8. Public Authorities Issues

Question 1

What is the issue?

Answer 1

Sometimes there are problems dealing with liability of public bodies because there are public law issues and private law issues.

In public law there are possibilities to take action against a public body if they have not acted, or have acted in a way that is inconsistent with their obligations.

However, just because something is considered wrong in public law, does not mean that it will be considered wrong in tort.

Question 2

Gorringe v Calderdale MBC clearly shows what?

Answer 2

That public laws don’t necessarily influence private law. They are two different jurisdictions in terms of law.

Question 3

McHugh J

Answer 3

“The negligent exercise of a statory power is not immune from liability simply because it was within the power, nor is it actionable in negligence simply because it is ultra vires.”

Question 4

The policy/operational dichotomy

Answer 4

Ann’s v Merton per Lord Wilberforce:

Statutes relating to public authorities/bodies contain large areas of policy. The courts call this ‘discretion’; the decision is for the body to make, not the courts.

Statutes also contain areas that prescribe execution of policy decisions, known as operational areas.

The more operational a power or duty is, the easier to impose on it a common law duty of care.

Question 5

FJR - justiciability

Answer 5

Barrett v Enfield LBC - the question is whether the issue is justiciable, or whether the court has no part to play. To do this we look at whether at authority has acted within its discretion or not.

Question 6

FJR - political decisions

Answer 6

Gleeson CJ: the government decision in the level of regulation imposed is not something the courts are willing to get involved in.

Question 7

FJR - resource pressures

Answer 7

Lord Nicholls: the court will have regard to financial resources of the defendant.