Admin Law Remedies Negligence In Public Office Notes

NEGLIGENCE IN PUBLIC OFFICE ESSENTIAL REQUIREMENTS Glencar v Mayo CC 2002'the elements of the tort of negligence are the existence of a duty of care, lack of proper care in performing that duty and consequential damage.' Duty of care? (i) (ii) (iii) Damage must be foreseeable Relationship of proximity between the parties Whether in all circumstances, it is just and reasonable that the law should impose a duty of care on D for Ps benefit ➢ The principle rationale for not having a separate cause of action for a breach of duty by a public official resulting in damage or loss to an individual, is to ensure that officials aren't so hesitant as to result in delay in decision making ➢ In McMahon and Binchy, the law of torts 4th ed (Dublin, 2013) 'if a duty of care were too easily imposed on public authorities towards all of those affected by their acts, choices and omissions, in some instances the authorities would be hamstrung, unable to discharge their functions with any confidence or creativity.' ➢ This is why courts are slow to impose liability. But as Clarke J says in Cromane Seafoods: - 'courts should be careful not to be overprotective of public authorities.' and makes the point that these concerns are caught by the third criterion (just and reasonable) ➢ Having this general breach with a comprehensive and clear test/ conditions would vest certainty rather than a vague doctrine which says the breach must be consistent with a tort. No clarity for officials or citizens who are subject to these breaches ➢ All of the elements of negligence are very arbitrary. The purpose of general immunity of public officers from damages is to ensure that they are not deterred from acting and to avoid delay etc. but the uncertain nature of negligence doesn't rid of this problem - officers still don't know how they will interpret the conduct, thus I think the argument that it might slow down administration is weak. ➢ Instead of hypothetically, public officers worrying about whether what they do will be interpreted objectively as a breach of duty (in general), they would be worrying about whether what they do constitutes as negligence. ➢ In any event, the torts of trespass and false imprisonment are strict liability - which is at the other end of the 'extra distracting burden.' Following the courts line of reasoning, a public official in those torts doesn't even have a defence possible of raising, never mind being distracted by whether or not liability might arise. These doctrines are all torts, but are in direct conflict with the reasoning of the court for imposing such a high burden of proof for negligence, misfeasance and breach of a statutory duty. Public officials surely would be way more distracted/ hindered when going about their important tasks and duties, by the prospect of strict liability than by the possibility of litigation where a defence is at the very least AVAILABLE? ➢ The effect of the current doctrine, the standard of which is almost impossible to reach - is that it is of horizontal application regardless of the nature of the breach or the consequences. It shields maladministration in which there is serious negligence as well as innocent carelessness. UK LAW COMMISSION. 'administrative redress, 2008 p.4'Negligence should open up where there was 'serious administrative fault.' Adopted by Lord Bingham in D v East Berkshire Community Health NHS Trust. Even if there are good policy reasons for limiting liability, limits where the fault Is grave. Proportionality in negligence/ test: (i) Seriousness of the breach - high level of negligence or innocent carelessness (ii) Discretionary power or clerical breach (iii) Seriousness of the consequences to the individual (iv) The extent to which the policy reasons can be accurately applied to justify refusing to impose a duty of care - do the policy justifications in the particular case outweigh providing the subject with a remedy? (kennedy, cromane - justifications don't hold up as well) THE DUTY OF CARE AND PUBLIC AUTHORITY DECISION-MAKING. • Negligence in this context is particularly concerned with the question: ➢ Is there a duty of care where a public decision maker acts ultra vires and, as a result, causes loss to an individual? 1. FORESEEABILITY: Orange v Chief Constable of West Yorkshire P was the family of a man who committed suicide in police custody. Tried to bring a claim in negligence against the police, but failed on the foreseeability frontThe police had no reason to believe that the man was a suicide riskRisk unforeseeable 2. PROXIMITY • Notion of proximity seems to involve direct contact between P and D Donoghue v Stevenson 1932Involving close and direct relations The crux is the identification of asignificant causal pathway which increases Ds responsibility to P Rationale is to reduce the range of possible plaintiffs. Sutherland Shire Council v Heyman 1985Proximity principle reduced the range of liability ➢ If the duty of care was based on foreseeability alone, liability would be indeterminate! This is inconsistent with principle of the rule of law - certainty and accessibility • Admin law unclear on this matter X (Minors) v Bedfordshire County Council 2016'group, identifiable at the time the statement is made, to which the actual plaintiff belongs.' Cromane Seafoods v Minister for Agriculture 2016Insufficient that the 'situation was within the knowledge or contemplation of the Minister.' SC Clarke:Where relationship involves statutory powers first point of analysis to see if there's a duty of care is the 'legislative matrix.'Must be shown that those powers expressly set up a duty of care or that such a duty of care arises by necessary implication. Proximity CLARKE: DISSENTING For proximity to exist there must be a:'relatively finite group'The people who might suffer from a failure on the part of the minister…were clearly defined and were 'to a very large extent, actually known to the ministers or officials in his department''clearly defined' Seems to support the formula in X Proximity is ambiguous Noted that the boundary of being 'reasonably in one's contemplation' (proximity) may be said to limit the duty of care but'just where that boundary might lie in practice can be hugely debateable.' Just and reasonable - ambiguous 'likewise, it is easy to say that there should be a limit on a duty of care by reference to the requirement that it be 'just and reasonable'…but where does it stop being just or reasonable in practice to impose the limit?'gradualist approach to defining the boundaries of the duty of care by the evolution of the existing circumstances in which' one 'has been found to exist' and by reference to its application by analogy to new circumstances.' ACTUAL DIRECT RELATIONSHIP BETWEEN THE PARTIES: Glencar Exploration v Mayo County Council 2002 Traced back to a decision of the council in 1993 to include a provision in a development plan which committed the council to refuse to grant permission for any mining activity in the entire county of Mayo. Ps were a mining co. engaged in gold exploration in Mayo and were the target of this mining ban. Brought JR which found the ban to be ultra vires because legislation provided that a development plan could only prescribe positive planning objectives and obviously the mining ban was a negative prohibition. Ps suffered damage and claimed that the UV decision amounted to negligence.No duty of care because no proximity. Why?Ps not 'engaged in any direct legal relationship with the respondent.' Direct legal relationship? Implication was that:Would've arose if the parties were applicant for planning permission and respondent as planning decision maker. 3. JUST AND REASONABLE • •Mechanism by which the courts can use policy concerns as bases for denying duty of care Most common basis for denial of COA in negligence (because it's the most arbitrary!) Both of these points illustrate a justification for why proximity should not be so strict and difficult to prove. Factors: 1. Whether liability would encourage a public authority to act in an overly precautionary manner in cases where it is important that it be able to act rapidly 2. The availability of alternative remedies 3. The fact that the p is outside the constituency for whose welfare the legislation was enacted. 4. Whether imposing liability would involve diversion of resources. 5. the fact that there's been an assumption of responsibility.

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