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 The framework for
actions (pre-Human Rights Act 1998) was laid down by the House of Lords. Stovin
v Wise [1996] 3 All ER 801 A bank of earth on British Rail property made it
difficult for drivers turning right at a junction to see traffic approaching. A
number of accidents had occurred at this spot previously. W drove her car into
S’s motor cycle. W’s insurer paid off S and sought a contribution from the
highway authority which had failed to implement its earlier decision to remove
the mound of earth, which it had the power to do. The allegation of negligence
was therefore of pure omission. The highway authority argued that it had no
duty of affirmative action and therefore the relationship between it and the
plaintiff was insufficiently proximate. A majority of the House of Lords found
that the highway authority was not liable. Discussion of the very complex
principles involved will occur here in two stages. The framework for actions
will be set out and the law discussed primarily in the context of the emergency
services cases. These have already been discussed from a different aspect.  What will be described as the ‘education
cases’ will follow.
 1 There was no liability on
a public authority for a pure omission. (Lord Hoffmann.) The mere fact that a
claimant’s harm was foreseeable did not create a duty of care.
 2 Where a
statutory power was conferred, the fact that the public authority was acting under
a statutory power did not generate an analogous duty to act, as an order of
mandamus could only force a public authority to consider the exercise of a
statutory power. It could not force it to act. Even if the alleged negligent
conduct related to a statutory duty (as opposed to a power), a private right to
sue for breach of that duty did not automatically arise. That was dependent on
the intention of Parliament. As Parliament had only seen fit to impose a power,
this made it even more unlikely that they intended a common law duty to be
recognised. This reasoning of Lord Hoffmann in Stovin would appear to be at
odds with the reasoning of the House of Lords in X v Bedfordshire County
Council [1995] 3 All ER 353, which allowed actions in some of the education
cases. The cases can probably only be reconciled by saying that Lord Hoffmann’s
reasoning for the majority represents a determination to deny a duty of care
where the allegation relates to a pure omission by way of failure to exercise a
statutory power. However, some indication as to Lord Hoffmann’s thinking was
given in a later case:
v Calderdale Metropolitan Borough Council [2004] 2 All ER 326
The claimant suffered severe injury driving a car when
she braked and skidded into a bus just before the crest of a hill. The bus
driver was not at fault and the claimant brought proceedings against the local
authority alleging that their failure to place signs on the road warning
motorists that they were approaching a dangerous part of the road was a breach
of duty. In terms of the common law duty she alleged that the Road Traffic Act
1988, which imposed a duty on every local authority to prepare and carry out a
programme of measures designed to promote and improve road safety, created a
common law duty to users of the highway, in parallel with the statutory duty in
the Highways Act 1980 s 41 to maintain the highway, to take reasonable steps to
promote and improve road safety. This argument was rejected by the House of
Lords, who held that a broad public duty did not generate a common law duty of
care and thus a private law right of action. Lord Hoffmann: My Lords, I must
make it clear that this appeal is concerned only with an attempt to impose upon
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 negative the existence of a duty. This statement
makes it clear that the courts will not be willing to create a common law duty
where none existed before on the basis of a broad statutory power or duty. They
will, however, find a duty where a local authority has acted pursuant to a
statutory duty or power and the requirements of common law duty of care are
satisfied. This would explain the difference between the ‘road safety’ cases
and the ‘education’ cases. A further example of such reluctance came in Rowley
v Secretary of State for the Department of Work and Pensions [2007] 1 WLR 2861,
where the claimant alleged that the Child Support Agency had caused her
economic loss and psychiatric damage as a result of negligence in their
handling of her claim for child support against her children’s father. The
Court of Appeal struck out her claim as there was no action for breach of
statutory duty and no grounds for finding a common law duty of care. The scheme
laid down by Parliament provided for judicial review and compensation for most
cases where there was loss as a result of mismanagement of claims. There was no
assumption of responsibility by the minister to the claimant and on the three
stage test the claim failed as it would not be fair just and reasonable to
impose a duty in these circumstances.
 1 Exceptions to the general principle
(a)     Relationship with the third party
causing harm
 Where the claimant suffers harm as a result of
the actions of a third party over whom he alleges the defendant has carelessly
failed to exercise control, proximity of relationship can be established by
reference to the nature of the relationship between the defendant and the third
party. For example, Home Office v Dorset Yacht Co [1970] 2 All ER 294, where
the defendant had responsibility to control the third party. In practice, it is
difficult for the facts of a case to provide the sort of relationship between
defendant and third party that will override the omissions difficulty and
create a sufficiently proximate relationship between defendant and claimant.
Undertaking and reliance
 Where a public
authority undertakes to act in a particular way and the claimant relied on that
undertaking. In Stovin, Lord Hoffmann laid down two conditions. First, that it
had to have been so irrational for the public authority not to have exercised
the power that there would be a duty to act under public law principles.
(Wednesbury unreasonableness – see Associated Prouncial Picture Houses Ltd v
Wednesbury Corporation [1948] 1 KB 223.) Second, that there were 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. Such
exceptional grounds would have to be found in either a reasonably held general
reliance by the community as a whole that the discretionary service in question
would be provided to all of them (general reliance) or in a similarly reasonably
held particular reliance on the part of an individual that the service would be
provided for him (specific reliance). Clearly this, as Lord Hoffmann intended,
would be difficult to establish. In terms of general reliance he held that the
defendant’s failure to act could not be described as irrational given the many
other demands on its time and resources. Even if it could be deemed irrational,
the second test could not be established either at a community or individual
level, as the community itself, through the standard of its driving, was
primarily responsible for road safety. 
2 Specific
reliance and the emergency services
Actions brought against a non-local public authority are
likely to fall between undertaking and reliance. Actions against the police for
failing to prevent the commission of a crime, the fire brigade for failing to
attend a fire and the coastguard are likely to fail. However, an action against
the ambulance service, once an emergency phone call has been made and details
given, may give rise to a duty. (Kent v Griffiths [2000] 2 WLR 1158.) This is
because the ambulance service, as part of the health service, is similar to the
service provided by hospitals to individual patients, whereas the police and
fire brigades serve to protect the general public.
3 General
reliance and the emergency services
The approach of the courts is that even if the public
count generally on the police to investigate crime and apprehend criminals and
the fire brigade to respond to emergency calls, it does not follow that it is
reasonable for the public to rely on scarce resources being committed in each
and every case. It has therefore been held that the police (Alexandrou v Oxford
[1993] 4 All ER 328), the fire brigade (Capital & Counties v Hampshire
County Council [1997] 2 All ER 865) and coastguard (Skinner v Secretary of
State for Transport (1995) Times, 3 January) owe no duty in failing to respond
to an emergency call. The public apparently rely on fire insurance more than the
fire brigade! It is arguable that the Human Rights Act 1998 may provide for
positive obligations which the common law has been reluctant to provide.
Actions against public authorities that fail for want of a relevant affirmative
obligation might succeed because of a relevant Convention obligation, such as
safeguarding personal integrity, protecting property or the right to life.
Carelessness in the exercise of statutory powers – proximity This differs from
what has gone before, as what the claimant is challenging is not the decision
as to whether or not to exercise the statutory power, but the way in which that
power has been carried out once the decision has been made to exercise it. The
distinction has been expressed in a number of ways such as ‘policy/operational’
and ‘decision making/implementation’.
In this category, it is not possible for the court to
classify the alleged carelessness as a pure omission but it will still take
into account the fact that the public authority was not obliged to do anything
in the first place. In this sense omissions considerations still influence the
court’s decision. This can be done through the proximity doctrine. In the same
way that a voluntary rescuer can only be held liable for any additional risks
they create, the court will use the ‘fresh damage’ principle to limit a public
authority’s liability for its ‘voluntary conduct’. They will only be liable if
they have made the claimant’s situation worse. 1 Proximity and the fire brigade
Capital and Counties plc v Hampshire County Council [1997] 2 All ER 865 In each
of the three cases property damage to the plaintiff’s property was found to be
reasonably foreseeable as a result of the defendant’s negligence. Two of the
cases failed on proximity. In one (John Monroe) the allegation was that the
fire brigade had failed to spot smouldering debris; in the second (Church of
Jesus Christ of Latter Day Saints) it was that it had failed to maintain its
hydrants. As the fire brigade is not obliged to answer an emergency call, if they
do choose to answer it the same lack of proximity would bar the action. No duty
is assumed to fight a fire with reasonable skill and care. In the third case
(Capital & Counties) the allegation was that the fire brigade had turned
off a sprinkler system and made the situation worse. On this fresh damage basis
proximity was established.
Proximity and the police
The police, on a similar basis are not liable for
failing to answer an emergency call (Alexandrou v Oxford) or, when answering
it, for causing no more than the danger that was originally at stake. (Similar
reasoning applies to the coastguard: OLL v Secretary of State for Transport
[1997] 3 All ER 897.)

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