Tort Liability of Public Authorities^2002		Roderick Bagshaw Mansfield College Trinity 2002
Lecture 3 - Negligence: Osmania etc.
	(Re)Introduction: Duties of Care – A Complex Model
*1.*	Osmania	*1.*
	Osman v. United Kingdom, Judgment of the European Court of Human Rights, 28 Oct. 1998 (http://www.echr.coe.int), 29 EHRR 245, [1999] 1 FLR 193 Z v. United Kingdom, Judgment of the European Court of Human Rights, 10 May 2001 (http://www.echr.coe.int) [sequel to X v. Bedfordshire CC [1995] 2 AC 633] Hill v. Chief Constable of West Yorkshire [1989] AC 53
a.	*Claims based on positive obligations. (in Osman, Arts. 2 and 8, in Z Art. 3) NB – possibility of using s. 8, Human Rights Act 1998 (instead of negligence)
b.	*Claims based on Article 6(1). “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Disputations –	Right of Access to a Court – right not ‘in play’ until it is arguable that domestic law protects the ‘civil right’ concerned
Right not absolute.	Restrictions are permitted, within a margin of appreciation, provided that they pursue legitimate aims and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. (Osman, para 147). Obvious examples of restrictions – limitation periods, costs rules.
Reviewing proportionality (in Osman)	“application of the rule [i.e the exclusionary rule from Hill] in this manner [i.e as providing a watertight defence to the police] without further enquiry into the existence of competing public interest considerations only serves to confer a blanket immunity on the police for their acts and omissions during the investigation and suppression of crime and amounts to an unjustifiable restriction on the applicant’s right to have a determination on the merits of his or her claim against the police in deserving cases.” (Osman, para. 151). “it must be open to a domestic court to have regard to the presence of other public interest considerations which pull in the opposite direction to the application of the rule. Failing this, there will be no distinction made between degrees of negligence or of harm suffered or any consideration of the justice of a particular case.” (para. 151) “The Court concludes that the application of the exclusionary rule in the instant case constituted a disproportionate restriction on the applicants’ right of access to a court.” (para. 154).
How is Z v. UK different? – no denial of access to court	“the Court is not persuaded that the House of Lords’ decision that as a matter of law there was no duty of care in the applicants’ case may be characterized as either an exclusionary rule or an immunity which deprived them of access to court. “ (Z, para. 96). “Nor is the Court persuaded by the suggestion that, irrespective of the position in domestic law, the decision disclosed an immunity in fact or practical effect due to its allegedly sweeping or blanket nature. That decision concerned only one aspect of the exercise of local authorities’ powers and duties and cannot be regarded as an arbitrary removal of the courts’ jurisdiction to determine a whole range of civil claims.” (para. 98).
Synthesis (?)	1. No arguable civil right = no role for Art 6(1). 2. Carefully argued judicial conclusion that no duty of care owed in the circumstances = not a denial of access to a court. 3. “removal of the courts’ jurisdiction to determine a whole range of civil claims” must be assessed for proportionality.
Role for 3.	Matthews v. Ministry of Defence [2002] (judgment 22/1/2002) Times 30/1/2002
A Problem?	Lord Browne-Wilkinson, Barrett, "In English law the decision as to whether it is fair, just and reasonable to impose liability in negligence on a particular class of would-be defendants depends on weighing in the balance the total detriment to the public interest in all cases from holding such class liable in negligence as against the total loss to all would-be plaintiffs if they are not to have a cause of action in respect of the loss they have individually suffered."
*2.*	The Influence of Osman	*2.*
a.	Procedural Shifts	a.
	Preserving strike out: Lord Woolf MR in Kent v. Griffiths [2001] 1 QB 36, para. 38 Summary Judgment: S v. Gloucestershire CC [2001] 2 WLR 909

b.	Policy Concerns - Reviewing weights and measures	b.
Justiciability Browne-Wilkinson's three stages	X v. Bedfordshire CC [1995] 2 AC 633 (Was the local authority under a private law duty to exercise child protection powers with reasonable care?) 3 stages (i) Must show that the public authority acted outside its discretion. (ii) Cannot satisfy (i) if the exercise of discretion involved consideration of policy factors (iii) Sufficient foreseeability & proximity conceded. Fair, just and reasonable to impose the duty?
Retreat from (ii) (and perhaps (i))	Barrett v. Enfield LBC [2001] 2 AC 550, Lord Hutton, “I consider that where a plaintiff claims damages for personal injuries which he alleges have been caused by decisions negligently taken in the exercise of a statutory discretion, and provided that the decisions do not involve issues of policy which the courts are ill-equipped to adjudicate upon, it is preferable for the courts to decide the validity of the plaintiff’s claim by applying directly the common law concept of negligence than by applying as a preliminary test the public law concept of Wednesbury unreasonableness to determine if the decision fell outside the ambit of the statutory discretion.” BUT… Lord Hutton, “the standard of care to be required of the defendant in this case in order to establish negligence at common law will have to be determined against the background that it is given discretions to exercise by statute in a sphere involving difficult decisions in relation to the welfare of children.” Benefits … clear that the issue is for trial. No misguided procedural exclusivity argument. No misguided argument that because not authorised must be careless. Downside … how to set the standard of care in discretion cases. Irrationality isn’t necessarily careless.
Overkill, Resources, Waste	Browne-Wilkinson’s six reasons why a duty was not fair, just & reasonable (i) interdisciplinary – problems untangling responsibilities (ii) delicacy (iii) defensiveness (iv) high emotions lead to wasteful litigation (v) Alternative remedies - statutory complaints procedures and local ombudsman. (vi) No analogous category - nearest police (Hill) and financial regulators (Yuen)
The weakness of the six reasons	(i) Contribution proceedings might be complex, but why does that mean the claimant loses? (ii) Isn’t this an issue concerning standard of care, rather than existence of a duty? (iii) Really? Wouldn’t social workers try their best to protect vulnerable children? (iv) Aren’t there other procedures for dealing with vexatious claims? (v) How many 5 year olds use the statutory complaints procedure? S. 26(6) Local Government Act 1974? (vi) Are Hill and Yuen really the nearest cases? Casualty? Ambulance?
Barrett – confining the six reasons	Lord Slynn, "Whilst not casting doubt on the validity of these factors in the context of the investigations … in those cases of child abuse and neglect of educational needs, it does not seem to me that they necessarily have the same force separately or cumulatively in the present case." Lord Hutton - Context less multidisciplinary, discretion less delicate after taken from parents, less risk of over-cautious approach [and "normally of little weight"], alternative remedies not as effective when injury suffered, closer comparable cases, e.g. schools.
Phelps	Phelps v. Hillingdon LBC [2000] 3 WLR 776, Clyde, 811, on multi-disciplinary issues, "that is a practical problem which cannot constitute a legal bar on a claim."
A greater problem?	Peter Cane, "Consequences in Judicial Reasoning", ch. 3 in OEJ (4^th), In the absence of empirical evidence psychological heuristics such as 'availability', 'representativeness' and 'anchoring / adjustment' are likely to be influential. P. 58, "an open acknowledgment of the impact of ignorance on the validity of consequence-based arguments is only the beginning of wisdom. It must be supplemented by criteria of good decision-making in conditions of uncertainty."
c.	Fragments of Categories	c.
	(a) Assumption of responsibility - BUT Capital & Counties [1997] 2 AER 865. Phelps v. Hillingdon LBC [2000] 3 WLR 776, Slynn at 791F, "The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law. û The Question is thus whether in the particular circumstances the necessary nexus has been shown." (b) Reliance (particular or general) - see Hoffmann in Stovin at 828f-830b. Invercargill CC v. Hamlin [1994] 3 N.Z.L.R. 513 (CA of NZ); [1996] 1 All E.R. 756 (P.C.) But NB Capital & Counties [1997] 2 All E.R. 865, Stuart-Smith L.J. at 876h, “the doctrine has received little if any support in English law.” (c) Public duty to exercise statutory power - but limits on tort of b of stat. duty (false d) Is the duty really positive? (e.g. duty triggered by reliance leading to abandonment of alternative options) (e?) How should Kent v. Griffiths [2001] 1 QB 36 be explained? (a, b or false d?)
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