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Whether a duty of care should be barred on policy
grounds has troubled the courts. A distinction has been made between policy and
operational decisions. In the former it would rarely be correct for a
resource-allocating decision by a public authority to be challenged in a civil
action for damages. In the latter it may be. The language used has now changed
to decision making/implementation (X v Bedfordshire County Council [1995] 3 All
ER 353) but the basic methodology is similar. In the case of decision making, a
stringent application of justiciability and public interest will be applied. A
three-stage test is applied: 1 Whether the exercise of the statutory discretion
in question would have involved policy considerations such as resource
allocation, priority management, etc. If so, no action in negligence should lie
on fundamental justiciability lines and usurping Parliament’s authority. 2
Whether, exercising the (justiciable) statutory discretion, the public
authority had done so in a way that took it outside the discretion Parliament
was assumed to have conferred. To do so the court was to apply the Wednesbury
unreasonableness test. 3 The court must then decide whether it was appropriate
to impose a duty of care. This is the conventional third limb whereby it has to
be fair, just and reasonable.
Policy and the emergency services
Assuming that a case has passed through the proximity
barrier it may still fail on policy grounds. These may be on the justiciability
issue, which was alluded to in Hill, where Lord Keith felt that a court was not
equipped to judge the reasonableness of discretionary policing. There may also
be general public interest factors which militate against a duty of care. These
include a fear of defensive policing. (Elguzouli-Daf v Commissioner of Police
for the Metropolis [1995] QB 355.) Similar fears were expressed in Capital
& Counties with regard to the fire brigade, in that they might prioritise
the protection of citizens with valuable property. The financial costs of
actions which takes money away from operations is also raised. None of these
policy issues was found to bar a duty in the Capital & Counties case, which
survived the proximity hurdle. The court applied a policy/operational test and
concluded that it would be fair, just and reasonable to impose a duty. 2
Emergency services and immunity In a number of the emergency services cases the
court has concluded that the particular circumstances did give rise to broad
public interest concerns and abandoned the policy/ operational test in favour
of a wholesale refusal to recognise a duty of care. (Hill v Chief Constable of
West Yorkshire Police; Osman v Ferguson; Alexandrou v Oxford [1993] 4 All ER 328;
Ancell v McDermott [1993] 4 All ER 355; Hughes v National Union of Mineworkers
[1991] 4 All ER 355.) The important distinction here is that the
policy/operational test balances the interests of claimant and defendant,
whereas the immunity rationale subordinates the claimant’s interests to a
broader public interest inquiry. This may still result in a decision in the
claimant’s favour as in Swinney v Chief Constable of Northumbria Police [1997]
QB 464, where the police were refused immunity. The public interest in granting
the immunity was outweighed by the competing public interest in keeping an
informant’s information confidential. This decision, however, was unusual and
may have been dictated by the approach of the Human Rights Act 1998.
v United Kingdom [1999] FLR 193
The European Court of Human Rights reviewed the Court of
Appeal decision in Osman. It had been held that harm to the plaintiff was
foreseeable and that there was proximity between the parties but that the
public interest dictated that the police should not be liable for negligence in
such situations. The decision was challenged on the basis that it violated an
individual’s right to a fair and public hearing under Article 6 of the
Convention. The European Court held that the application of a generalised
public interest ground for denying a duty of care amounted to a
disproportionate restriction on the plaintiff’s right of access to the courts.
The Court of Appeal had failed to demonstrate that it had properly considered the
scope and application of such immunity to the facts of the case by balancing
out any competing public interest arguments.
The decision in Osman caused great difficulties to the
English judiciary. (See Barrett v Enfield London Borough Council [1999] 3 All
ER 193.) In essence, Article 6 was thought to confer procedural rights on a
litigant rather than substantive legal rights such as whether a cause of action
existed. It subsequently transpired that the European Court of Human Rights had
misunderstood English tort law in Osman. They had failed to accept that a
decision that the third limb of the test for duty of care is a part of
substantive law. If a court decides that it would not be fair, just and
reasonable to impose a duty of care this is different to having a procedural
immunity which bars a litigant’s access to the court in breach of Article 6. (Z
v UK [2001] 2 FLR 612. See also DP and another v United Kingdom [2002] 3 FCR
385.) The issues in these cases are complex and it could be argued that the decision
in Z has settled the argument. However, it is impossible to ignore the effect
that the Human Rights Act has had, and continues to have, on the fabric of
substantive English tort law. The following case illustrates graphically the
problems that the courts have when attempting to incorporate rights-based law
into traditional English tort principles. You must remember that a claimant can
now claim damages for a breach of a Convention right by a public authority as
well as or in the alternative to tort damages. Even if a court determines that
there is no duty of care, the claimant may still be able to sue for breach of a
Convention right. D v East Berkshire Community Health NHS Trust; K and another
v Dewsbury Healthcare NHS Trust; K and another v Oldham NHS Trust [2003] 4 All
ER 796 (CA); [2005] 2 All ER 443 (HL) Each of three appeals before the court
involved accusations of abusing a child made against a parent by the
professionals concerned for the welfare of that child. All the accusations
proved to be unfounded. In each case a parent claimed damages from an NHS trust
for psychiatric harm alleged to have been caused by the false accusations or
their consequences and in the second case, where the local authority was also a
defendant, the child also claimed. The events all took place before the Human
Rights Act 1998 came into force. In each case the primary case was advanced in
negligence, and preliminary issues were tried, including whether any duty of
care was owed to the claimant or claimants. It was common ground that the test
to be applied was whether it was ‘fair, just and reasonable’ to impose such a
duty. In each case the court of first instance held that no duty was owed to
the parents, applying the principles contained in X that a common law duty of
care could not be imposed upon a statutory duty as the observance of the common
law duty of care would be inconsistent with, or have a tendency to discourage,
the due performance by a local authority of its statutory duties. The claimants
appealed to the Court of Appeal. The Convention rights considered included
Article 3 (Article 3 provides: ‘No one shall be subjected to torture or to
inhuman or degrading treatment or punishment’), prohibiting torture and inhuman
or degrading treatment, and Article 8 (Article 8, so far as material, provides:
‘Everyone has the right to respect for his private and family life, his home
and correspondence . . .’), providing the right to respect for private and
family life. The Court of Appeal held: (1) No violation of Article 6 of the
Convention was involved in the procedure of determining, by way of preliminary
issues, whether the test of what was ‘fair, just and reasonable’, applied with
the required respect for case precedent, precluded the existence of a duty of
care. (2) The effect of X in each of the instant appeals was now restricted to
the proposition that decisions by local authorities whether or not to take a
child into care were not reviewable by way of a claim in negligence. (3) The
effect of the 1998 Act was that it was no longer legitimate to rule that, as a
matter of law, no common duty of care was owed to a child in relation to the
investigation of child abuse and the initiation and pursuit of care
proceedings. Given the obligation of a local authority to respect a child’s
Convention rights, the recognition of a duty of care to the child on the part
of those involved should not have a significantly adverse effect on the manner
in which they performed their duties. In the context of suspected child abuse,
breach of a duty of care in negligence would frequently also amount to a
violation of Articles 3 or 8 of the Convention, although those asserting that
wrongful acts or omissions occurred before the 1998 Act came into force would
have no claim under that Act. The common law duty of care did not replicate the
duty not to violate Articles 3 and 8. Liability for breach of that duty and
entitlement to compensation could arise in circumstances where the tort of
negligence was not made out. However, there were cogent reasons of public
policy for concluding that, where consideration was being given to whether the
suspicion of child abuse justified taking proceedings to remove a child from
the parents, while a duty of care could be owed to the child, no common law
duty of care was owed to the parents. (4) In the instant appeals a concurrent
duty imposed in respect of the parent would conflict with the duties owed to
the child. However, in the second appeal, the judge had erred in finding that
witness immunity precluded any liability on the part of those employed by the
local authority. The parents appealed to the House of Lords contending that the
duty of health professionals to exercise due professional skill and care was
owed to a child’s primary carers, usually parents, as well as to the child
himself or herself, and that there was no good policy reason to deny the
existence of such a duty, which was the same duty as that owed to the child.
Held (Lord Bingham dissenting):  Where
the relationship between doctor and parent was confined to the fact that the
parent was father or mother of the doctor’s patient, the appropriate level of
protection for a parent suspected of abusing his or her child was that clinical
and other investigations had to be conducted in good faith. There were cogent
reasons of public policy for holding that no common law duty of care should be
owed to the parent and it was not fair, just and reasonable to impose such a
duty. The seriousness of child abuse as a social problem demanded that health
professionals, acting in good faith in what they believed were the best
interests of the child, should not be subject to potentially conflicting duties
when deciding whether a child might have been abused, or when deciding whether
their doubts should be communicated to others, or when deciding what further
investigatory or protective steps should be taken. The suggested duty owed to
parents did not have the same content as the duty owed to the child, which was
to exercise due skill and care in investigating the possibility of abuse. At
the time when the doctor was considering the possibility of abuse by the
parent, the interests of parent and child were diametrically opposed. There
might, exceptionally, be circumstances where the general rule did not apply. In
the instant cases there were no such special circumstances, and accordingly,
the appeals would be dismissed. The very significant effect of this case is
that children are now owed a duty of care in negligence by local authorities
when they are investigating child abuse and making decisions as to whether or
not to take a child into care. No duty other than one to carry out
investigations in good faith is owed to the parent/carer as this would raise a
conflict of interest in the circumstances of these cases.

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