance is worse
than nonfeasance.
Note also that if, contrary to the argument of the previous paragraph, it is
the point of Honoré‟s argument merely to show that misfeasance is worse than
nonfeasance at the level of background duties then the argument has no
relevance to the legal problem under discussion. It is generally accepted that
at the background level there should be liability for misfeasance and not for
nonfeasance and no one suggests that at the background level public
authorities should be liable to help citizens simply because they are practically
speaking able to. No one argues, for example, that the fire brigade should be
liable for failure to take injured persons to hospital or that the police should be
liable for failure to put up adequate signage at a dangerous junction just
because they might be capable of performing these tasks. The case made
above for duties of care flowing from the statutory duties of public authorities
was based on the idea that public authorities owe distinct duties to citizens
who would be within their contemplation if they exercised their powers
reasonably. A public authority whose mission is to protect some particular
interest of citizens can quite comfortably, I suggest, occupy Honoré‟s
category of persons who are under distinct duties because they hold a position
of special responsibility.
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Turning, then, to the question of what Honoré says in support of the
proposition that at the level of distinct duties misfeasance breaches security
more than nonfeasance, the answer is „very little‟. If one makes a series of
pairwise comparisons of instances in which similar kinds and degrees of harm
are caused by wrongful acts and wrongful failures to act the idea that one is
worse than another or that one breaches security more than the other is
quickly undermined. So, for example, Honoré suggest that a wage cut is
worse than the failure to receive a pay rise. I suggest, however, that whether
this is so depends entirely on the context and what one has been led to expect.
If you work in a company that has been doing badly because of the recession
and the necessity of a pay cut has been discussed and the pay cut then turns
out to be only 5% of your income, you may be relieved. If, by contrast, you
were confidently expecting a Christmas bonus worth 10% of your income and
you have already bought expensive Christmas presents on that assumption
then you may be gravely disappointed with a bonus worth only 5% of your
salary. In any case, the characterization of either act on the part of your
employers as misfeasance rather than nonfeasance is open to question since, at
bottom, the employer has a positive duty to pay wages which is derived from
an undertaking he has made towards you: even a wage cut can be
characterised as a kind of nonfeasance.
Let us take two more examples. Compare someone who is injured in a car
crash as a result of the negligent driving of another with someone who suffers
the same injury in a train crash which occurs as result of a negligent failure to
properly maintain the track. Note in this instance that the train is operated and
the track maintained by different companies so that it cannot be said that the
person who causes harm by their nonfeasance created danger that it was their
duty to avert. Take secondly the example of a haemophiliac. In one case,
someone cuts her by accident and she suffers serious loss of blood. In another
case, she cuts herself by accident, starts to bleed and calls an ambulance that
fails to arrive due to the negligence of the ambulance crew. Can we say that
the act of the person who cuts her by accident is worse than the omission of
the negligent ambulance driver?
The assertion that misfeasance poses a greater threat to security than
nonfeasance gains a superficial plausibility from the fact that the word
„security‟ tends to connote freedom from physical harm and from the thought
that direct acts of violence to the person and many accidents consist in, or are
primarily the result of, positive acts. But as the last two examples above show,
citizens‟ freedom from physical harm is guaranteed in part by a system
whereby many groups of persons are under positive obligations (ones whose
breach would be nonfeasance) to provide some form of protection from
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
144
physical harm.
20
The fact is that we rely for our security as much on the
performance of their duties by people who owe us positive duties to act as we
do on people refraining from harming us. Modern society is a cooperative
venture in which risky activities are undertaken and the risk is kept at an
acceptable level both by requiring people to refrain from exacerbating the risk
and by putting many people, including often public officials, under duties
positively to act so as to avert, abate or minimise the risk. Our security rests
on a pattern of expectations and if there is harm to it, it is as likely to be
because of nonfeasance as misfeasance.
None of this goes to undermine the misfeasance/nonfeasance distinction
altogether. But the only sound basis for the distinction is the initial
consideration that it is easier to justify a background duty to refrain from
harming others than it is to justify a background duty to help others. Nolan is
right, of course, that this consideration does not provide a complete
justification for the rule against liability for nonfeasance that we have in
English law. It does not, for example, justify the rule that there can be no
liability where a citizen makes no attempt to help a child drowning in a
shallow pond. But this just goes to show that in English law the
misfeasance/nonfeasance distinction is pushed to a point further than the
arguments that justify it will support. Contra Nolan and Honoré there are no
other, better arguments that can justify the practice of English law in this
respect and as Lord Hoffmann pointed out, the basic argument that provides
20
Note in this connection, a passage from Honoré‟s earlier work with Hart Causation
and the Law (2
nd
ed, OUP 1985) 37: „Though what is treated as normal represents in
many ways our practical interests and our attitude to nature, it would be wrong to
identify as the normal and so always as part of the “mere conditions” of events the
course of nature unaffected by human intervention. This is an over-simplification,
because what is taken as normal for the purpose of the distinction between cause and
mere conditions is very often an artefact of human habit, custom or condition. This is
so because men have discovered that nature is not only sometimes harmful if we
intervene, but is also sometimes harmful unless we intervene, and have developed
customary techniques, procedures, and routines to counteract such harm. These have
become second “nature” and so a second “norm”. The effect of drought is regularly
counteracted by governmental precautions in conserving water or food; disease is
neutralized by inoculation; rain by the use of umbrellas. When such man-made
normal conditions are established, deviations from them will be regarded as
exceptional and so rank as the cause of harm. It is obvious that in such cases, what is
selected as the cause from the total set of conditions will often be an omission which
coincides with what is reprehensible by established standards of behaviour...‟ The
authors‟ primary concern in this passage is to show that omissions can be causes. But
the passage also tends to support the view that, generally speaking, harm-causing
omissions – which is to say instances of nonfeasance that take place in the context of
distinct duties – are no less serious than harm-causing acts.
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such justification as there is has little application to the case of public
authorities.
A final observation in relation to Honoré‟s argument concerns again its
relevance. Suppose that the argument somehow succeeded in showing, in the
context of distinct duties, that misfeasance was worse than nonfeasance. What
significance would this have for the present debate? Nolan‟s use of the
argument is intended to show that where a public authority fails to discharge a
public law obligation to assist a citizen it is somehow to be taken less
seriously than if a person (public or private) who has incurred a distinct duty
on private law principles to assist another fails to discharge that duty. But a
general argument of the sort that Nolan imputes to Honoré could just as well
be taken to show that nonfeasance was less serious than misfeasance in the
latter case as it could be taken to show that nonfeasance was less serious than
misfeasance in the former case. The lesson is that only arguments that are
aimed specifically at demonstrating that the interests recognized in public law
are worthy of a lower level of protection than are those recognized in the
orthodox law of tort will achieve the result Nolan wants.
He offers two of these but they are extremely weak.
21
I quote the first:
“...as Simmonds has observed, “the more extensive the protective
scope of the state's authority, the less we will be inclined to regard
tragedies as the result of ill-fortune, and the more we will seek to
ascribe blame”,
22
and yet it seems paradoxical that the more things
that governments do, and the more measures which they take to
protect the public, the more likely it is that they will be criticised (and
possibly sued) for not doing more. Indeed, it has been argued that this
paradox is a potentially dangerous one, since attaching liability to
government attempts to protect citizens may deter the state from
involving itself in such matters, though obviously this danger would
not arise if the withdrawal of state protection would be politically
unacceptable, as it obviously would be in areas such as policing and
social services.”
23
21
He also offers a further consideration in favour of the basic
misfeasance/nonfeasance distinction namely the support they find in the works of the
rights theorists Allan Beever and Robert Stevens. I advert again to this aspect of his
argument in my conclusion below.It Suffice it to say here that the other reasons he
advances to support his view suggest that he does not really find Beever‟s and
Steven‟s positions plausible himself.
22
Here Nolan cites NE Simmonds, „Justice, Causation and Private Law‟ in M
D'Entrèves and U Vogel, Public and Private: Legal, Political and Philosophical
Perspectives (Routledge 2000)171.
23
Ibid 285.
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146
To begin with the first sentence in this passage, it is of course true that the
more one creates the expectation that people will be protected from particular
harms, the more likely one is to be criticised if the protection in question is
not forthcoming. This is hardly a reason for not providing the protections in
the first place. If it were, then we ought to go back to a time when, for
example, the poor were allowed to live in a state of semi-starvation or grow
up illiterate or when fatal infectious diseases were allowed to spread
unchecked through the population.
24
But the point of the passage is that
somehow attaching liability to pay damages to the failure to perform public
functions, in addition to all the other remedies that may be invoked for dealing
with such failure, might discourage the state from taking up such functions.
This argument has little to recommend it. Public authorities are already
subject to liability in relation to many of the services they provide. The NHS
can be sued for failure to provide adequate health care;
25
education authorities
can be sued for failure to adequately address a child‟s education needs;
26
child
protection authorities can be sued for failure to remove children suffering
abuse from their families;
27
highway authorities can be sued for failure to
maintain the highway.
28
And in cases where there is no liability for
nonfeasance there is often the possibility of liability for misfeasance: so, for
example, the work of the police and of the fire services carries very real risks
of positively causing harm to citizens or their property and in the case,
certainly, of the former, not infrequently gives rise to liability.
29
The state
shows no sign of withdrawing from any of these areas.
Nolan accepts that the danger of the state withdrawing from particular
functions will not arise when it would be politically unacceptable to do so,
and cites the cases of policing and social services.
30
This admission perhaps
24
It is perhaps worth adding that the fact that the provision of welfare creates
expectations is one of its desirable features since the avowed aim of the welfare state
is not only to remove poverty, ignorance, disease and so forth but to also to remove
the fear of them.
25
Bolitho v City and Hackney Health Authority [1998] AC 232.
26
Phelps v Hillingdon LBC [2000] 3 WLR 776 (HL).
27
JD v East Berkshire Community Health NHS Trust [2004] QB 558 (HL).
28
Highways Act 1980, s 41.
29
See eg Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858,
[2004] 1 WLR 3155.
30
He also very fairly cites in a footnote Booth and Squire‟s argument (made in The
Negligence Liability of Public Authorities (OUP 2006) 8.40) that holding public
authorities liable for negligent interventions, but not for negligent failures to
intervene, may have the effect of distorting their priorities in sensitive contexts such
as child protection .
THE DENNING LAW JOURNAL
147
undermines his argument more than he realises since it is hard to think of
many areas of protection from which it would be politically acceptable to
withdraw. If, moreover, the general principle were established that there
should be liability where public authorities failed to act lawfully or with
reasonable care in carrying out their functions, it would always be open to
Parliament to override the principle in relation to a particular function if it
took the view that the imposition of liability was rendering impractical the
performance of the function in question.
One might also ask the question: if the imposition of liability is likely to
discourage the state from providing beneficial services, why are we not
worried that the imposition of liability on private persons who provide
beneficial services might discourage them? The idea that someone who
creates the expectation that she will provide some service or deliver some
benefit will be liable if she fails to do so or falls below a certain standard in
trying to do so is at the root of a number of legal doctrines, not least the
doctrine that someone who assumes responsibility towards another for the
performance of some task will be under a duty of care towards that other. If
there is a danger of the state being discouraged from providing protections of
various sorts by the prospect of liability, why is there no danger of solicitors
being discouraged from drawing up wills,
31
or surveyors being discouraged
from surveying houses
32
or employers being discouraged from giving
references?
33
The answer that might be given is that even where the duties in such cases
arise independently of any contract between the service provider and the
person to whom the duty is owed, the service provider has some incentive for
providing the service: she has a contract with some other person to provide
the service or stands to gain some business advantage from providing it. It
might be supposed that this was a point of distinction between the case of a
private professional person or service provider and the case of the state. This
supposition would be mistaken., however. If we look at the matter, first of all,
from a practical point of view, the legislature has an incentive to legislate for
the provision of services, namely that the electorate wants and expects it. If
we ascend to a higher level of abstraction, then we may think of the state as
the embodiment of the citizenry as a whole and as existing to protect its
members from harm and to further their welfare.
34
If we think of the state in
this way, then clearly it has an incentive to provide services that benefit its
31
White v Jones [1995] 2 AC 207 (HL).
32
Smith v Eric Bush [1990] 1 AC 831 (HL).
33
Spring v Guardian Assurance [1995] 2 AC 296 (HL).
34
Cf Q Skinner, „A Genealogy of the Modern State‟ (2009) 162 Proceedings of the
British Academy 325.
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
148
members and this incentive will only be removed if the cost of compensating
those who suffer harm where the powers to provide the service are exercised
unlawfully or carelessly outweighs the wider benefits to the citizenry as a
whole. Considered at this abstract level, moreover, harm caused by the state‟s
unlawful or careless exercise of its power is a social cost whether borne by the
state itself or by the individuals upon whom it falls. Since the harm is ex
hypothesi the state‟s fault, there is no reason why it should be borne by
individuals and to leave them to bear it is unfair.
35
The second further consideration that Nolan advances in support of
Gorringe is that other avenues of redress may prove more efficient and
effective than negligence liability. He mentions in this connection the
Ombudsman, actions under the Human Rights Act and statutory or
administrative compensation. Recommendations of ombudsmen do not confer
on persons who have suffered harm as a result of public law unlawfulness a
right to compensation, while not every instance of harm-causing public law
unlawfulness involves breach of a human right, Gorringe itself being an
example. Of course, it might be the case that some specialised form of statute-
based public liability would do a better job of providing redress in cases like
Gorringe than the law of negligence. But to assert this is to state a conclusion
rather than provide an argument. To have a clear idea of what kind of solution
would be better, one would have to spell out in some detail what the proposed
solution would look like, something which Nolan does not do.
Assumption of Responsibility
Rejection of the idea that public authorities‟ possession of statutory
powers and their mission to protect citizens from various ills are reasons to
find that they owe a duty of care has a corollary: that in seeking to determine
when authorities should be under a duty to assist others, one is bound to
concentrate on the use of purely private law concepts. Nolan undertakes a
careful examination of how these concepts apply in cases of nonfeasance.
He concludes that the doctrine of reliance affords little assistance to
claimants because even where a claimant has been induced to rely on an
authority by representations it has made or by the past regularity of its
conduct, this is hard to prove. He then examines the doctrine of assumption of
responsibility and tries to make sense of the inconsistent pattern of decisions
35
I have spoken here of the state causing harm whereas Nolan is careful to talk of it
failing to confer benefits. It is of course the aim of my argument to show that in
relation to the kinds of situation in which a case for public authority can be made,
there is no difference. But even if one uses the language of conferring benefits, it is
unfair that a few people should fail to receive a benefit in circumstances in which
most people receive it and in which it would normally be expected to be conferred.
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in relation to rescue services. He suggests that 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 in
the first case, but not in the second and third, there is a foreseeable possibility
of detrimental reliance: someone who summons an ambulance is likely to
renounce the alternative means of transport available to her whereas the
person who summons the other emergency services is likely to have no other
means of assistance to renounce. The paradoxical consequence of this
reasoning 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.
Nolan also rebuts the claim, accepted by judges in a number of cases,
36
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. Nolan argues that this view rests upon a
misinterpretation of the word „voluntary‟ and that in the context of
assumption of responsibility an act is voluntary because it is „conscious‟,
„considered‟ or „deliberate‟; were it otherwise, conduct done in pursuance of a
contractual obligation could not amount to an assumption of responsibility.
This is true enough, but it remains the case that assumption of
responsibility is an inadequate concept for deciding when a public authority
should be held to owe a duty towards citizens belonging to the class of
persons whose purpose it is to assist. One reason for this is that there are
situations in which an authority ought to help a citizen even though, with
respect to the citizen in question, it has done nothing voluntary in either the
sense Nolan criticises or the one he endorses. To give an example, in the
current state of the law, an authority charged with the protection of vulnerable
children owes a duty of care to a vulnerable child whose need for protection
comes to its attention.
37
But, as Nolan points out, the decision that establishes
this is inconsistent with the reasoning in Gorringe. Suppose that the position
were governed by Gorringe principles and suppose further the existence of
two contrasting cases. In the first, the authority is apprised of the needs of a
particular vulnerable child and wrongly and carelessly concludes that the child
should be left with her parents. In the second, the authority is told by a
reliable informant that a particular child needs its help but does absolutely
36
By Lords Bingham and Mance in Customs and Excise Commissioners v Barclays
Bank Plc [2006] UKHL 28; [2007] 1 AC 181 [14] and [94] respectively; by Andrew
Simmons QC in Neil Martin Ltd v Revenue and Customs Commissioners [2006]
EWHC 2425 (Ch) [97]; and by Dyson LJ in Rowley v Secretary of State for Work and
Pensions [2007] EWCA Civ 598; [2007] 1 WLR 2861 [54].
37
See JD v East Berkshire (n 27) above.
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
150
nothing, perhaps because it is so disorganized that letters and other sources of
information are simply lost or filed in the wrong place. If „assumption of
responsibility' means anything it must require the defendant to perform some
act to bring itself into a relationship with the claimant. There is no such act in
the second case. And yet to assert that there should be liability in the first case
and not in the second, as the logic of Gorringe requires, would be to make an
indefensible distinction. The underlying reason why we would regard the
result in the second case as wrong is, I suggest, as follows. Where an authority
exists for the very purpose of protecting children and the reasonable exercise
of its power would bring it into a relationship with a particular child and
where it could, by the reasonable exercise of its powers, protect the child in
question then for it not to do so is wrong and culpable whether it performs
some voluntary act with respect to the child or not.
38
It is always open, of course, for someone who believes that the Gorringe
position is correct to insist that in the cases in which there is no assumption of
responsibility, the claimants have not really suffered harm, or more generally,
that wherever orthodox negligence principles do not indicate the existence of
a duty of care there is no harm of a sort that the law should concern itself
with. The logical conclusion of this way of thinking would be to deny that
there is anything wrong at all with the cases generally taken to indicate a
deficiency in the law concerning administrative liability. If one took this view,
one could then rejoice that our courts wisely refuse to award compensation to
citizens wrongfully deprived of licenses
39
or whose person or property the
relevant authorities incompetently fail to protect. This does not appear to be
Nolan‟s position, however.
40
Alternatively, one can support the Gorringe position while accepting, as
Nolan appears to, that there are deficiencies in our law of administrative
liability. But in that case there seems little point in discussing at length how
orthodox negligence principles should apply to public authorities in cases in
which they are acting in pursuit of statutory duties that have no equivalent in
the private sphere. A satisfactory public law solution would supplant the use
of negligence and the only question that would remain for those who adopted
a purely private law perspective would be where to draw the line between the
system of public law administrative liability and private tort law.
38
A similar argument can be made in relation to general reliance, a doctrine that
Nolan discusses sympathetically.
39
As to which see the discussion of the Jain case below.
40
That it is not is indicated by his use of the quotation from Beever discussed in the
conclusion below.
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4. JAIN AND THE MISUSE OF LICENSING POWERS
Nolan‟s approach to the problems raised by public authority liability is
firstly, to endorse an approach which makes public authorities liable in tort
only where a private person analogously placed would be and secondly, to
assert that the special problems raised by public authorities should be
cordoned off from the law of tort and treated as solely the province of public
law. A distinct but related approach involves accepting that the law governing
public authority liability is in certain respects unsatisfactory but insisting that
its defects could be remedied by drawing upon the conceptual resources of the
ordinary private law of tort.
One example of this approach is to be found in a recent article
41
about the
Jain case
42
by Roderick Bagshaw. In Jain, the claimants were the proprietors
of a nursing home. In the exercise of its statutory powers the defendant health
authority made an ex parte application to the local magistrate‟s court for an
order cancelling the home‟s registration. The application was made on the
basis of a slipshod investigation and inaccurate information but since the
claimants were not made aware of it they were not able to contest it and the
order was granted. The claimants successfully appealed against the order but
by the time the appeal was granted four months had passed and their business
was ruined. The claimants sued the authority on the basis that it had breached
a common law duty of care owed to them in making the application. Their
claim succeeded at first instance but was rejected by the Court of Appeal and
House of Lords. In denying the existence of a duty of care, the House of
Lords held that a duty to the claimants would conflict with the authority‟s
primary duty under the statute which was to protect the welfare of the
inhabitants of nursing homes. It also held that it would be inappropriate to
impose a duty of care in relation to proceedings leading to a court application,
the task of ensuring that such proceedings were properly conducted being a
matter for the court in question; and it emphasised that in future cases
involving misuse of licensing powers a remedy was likely to be available
under the Human Rights Act.
43
If one discounts the quasi-judicial nature of the process that caused the
claimants‟ loss in Jain then it is on all fours with other cases in which the
value of a business is diminished as a result of the misuse of regulatory
powers. Bagshaw argues, plausibly, that it is open to doubt whether every
such misuse of regulatory powers would involve breach of Convention rights.
41
R Bagshaw, „Negligently Making Business Activities Illegal: Jain v Trent Strategic
Health Authority‟ (2009) 17 TLJ 295.
42
Jain v Trent Strategic Health Authority [2009] UKHL 4 [2009] 2 WLR 248.
43
The facts giving rise to the case occurred before the coming into force of the Act.
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
152
He suggests that rather than thinking in terms of some general extension of
administrative liability we should consider an incremental development of the
law of negligence to cover the narrower class of cases to which Jain belongs.
It does not seem to be Bagshaw‟s intention that this development should
involve any fundamental rethinking of the relationship between statutory
powers and duties on the one hand and the duty of care on the other,: his sole
apparent motive for suggesting the development of liability in cases like Jain
is that, in the words of the House of Lords, its outcome – and presumably that
of other licensing cases – was „regrettable‟. And although he says nothing to
suggest that a duty of care of the sort contemplated should be imposed on
anyone who is not a public authority possessing regulatory powers, his idea
seems to be that the incidence of the duty of care and the standard of care
required should be determined on the basis of the kind of balancing of likely
costs and benefits by means of which these questions are conventionally
thought to be determined in the law of negligence, regardless of whether the
defendant is a public authority or a private person. In other words, the
standard he imagines being applied in such cases are ones that might apply to
a private defendant even though there are none.
44
44
In an earlier article, „Monetary Remedies in Public Law – Misdiagnosis and
Misprescription‟ (2006) 26 LS 4, Bagshaw suggested that five problems needed to be
investigated with a view to incremental development of the law: „First, when
particular classes of public professionals should be subject to professional duties, and
who those duties should be owed to. Secondly, when a body charged with granting
licences to others which are required to allow them to participate in a profitable
activity should be required to compensate those who it has incorrectly denied a
licence. Thirdly, when a body charged with regulating so as to reduce an external risk
should be required to compensate those who have suffered due to a regulatory failure.
Fourthly, when a body charged with investigating and prosecuting wrongdoing should
be required to compensate those who have suffered harm as a result of the
investigative and prosecution process. Fifthly, how a body charged with choosing
between strategies which create risks for others should be required to assess those
risks and evaluate them in the decision-making process, and when such a body should
be held liable to pay damages for harms caused by its chosen distribution.‟ Liability in
relation to all these areas might seem to cover so many of the cases that would be
covered by a system of liability for public law wrongs that one might take Bagshaw to
be in favour of such a system. But the paper from which it is drawn is a critique of the
Law Commission‟s 2004 consultation paper on public authority liability (Monetary
Remedies in Public Law) in which Bagshaw castigates the Commission for supposing
that there is some general deficiency in the system of remedies available in public law
or in the relationship between public authorities and tort law. His selection of
problems for further investigation reflects the belief that rather than one big problem
there are a number of smaller problems each susceptible of treatment in accordance
with the accepted techniques of English tort law. The view expressed in the paper
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It is worth pointing out straight away that in one respect, the development
Bagshaw suggests would inevitably extend to a wider class of cases than he
makes explicit. Bagshaw writes of the economic loss that occurs where an
activity becomes or remains unlawful as involving the wrongful denial or
revocation of a license or permission. Where a license is required to perform
some activity, the lack of a licence may be simply due to the licensing
authority‟s failure to respond to an application for the licence‟s grant or
renewal: to adapt a hypothetical illustration given by Lord Hoffmann in Stovin
v Wise,
45
the application may simply be languishing at the bottom of a filing
cabinet.
46
In other words, the putative claimant may be the victim of
nonfeasance rather than misfeasance and it is hard to think of a reason why
this should not be the subject of liability if the positive wrongful denial of a
licence can be.
But recognition of this point should lead us to ask a much larger question:
if there can be liability in respect of the wrongful refusal or cancellation of a
licence why should liability not be extended so as to cover a much wider
range of cases in which public authorities have the power to make
determinations vital to the welfare of citizens and in which the absence of
liability strikes us as unfair or „regrettable‟? If (considerations of quasi-
judicial process aside) a health authority should be liable where it destroys a
business by wrongfully cancelling a care home‟s registration should it not also
be liable where it fails in its primary purpose of protecting the welfare of care
home residents by wrongfully omitting to deregister a badly run care home?
And if an authority should be liable for wrongful failure to fulfil its primary
purpose of protecting some class of citizens, why should it not be liable in
those cases in which its role is not a regulatory one but in which its primary
purpose is to provide some benefit directly to citizens, as where it has a
responsibility for housing homeless persons
47
or making decisions as to
discussed in the text thus seems consistent with the views expressed in the earlier
paper.
45
(n 17) 956.
46
Or the authority may send the license to the wrong address so that the applicant is
effectively unaware that a decision has been made in her favour. Such a failure is, I
suggest, better characterized as an omission than as an act: it is a failure to do the
things necessary to communicate the authority‟s decision to the applicant. Cf Neil
Martin Ltd v Revenue and Customs Commissioners [2007] EWCA Civ 1041, [2007]
All ER (D) 393.
47
O’ Rourke v Camden Borough Council [1997] 3 WLR 86 (HL).
THE PUBLIC LAW DIMENSION OF PUBLIC AUTHORITY LIABILITY
154
whether to fund treatment for some unusual medical condition
48
or obtaining
maintenance for a mother who has separated from an abusive husband?
49
Bagshaw‟s answer is that the regulation of economic activity affects the
„liberty‟ of those regulated. Presumably, then, the ground of distinction
between the case of economic regulation and the case in which a public
authority determines whether a citizen should receive accommodation or
health care or financial assistance is that in the case of economic regulation
something has been removed from the regulated person that she would
normally have a right to whereas, in the other cases, the citizens concerned are
appealing to the state‟s largesse. In other words, Bagshaw‟s argument appeals
to the traditional notion that our liberty is the residue remaining where
positive law has not intervened and represents the wrongful deprivation of a
licence as constituting an incursion into that liberty by administrative action
from which we require protection.
It has to be admitted that this kind of argument has a strong grip on the
common law imagination. It explains why the licensing example is so often
used to illustrate the inadequacy of our law of administrative liability and also
why the Law Commission, in the report referred to in the introduction to this
article, focused on examples of the same type when arguing for its proposed
reforms. Nonetheless, it is ill founded. Once a statutory regime is introduced
which determines when and whether persons can carry out a particular
activity, then if there ever was a liberty to perform it (which is not always the
case) the liberty is extinguished. One thinks in this connection of the effect of
the Town and Country Planning Act 1947. Prior to the Act, a landowner was
free, subject to the law of nuisance, to build what he pleased on his land or to
change its use as he wished. The Act extinguished these rights. The ability to
develop land became dependent on the grant of planning permission or the
making of secondary legislation under the Act by the Secretary of State.
Wherever a regulatory regime of this type is introduced, the right to act in the
relevant respect becomes similarly dependent on the exercise of official
discretion.
There is thus no ground in positive law for treating an authority‟s abuse of
its power to give or withhold a licence required to perform some activity as
more serious than abuse of its power to give or refuse to give some benefit
directly to a citizen. In each case, some important interest of the citizen
depends upon the decision of the authority and in each case, the authority
must exercise the power fairly and reasonably and with due regard for the
interests of the citizen concerned. At one point in his argument, Bagshaw says
48
R v North Derbyshire Health Authority ex p Fisher (1998) 38 BMLR 76 (QB).
49
Rowley and others v Secretary of State for the Department of Work and Pensions
[2007] EWCA Civ 598, [2007] All ER (D) 186.
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155
in respect of marketable licences „that a new form of intangible property may
exist within the regulatory state which is sufficiently important to human
flourishing to be protected alongside “property”‟.
50
This is a much better
description of the interest in issue in business licensing cases generally than
the description of it as a liberty interfered with by the state, but it means that
the interest in question belongs to the same category as the various benefits
that public authorities have the power to bestow directly.
51
For a judge to
differentiate between such interests on the ground that one is a liberty and the
others not would be, wittingly or otherwise, to impose an ideological
preference and to create an ordering that has no sanction in existing positive
law.
Underlying Bagshaw‟s proposal is the view that the careful piecemeal
development of the law is to be preferred to grand solutions. If one remains
always at the level of detail, however, one is likely to miss a larger question:
should we employ a method that involves deriving duties whose breach
sounds in damages from the overarching statutory duties of public authorities
and from the public law norms that govern the exercise of their powers; or
should we accept the blanket exclusions of this method contained in the
judgments in Gorringe and Jain? To proceed in the way Bagshaw
recommends is to choose the latter option by default. Yet to choose the former
option would not entail the unrestricted expansion of liability to cover every
case in which a public authority caused harm by its unlawful acts or
omissions. If, for example, one were to try to implement the form of liability I
outlined above by identifying public law duties with the duty of care in
negligence it would still be possible to exclude the duty of care if its
imposition was shown to be likely to stultify the authority in the performance
of the function whose exercise was in issue. The starting point would be,
however, that in a wide range of cases the activities of public authorities are
governed by norms that exist to further and protect the interests of individual
citizens and that breach of these norms can, in principle, give rise to liability
to pay compensation.
5. CONCLUSION
Nolan concludes his evaluation of Gorringe by citing approvingly a
quotation from Allan Beever‟s Rediscovering the Law of Negligence.
52
50
(n 41) 303.
51
Cf C Reich, „The New Property‟ 73 Yale LJ 733 (1964).
52
(Hart Publishing 2007) 340.
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156
“The problem as identified concerns the state's obligations to its
citizens. Accordingly, the appropriate place to deal with this problem,
if it can be dealt with in law at all, is in the area of law that controls
the relationship between the state and its citizens: public law. It may
be that, for instance, the state possesses special obligations to rescue
its citizens from harm that private persons do not possess. If these
obligations exist, their justification lies in the nature of the state, not in
the structure of tort law. Moreover, if these obligations exist, it is not
necessarily the case that tort law ought to protect them. Perhaps it
would be better to institute or strengthen a separate public law area of
accountability … The point is … that, if the state has special
obligations, those are a product of the kind (or kinds) of legal entity it
is and not of the law of negligence … . Tort law should not be used as
the law's Swiss Army knife to fix potential inadequacies in public law.
It has a structure of its own.”
In its original context, this passage is, of course, the expression of a
general theory. According to the theory the law of negligence exists to protect
a set of primary rights and these are identifiable without reference to policy
considerations and independently of the process of defining the duty of care in
particular cases. A duty of care can only arise in relation to activities that
create a foreseeable risk that a primary right will be infringed or where a new
right arises as a result of an undertaking by the defendant. A corollary of this
is that public authorities can only owe a duty of care in circumstances in
which a private person analogously placed would do. There can thus be no
liability in negligence for public law wrongs. In seeking to justify the decision
in Gorringe, Nolan invokes this theory and the very similar one proposed in
relation to the law of tort as a whole by Robert Stevens.
53
The two theories are either correct or they are not
54
. If they are correct
then they provide a complete account of what the law governing the tort
liability of public authorities should be. If not, they can be ignored. It makes
little sense to invoke them (as Nolan does) as one of a number of
considerations that support the status quo, especially when the other
53
See R Stevens, Torts and Rights (OUP 2007).
54
Most commentators have found them to be implausible: see eg C Witting, „The
House that Dr Beever Built: Corrective Justice, Principle and the Law of Negligence‟
(2008) 71 MLR 621; M Lunney, „Counterfactuals and Corrective Justice: Legal
History and Allan Beever‟s Reconstructing the Law of Negligence‟ (2009) 17 TLJ
219; J. Murphy, „Rights, Reductionism and Tort Law‟ (2008) 28 OJLS 393; P Cane
review of Stevens Torts and Rights (2008) 71 MLR 641; P Cane, „Rights in Private
Law‟ in Nolan and Robertson (eds) Rights and Private Law (Hart 2012).
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157
considerations include policy arguments of the sort that the theories are
specifically designed to exclude.
Putting this to one side, however, the quotation is also the expression of a
widely held attitude and for this reason it is worth criticising independently of
any detailed consideration of the theory that supports it. Three observations
are worth making. Firstly, the quotation ascribes to tort law a conceptual unity
that it simply does not possess. Secondly, it assumes a clear division between
tort and public law that has never existed in English law. The law of tort has
always been used to hold public bodies to account.
55
It remains the case that
the only way of seeking a monetary remedy in judicial review proceedings is
by appending a claim in tort
56
and despite judicial dicta discouraging the use
of public law concepts in negligence cases,
57
the phenomenon whereby the
public law lawfulness of an official‟s acts are examined in a tort action is
entirely familiar.
58
Given the weakness of the public/private divide in our
tradition, it is quite natural to seek to address the deficiencies in our system of
administrative liability by developing the law of tort. Thirdly, however, it is
certainly possible to argue that it would be better to develop a discrete and
purely public law monetary remedy. To do this, one would have to develop a
set of functional equivalents for many of the concepts used in tort – proximity,
recognized forms of harm, causation and so forth. But one can only make this
argument on the basis of a proper examination of the state of public law as
well as that of tort. To do it one would have to work out the dimensions of the
proposed form of liability, which kinds of case it would and would not cover
and how far it would encroach upon the territory traditionally thought to
belong to tort. One cannot do this by adopting a purely private law
perspective. Nor, in advocating such a solution, should one be motivated
solely by the desire to see the orthodox law of tort continue unchanged.
To conclude, the writings I have examined in this article disclose no
general a priori reason why the public law obligations of public authorities
should not be reflected in duties of care or other forms of tortious duty. Nor
do they make a convincing case that a satisfactory law of public authority
liability can be created purely by the use of private law concepts. It may be
that the best solution to the problems of public authority liability is to create a
completely separate and parallel monetary remedy in public law. But this is a
55
See Dicey Law of the Constitution 10
th
ed by ECS Wade (Macmillan 1959) 193.
See also A Bradley, „Administrative Law and the Law of Torts – and Unresolved
Boundary Dispute?‟ [1989] The Law Teacher 109, 111.
56
Senior Courts Act 1981 s 31(4).
57
See e.g. the speeches of Lords Slynn and Hutton in Barrett v Enfield LBC [1999] 3
WLR 79 (HL) and Lord Steyn in Gorringe (n 12).
58
As for example in police cases such as Mohammed-Holgate v Duke [1984] AC 437
(HL).
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158
solution that can only be reached by means of a full examination of both sides
of the public/private divide.