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Public Bodies (CASES - Public Law Dimension (X V Bedfordshire, Stovin V…

- - - - Advocated by Lord Diplock in Home Office V Dorset Yacht (1970)
      - Criticised - Lord Browne-Wilkinson in X V Bedfordshire
    - - Lord Wilberforces distinction in Anns is not the 'touchstone of liability"
        Three ideas
        
        It's a method of filtering out claims unsuitable for judicial resolution
        
        Underlying the distinction is the issue of justiciability
        
        examples of non justiciable decisions are discretionary decisions on the allocation of scarce resources or the distribution of risks.
      - Considered in Rowing V Takaro Properties Ltd by Lord Keith
    - - When a public body is acting within the policy sphere (e.g. in assessing budgetary priorities) the courts should refrain from interfering within their activities by subjecting them to a duty of care. Lord Wilberforce in Anns V Merton LBC (1978
    - - The mere existence of some element of discretion is insufficient to preclude the imposition of a duty of care - Lord Slynn in Barrett V London Borough of Enfield (2001)
      - to ask whether the conduct in question fell within the ambit of a discretion conferred by Parliament.
        Lord Reid in Dorset Yacht case.
    - - Discretion - where decisions fall within the ambit of statutory discretion they cannot be actionable in comon law unless it is so unreasonable as it falls outside the ambit of the discretion conferred upon the local authority.
      - If justiciable, the ordinary principles of negligence apply. If the compalint alleges negligence which does not fall within the discretionary sphere but in the practical manner in which it has been performed, it falls to be decided by applying the usual principles laid down in Caparo.
        
        Was the damage reasonably foreeable?
        
        Was the relationship sufficiently proximate
        
        Is it just fair and reasonable?
      - Criticism - Stovin V Wise
        
        Lord Hoffman- It is an inadequate platform on which to base a duty of care. The distinction is elusive. Almost all excercise of public action involves some kind of discretion.
        Lord Hoffman however based his judgement on the distinction ultimately.
        
        Lord Nicholls disagree with Lord Browne Wilkinson in X because it provides a 'no go' area of public duties. He commented that there should be no such immunity and all aspects of the excercise of statutory power should be justiciable.
- - - - Lord Browne Wilkinson - Just Fair and Reasonable
        
        Woud cut across the whole system seet up for the protection of children. Difficult to attribute liability to one rather than another.
        
        The task of dealing with children is delicate and there are conflicting demands on the public authority
        
        Authorities would adopt an unnecessarily cautious and defensive approach to their duties.
      - Z V UK violation of the childs rights under Article 3 HRA prohibition against torture and inhuman or degrading treatment
      - TP V UK violation of applicants rights under Article 8 HRA Right to private and family life.
      - Barrett V London Borough of Enfield (2001), distinguished Bedfordshire on the basis that the child had already been taken into care.
        W V Essex County Council - The court did not even attempt to distinguish Bedfordshire since it was considered self evident. A duty of care was owed to parents who had not been informed of the foster childs past leading to sexual abuse of their children.
        Phelps V Hillingdon London Borough Council - The school failed to identify the childs special needs since it assumed a responsibility by educational psychologists and other members who held themselves out as having special skills.
        
        Phelps V Hillingdon Lord Clyde I am not persuaded that the recognition of a liability of the education authorities would lead to a flood of claims, nor that it would add burdens to the already intesnive life of teachers. Nor should it inspire a defenseive attitude to the perfornmace of their responsibility.
        Any fear of flood claims may be countered by the standard of care under Bolam.
        
        D V East Berkshire Community Health NHS Trust (2004) Lord Nicholls and Brown argued that contrary to Phelps, it should not be left to the standard of care to deal with the issue by allowing a duty of care to arise because this would have an impact on the doctros duties and lead to unnecessary litigation. :
        
        MAK V UK following on from D V East Berkshire the Strassburg court found for the claimants and awarded damages.