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Flashcards in Tort Law - Public Authorities Deck (215):
1

What case Allowed action against local G, utilities, regulators and emergency services?

Mersey Docks and Harbour Board Trustees v Gibbs 1866

2

W v Home Office general

Liberian asylum-seeker

3

What sections of HRA require 'just satisfaction' compensation for breach of s.6

S.7 and s.8

4

No action as defensive/divergent resources points outweighed individualised justice

W v Home Office

5

Father, daughter, 10 days

MAK v UK

6

What does the Caparo story show

Removal of barriers to DoC, but factors likely still relevant to determine breach

7

X v Bedfordshire on vires

Lord B-W criticised Diplock's reliance on ultra vires

8

What judge in what case criticised Ziplock's reliance on UV test?

Lord B-W in X

9

If irrationality isn't a substitute for ordinary negligence, how is it relevant?

May only apply for significant strategic discretion, otherwise same test as for negligence.

10

What is the sixth case in the Caparo story?

MAK v UK

11

What judge and in what case said existence of discretion is insufficient to preclude DoC

Lord Slynn in Barrett v London Borough of Enfield

12

What case starts the story on justiciability?

Dorset Yacht - Diplock's UV test

13

Where does the story for Caparo start?

X

14

What is an example of a policy decision?

Budgetary priorities

15

What case used AR to create DoC outside of PEL

Phelps v Hillingdon LBC

16

Shrubs not trimmed

Yetkin v Mahmood

17

Name at least two cases which cover when it is not FJR to impose a duty?

W v Home Office, Jain v Trent Strategic Authority, Hill v Chief Constable of West Yorkshire and Desmond v Chief Constable of Nottinghamshire Policy

18

Caparo v Dickman for public authorities

Apply first two stages, but change third according to composition of body

19

What judge in Anns v Merton LBC said statutory scheme did not preclude DoC

Lord Wilberforce

20

W v Home Office judgment

No action as defensive/divergent resources points outweighed individualised justice

21

S.7 and s.8 HRA

'Just satisfaction' compensation for breach of s.6

22

Gorringe v Calderdale general

SLOW

23

Romeo v Conservative Commission

Australian judge found distinction unconvincing - private individuals don't escape liability by arguing they should determine resource allocation

24

Who said there is a lack of empirical evidence to support Law Com reform suggestions?

Morgan

25

Phelps v Hillingdon LBC

Confirmed Barrett's test of justiciability

26

Former partner, wrongly classified

Michael v Chief Constable of South Wales

27

Until when did public authorities have immunity from liability?

1947

28

What did X say on if there is overlap in policy/operational category?

Look to proportions to decide DoC

29

Why did Law Com Reform proposals fail?

Costings concerns and increase governmental liability

30

What in particular did Law Commission find unsustainable?

FJR

31

Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on

Desmond v Chief Constable of Nottinghamshire Police

32

Swinney v Chief Constable

Exception to Smith v Chief Constable for informant in potential danger (although no DoC on facts of fact)

33

Exception to Smith v Chief Constable for informant in potential danger

Swinney v Chief Constable

34

What was the standing of public authorities and liability prior to 1947?

Complete immunity as 'the king can do no wrong'

35

Name the five tests of liability

Vires, discretion, irrationality, justiciability and policy/operational distinction

36

How many reasons were there for why no DoC in X?

Five

37

Barrett v Enfield LBC general

Adoption, psychiatric depressive illness

38

What was the minority position on justiciability in Smith v MoD?

worried about need to look at how MoD allocate their budget, assessing G decisions on how much to allocate etc

39

L&O on Bailey and Bowman on policy/operational distinction

Clearer to keep FJR separate, abandoning UV would let court focus on discretion for duty and justiciability at breach and justiciability would be desirable in duty stage to challenge existence and avoid full trial

40

Who expressed doubt about irrationality point of Hoffmann in Stovin v Wise, and in what case?

Steyn in Gorringe v Calderdale

41

What is an example of how factors removed as barriers to DoC could still be relevant?

Relevant for breach - delicate matter so someone else might have done the same

42

What Act removed immunity of public authorities completely?

Crown Proceedings Act 1947 section 2

43

Michael v Chief Constable of South Wales general

Former partner, wrongly classified

44

What judge in D v East Berkshire advocated tort developing in harmony with Convention?

Lord Bingham

45

Phelps v Hillingdon LBC judgment

Educational psychologist owed DoC as knew advice would be followed - relied on AR

46

What was the majority position on justiciability in Smith v MoD?

Unconcerned

47

What judge in what case doubted Lord Wilberforce in Anns v Merton LBC?

Lord Hoffmann in Stovin v Wise

48

External mechanism of redress

Public enquiries

49

HoL judgment in D v East Berkshire

Duty cannot be inconsistent with single-minded pursuit of statutory purpose

50

When is Caparo applied?

When C complains of practical manner in which act was performed, NOT in taking of discretion to do an act

51

Adoption, psychiatric depressive illness

Barrett v Enfield LBC

52

Third case in Caparo story?

W v Essex CC

53

How can one see influence of EU law on Law Com reforms?

Requirement of 'serious fault', like 'sufficiently serious' test

54

Cornford on Law Com reforms

Lack of clarity and coherence in key concepts, and objected to state excluding liability for 'mere' negligence

55

Van Colle v Chief Constable of Hertfordshire judgment

HoL affirmed possibility of positive obligation on police to protect Art.2 when there is a 'real and immediate risk' (Osman v UK)

56

Position of Lord Bingham in D v East Berkshire

Minority

57

TP v UK judgment

Violation of Article 8 NOT through taking child, but behaviour after

58

How did the Law Commission suggest reform of public bodies area?

Think of redress in terms of three mechanisms - internal, external and remedies by ombusman, so that redress by tort goes alongside these other mechanisms

59

Despite Hoffmann's antipathy to policy/operational distinction, how did he treat it as relevant?

Said budgetary questions fell within unreviewable discretion

60

W v Essex CC general

Sexually abusive foster child

61

Anns v Merton LBC general

Soundness of foundations

62

Stovin v Wise on Caparo

When considering FJR, always have regard to statuary scheme and remedies therein, as well as statutory limitations and exclusions

63

What are the two separate claims that can exist side-by-side in actions against public authorities?

One at common law and one under ECHR

64

Hill v Chief Constable of West Yorkshire judgment

police immunity in investigations, but not for routine activities.

65

Lord Bingham in D v East Berkshire

Advocated tort developing in harmony with Convention

66

Why did Lord Hoffmann find policy/operational distinction inadequate?

Often elusive and even if clear it doesn't necessarily mean there should be a DoC - needs to be 'in effect a public law duty to act', so that it is irrational to do anything BUT implement decision

67

Who applauded tone in Phelps for moving away from blanket immunity?

Fairgrieve

68

Restrictive approach to superimposing common law duties on a statutory framework

Stovin v Wise

69

Mersey Docks and Harbour Board Trustees v Gibbs

Allowed action against local G, utilities, regulators and emergency services

70

Fifth case in Caparo story?

D v East Berkshire Community Health NHS Trust

71

Who first articulated the policy/operational sphere distinction and in what case?

Lord Wilberforce in Anns v Merton LBC

72

X on careless performance of statutory duty

Does not in itself give rise to a cause of action

73

Why are the judgments of Z v UK and TP v UK important?

Not binding, but s.2 HRA makes courts regard to ECHR judgments when Convention right is involved

74

What judge and in what case relied on vires test of liability?

Lord Diplock in Dorset Yacht

75

Bailey on reform of public authority area

Ex gratia schemes are more satisfactory than expanding tort law, as lower costs and broader in scope

76

Smith v Chief Constable of Sussex Police on assumption of responsibility

No DoC of police to intervene to protect public at risk of criminal injury, even if threat is specific and imminent

77

Gorringe on creation of source of danger

Not in case but maybe on other facts, e.g. inducing careful motorist into path of danger

78

West v Buckinghamshire CC judgment

Policy/operational distinction used to find no DoC arose

79

Enough evidence of real and immediate risk for Art.2 - court unanimously agreed on pursuit of Art.2 claim

Michael v Chief Constable of South Wales

80

What is the conferral of benefits test suggested by Law Com?

Did statute intend to confer X benefit on C?

81

Soundness of foundations

Anns v Merton LBC

82

East Suffolk Rivers Catchment Board v Kent general

Sea wall HoL

83

Stovin v Wise on statutory duty, judgment approach

Restrictive approach to superimposing common law duties on a statutory framework

84

What did Anns v Merton LBC predate?

predated generalised liability for negligent conduct, accepted some years after conception in Donoghue

85

Costello v Chief Constable of Northumbria Police general

Officer attacked, other nearby to help

86

How did Lord Keith use the operational/policy distinction in Rowling v Takaro?

It filters out non-justiciable cases, and 'suitability for judicial resolution' is what underlies distinction

87

When considering FJR, always have regard to statuary scheme and remedies therein, as well as statutory limitations and exclusions

Stovin v Wise

88

Who called it a 'troubling comment on the functioning of SP' that G rejected Law Com Reforms?

Sedley LJ

89

CoA judgment in D v East Berkshire

X now wrong - s.6 HRA tips balance so that defensive/diversion of resources arguments no longer work as already liable under HRA

90

Sedley LJ on Law Com Reform rejection

'troubling comment on the functioning of SP' that G rejected Law Com Reforms

91

What did L&O argue in response to Morgan on Law Com reforms?

Argued empirical evidence surveys are few in number and generally inconclusive

92

What case showed DoC arise from AR, but no general duty as police officer?

Costello v Chief Constable of Northumbria Police

93

Crown Proceedings Act 1947 section 2

Removed immunity of public authorities completely

94

Anns v Merton LBC judgment

Statutory scheme did not preclude DoC, predated generalised liability for negligent conduct, accepted some years after conception in Donoghue

95

Informer v Chief Constable judgment

DoC owed, but AR limited to physical safety and wellbeing, not financial loss

96

What two cases cover creation of a source of danger giving AR?

Gorringe and Yetkin v Mahmood

97

Stovin v Wise general

Large pile of earth

98

Where is Wednesbury unreasonableness from?

Associated Provincial Picture Houses v Wednesbury Corp

99

X to ECHR

Z v UK

100

What test did Lord Reid rely on in Dorset Yacht?

Discretion test

101

Who doubted the utility of UV in public law?

Craig

102

Yetkin v Mahmood general

Shrubs not trimmed, central reservation

103

Who believes operational/policy distinction is underlined by suitability for judicial resolution?

Lord Keith; Rowling v Takaro Properties

104

Who found irrationality in Stovin v Wise by failing to implement decision to act?

Lord Nicholls (dissenting)

105

Successful claims for omission to carry out statutory responsibilities with affirmative duties if private individual would also have been liable

Welton v North Cornwall DC

106

Yetkin v Mahmood on creation of source of danger

CoA distinguished Gorringe as council ITSELF responsible for creating hazard

107

TP v UK general

Newham to ECHR

108

Old people home, neglect

Jain v Trent Strategic Authority

109

X v Bedfordshire CC on UV

HoL rejected Diplock's UV test

110

Gorringe v Calderdale judgment on statutory framework imposing affirmative duties

No DoC - C's fault

111

What year was Mersey Docks and Harbour Board Trustees v Gibbs?

1966

112

what is the political strand to justiciability?

Weighing up competing and incommensurate social interests

113

No DoC of police to intervene to protect public at risk of criminal injury, even if threat is specific and imminent

Smith v Chief Constable of Sussex Police

114

What are three considerations for why public bodies should only be subjected to a narrower kind of liability?

Activities are for benefit of society as a whole; payment of damage claims needs to come from tax payer; separation of powers as public bodies are created by statue and thus court should be reluctant to interfere

115

'Real and immediate risk' puts positive obligation on police to protect Art.2

Osman v UK

116

W v Essex CC judgment

Declined strike out claim against authority on child-welfare responsibilities

117

Newham to ECHR

TP v UK

118

What judge in D v East Berkshire said carelessness/damage does not necessarily mean duty, and no piggybacking?

Lord Rodger

119

What two judges in Gorringe v Calderdale struggled to think of a case where DoC can be found upon failure to provide a benefit there is a power to give?

Scott and Hoffmann

120

Who (generally) found policy/operational distinction unconvincing, in what case and what jurisdiction

Romeo v Conservative Commission Australian judge

121

What two more actions can be added to list given by Lord B-W in X?

'Euro tort' by breaching EU law and violation of s.6 HRA

122

West v Buckinghamshire CC general

Hazard, not double white

123

What judge in Dorset Yacht relied on discretion test for liability?

Lord Reid

124

Lord Reid in Dorset Yacht on test of liability

Errors in exercise of discretion conferred by P not intended to be actionable unless abusive, so it is no real exercise of discretion conferred at all

125

Michael v Chief Constable of South Wales judgment

Enough evidence of real and immediate risk for Art.2 - court unanimously agreed on pursuit of Art.2 claim

126

Hoffmann and Scott in Gorringe

Struggled to think of a case where DoC can be found upon failure to provide a benefit there is a power to give

127

Gorringe v Calderdale judgment

Steyn expressed doubt about irrationality point of Hoffmann in Stovin v Wise - Hoffmann said may have been a mistake to speculate. No DoC rose automatically from failing to exercise power

128

What does the judgment of Barrett v Enfield SUGGEST about court attitude?

Courts less ready to strike out claims after Osman v UK

129

Morgan on Law Com reforms

Lack of empirical evidence

130

M v Newham general

Mother's boyfriend, cousin

131

Lord Wilberforce in Anns v Merton LBC

Policy is about discretion for body to make and operational about prescription of practical execution of policy decisions

132

Fourth case in Caparo story?

Phelps v Hillingdon LBC

133

What are the three strands to justiciability?

Pragmatic, political and constitutional

134

DoC owed, but AR limited to physical safety and wellbeing, not financial loss

Informer v Chief Constable

135

Welton v North Cornwall DC

Successful claims for omission to carry out statutory responsibilities with affirmative duties if private individual would also have been liable

136

LJ Laws in Connor v Surrey CC

Gave three strands to justiciability

137

Rowling v Takaro Properties

Lord Keith adopted Wilberforce's policy/operational distinction to express justiciability

138

Second case in Caparo story?

Barrett v Enfield LBC

139

Five reasons for why no DoC in X

Delicate, might make authority over-cautious, would cause diversion of resources, multi-agency decision point and should only develop law incrementally/by analogy

140

Why did Lord B-W treat discretion separately in X, maybe?

To show separation of powers is relevant both at duty and breach stage

141

What does the case of Gorringe show in terms of policy issues?

Judicial fight-back against compensation culture

142

What arguments did judges in Phelps find weak?

Multi-agency decision point - all contributor should be liable - and floodgates

143

Lord Rodger in D v East Berkshire

Carlessness/damage does not necessarily mean duty and you cannot piggyback on a claim for DoC of someone else - e.g. parents saying owed a DoC as wanted assessment of child to be accurate

144

Internal mechanism of redress

Complaints procedure

145

Jain v Trent Strategic Authority general

Old people home

146

Article 3 ECHR

Positive obligation not to let children be subjected to degrading/inhumane/tortuous treatment

147

Smith v MoD general

Lack of protection, friendly fire

148

What different approach did Law Commission suggest for public bodies?

'Truly public activities' different approach, which more stringent justiciability test and replace DoC test with conferral of benefits test

149

What claim did the HoL cover in D v East Berkshire?

Parent claim

150

How could a DoC arise from failure to exercise statutory power, according to Stovin v Wise?

C would need to show D was irrational in omission, breaching public law obligations

151

What is the constitutional strand to justiciability?

Immunity for decisions on exercise of conferred powers by P/G

152

Who gave three strands to justiciability?

LJ Laws in Connor v Surrey CC

153

What is the pragmatic strand to justiciability?

Judge is only LEGALLy expert, not GENERALLY an expert, so insufficient knowledge

154

Barrett v Enfield LBC on justiciability test

Rejected discretion threshold from X and altered policy/operational test such that courts consider competing policy interests and if P intended to allow court to substitute their view

155

Barrett v Enfield LBC judgment

HoL distinguished from Newham as not delicate, no multi-agency process and little risk of defensive reaction

156

Rigby v Chief Constable of Northamptonshire judgment

Used distinction to rule out duty, rather than waiting for breach - no duty to use flammable, but maybe operational negligence if without fire equipment

157

Rigby v Chief Constable of Northamptonshire general

Flammable CS

158

What did Lord Hoffmann refuse to say in Stovin v Wise?

Statutory 'may' can never lead to DoC

159

Home Office v Dorset Yacht on justiciability

Not justiciable to determine G's negligence in setting up such 'holidays' as involved G balancing various social interests

160

MAK v UK general

Father, daughter, 10 days

161

Who rejected the need for blanket immunity and highlighted artificiality of policy/operational distinction in Stovin v Wise?

Lord Nicholls (dissenting)

162

Sexually abusive foster child

W v Essex CC

163

Dyslexia, not properly assessed

Phelps v Hillingdon LBC

164

Who said G rejection of Law Com reforms show G's control over P can frustrate any reform 'however wise or necessary'?

Sedley LJ

165

Osman v UK

'Real and immediate risk'

166

What case first diverted from public authorities having complete immunity, and what year?

Mersey Docks and Harbour Board Trustees v Gibbs 1866

167

Stovin v Wise judgment

Existence of statutory power doesn't equal a DoC in negligence

168

Who found the policy/operational distinction inadequate and in what case?

Lord Hoffmann in Stovin v Wise

169

East Suffolk Rivers Catchment Board v Kent judgment

Statutory authority with mere power does not equal action for damage caused by failure to exercise

170

Costello v Chief Constable of Northumbria Police judgment

Arose from AR, no general duty as police officer

171

What case is the middle point of story on justiciability?

X - discretion and policy/operational

172

Flammable CS

Rigby v Chief Constable of Northamptonshire

173

What does the case of MAK v UK show?

Broader scope of claims under HRA than conventional tort law

174

What did Law Com suggest DoC test should be replaced with

Conferral of benefits test

175

Scott in Gorringe

If statute doesn't give private right to sue, no DoC that wouldn't have been there without statute

176

Jain v Trent Strategic Authority judgment

No DoC - focus on reinforcing existing statutory schemes, bringing in single-minded protection idea

177

Phelps v Hillingdon LBC general

Dyslexia, not properly assessed

178

How did the minority argue in Stovin v Wise (Lord Nicholls)?

Irrationality by failing to implement decision to act

179

Who dissented in Stovin v Wise?

Lord Nicholls

180

Is irrationality a substitute for ordinary negligence test?

NO

181

What did Law Commission find about majority of claims against public authorities?

Dealt with by three mechanisms given - internal, external and ombudsman

182

How did the court in W v Essex view X?

Self-evidently distinguishable so didn't bother

183

Desmond v Chief Constable of Nottinghamshire Police general

Sexual offence, Criminal Records Bureau

184

X (Minors) v Bedfordshire CC on justiciability test

Two factors - within discretion and policy/operational matter

185

D v East Berkshire Community Health NHS Trust general

Erroneous abuse conclusions

186

Hill v Chief Constable of West Yorkshire general

Sutclifee

187

Z v UK general

X to ECHR

188

What did Law Com suggest before liability of public body?

'Serious fault' on part of D, more stringent than ordinary taking reasonable care test

189

Who named three causes of action which could be relied upon against a public body at the time, and in what case?

Lord Browne-Wilkinson in X (Minors) v Bedfordshire CC

190

Z v UK judgment

Violation of Article 3

191

What case led to ECHR declaring misunderstanding in Osman?

Hill v Chief Constable of West Yorkshire

192

Desmond v Chief Constable of Nottinghamshire Police judgment

Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on

193

How did Hoffmann think C could show DoC from failure to exercise statutory power in Stovin v Wise?

C would need to show D was irrational in omission, breaching public law obligations

194

What judge in Rowling v Takaro used Wilberforce's policy/operational distinction to express justiciability?

Lord Keith

195

how did Law Com suggest 'truly public activities' be treated differently?

More stringent justiciability test

196

Who was in the minority in Smith v MoD?

Lord Mance

197

Who said Ex gratia schemes are more satisfactory than expanding tort law, as lower costs and broader in scope

Bailey

198

Who argued it would be desirable to test justiciability at duty stage to avoid a full trial?

L&O

199

Barrett v London Borough of Enfield

Lord Slynn found existence of discretion is insufficient to preclude DoC

200

Fairgrieve on Phelps

Applauded change in judicial tone away from blanket immunity

201

L&O on Diplock's test of vires

Goes too far by not considering FJR and doesn't necessarily mean harm is actionable as no finding of fault

202

What judge in Gorringe said if statute doesn't give private right to sue, no DoC that wouldn't have been there without statute?

Scott

203

Smith v MoD judgment

Majority unconcerned with justiciability but minority were worried about need to look at how MoD allocate their budget, assessing G decisions on how much to allocate etc

204

Who said lack of clarity and coherence in key concepts of Law Com Reforms, and objected to state excluding liability for 'mere' negligence

Cornford

205

Craig on UV

Doubts its utility in public law

206

What three causes of action could be relied upon against a public body, according to Lord B-W in X?

Common law negligence, breach of statutory duty and misfeasance in public office

207

Who argued policy/operational distinction adds nothing to law of negligence and causes 'unnecessary confusion'?

Bailey and Bowman

208

What case ends story on justiciability?

Barrett v Enfield LBC - reject discretion and altered policy/operational test to focus on P intent

209

Where did Lord B-W apply irrationality in X?

At second stage - when looking at discretion

210

Why might discretion be relevant at breach stage?

Partly-justiciable case, but reluctant due to nature of decision

211

MAK v UK judgment

Consistent with TP v UK - broader scope of claims under HRA than conventional tort law

212

Look to purpose of system to see if DoC would frustrate public body in deciding what info to pass on

Desmond v Chief Constable of Nottinghamshire Police

213

The more operational something is, according to Lord Wilberforce in Anns v Merton LBC, the more likely or unlikely a DoC?

Likely

214

HoL affirmed possibility of positive obligation on police to protect Art.2 when there is a 'real and immediate risk'

Van Colle v Chief Constable of Hertfordshire

215

Van Colle v Chief Constable of Hertfordshire general

Prosecution witness, telephone threats

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