Public Health in UK Law

First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter—in which case a prima facie duty of care arises.

Let us examine the Public Health Act 1936 in the light of this. Undoubtedly it lays out a wide area of policy. It overlooks the fact that local authorities are public bodies operating under statute with a clear responsibility for public health in their area. They must, and in fact do, make their discretionary decisions responsibly and for reasons which accord with the statutory purpose; c.f. Ayr Harbour Trustees v. Oswald 8 A.C. 623, 639, per Lord Watson:

The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities exercise a supervisory role and interfere to rescue a child when the parental tie is broken by abuse or separation.

The code covers 16 discrete topics, the third of which is "Privacy". This is one of the topics where the code makes clear that there may be exceptions to the rules set out in the code where they can be demonstrated to be in the public interest. This phrase is said to include (i) detecting or exposing crime or a serious misdemeanour; (ii) protecting public health and safety; and (iii) preventing the public from being misled by some statement or action of an individual or organisation.

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.

Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.

The fallacy, as it seems to me, lies in the underlying (but unspoken) premise that Parliament must have intended that sewerage undertakers should have facilities to discharge (which, plainly, they do require in order to carry out their functions) without paying for those facilities.