Duty of Care: Public Bodies

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Introduction

Public bodies are institutions which are emanations of the state

Public bodies are usually state funded i.e. local councils; educational authorities; emergency services; armed forces, etc.

It is the only negligence category where the type of defendant (NOT the claimant) taken into account as to whether recovery is appropriate

European Convention of Human Rights 1950

Article 2: the right to life

Article 3: freedom from torture, inhuman or degrading treatment

Article 6: the right to a fair trial

Article 8: the right to respect for private and family life, home and correspondence

the right to a remedy for breach of the convention rights

Human Rights Act 1998

The HRA introduced a new statutory remedy for people wishing to claim against public bodies for breaching the European Convention of Human Rights

  • s6(1) says "it is unlawful for a public authority to act in a way which is incompatible with a Convention Right"
  • Under s8(1) the court has the power to grant whatever remedy within its power it considers “just and appropriate”, including the award of damages where this is necessary to afford “just satisfaction” to the victim

Duty of care of the police

There are two categories with the police: one where they owe a duty of care and one where they do not → it is the category where they do not owe a duty of care where there are issues

Operational matters: with operational matters the police generally owe a duty of care. An operational matter includes every-day activites and concerns decisions about the way in which particular taska are undertaken and executed

Policy matters: with policy matters the police generally do not owe a duty of care. A policy matter involves decisions aobut resource allocation and the way in which the policy priorities their investigations.

  • If in doubt about whether it is an operational or policy matter, look at whether or not there is money or resources being diverted (if there is, then it is a policy matter0

See the cases of Rigby v Chief Constable of Northampton [1985], Reeves v Commissioner of Police of the Metropolis [2000], Swinney v Chief Constable of Northumbria Police [1997], and Michael v Chief constable of South Wales Police [2015]

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CONTENT

Policy reasons appear to preclude (i.e. prevent) the existence of a duty of care

See the case of Hill v Chief Constable of West Yorkshire [1989]

So Hill is one of those cases that really defines why the police cannot be sued (pretty much) under negligence

  • Because if it goes down that route they are always going to raise that what they are doing is a policy matter, so cannot be found to be negligent – it is difficult to get around that!

However, if you look at Article 6 of the ECHR (the right to a fair trial), can you really say there is a 'fair trial' when the police have, essentially, an immunity from legal action in cases of negligence?

  • This question has come up and is called the Article 6.1 controversy

The Article 6.1 Controversy

The case of Osman v Ferguson [1993] began the article 6.1 controversy i.e. this case is all about whether or not you are giving people a fair trial by simply striking out a claim if it concerns the negligence of the police

  • The European Court of Human Rights concluded that the police will only be negligent if they knew or ought to have known that the identified person's life was at an immediate risk and they failed to do anything about it

The case of Osman has been applied in the cases of Van Colle v Chief Constable of Hertfordshire [2008] and Smith v Chief Constable of Sussex [2008]

Local Authorities

In cases of local authority negligence, the claimant may (like in police negligence) be denied a remedy for poor performance of statutory functions by the given local authority in the case

However, like in the cases above of police negligence, the claimant may have a remedy, instead, for breach of their human rights

See the cases of X v Bedfordshire CC [1995] and Z v UK (2002)

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