“Visited Godstone Farm. No sick or new animals recently. 18 hand washing units available on site and signage in main wash area and throughout premises. Photographs taken. No problems with water supply etc recently and all units supplied with warm water and bactericidal soap. Advice sent out to schools prior to visit and verbal advice given to visitors on site. No obvious issues.”
“Both the third parties were uniquely placed, by reason of their statutory powers and the regulatory framework for health protection in England and Wales, to be able to link reported cases of infection, to identify the source of that infection and its nature and to determine whether the extent of the infection was such as to indicate an outbreak that required specific measures of containment. The defendant was entirely reliant upon them to discover such information and entirely reliant upon their expertise in infection control as to what measures were required to avert any further spread of the infection. The defendant did in fact rely on them in this regard, knowing they were both working together at this time.”
“Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise that power. If in the exercise of their discretion they embark upon an execution of the power, the only duty they owe to any member of the public is not thereby to add to the damages that he would have suffered had they done nothing.”
“If… a [statutory] duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. It will often be foreseeable that loss will result if, for example, a benefit or service is not provided. If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care. In the case of a mere statutory power, there is the further point that the legislature has chosen to confer a discretion rather than create a duty. Of course there may be cases in which Parliament has chosen to confer a power because the subject matter did not permit a duty to be stated with sufficient precision. It may nevertheless have contemplated that in circumstances in which it would be irrational not to exercise the power, a person who suffered loss because it had not been exercised, or not properly exercised, would be entitled to compensation. I therefore do not say that a statutory 'may' can never give rise to a common law duty of care. I prefer to leave open the question of whether the Anns case was wrong to create any exception to Lord Romer's statement of principle in the East Suffolkcase and I shall go on to consider the circumstances (such as 'general reliance') in which it has been suggested that such a duty might arise. But the fact that Parliament has conferred a discretion must be some indication that the policy of the act conferring the power was not to create a right to compensation. The need to have regard to the policy of the statute therefore means that exceptions will be rare. In summary, therefore, I think that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power, so that there was in effect a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.”
“However, so far as section 39 of the 1988 Act is concerned, we would accept that there can be circumstances of an exceptional nature where a common law liability can arise. For that to happen, it would have to be shown that the default of the authority falls outside the ambit of discretion given to the authority by the section. This would happen if an authority acted wholly unreasonably.”
“I find it difficult to imagine a case in which a common law duty can be founded simply on the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide.”
“In my opinion, if a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would, in my opinion, exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. I would respectfully accept Lord Browne-Wilkinson's comment in X (Minors) v Bedfordshire County Council, at p. 739, that “the question whether there is such a common law duty and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done”
“As Lord Hoffmann pointed out on behalf of the majority in Stovin v Wise[1996] AC 923 , 952g–h, and as he has pointed out again in his speech today, if such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed.”
“Reforming the Law of Public Authority Negligence”,17 November 2009 : “The decision of the House of Lords [in Gorringe] slammed shut the door which had been left slightly ajar in Stovin v Wiseand said clearly that you cannot get a common law duty of care out of a statutory power or public law duty. Such powers or duties are simply irrelevant to whether a common law duty of care is owed. Such a duty is created, if at all, by what the public body has actually done: whether it assumed responsibilities or done acts which, if they had been done by a private body, would have given rise to a duty of care. In my view, the law on this point is now simple and clear…”
“I am not clear at present that the case against the HSE is confined to “omissions” alone. The pleading includes allegations of conduct whereby it is alleged that the HSE assumed responsibility by their actual involvement in the design or positioning of SN109, or the safety of the track outside Paddington generally; the allegation is also that the HSE permitted an unsafe signalling system, not simply that they did nothing.”
“My Lords, I must make it clear that this appeal is concerned only with an attempt to impose on a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negate the existence of a duty.”
“When therefore the appellants elected to exercise their powers, and do work on the respondents’ land, I think they assumed the duty of doing that work with as much expedition as was consistent with the exercise of reasonable skill, care, and diligence.”
“The defendants were acting not for the plaintiffs, but, it must be assumed, for the common good.”
“39. In Barrett v Enfield London Borough Council[2001] 2 AC 550 the plaintiff claimed that when he was taken into care, the council assumed parental responsibilities over him and so came under a duty of care in respect of the way he was treated. It was alleged that various acts and omissions had been in breach of this duty. The council tried to get the claim struck out as disclosing no cause of action because it had been exercising wide statutory discretions. The House refused to strike out the action. The plaintiff did not rely upon a common law duty of care generated by the existence of statutory powers. It is true that the council only assumed parental responsibility because of its statutory powers or duties, but the fact was that it did so. It was that which the plaintiff alleged gave rise to the duty. The statutory powers and duties might have provided the council with defences in respect of its specific acts or omissions but that could not be decided without an investigation of the facts. 40 Similarly in Phelps v Hillingdon Borough Council[2001] 2 AC 619 the local education authority employed an educational psychologist to examine the plaintiff and diagnose her learning difficulties. The psychologist negligently failed to diagnose dyslexia and, as a result, the plaintiff left school with fewer skills than she would have learned if she had been diagnosed earlier. The council relied upon the fact that it had provided the psychologist pursuant to its public law duties which were not actionable in private law. But the House held that the duty of care did not depend upon the statute. It arose because the psychologist had impliedly undertaken to exercise proper professional skill in diagnosis, in the same way as a doctor provided by the National Heath Service. The fact that the doctor-patient relationship was brought into being pursuant to public law duties was irrelevant except so far as the statute provided a defence. The House decided that no such defence had been established.”
“For example, in O'Rourke v Camden London Borough Council[1998] AC 188 a homeless person sued for damages on the ground that the council had failed in its statutory duty to provide him with accommodation. The action was struck out on the ground that the statute did not create a private law right of action. In a speech with which all other members of the House concurred, I said at p. 193: “The Housing Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done.”” “The Housing Act [1985] is a scheme of social welfare, intended to confer benefits at the public expense on grounds of public policy. Public money is spent on housing the homeless not merely for the private benefit of people who find themselves homeless but on grounds of general public interest: because, for example, proper housing means that people will be less likely to suffer illness, turn to crime or require the attention of other social services. The expenditure interacts with expenditure on other public services such as education, the National Health Service and even the police. It is not simply a private matter between the claimant and the housing authority. Accordingly, the fact that Parliament has provided for the expenditure of public money on benefits in kind such as housing the homeless does not necessarily mean that it intended cash payments to be made by way of damages to persons who, in breach of the housing authority's statutory duty, have unfortunately not received the benefits which they should have done.””
“have a general public law duty to make provision for efficient fire-fighting services: seesection 1 of the Fire Services Act 1947 .”
“Here what was being provided was a health service. In the case of health services under the 1977 Act the conventional situation is that there is a duty of care. Why should the position of the ambulance staff be different from that of doctors or nurses? In addition the arguments based on public policy are much weaker in the case of the ambulance service than they are in the case of the police or the fire service. The police and fire services' primary obligation is to the public at large. In protecting a particular victim of crime, the police are performing their more general role of maintaining public order and reducing crime. In the case of fire the fire service will normally be concerned not only to protect a particular property where a fire breaks out but also to prevent fire spreading. In the case of both services, there is therefore a concern to protect the public generally. The emergency services that can be summoned by a 999 call do, in the majority of situations, broadly carry out a similar function. But in reality they can be very different. The ambulance service is part of the health service. Its care function includes transporting patients to and from hospital when the use of an ambulance for this purpose is desirable. It is therefore appropriate to regard the LAS as providing services of the category provided by hospitals and not as providing services equivalent to those rendered by the police or the fire service. Situations could arise where there is a conflict between the interests of a particular individual and the public at large. But, in the case of the ambulance service in this particular case, the only member of the public who could be adversely affected was the claimant. It was the claimant alone for whom the ambulance had been called.”
“Mr Kent submitted that the judge was wrong to reject assumption of responsibility on the facts. I accept Mr Kent’s submission on this point. It seems to me that the judge thought that, before there could be an assumption of responsibility, something positive to that effect had to have been said or at least something done which clearly indicated such assumption. In my judgment, it is possible to infer an assumption of responsibility from circumstances, as the South African case, Silva’s Fishing Corp, shows. That case was quoted with approval by Lord Scott and Lord Hope. The other members of the House were in agreement with Lord Hope and did not dissent from the relevance of that case. In the present case, Judge Walton did not consider whether an assumption of responsibility might be inferred from the protocol or working arrangements. I have done so and my view is that it would be open to a trial judge (having considered the whole of the protocol and having heard evidence about how the working arrangements operated in practice), to conclude that the second and third defendants had assumed responsibility to do what was reasonable in the circumstances to reduce or avoid any foreseeable risk of harm to which an employee of a co-signatory was exposed in the course of their joint operations. Accordingly I think that the judge erred in that respect.”
“But the whole point of Mr Kent’s submissions was that this appellant was not one of the world at large; she was one of a small group of social workers, working in close proximity and cooperation with the second and third defendants’ own employees.”
“In these circumstances, as we see it, the question is whether this case falls within Lord Hoffmann's category of case in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care… Only in such a case would it be fair, just and reasonable to hold that a local authority such as the Council on facts such as these owe a duty of care to the respondents. This is not a case of control like Dorset Yacht. Nor is it a case where the defendant has created or increased the danger to the respondents. Moreover it is not a case of assumption of responsibility unless it can properly be held that there was a voluntary assumption of responsibility: see Rowley v Secretary of State for Work and Pensions[2007] EWCA Civ 598 , [2007 1 WLR 2861, especially per Dyson LJ at [51] to [54]. This is because, as the cases cited above show, a public authority will not be held to have assumed a common law duty merely by doing what the statute requires or what it has power to do under a statute, at any rate unless the duty arises out of the relationship created as a result, such as in Lord Hoffmann's example of the doctor patient relationship.”
“In those circumstances it seems to me impossible to avoid the conclusion that the duty which section 561(2) does impose—a duty to issue a tax certificate to an applicant in respect of whom the relevant conditions are satisfied—does not, of itself, give rise to a common law duty owed to the applicant to process the application with reasonable expedition. Powerful support for that conclusion is found in the passages in the Stovin[1996] AC 923 and Gorringe[2004] 1 WLR 1057 cases on which the judge relied.”
“Nevertheless, I take the view that the judge would have been wrong to hold that no common law duty of care was owed to the claimant company by the unidentified employee in the Furness office who chose to complete the declaration in support of an application for a registration card on the July CIS 3 form without the authority of Mr Martin or the claimant company. That, as it seems to me, goes beyond an administrative mistake made in the ordinary course of processing the application under section 561(2) . In completing the declaration in support of an application for a registration card the employee took it upon himself (or herself) to make an application on behalf of the claimant company: an application which the claimant company had chosen not to make, and which it had not made. The employee was not processing an application which had been made: he was assuming an authority to make an application which had not been made. I can see no reason why, in assuming that authority, the employee should not be taken to have assumed a responsibility to the applicant. In those circumstances it does seem to me fair just and reasonable that the common law should recognise that a duty of care exists.”
“In common, I think, with all your Lordships, I regard this issue as plainly one which the House should decide one way or the other on the pleaded facts. Either a duty of care arises on these facts or it does not. No useful purpose would be served by allowing the action to go to trial for facts to be found and then for further consideration to be given to the applicable law.”
“If it is clear, whether by statute or from previous authority, that the relationship between the parties is not or cannot be such as to give rise to a duty of care, then the court can safely strike out the statement of claim. If, however, that is not clear, or the answer may depend on the exact relationship of the parties and what passed between them and what each knew, did or said at any time, or the court is unable safely to decide whether (on the facts pleaded) it is just and reasonable to impose a duty of care, then the case is not one in which a striking out order can be appropriate.”