Some Leading Cases on Public Body Liability in Tort. Stephen Todd. Duty in public law?. A-G v Body Corporate No 200200 (CA, 2007) per William Young J at -
A-G v Body Corporate No 200200 (CA, 2007) per William Young J at -
The public law approach is problematical. It would introduce into the law of negligence public law principles which have been developed for different purposes…
On this point we respectfully adopt the approach taken by McHugh J in Crimmins v Stevedoring Industry Finance Committee.
Crimmins v Stevedoring Industry Finance Committee (HCA, 1999)
McHugh J - public law concepts of duty and private law concepts of duty are informed by different rationales. The negligent exercise of a statutory power is not immune from liability simply because it was within power, nor is it actionable in negligence simply because it is ultra vires.
Basis for common law duty
Takaro Properties Ltd v Rowling (PC, 1987) per Lord Keith -
The distinction between policy and operation is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that the question whether it has been made negligently is unsuitable for judicial resolution.
Barrett v Enfield BC (HL, 2001) per Lord Slynn, Lord Hutton
The ultimate question is whether the particular issue is justiciable or whether the court should accept that it has no part to play. Whether an authority acts within its discretion and the policy/operational distinction are guides in deciding that question.
Graham Barclay Oysters v Ryan (HCA, 2003) per Gleeson CJ
Decisions as to raising revenue and setting priorities in the allocation of public funds between competing claims on scarce resources were essentially political. So were decisions about the extent of government regulation of private and commercial behaviour that was proper. Courts had long recognised the inappropriateness of judicial resolution of complaints about the reasonableness of government conduct where such complaints were political in nature.
Fleming v Securities Commission (CA, 1995) per Richardson J
Securities Commission was not intended to be an omniscient and omnipotent guarantor of investors, but rather a supervisory agency with a limited role, not appropriate to the imposition of specific duties of care to all members of the investing public.
Attorney-General v Body Corporate No 200200 (CA, 2007) – no duty owed to house owners by national building industry regulator to warn about or prevent poor building practices by builders
B v A-G (PC, 2004)
Duty by social workers investigating allegations of abuse owed to child but not to the alleged perpetrator of the abuse. In an inquiry into an abuse allegation the interests of the alleged perpetrator and of the children as the alleged victims were poles apart.
D v East Berks (HL, 2005)
Lord Nicholls - Health professionals should not be subject to potentially conflicting duties when deciding whether a child may 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
Couch v Attorney-General (SC 2008) –Duty owed by probation service for deficient supervision of criminal on parole?
Smith v Chief Constable of Sussex (HL, 2008) – Duty on police to protect victim after threats from estranged partner?
Mitchell v Glasgow CC (HL, 2009) – Duty owed by local authority landlord to tenant to warn of danger of violence by another tenant?
Jain v Trent Strategic HA (HL, 2009) – Duty owed by registration authority to owners of nursing home?