Roderick Bagshaw Mansfield College Trinity 2002
	Tort Liability of Public Authorities^2002 – Lecture 2: Why Public Bodies Are (sometimes) Liable When Bill Gates isn't
Introductory catalogue of causes of action		X (Minors) v. Bedfordshire CC [1995] 2 AC 633, 730-1, Browne-Wilkinson, “Private law claims for damages can be classified into four different categories, viz: (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office.” NB category (B) doesn’t exist in English Law: X, p.732. [now? (E) State Liability in EC Law (F) Human Rights Act 1998]
A. Breach of Statutory Duty		i. Why can’t every breach of every statutory duty give rise to a claim for damages? Flood of claims (resources) – and not what Parl’t intended! ii. Where Parliament’s intention is obvious e.g. Highways Act 1980, ss. 41 & 58 (attempted extension by negligence, Stovin v Wise [1996] 3 All ER 801) iii. How to infer Parliament’s intention from statutory silence - Three Schools of Thought ¯		*A*
	Realist Parliament had no intention so there are no guiding principles to help discover it Ex parte Island Records [1978] Ch 122, Lord Denning MR, “The truth is that in many cases the legislature has left the point open. It has ignored the plea of Lord du Parcq in Cutler’s case (for the legislature to provide express guidance). So it has left the courts with a guesswork puzzle. The dividing line between the pro-cases and the contra-cases is so blurred and ill-defined that you might as well toss a coin to decide it.” *Problem with realists:- high risk of inconsistency and lack of predictability Presumption Parliament’s intention can be inferred by the sensitive use of presumptions *Problem with presumptions:- no settled list, ranking or weight of applicable presumptions; Limited role for policy Pragmatist Parliament’s intention is crucial, but general principles which will allow it to be discovered reliably do not exist. R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, Lord Jauncey, “it must always be a matter for consideration whether the legislature intended that private law rights of action should be conferred in respect of breaches of the relevant statutory provision.” “The fact that a particular provision was intended to protect certain individuals is not of itself sufficient to confer private law rights of action upon them, something more is required to show that the legislation intended such conferment.” *Difficulty with Jauncey?:- doesn’t mention what the “something more” is. 3B. Contemporary Pragmatism - X v Beds CC [1995] 2 AC 633, Browne-Wilkinson, “the question is one of statutory construction and therefore each case turns on the provisions in the relevant statute” … “A private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty.” [NB and] … “Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.” O’Rourke v Camden LBC [1997] 3 All ER 23, HL Phelps v. Hillingdon LBC [2000] 3 WLR 776, Lord Slynn at 789, "The general nature of the duties imposed on local authorities in the context of a national system of education and the remedies available by way of appeal and judicial review indicate that Parliament did not intend to create a statutory remedy by way of damages."
B. Negligent Breach of a Statutory Duty			Doesn’t exist as a cause of action in English Law	*B*
C. Negligence			Discussed next week (after D)	*C*
D. Misfeasance in Public Office		Three Rivers DC v. Governor and Company of the Bank of England (No. 3) [Part 1] [2000] 3 All ER 1, HL, Lord Steyn, “The rationale of the tort is that in a legal system based on the rule of law executive or administrative power ‘may be exercised only for the public good’ and not for ulterior and improper purposes.”		*D*
	(i) Where is the misfeasance tort useful? e.g. Policy concerns block negligence duties - Bennett v. Commr of Police [1995] 1 W.L.R. 488; Elguzouli-Daf v Commr of Police [1995] 1 All ER 833; Prisoners cannot use ‘false imprisonment’ - Racz v Home Office [1994] 2 AC 45; Pure economic loss and statutory immunity for negligence (Three Rivers); Unusual harms – eg denied vote, Ashby v White (1703) (ii) What counts as a public office? Henly v Mayor of Lyme (1828) 5 Bing 91, 107, Best CJ, “every one who is appointed to discharge a public duty, and receives a compensation in whatever shape, whether from the Crown or otherwise, is constituted a public officer.” (iii) Vicarious liability? Yes, if in ‘course of employment’ - Racz [1994] 2 AC 45 (iv) Abuse of any type of power? Jones v Swansea CC [1989] 3 All ER 162, Nourse LJ, “It is not the nature of the power which matters. Whatever its nature or origin, the power may be exercised only for the public good. It is the office on which everything depends." **Omissions – McBride and Bagshaw, Tort Law, p.406, for liability for an omission “[t]here must be (i) a breach of a legal duty to act, and (ii) a decision not to act.” No!! – Lord Hope, Three Rivers DC v. Bank of England (No. 3) [Part 2] [2001] 2 All ER 513 rejects both. (i) only supported by a minority in [Part 1]. (ii) [69] “I would reject the argument that proof of conscious decisions to act or not to act is required. … the tort extends to a deliberate or wilful failure to take those decisions.” NB seems Parliament does not have to have intended statutory duty (or power) to be actionable (v) What is the mental element? (all from Three Rivers(No 3) [Part 1] unless stated) Two forms of the tort? Lord Steyn: “two different forms” – “unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith.” a. The first form: Lord Steyn, “targeted malice by a public officer i.e. conduct specifically intended to injure a person or persons.” - But isn’t knowledge that it is not legitimate to act for that purpose also necessary? b. The second form: Lord Steyn, “taking a decision in the knowledge that it is an excess of the powers granted to him and it is likely to cause damage to an individual or individuals.” (1) state of mind towards unlawfulness - Lord Steyn, “The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act.” … “only reckless indifference in a subjective sense will be sufficient.” (2) state of mind towards damage – Steyn, “a plaintiff must establish not only that the defendant acted … in the knowledge that his act would probably injure the plaintiff or person of a class of which the plaintiff was a member. …Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is … sufficient in law.” (an error?) *(?)*"In both forms of the tort the [state of mind] required must be directed at the harm complained of, or at least to the type suffered by the plaintiffs." *(?)* c. Bad faith: [Part 2] Lord Hope, [42] “as the essence of the tort is an abuse of power, the act or omission must have been done or made with the required mental element … [F]or the same reason, the act or omission must have been done or made in bad faith.” (Lord Hutton, [121], also treated “bad faith” as a separate requirement). But Hope finds bad faith “demonstrated” by mental element, whilst Hutton requires a dishonest or disreputable motive. [NB The problem of ‘bad’ statutes]
Next week: Negligence – Osmania and other Influences Lecture Website: http://users.ox.ac.uk/~mans0322/pa2002.html